Case Name:??? Sophia Cortez v. Mohamad Shreim, et al.
Case No.:??????? 2015-1-CV-288914
- Background
??????????? This is an action arising out of an employment dispute brought by Sophia Cortez (?Plaintiff?) against defendants Mohamad Shreim (?Mohamad?), See Mo Cars (?SMC?), Jalal Shreim (?Jalal?), Azzam Abdo (?Abdo?) and John Anliker (?Anliker?) (collectively, ?Defendants?).[1]
According to the allegations in the first amended complaint (?FAC?), Mohamad hired Plaintiff to work at SMC, the car dealership he owned and operated with Jalal and Abdo, in August 2015.? (FAC, ???9-12.)? Plaintiff alleges Mohamad incorrectly classified her as an independent contractor, failed to withhold sums from her wages for taxes, and did not provide her with wage statements or meal and rest breaks.? (FAC, ?? 22-24, 32-34.)? Plaintiff also alleges she was sexually harassed by Anliker, a friend of Mohamad?s who worked as her supervisor.? (FAC, ??15.)? Plaintiff complained about Anliker on several occasions because he referred to other female employees in derogatory terms in front of co-workers and customers and made negative comments about women, insisting they could not pay for cars or were not creditworthy.? (FAC, ???15-17.)? Plaintiff also complained about Anliker?s purported drug use during work hours.? (FAC, ? 16.)? When Mohamad failed to reprimand Anliker or rectify the situation, Plaintiff quit.? (FAC, ? 18.)? Mohamad convinced her to return to work and promised she would not have to work under Anliker.? (FAC, ? 18.)
Plaintiff returned to work, but Anliker?s conduct worsened.? (FAC, ?? 19-20.)? Additionally, upon her return, there was an incident in which Mohamad called Plaintiff during non-work hours to obtain the passwords for her computer.? (FAC, ? 25.)? Despite Abdo telling Plaintiff never to reveal her passwords, she gave them to Mohamad because he threatened to fire her.? (FAC, ? 25.)? When she arrived at work the following Monday, her computer was not at her work station; Mohamad locked it in his office.? (FAC, ? 26.)? When Abdo learned of what transpired, he advised Plaintiff to go home in order to avoid a confrontation with Mohamad.? (FAC, ? 27.)? Defendants once again tried to convince Plaintiff to return to work, but she informed them she filed administrative complaints with the Labor Commissioner and the Employment Development Department.? (FAC, ?? 28-30.)? Defendants terminated Plaintiff the following day.? (FAC, ? 31.)
Plaintiff asserts causes of action against ?Mohamad (SMC)? for: (1) retaliation; (2)?failure to prevent discrimination; (3) failure to provide meal periods; (4) failure to provide rest periods; (5) failure to maintain copies of wage statements; (6) retaliation for opposition to unlawful practices; (7) retaliation; (8) failure to pay wages upon termination; (9) failure to timely furnish records; and (10) failure to timely furnish personnel records.
Plaintiff asserts causes of action against Mohamad, Jalal, and Abdo for: (1) willful misclassification; (2) failure to pay minimum wage; and (3) failure to pay overtime.? Plaintiff also asserts a cause of action for failure to furnish wage statements against Mohamad alone and a cause of action against SMC and Anliker for sexual harassment.
Currently before the Court are four motions to quash or modify subpoenas for the production of business records brought by Mohamad, Jalal, Abdo and Friendly Wholesalers of California, Inc. (?FWC?).[2]? The Court will first address the motions by defendants Mohamad, Jalal, and Abdo given the substantial overlap in arguments and issues presented and then address the motion by FWC.
- Motions to Quash by Mohamad, Jalal, and Abdo
- Discovery Dispute
On August 8, 2016, Plaintiff served the Department of Motor Vehicles (?DMV?) with three identical subpoenas seeking Mohamad, Jalal, and Abdo?s dealer licenses, dealer license applications, salesperson licenses, salesperson license applications, correspondence with the DMV, and general DMV records.? (Jalal Mem. of Pts. & Auth., Exh. 1; Abdo Mem. of Pts. & Auth., Exh. 1; Baysinger Decl., Exh. G.)[3]? Plaintiff also served Mohamad, Jalal, and Abdo with notices to consumer or employee.? On August 31, 2016, one week before the date for production, Defendants filed their motions to quash the subpoenas and served copies of the same on the DMV and deposition officer.? Plaintiff opposes each motion, requests judicial notice of court records in support of each opposition, and requests an award of monetary sanctions.
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- Requests for Judicial Notice
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??????????? In support of her opposition to each defendant?s motion to quash, Plaintiff requests judicial notice of the FAC and a declaration Mohamad filed in connection with a prior discovery motion.? Pursuant to Evidence Code section 452, subdivision (d), a court may take judicial notice of court records.? The FAC and declaration are therefore proper subjects of judicial notice.? Plaintiff?s requests for judicial notice are therefore GRANTED.
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- Merits of Motions
Mohamad, Jalal, and Abdo, who are self-represented, move to quash or modify the subpoenas for their records pursuant to Code of Civil Procedure section 1987.1, which authorizes a party to move to quash, modify, or limit the scope of a subpoena.? A party may make a motion pursuant to section 1987.1 in order to protect himself or herself from ?unreasonable or oppressive demands, including unreasonable violations of the right to privacy of the person.? ?(Code Civ. Proc., ??1987.1, subd. (a).)
As an initial matter, Plaintiff argues Mohamad, Jalal, and Abdo failed to file separate statements.? California Rules of Court, rule 3.1345 states a party must file a separate statement along with ?[a]ny motion involving the content of a discovery request or the responses to such a request? including a motion to ?quash the production of documents or tangible things at a deposition.?[4]? While Mohamad, Jalal, and Abdo each filed a separate statement, their separate statements are of ?material facts.?? Their separate statements do not set forth the document requests in the subpoenas and reasons why those requests are objectionable.? While a court has discretion to deny a motion to quash due to deficiencies in a party?s separate statement, it is not required to do so. ?(See Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.)? Here, given Jalal and Abdo included the actual subpoenas at issue with their moving papers and the identical subpoena for Mohamad?s records is in the record before the Court, there is sufficient information to evaluate the merits of the motions.? The Court therefore will not deny the motions on this basis.? Mohamad, Jalal, and Abdo are advised of their obligation to comply with all applicable court rules even though they are self-represented.? (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267 [self-represented litigants held to same standards as attorneys].)??? ????
Plaintiff also argues Mohamad, Jalal, and Abdo did not meet and confer with her prior to filing their motions to quash.? Plaintiff does not provide any authority in support of her argument.? Moreover, the motions to quash are explicitly made, as Plaintiff acknowledges, pursuant to Code of Civil Procedure section 1987.1, which does not contain a meet and confer requirement.? (Compare Code Civ. Proc., ??2025.410 [requiring meet and confer declaration].)? Plaintiff does not justify her argument and it is not a basis for denying the motions.
??????????? Turning to the merits of the motions, Mohamad, Jalal, and Abdo argue the subpoenas are invalid because Plaintiff failed to serve an affidavit setting forth the materiality of the requested documents along with the subpoenas as required by Code of Civil Procedure section 1987.5.? This argument lacks merit because the subpoenas are for records only and that statute specifically states it ?does not apply to deposition subpoenas commanding only the production of business records . . . .?? (Code Civ. Proc., ? 1987.5.)
Next, Mohamad, Jalal, and Abdo argue all of the requested DMV records are irrelevant because FWC acquired the assets of SMC before Plaintiff was hired in August 2015.? They do not argue the dealership ceased operating, the dealership began operating under a different name or that they stopped working at the dealership.? They simply argue FWC was technically responsible for the business operations.? Mohamad, Jalal, and Abdo do not explain how this fact renders the requested documents irrelevant.? The significance of their argument therefore is not immediately apparent.? Consequently, the motions cannot be granted on this basis.
Additionally, Mohamad, Jalal, and Abdo argue their individual DMV records, as distinct from the dealer and salesperson licenses and related documents, are not relevant.
Discovery is allowed for any matters not privileged that are either relevant to the subject matter involved in the action or reasonably calculated to lead to the discovery of admissible evidence. ?(Code Civ. Proc., ? 2017.010.) ?Information is relevant to the subject matter if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating settlement.? (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) ??Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.? ?(Ibid., original italics.) ?Courts liberally construe the relevance standard, and any doubts as to whether a request seeks information within the scope of discovery are generally resolved in favor of discovery.? (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.)
Here, the relevance of the individual DMV records is not obvious.? Moreover, Plaintiff does not explain how these records are relevant.? Instead, she states she ?voluntarily narrowed? the subpoenas to exclude the request for their individual DMV records as set forth in paragraph 6 of the subpoenas.? The individual DMV records that are unrelated to the dealer and salesperson licenses are therefore not relevant.
To this point, Plaintiff states the motions should be denied because the subpoenas were already narrowed.? Plaintiff did not serve new modified subpoenas.? Rather, the record reflects she sent an email addressed to an individual identified as Susan Haynes and directed to an email address at ?dmv.ca.gov.?? (See Baysinger Decl., Exhs. G-I.)? In the email, Plaintiff stated she was withdrawing the request in paragraph 6; Plaintiff also attached to her email a revised list of document requests reflecting this change.? (Ibid.)? While Plaintiff stated in the email that it was being sent to follow-up on an earlier telephone conversation, there is nothing in the record before the Court confirming the DMV received or processed this change to the subpoenas.? Consequently, it is not clear the subpoenas were effectively limited given the subpoenas in the possession of the custodian of records at the DMV may still include this particular document request.? The Court therefore orders that paragraph 6 of the subpoenas requesting ?[a] copy of any California Department of Motor Vehicles files relating to [Mohamad, Abdo, or Jalal]? be removed.
Finally, Mohamad, Abdo, and Jalal argue the subpoenas intrude on their right to privacy.? They fail to substantiate their argument because they do not identify a particular privacy interest, explain how such an interest is reasonable, or articulate a serious invasion of that interest.? (See Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1423 [a party asserting a privacy objection must articulate privacy interest, reasonableness of privacy interest, and serious intrusion].)? The Court therefore will not quash or modify the subpoenas on this basis.
Based on the foregoing, the motions to quash or modify the subpoenas are DENIED as to quashing the subpoenas in their entirety and GRANTED as to modifying the subpoenas to eliminate the request for records in paragraph 6.
- Requests for Monetary Sanctions
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??????????? Plaintiff requests an award of monetary sanctions against Mohamad, Jalal, and Abdo pursuant to Code of Civil Procedure section 1987.2, which states: ?in making an order pursuant to [ ] Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motions, including reasonable attorney?s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.?? Given Mohamad, Jalal, and Abdo established, and Plaintiff conceded, the subpoenas sought some records that were not relevant to the subject of this action, the Court cannot conclude the motions were brought in bad faith or without substantial justification.? Consequently, the Court declines to exercise its discretion to grant Plaintiff an award of monetary sanctions and her requests are DENIED.
III.?????? Motion to Quash by FWC
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??????????? FWC also filed a nearly identical motion to quash or modify a subpoena served on the DMV.? Plaintiff opposes the motion and requests an award of monetary sanctions.
For context, FWC is a business owned by either Jalal or Abdo, but is not specifically named as a defendant or identified anywhere in the FAC.? Plaintiff represents, however, that FWC was originally sued as Doe 2 and that she ?submitted? a third amendment to the complaint to substitute FWC upon learning it may have been the entity actually operating the dealership at the time Plaintiff worked there.? (Baysinger Decl., ?? 3-4.)? Unlike the first two doe amendments to the FAC, there is no record of this amendment in the court file and Plaintiff does not represent when or that she even filed the third amendment.? In any event, Plaintiff asserts she served this doe amendment on FWC on July 18, 2016.? (Baysinger Decl., ? 4.)? FWC ultimately filed an answer to the FAC and a cross-complaint against Plaintiff on August 25, 2016.? FWC thus appears to be moving to quash the subpoena as a party to the action.? (Code Civ. Proc., ? 1987.1, subd. (b)(1).)
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With respect to its motion, the Court first notes the subpoena attached to its motion seeks Abdo?s records and is identical to the subpoena Abdo moved to quash; the subpoena does not mention FWC.? (See FWC Mem. of Pts. & Auth., Exh. 1.)? The subpoena is, however, accompanied by a privacy notice directed to FWC.? (See FWC Mem. of Pts. & Auth., Exh. 1.)? FWC offers no explanation on this point.? Moreover, the subpoena is attached as an exhibit to its memorandum of points an authorities and is not attached to a declaration authenticating or explaining its provenance.? Consequently, it is unclear whether the subpoena it submitted is the subpoena it is moving to quash, and if so, what its interest in quashing the subpoena is.? FWC therefore has not substantiated its motion.
Additionally, as Plaintiff points out, ?it is well established in California that a corporation cannot represent itself in a court of record either in propria persona or through an officer or agent who is not an attorney.?? (Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal.App.4th 1094, 1101.)? Consequently, unless and until FWC acquires counsel, it may not proceed in this matter and its motion to quash or modify the subpoena is DENIED.
Plaintiff requests an award of monetary sanctions against Abdo in the amount of $275.00 pursuant to Code of Civil Procedure section 1987.2.? Abdo did not file the motion, however.? Consequently, the Court declines to exercise its discretion to award sanctions against Abdo.? Plaintiff?s request for an award of monetary sanctions is therefore DENIED.
[1]The caption identifies the defendants as: Mohamad Jalal Shreim individually and doing business as See Mo Cars, Mohamad Shreim, Azzam Abdo, and John Anliker.? It is clear from the remainder of the pleading, however, that Mohamad Shreim and Jalal Shreim are actually two distinct individuals.
[2]Friendly Wholesalers of California, Inc. appears to be a corporation affiliated with Defendants, which acquired the assets and ?brand name? of SMC in July 2015.
[3]Mohamad failed to include the subpoena he moves to quash with his moving papers.? In any event, Plaintiff included the subpoena in support of her opposition and it is obvious from the face of Mohamad?s motion that the subpoena submitted by Plaintiff, which is identical to the subpoenas for Jalal and Abdo?s records, is the subpoena at issue.? Consequently, the Court has sufficient information to evaluate Mohamad?s motion.
[4]Plaintiff cites California Rules of Court, rule 3.1354, but that rule governs objections to evidence in the context of a motion for summary judgment.? It is clear from Plaintiff?s opposition she is referring to rule 3.1345 instead.