Opinion

P. ex rel. Bonta v. Greenpower Motor Co., Inc.

Court
California Court of Appeal
Filed
Jul 28, 2025
Status
Published
Cited by
0 cases
Authority
More cited than 38.3%

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.

21

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

22

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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