The opinion
Filed 7/28/25
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE ex rel. ROB
BONTA, as Attorney General,
Plaintiff and Respondent, A171390
v. (City & County of
GREENPOWER MOTOR San Francisco Super. Ct.
COMPANY, INC. et al., No. CPF-24-518469)
Defendants and
Appellants.
GreenPower Motor Company Inc. (GreenPower) and
San Joaquin Valley Equipment Leasing, Inc. (San Joaquin
Leasing) appeal an order granting a petition filed by the People
ex rel. Rob Bonta, as Attorney General (the Attorney General)
seeking to compel appellants’ compliance with administrative
subpoenas issued under Government Code 1 section 11181.
Appellants contend the petition should not have been granted
because the court lacked jurisdiction under the doctrine of
exclusive concurrent jurisdiction, and alternatively, that the
subpoenas fail to meet constitutional standards for enforcement
1 All undesignated statutory references are to the
Government Code.
because they seek irrelevant records and are excessive for the
purposes of their inquiry. We find no error and affirm the order.
BACKGROUND
Launched by the California Air Resources Board (“CARB”)
in 2009, the California Hybrid and Zero-Emissions Truck and
Bus Voucher Incentive Project (“HVIP”) accelerates the adoption
of electric vehicles (EVs) in California by subsidizing a portion of
the price of qualifying vehicles. According to the Attorney
General, the program works as follows: “At the time of sale, the
price paid by the purchaser is reduced by the amount of the
subsidy. Thereafter, the dealer sends a voucher to CARB, which
pays the subsidy to the dealer. A single HVIP voucher can
reimburse up to $100,000 per qualifying electric vehicle. To
obtain an HVIP voucher, the dealer and end user (i.e., purchaser
or lessee) must submit: (1) a form to CARB certifying under
penalty of perjury that the electric vehicle was delivered; (2) a
photo of the electric vehicle’s odometer; and (3) the Vehicle
Identification Number (“VIN”). Among other requirements, an
electric vehicle end user must also operate the electric vehicle
within the State of California for a minimum of three years.”
GreenPower manufactures electric vehicles for commercial
purposes. San Joaquin Leasing is a wholly-owned subsidiary of
GreenPower and leases GreenPower vehicles to third parties.
GreenPower was a participant in the HVIP program until
March 9, 2023, when its ability to obtain vouchers was suspended
following an investigation by CARB into GreenPower’s
compliance with HVIP requirements. In September 2023,
2
GreenPower and San Joaquin Leasing filed a petition for writ
of mandate in Sacramento County Superior Court seeking to
compel CARB to “issue vouchers for electric vehicles . . . produced
and distributed by GreenPower in full compliance with all
applicable terms and conditions of the HVIP.”
Around the same time, in August 2023, the corporate fraud
section of Attorney General’s Office commenced an investigation
into violations of the HVIP. In September 2023, as part of this
investigation, the Attorney General issued investigative
subpoenas to GreenPower and San Joaquin Leasing. The
subpoenas requested documents relating to appellants’
“compliance with various aspects of the HVIP project from
April 1, 2016 onward, including without limitation contracts and
correspondence with customers and others relating to EVs for
which HVIP vouchers were requested or redeemed and
documents relating to the changing of VINs on EVs for which
HVIP vouchers may have been obtained.” The subpoenas set the
deadline for production on or before October 27, 2023.
In February 2024, after several informal attempts at
enforcing compliance failed, the Attorney General filed the
present petition.
In March 2024, appellants filed a demurrer arguing that
the court lacked “jurisdiction to hear the Petition due to the
doctrine of exclusive concurrent jurisdiction, based on the earlier-
filed Petition for Writ of Mandate filed by Respondents in the
Superior Court for the County of Sacramento, which assumed
jurisdiction to the exclusion of all others.”
3
In April 2024, the trial court issued an order requiring
appellants to show cause as to why they failed to comply with the
subpoenas.
On May 17, the hearing on the demurrer was taken off
calendar because the parties failed to meet and confer as required
by Code of Civil Procedure section 430.41. However, the court
minutes indicate that the issues raised in the demurrer could be
addressed at the hearing on the order to show cause set for
May 22.
On May 22, after receiving briefing from the parties, the
matter was heard and taken under submission. 2 Thereafter, on
July 31, 2024, the court issued an order requiring GreenPower
and San Joaquin Leasing to produce documents responsive to the
subpoenas.
DISCUSSION
Section 11180 authorizes the Attorney General to
investigate matters related to the business activities and subjects
under its jurisdiction. Section 11181, subdivision (e) authorizes
the Attorney General to issue an administrative subpoena in
furtherance of such an investigation and section 11187 authorizes
the Attorney General to petition the superior court for an order
compelling compliance with the subpoena. Under section 11188,
upon the filing of the petition, the court “shall enter an order” to
show cause and then, “[i]f it appears to the court that the
2 Because appellants opted to proceed on appeal without a
record of the oral proceedings, the record on appeal does not
include a transcript of the May 22 hearing.
4
subpoena was regularly issued, . . . the court shall enter an order”
requiring compliance with the subpoena.
A trial court’s order requiring compliance with a subpoena
is appealable as a final judgment in a special proceeding. (Code
Civ. Proc., § 904.1, subd. (a)(1); People ex rel. DuFauchard v. U.S.
Financial Management, Inc. (2009) 169 Cal.App.4th 1502, 1511;
State ex rel. Dept. of Pesticide Regulation v. Pet Food Express
(2008) 165 Cal.App.4th 841.) “We review de novo the question
whether the subpoena meets the standards for enforcement.”
(Pet Food Express, at p. 854.)
I. Exclusive Concurrent Jurisdiction
Before addressing the merits of the arguments regarding
the validity of the subpoena, we address appellants’ argument
that the court lacked jurisdiction to enforce the subpoenas under
the doctrine of exclusive concurrent jurisdiction. 3
Under the doctrine of exclusive concurrent jurisdiction,
“when two or more courts have subject matter jurisdiction over a
dispute, the court that first asserts jurisdiction assumes it to the
exclusion of the others. [Citation.] The rule is based upon the
public policies of avoiding conflicts that might arise between
courts if they were free to make contradictory decisions or awards
relating to the same controversy and preventing vexatious
litigation and multiplicity of suits. [Citation.] . . . [¶] . . . ‘ “[T]he
rule of exclusive concurrent jurisdiction does not require absolute
3 In light of our determination below that the doctrine is
not applicable to the present special proceedings, we need not
address appellants’ additional procedural arguments regarding
the court’s ruling on its demurrer.
5
identity of parties, causes of action or remedies sought in the
initial and subsequent actions. [Citations.] If the court
exercising original jurisdiction has the power to bring before it all
the necessary parties, the fact that the parties in the second
action are not identical does not preclude application of the rule.
Moreover, the remedies sought in the separate actions need not
be precisely the same so long as the court exercising original
jurisdiction has the power to litigate all the issues and grant all
the relief to which any of the parties might be entitled under the
pleadings.” ’ ” (Shaw v. Superior Court of Contra Costa Cnty.
(2022) 78 Cal.App.5th 245, 255–256.) “The rule is ‘a judicial rule
of priority or preference and is not jurisdictional in the
traditional sense of the word,’ in that it ‘does not divest a court,
which otherwise has jurisdiction of an action, of jurisdiction.’
[Citation.] Because it is a policy rule, application of the rule
depends upon the balancing of countervailing policies.” (Id. at
p. 256.)
Although the Sacramento action and the present
proceeding both generally involve the same subject matter—
HVIP program requirements—the specific issue raised in the
present proceeding is factually and legally distinct from the
issues involved in the Sacramento action. In the Sacramento
action, GreenPower and San Joaquin Leasing seek to compel
CARB under Code of Civil Procedure section 1085 to “issue
vouchers for electric vehicles . . . produced and distributed by
GreenPower in full compliance with all applicable terms and
conditions of the HVIP.” They argue that CARB has a
6
ministerial duty to issue vouchers for eligible EVs and that
CARB acted arbitrarily in suspending GreenPower from the
program. By contrast, the present proceeding is a limited special
proceeding to enforce administrative subpoenas under section
11188. (People ex rel. Franchise Tax Bd. v. Superior Court (1985)
164 Cal.App.3d 526, 539, disapproved on other grounds in Dana
Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th
1 [jurisdiction of the superior court in a hearing under section
11188 is limited to determining whether the subpoena conforms
to legal and constitutional standards]; see also § 11187, subd. (d)
[validity of objections to the Attorney General’s subpoenas “shall
be determined exclusively in a proceeding brought by the head of
the department to compel compliance as provided in this
section”].) Insofar as the sole issue presented in this proceeding
is the validity of the subpoenas, an issue not subject to
determination in the Sacramento action, there is no risk of
contradictory rulings and the doctrine of exclusive concurrent
jurisdiction is not applicable. 4
4 At oral argument, the Attorney General contended that
section 11187, subdivision (d), required that the petition be filed
in San Francisco rather than in Sacramento. Section 11187,
subdivision (a), authorizes the head of the department conducting
an investigation to file a petition to enforce compliance with a
subpoena in “the superior court in the county in which the
hearing or investigation is pending or the county in which
testimony is designated in the subpoena to be given or documents
or other items are designated in the subpoena to be produced.”
(See Whitney v. Montegut (2014) 222 Cal.App.4th 906, 913
[Los Angeles County Superior Court had jurisdiction to decide
petition to compel compliance with an investigational subpoena
7
II. Validity of Subpoenas
The Attorney General’s power to make an administrative
inquiry is akin “to the power of a grand jury, which does not
depend on a case or controversy in order to get evidence but can
investigate ‘merely on suspicion that the law is being violated, or
even just because it wants assurance that it is not.’ ” (Brovelli v.
Superior Court (1961) 56 Cal.2d 524, 529 (Brovelli).) The parties
agree that “the subpoenas are valid if: (1) they inquire into
matters the agency is authorized to investigate; (2) they are ‘not
too indefinite’; and (3) the information sought is ‘reasonably
relevant’ to the investigation.” (State Water Resources Control
Bd. v. Baldwin & Sons, Inc., (2020) 45 Cal.App.5th 40, 55, citing
Brovelli, supra, 56 Cal.2d 524; Craib v. Bulmash (1989) 49 Cal.3d
475, 478 [“[f]orty years of United States Supreme Court decisions
establish that the subpoenaed records need only be relevant to an
authorized regulatory purpose and described with reasonable
specificity”].)
An investigative subpoena is sufficiently definite if it
“clearly and specifically [identifies] the categories of documents
where “the record contains substantial evidence to support the
trial court’s finding that ‘the investigation has been conducted in
both Orange County and Los Angeles County’ ”].) Here, the
subpoenas required that documents be delivered to the Attorney
General’s office in San Francisco, and the Attorney General
represented at oral argument that the investigation is being
conducted in San Francisco. It is unnecessary for us to reach this
argument in light of our conclusion that the doctrine of exclusive
concurrent jurisdiction does not apply, and in any event, the
Attorney General did not raise the argument in the trial court or
even on appeal until oral argument.
8
subject to production and has limited its requests in both scope
and time.” (State Water Resources Control Bd. v. Baldwin &
Sons, Inc., supra, 45 Cal.App.5th at p. 57; Craib v. Bulmash,
supra, 49 Cal.3d 475, 482 [documents to be produced must be
“adequate, but not excessive, for the purposes of the relevant
inquiry”]; California Restaurant Assn. v. Henning (1985)
173 Cal.App.3d 1069, 1075 [“ ‘It is now settled that, when an
administrative agency subpoenas corporate books or records, the
Fourth Amendment requires that the subpoena be sufficiently
limited in scope, relevant in purpose, and specific in directive so
that compliance will not be unreasonably burdensome’ ”].) The
“reasonably relevant” standard for investigative subpoenas is
afforded an “expansive definition” and is broader than the
standards set forth against a party seeking discovery pending
litigation. (State Water Resources Control Bd., supra, at p. 57.)
The hearing on the order to show cause pursuant to
section 11188, however, is not “a hearing in the nature of a
motion to quash.” (Fielder v. Berkeley Properties Co. (1972)
23 Cal.App.3d 30, 40 (Fielder).) The party challenging the
subpoena is not entitled to “dispute and contradict the factual
matters contained in the declarations supportive of the
subpoenas.” (Ibid.)
A. The Investigation
On appeal, the Attorney General characterizes the
investigation as commencing in 2023 after the office received
credible information that millions of dollars of taxpayer funds
were distributed to certain HVIP participants by means of fraud
9
in violation of the California False Claims Act (Gov. Code § 12650
et seq.) (False Claims Act). 5 The Attorney General distinguishes
his investigation from that being conducted by CARB, which “also
involves potential fraud on the HVIP program,” but concerns
GreenPower’s “compliance with CARB’s HVIP program and its
implementation manual,” rather than violations of the False
Claims Act.
Initially, appellants fault the Attorney General for failing
to disclose the basis of the investigation—potential violations of
the False Claims Act—in the trial court. They argue that this
court “should rightly be concerned with how coy, deceptive, and
evasive the State has been in its investigation of Appellants” and
5 In the trial court, appellants objected to the statement in
the declaration submitted by the Attorney General that its
investigation was based on “credible information” regarding
apparent violations of the HVIP on the ground that the declarant,
a deputy Attorney General, lacked personal knowledge of the
“credible information” so that her statement was based on
inadmissible hearsay. In appellants’ opening brief, they
reference this objection only briefly as follows: “Further, the sole
evidence supporting the State’s assertion that it has a separate
investigation is the hearsay declaration of an attorney who had
no personal knowledge of, and rendered improper opinions
regarding, statements made by another attorney who actually
participated directly in the CARB investigation. Appellants
properly objected to this inadmissible evidence.” We do not
understand this argument as asserting any challenge to any
evidentiary ruling implied by the trial court’s order, nor would it
be sufficient to do so. (Rojas v. Platinum Auto Group, Inc. (2013)
212 Cal.App.4th 997, 1000, fn. 3 [conclusory statements do not
satisfy appellant’s burden on appeal to provide sufficient legal
argument, supported by citation to legal authorities,
demonstrating that the trial court erred].)
10
that we “should decline to consider the State’s new arguments,
which raise issues of fact that Appellants did not have the
opportunity to litigate below.” Appellants also argue that there is
only one investigation and that “any suggestion that CARB and
[the Attorney General] have been acting independently in their
mutual, coordinated investigation is mere pretense.” 6
Notwithstanding the emphasis placed on this issue by
appellants, whether the Attorney General contemplated that the
False Claims Act would serve as the basis for liability for
violations of the HVIP requirements under investigation is not
determinative of the issue before us. There is no dispute that the
Attorney General has authority to investigate compliance both
with the False Claims Act and with HVIP. Nor is any potential
overlap between the CARB investigation and the Attorney
General’s investigation particularly material to the question
before us. Appellants have cited no authority suggesting that the
existence of a similar or related investigation being conducted by
CARB, or the Attorney General’s possible involvement in that
investigation, renders the subpoenas at issue invalid.
Moreover, the Attorney General’s failure to refer to the
False Claims Act did not mean the trial court lacked an adequate
basis to evaluate whether the requests were “reasonably
relevant” to the investigation. (State Water Resources Control
6 Although the Attorney General did not mention the False
Claims Act in the trial court, the deputy Attorney General did tell
appellants’ counsel by email that the subpoenas “are separate
and apart from whatever investigation CARB [] may be
conducting.”
11
Bd. v. Baldwin & Sons, Inc., supra, 45 Cal.App.5th at p. 55.) The
petition explained that the investigation into “potential violations
of HVIP” began after the Attorney General “received credible
information showing that certain participants in HVIP obtained
vouchers . . . based on false representations that EVs had been
delivered to and were being used by an end user when in fact
they were never delivered or operated. The information . . . also
suggests that certain participants in HVIP may have made false
representations and changed Vehicle Identification Numbers
(VINs) to impermissibly ‘double-dip’ by obtaining more than one
HVIP voucher for a single EV, and may have committed
additional acts in violation of HVIP’s governing regulations and
other statutes.” The memorandum in support of the motion for
an order to show cause added that “[t]he Attorney General is
investigating whether Greenpower and [San Joaquin Leasing]
improperly obtained vouchers under HVIP so as to unlawfully
receive millions of dollars of California taxpayers’ money in
connection with the sale of certain electric vehicles,” and the
reply to the OSC response argued that the requests “are
reasonably relevant to the People’s investigation of whether there
was an exploitation of the HVIP program by means of fraud.”
Even without a reference to the False Claims Act, these
statements sufficiently described the nature and scope of the
investigation to enable the court to evaluate the relevance of the
requests.
12
B. The GreenPower Subpoena
The subpoena seeks: (1) all documents relating to HVIP
submitted to or received from CARB, Calstart, Inc. or Tetra Tech,
Inc.; 7 (2) all communications, including those internal to
GreenPower and those between GreenPower and certain
identified customers, relating to HVIP or any electric vehicle for
which a HVIP voucher was requested or redeemed; (3) all
documents relating to GreenPower’s lease of EVs for which HVIP
vouchers were received; (4) all contracts and agreements between
Green Power and certain identified customers; (5) all documents
relating to the sale or re-sale of any EV for which an HVIP
voucher was requested or redeemed; (6) all documents relating to
the lease of any EV for which an HVIP voucher was requested or
redeemed; (7) all documents relating to the termination of any
lease for any EV for which an HVIP voucher was redeemed;
(8) all documents relating to the physical delivery of any EV sold
or leased to identified customers for which an HVIP voucher was
redeemed; (9) all documents relating to any payment made or
received by GreenPower relating to any EV for which an HVIP
voucher was redeemed; (10) all documents relating to the finish
manufacturing of any EV for which an HVIP voucher was
requested or redeemed; (11) all documents relating to the storage
of any EV for which an HVIP voucher was redeemed; (12) all
documents relating to the repossession of any EV for which an
HVIP voucher was redeemed; (13) all documents relating to the
7 According to the parties, Calstart, Inc. and Tetra
Tech, Inc. are entities that process HVIP vouchers for the State.
13
VIN of any EV sold or leased to identified customers; (14) all
documents relating to the designating, affixing, stamping,
riveting, labeling, changing, altering, removing, concealing or
obscuring the VIN for any EV; (15) all communications by or
between GreenPower and any Federal, State or local government
agency relating to the modification, concealment, obscuration or
replacement of any vehicle’s VIN; (17) all communications by or
between GreenPower and any person or entity relating any
vehicle’s VIN; (18) all documents relating to the modification,
concealment, obscuration or replacement of any vehicle’s VIN;
and (20) GreenPower’s corporate documents. 8 The subpoena
identified the relevant period as April 1, 2016 through the final
response date of the subpoena.
The Attorney General argues that request numbers 1, 2, 3,
5, 6, 7, 9, 10, 11, and 12 directly relate to GreenPower’s
“participation in HVIP by requesting communication and/or
documents relating to ‘electric vehicles for which an HVIP
voucher was requested or redeemed’ to better identify the bases
under which each respondent obtained an HVIP voucher and
whether each HVIP voucher was obtained in compliance with the
HVIP requirements.” Similarly, the Attorney General argues
that request numbers 14, 15, 16, 17, 18, and 19 “directly relate to
any conduct that may put at question the veracity of the VINs
submitted by [GreenPower]; specifically, helping to further
8 Request numbers 16 and 19 are duplicative of other
requests and have been eliminated from the above list. We
maintain the original numbering for ease of responding to the
parties’ arguments.
14
investigate whether there were multiple VINs used on the same
qualifying electric vehicle, which would frustrate HVIP’s
purpose.” Next, the Attorney General argues that request
numbers 4, 8, and 13 “directly relate to the agreements entered
into by and between Respondents and thirteen known lessees
and/or purchasers of HVIP-qualifying electric vehicles to better
identify whether each HVIP-qualifying electric vehicle was
physically delivered and whether each HVIP-qualifying electric
vehicle was operated, and stayed in operation, in the State of
California for at least three years as required.” Finally, the
Attorney General argues that request number 20 “directly relates
to the People’s investigation by further identifying the
interconnected network of HVIP participants who may have
information about the fraudulent scheme involving the HVIP
program.”
Other than requests number 4 and 20, each of the requests
include language limiting responsive documents to those directly
relating to the HVIP program or to VINs of EVs sold or leased by
GreenPower and, as such, they are relevant to an authorized
regulatory investigation and described with reasonable
specificity. While it is possible that request number 4, which
seeks all contracts and agreements between GreenPower and
certain identified customers, might be understood as requesting
documents that exceed the scope of the Attorney General’s
investigation, GreenPower fails to address this, or any request,
individually.
15
Rather, GreenPower argues generally that the subpoena is
“excessive and unlimited in scope” so that, short of producing
every document in its possession, “compliance is actually
impossible.” It argues further that “the time frame of the
subpoena[] is arbitrary and capricious” because the subpoena
seeks documents going back to April 1, 2016, which “bears no
relationship to the dispute or the investigation” and which
“conflicts with the HVIP regulations, which only require
maintenance of records for three years, and a commitment to
operate the subject EVs for three years after voucher
redemption.”
The Attorney General disagrees that the subpoenas “seek
to obtain ‘every single document, record, communication between
Appellants and everyone relating in any way to the HVIP
program and EV leasing’ ” and responds that “the fact that a
subpoena requires the production of many relevant documents in
no way means the subpoena is deficient.” In response to
questioning by the court at oral argument, counsel for the
Attorney General disputed appellants’ suggestion that the
April 2016 date was randomly or arbitrarily selected. While
declining to provide specific details that he suggested could
compromise confidential aspects of the investigation, he
represented that the date was selected based on relevant factual
information available to investigators, including the timing of
GreenPower’s application to participate in the program. In the
trial court the Attorney General also argued that, while
GreenPower argues broadly that all of the People’s requests are
16
excessive and burdensome, it has offered “no limiting
counterproposal” and “failed to meaningfully meet and confer
with the People to try to resolve these purported ‘scope’ issues.”
In In re Subpoena Duces Tecum (4th Cir. 2000) 228 F.3d
341, 350, the court held that as a “condition to maintaining the
argument that an investigative subpoena is overly broad and
oppressive,” the party opposing the subpoena must “be able to
point to reasonable efforts on his behalf to reach accommodation”
with the party issuing the subpoena. (Accord, United States v.
Morton Salt Co. (1950) 338 U.S. 632, 653 [“Before the courts will
hold an order seeking information reports to be arbitrarily
excessive, they may expect the supplicant to have made
reasonable efforts . . . to obtain reasonable conditions”]; Doe v.
United States (6th Cir. 2001) 253 F.3d 256, 268–269 [declining to
find administrative subpoena “overly burdensome” where objector
“made no attempt to reach a reasonable accommodation with the
government regarding this aspect of the subpoena” and has only
offered “a general and conclusory statement as to why this
request constitutes an undue burden”].)
Here, the Attorney General explained that the
investigators “proposed a set of streamlined search strings that
would aid in narrowing Respondents’ document production.
Respondents did not respond. On October 17, 2023, in advance of
the October 27, 2023 response deadline, the People requested a
meet and confer to reach an agreement as to the search strings to
be used. Respondents neither responded nor revised, countered,
or otherwise modified the proposed search strings. If the
17
proposed search strings returned too many documents,
Respondents should have—as the People repeatedly requested—
engaged in a good faith meet and confer so that the parties could
jointly identify an applicable set of search strings. Respondents
did not.”
In an email sent to the Attorney General dated October 31,
2023, which was attached to a declaration submitted by the
Attorney General, appellants’ counsel wrote, “[W]e need to
discuss the scope of the requests and the search terms. My client
has indicated that . . . searching for the first term in your search
requests resulted in 23,921 emails, and this individual is not very
involved in the HVIP program. Initial impressions lead us to
believe that a comprehensive search of everyone’s electronic
records would return an incredible number of emails and other
documents. . . . My hope is that we can find a way to target those
documents you are most interested in and work from there. [¶]
I will circle back with my folks and get back to you shortly with
proposed dates and times for a conference.”
On November 7, a deputy Attorney General had a
conference call with appellants’ counsel in which they discussed
“production logistics” and discussed the need for an additional
conference involving their respective “IT people.” Thereafter,
however, despite attempts by the Attorney General to resolve this
matter informally, counsel for appellants failed to respond for
three months, leading to the filing of the petition to compel.
On this record, we cannot conclude that the subpoena as a
whole, which seeks production of definite and relevant, if perhaps
18
voluminous, documents is excessive or overly burdensome. While
the approximately seven-year period selected by the Attorney
General, as compared to the three-year period suggested by
appellants on appeal, undoubtedly enlarged the number of
responsive documents, GreenPower has not argued that any
documents are unavailable. (See Fielder, supra, 23 Cal.App.3d at
p. 42 [subpoenas required the production of “[o]nly such records
as were in the custody and control of appellants”].) Nor has it
made a meaningful attempt to limit the scope of the request
through negotiations with the Attorney General. 9 GreenPower’s
conclusory assertion that the subpoena is oppressive is also not
supported by necessary analysis. (See Oklahoma Press
Publishing Co. v. Walling (1946) 327 U.S. 186, 209 [“excess in the
breadth of the subpoena” is a “matter[] variable in relation to the
nature, purposes and scope of the inquiry”]; see also Galland v.
City of Clovis (2001) 24 Cal.4th 1003, 1037 [in determining
whether an administrative subpoena’s “request for information is
excessive, courts perform a balancing test, considering factors
including: (1) the scope of the investigation; (2) the probability
that the records will reveal evidence helpful to the investigation;
9 At oral argument, appellants’ counsel acknowledged a
“failure in the meet and confer process” but argued that his
clients were justified in their refusal to negotiate because they
believed that the subpoenas were part of or related to the alleged
“arbitrary and capricious” investigation being conducted by
CARB that they were challenging in the Sacramento County
Superior Court action. We disagree that appellants’ “concerns”
regarding the “timing” of the issuance of the subpoenas justified
their refusal to meet and confer regarding the allegedly excessive
and burdensome scope of the document requests.
19
(3) the financial or economic burden that compliance imposes on
the subpoenaed party”].)
Accordingly, we conclude that trial court did not err in
granting the petition and ordering GreenPower to comply with
the subpoena.
C. The San Joaquin Leasing Subpoena
The subpoena issued to San Joaquin Leasing is nearly
identical to that issued to GreenPower and merely substitutes
San Joaquin Leasing in place of GreenPower for each request.
San Joaquin Leasing argues that the subpoena directed to it was
invalid because it was never a participant in the HVIP program
that formed the basis of the Attorney General’s investigation.
The Attorney General explains the relevance of
San Joaquin Leasing to the investigation as follows: The
“investigation focuses on potential violators of the [False Claims
Act]. [San Joaquin Leasing] is a leasing arm of GreenPower and
works with GreenPower on transactions involving the HVIP
program. Thus, while [San Joaquin Leasing] was not a direct
participant in the HVIP program, [it] is subject to the People’s
investigation as a potential [False Claims Act] violator, which
would not require HVIP participation. For example,
[San Joaquin Leasing] would violate the [False Claims Act] by
conspiring with GreenPower to submit false HVIP claims or
making fraudulent statements that GreenPower used to get such
claims paid. . . . And that would be true regardless of whether it
participated in the HVIP program or violated any law or
regulation enforced by CARB.”
20
San Joaquin Leasing characterizes the Attorney General’s
argument as relying on the “absurd leap” that San Joaquin could
be “conspiring with GreenPower.” San Joaquin Leasing argues
that if a potential conspiracy is “the standard, then any
corporation or individual anywhere would be subject to an
investigative subpoena for anything. Any statutory or
constitutional limits to the State’s sweeping subpoena power
would dissolve like salt in water.” But San Joaquin Leasing is
not “any corporation” with respect to GreenPower. It is a wholly-
owned subsidiary, responsible for leasing GreenPower’s EVs to
third parties. As such, it is reasonably related to the Attorney
General’s investigation into GreenPower’s compliance with the
HVIP and potential violations of the False Claims Act.
Accordingly, the trial court did not err in granting the petition
and ordering San Joaquin Leasing to comply with the subpoena.
DISPOSITION
The order granting the Attorney General’s petition is
affirmed.
GOLDMAN, J.
WE CONCUR:
BROWN, P. J.
CLAY, J. *
*Judge of the Alameda Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
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Trial Court: City and County of San Francisco Superior
Court
Trial Judge: Honorable John-Paul S. Deol
Counsel for Defendants and Appellants: Gordon Rees Scully Manukhani, Brian M.
Ledger, Christopher T. Johnson
Counsel for Plaintiff and Respondent: Rob Bonta
Attorney General of California
Martin H. Goyette
Senior Assistant Attorney General
Frederick W. Acker
Supervising Deputy Attorney General
Diane J. Kim
Deputy Attorney General
David A. Eligator
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