Pending - Other Pending
Labor - Wrongful Termination
ROBERT B. BROADBELT
REYES MARIA LUISA
DOES 1 TO 50
795 ENTERPRISES INC
MOGHADDAMI ALI R. ESQ.
MOGHADDAMI ALI R ESQ.
EMILIO DANIEL G. ESQ.
EMILIO DANIEL G ESQ.
CORTEZ LAURIE MELISSA
1/18/2018: REQUEST FOR ENTRY OF DEFAULT
2/5/2018: NOTICE OF POSTING JURY FEES
2/5/2018: CIVIL DEPOSIT
2/14/2018: Minute Order
5/8/2018: STIPULATION AND PROTECTIVE ORDER
7/2/2018: DEFENDANTS' MOTION TO COMPEL FURTHER RESPONSES TO DEMAND FOR PRODUCTION OF DOCUMENTS, REQUEST FOR MONETARY SANCTIONS, MEMORANDUM OF POTNTS AND AUTHORITIES, DECLARATION OF LAURIE M. CORTEZ, PROPOSED OR
7/2/2018: DEFENDANTS' MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL TNTERROGATORIES, REQUEST FOR MONETARY SANCTIONS,; ETC.
7/27/2018: NOTICE OF INFORMAL DISCOVERY CONFERENCE
7/27/2018: NOTICE OF CONTINUANCE OF INFORMAL DISCOVERY CONFERENCE
8/1/2018: NOTICE OF MOTION AND MOTION TO SET ASIDE THE ENTRY OF DEFAULT AND DEFAULT JUDGMENT, ETC
8/1/2018: DECLARATION OF ANDY TORRES IN SUPPORT OF MOTION TO SET ASIDE DEFAULT
8/28/2018: Minute Order
8/30/2018: STIPULATION TO SET ASIDE DEFAULT OF DEFENDANT ANDY TORRES
9/4/2018: ANSWER TO COMPLAINT
9/4/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE
9/4/2018: NOTICE OF RULING ON MOTION TO SET ASIDE THE ENTRY OF DEFAULT AND DEFAULT JUDGMENT AGAINST DEFENDANT ANDY TORRES
9/11/2018: NOTICE OF CASE REASSIGNMENT
DocketAssociation of Attorney; Filed by MARIA LUISA REYES (Plaintiff)[+] Read More [-] Read Less
Docketat 08:30 AM in Department 53, Robert B. Broadbelt, Presiding; Hearing on Motion to Compel (Attendance and Testimony of witness at deposition, Request for Bench Warrant) - Not Held - Taken Off Calendar by Party[+] Read More [-] Read Less
Docketat 08:30 AM in Department 53, Robert B. Broadbelt, Presiding; Hearing on Motion to Compel Discovery (not "Further Discovery")[+] Read More [-] Read Less
Docketat 09:30 AM in Department 53, Robert B. Broadbelt, Presiding; Jury Trial - Not Held - Advanced and Continued - by Court[+] Read More [-] Read Less
Docketat 08:30 AM in Department 53, Robert B. Broadbelt, Presiding; Final Status Conference - Not Held - Advanced and Continued - by Court[+] Read More [-] Read Less
DocketDeclaration (OF ALI R. MOGHADDAMI; AND MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO EX PARTE APPLICATION FOR ORDER SHORTENING TIME ETC.); Filed by MARIA LUISA REYES (Plaintiff)[+] Read More [-] Read Less
DocketDeclaration (In Support of Motion To Compel Witness At Deposition); Filed by MARIA LUISA REYES (Plaintiff)[+] Read More [-] Read Less
DocketMotion to Compel (Motion To Compel Witness At Deposition); Filed by MARIA LUISA REYES (Plaintiff)[+] Read More [-] Read Less
Docketat 08:30 AM in Department 53, Robert B. Broadbelt, Presiding; Hearing on Ex Parte Application (and Motion t Continue Trial and Related Cut Off Dates or in the alternative, for Shortened Notice of the Hearing of Motion) - Held - Motion Granted[+] Read More [-] Read Less
DocketNotice (Notice of Ruling on Ex Parte Application); Filed by 795 ENTERPRISES INC (Defendant); MOHAMMED ASHRAF (Defendant); NAZRIN ASHRAF (Defendant) et al.[+] Read More [-] Read Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCE[+] Read More [-] Read Less
DocketNotice of Case Management Conference; Filed by Clerk[+] Read More [-] Read Less
DocketPROOF OF SERVICE SUMMONS[+] Read More [-] Read Less
DocketOSC-Failure to File Proof of Serv; Filed by Clerk[+] Read More [-] Read Less
DocketORDER TO SHOW CAUSE HEARING[+] Read More [-] Read Less
DocketProof of Service (not Summons and Complaint); Filed by MARIA LUISA REYES (Plaintiff)[+] Read More [-] Read Less
DocketComplaint; Filed by MARIA LUISA REYES (Plaintiff)[+] Read More [-] Read Less
DocketNOTICE OF INTENT TO SEEK PUNITIVE DAMAGES (C.C.P. 425.115)[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
DocketCOMPLAINT FOR DAMAGES FOR: 1. HARASSMENT IN VIOLATION OF GOV T CODE 12925(D), 12926(D) 12940(J); ETC[+] Read More [-] Read Less
Case Number: ****9972 Hearing Date: September 21, 2021 Dept: 61
Plaintiff Maria Luisa Reyes’s Motions to Compel Further Responses to Requests for Production of Documents, Set Nine, and Special Interrogatories, Set Four, from Defendant 795 Enterprises, Inc. are GRANTED as to Requests for Production No. 7, 8, 10, 12, and 14–17, with Request No. 12 limited to documents related to loans made by the Ashraf defendants, and DENIED as to Requests for Production No. 11, 18, 21, 25, and 26. The motion is GRANTED as to Special Interrogatories No. 3 and 4.
Sanctions are DENIED.
I. MOTION TO COMPEL FURTHER
“A party may demand that any other party produce . . . a document that is in the possession, custody, or control of the party on whom the demand is made.” (Code Civ. Proc., ; 2031.010(b).) The demanding party may move for an order compelling further response to the demand if the demanding party deems that (1) a statement of compliance with the demand is incomplete, (2) a representation of inability to comply is inadequate, incomplete, or evasive, or (3) an objection in the response is without merit or too general. (Code Civ. Proc., ; 2031.310(a).) “The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand,” and “[t]he motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., ; 2031.310(b).)
A motion to compel a further response to an inspection demand must set forth specific facts showing “good cause” justifying the discovery sought by the inspection demand. (Code Civ. Proc., ; 2031.310(b)(1); Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) Unless there is a legitimate privilege issue or claim of attorney work product, that burden is met simply by a fact-specific showing of relevance. (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 444.) Once the moving party demonstrates good cause for the discovery, the burden is on the responding party to justify any objection or failure to fully respond to the inspection demand. (Coy v Superior Court (1962) 58 Cal.2d 210, 220.)
“Any party may obtain discovery . . . by propounding to any other party to the action written interrogatories to be answered under oath.” (Code Civ. Proc. ; 2030.010, subd. (a).) A propounding party may move for an order compelling further responses if the party believes the answers are incomplete, evasive, or the objections are without merit. (See Cal. Code Civ. Proc. ;
Plaintiff seeks further responses to Requests for Production, Set Nine, No. 7, 8, 10, 11, 12, 14–18, 21, 25, and 26, and Special Interrogatories, Set Four, No. 3 and 4.
The Requests for Production asked for documents related to shareholders and the payment of dividends thereto from the incorporation of 795 Enterprises (Requests No. 7, 8, 10) documents concerning any payments made by 795 Enterprises to anyone since its incorporation (Requests No. 11, 25, 26), documents showing loans made to 795 Enterprises and repayment of same (Requests No. 12, 18), documents showing any payments made to officers or directors of 795 Enterprises (Requests No. 17), and documents showing 795 Enterprise’s capitalization and any consideration given to anyone for investments (Requests No. 14–16, 21).
Plaintiff argues that this discovery is relevant to establish alter ego allegations against 795 Enterprises and Defendants Mohammed Ashraf and Nazrin Ashraf. (Motion at p. 1.) Although this court denied Plaintiff’s motion for financial condition discovery under Civil Code ; 3295, Plaintiff contends that section 3295 addresses only the permissibility of financial discovery for the purpose of proving punitive damages, not when such discovery is germane to other theories of liability. (Motion at pp. 8–9.)
Defendant in opposition contends that the requests for production are duplicative of prior discovery which sought financial condition information, and which is now time-barred. (Opposition at pp. 2–3.) Defendant also objects that Plaintiff’s alter ego allegations do not entitle her to financial discovery of this magnitude. (Opposition at pp. 5–7.) Defendant also contends that Plaintiff already has the information requested regarding shareholders in Requests No. 7, 8, and 10, and that the other requests invade Defendants’ right to financial privacy. (Opposition at pp. 9–11.)
The present motion is not barred by this court’s ruling on Plaintiff’s Civil Code ; 3295 motion. Contrary to Defendants’ argument, Plaintiff may obtain discovery into financial condition to the extent such discovery is relevant to prove allegations related to liability. Among the factors used to determine whether a “unity of interest” exists such that the alter ego doctrine may apply are “disregard of corporate formalities” and use of the corporation as a “mere shell or conduit” for the affairs of the owner. (Highland Springs Conference & Training Center v. City of Banning (2016) 244 Cal.App.4th 267, 281.) Another factor is “inadequate capitalization” of the corporate entity. (Ibid.) For this reason, “information as to the financial condition of a corporate defendant is admissible and discoverable before trial in an action involving an alter ego issue.” (Doak v. Superior Court for Los Angeles County (1968) 257 Cal.App.2d 825, 835, fn. 8; see also Rawnsley v. Superior Court (1986) 183 Cal.App.3d 86, 91 [holding that trial court’s denial of discovery for financial information relevant to the underlying case was abuse of discretion because Civil Code ; 3295 did not apply].)
There is some merit, however, to Defendant’s contention that the present discovery is effectively duplicative of the discovery sought by Plaintiff in prior requests. The first set of discovery that Defendant identifies involved requests for accountings of net income and directly inquired into financial condition. (Opposition Exh. A.) The second set of discovery asked once more for income accountings, indebtedness indicators, listings of assets, bank statements, and tax documents. (Opposition Exh. B.) Although there are some requests here that are reasonably separate from these prior inquiries — those that address Defendant’s shareholders, dividends, investment contributions, and payments to officers and directors (Requests No. 7, 8, 10, and 14–17) — the other requests ask broadly for documents showing any payments made to anyone, and any debts incurred and repaid to 795 Enterprises, and are essentially duplicative requests for accounting and income statements that Plaintiff failed to act upon with her earlier discovery. Because that prior discovery is time-barred, Plaintiff cannot reset the clock by propounding what is in effect the same discovery again. (See Professional Career Colleges, Magna Institute, Inc. v. Superior Court (1989) 207 Cal.App.3d 490, 494 [“In the context of this case it would be an absurdity to say that a party who fails to meet the time limits of section 2030 may avoid the consequences of his delay and lack of diligence by propounding the same question again.”].)
However, this is not necessarily the case if certain requests are limited in scope. Request No. 12 contains language that expresses particular interest in the loans made to 795 Enterprises by the Ashraf defendants. Although such a request, broadly framed, is duplicative of prior financial condition discovery that sought evidence of all indebtedness, it is capable of differentiation from that discovery if the language is limited particularly to loans made by and to the Ashraf defendants, rather than applicable to all such loans. Such a limitation also more narrowly tailors the discovery to the alter-ego issue for which it is sought.
Accordingly, the motion is DENIED with respect to Requests No. 11, 18, 21, 25, and 26 and for Request No. 12, the documents requested are limited to those related to any loans made to 795 Enterprises by the Ashraf defendants.
This leaves Defendant’s privacy objections. “In determining whether disclosure is required [against a privacy objection], the court must indulge in a ‘careful balancing’ of the right of a civil litigant to discover relevant facts, on the one hand, and the right of the third parties to maintain reasonable privacy regarding their sensitive personal affairs, on the other. The court must consider the purpose of the information sought, the effect that disclosure will have on the affected persons and parties, the nature of the objections urged by the party resisting disclosure and availability of alternative, less intrusive means for obtaining the requested information. Based on an application of these factors, the more sensitive the nature of the personal information that is sought to be discovered, the more substantial the showing of the need for the discovery that will be required before disclosure will be permitted.” (Hooser v. Superior Court (2000) 84 Cal.App.4th 997, 1004, internal citations omitted.)
“The corporate right to privacy is a lesser right than that held by human beings and is not considered a fundamental right.” (SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 756.) And while a person has a limited privacy interest in financial records (See International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 330), this interest is subject to the balancing test described above.
Here, Defendants possess a limited privacy interest in the information sought by Requests No. 7, 8, 10, 12, and 14–17. However, the purpose of the information sought is directly relevant to this litigation and the proof of the existence of an alter ego relationship among the defendants. And although Defendants claim their right to privacy would be infringed, the exchange of funds among Defendants, including a corporation, is not an area of sensitive personal privacy, and Defendants cite no prejudice which will result from the disclosure of such information. And while Defendants argue the Plaintiff may obtain such information through less intrusive means, such as deposing Defendants and eliciting their testimony, Plaintiff may reasonably seek documentary corroboration for the matters to which Defendants testify.
Accordingly, the motion is GRANTED as to Requests No. 7, 8, 10, 12, and 14–17, with Request No. 12 limited to documents related to loans made by the Ashraf defendants.
As to the Special Interrogatories, these requests asked Defendant to provide contact information for all persons who worked at the workplace in question on September 11 and October 16, 2016, which are respectively the dates of the alleged harassment and termination of employment. (Motion at p. 4.) Plaintiff claims these requests ask for the identification of potential percipient witnesses to the harassment or termination in question, while Defendant argues that these requests violate the privacy rights of the employees, who should be given an opportunity to opt in before their information is disclosed. (Opposition at pp. 4–7.)
The privacy intrusion from these requests is de minimis, and no opt-in is required. The case on point is Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, in which the plaintiff, like the plaintiff here, sought contact information for other percipient witnesses of workplace violations, and the employer objected on grounds of privacy, and the trial court imposed an opt-in restriction on the witnesses. (Id. at p. 1247.) The appellate court overruled the plan, reasoning that employees would not expect their information to be withheld from a co-worker alleging legal violations at the workplace, that the discovery of percipient witnesses is a core feature of litigation, and that the opt-in procedure unreasonably favored the employer. (Id. at pp. 1249–1259.) The balance of interests here is essentially the same as in Puerto.
The motion is therefore GRANTED.
Statute provides that the court shall impose sanctions upon a party who unsuccessfully makes or opposes a motion to compel further response to interrogatories, requests for production of documents, or requests for admission, absent substantial justification otherwise. (Code Civ. Proc. ;; 2030.300, subd. (d); 2031.310, subd. (h); 2033.290, subd. (d).)
Plaintiff asks for $4,500.00 in sanctions in connection with each motion, representing nine hours of attorney work at $500 per hour. (Forman Decl. ¶ 6.)
No sanctions are appropriate as to the requests for production motion, as that motion was granted and denied in roughly equal measure, and Defendant opposed it as well as the interrogatory motion with substantial justification.
 Plaintiff adequately met and conferred before bringing these motions. The evidence shows that Plaintiff sent meet-and-confer letters on June 14, 201, and that Defendant served a responsive letter on June 25. (Forman Decl. ¶ 4.) The parties had a telephonic conference on July 6, 2021, during which they agreed they were at an impasse. (Forman Decl. ¶ 4.)
Case Number: ****9972 Hearing Date: March 25, 2021 Dept: 61
Plaintiff Maria Luisa Reyes’s Motion to Permit Financial Condition Discovery under Civil Code ; 3295 is DENIED. No sanctions are awarded.
Defendants to provide notice.
I. MOTION FOR LEAVE TO CONDUCT FINANCIAL CONDITION DISCOERY
Discovery as to the financial condition of a defendant for the purposes of establishing the suitability of a punitive damages award under Civil Code ; 3294 cannot proceed “unless the court enters an order permitting such discovery,” and then only after “the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294.” (Civ. Code ; 3295, subd. (c).) ““In this context, a substantial probability of prevailing on a claim for punitive damages means that it is very likely that the plaintiff will prevail on such a claim or there is a strong likelihood that the plaintiff will prevail on such a claim.” (I-CA Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257, 283, quotation marks omitted.) This is different from a finding that the evidence is sufficient to maintain a plaintiff’s case against summary judgment, and the court must weigh the evidence presented by both sides to reach its decision. (See Jabro v. Superior Court (2002) 95 Cal.App.4th 754, 758.)
The basis for Plaintiff’s motion is as follows. She has served eight document requests upon Defendant 795 Enterprises, her employer, and eight more document requests upon Defendants Mohammed Ashraf and Nazrin Ashraf, who own 795 Enterprises, and whom Plaintiff alleges are liable by the doctrine of alter ego. (FAC ¶ 8.) From 795 Enterprises, the requests seek income and profit statements, documents identifying indebtedness, business plans, asset itemizations, bank statements, and state and federal tax documents. (Motion Exh. H.) From the Ashraf Defendants, Plaintiff sought documents evidencing net worth and financial condition, documents showing indebtedness, documents showing payments from 795 Enterprises, and others. (Motion Exh. G.)
Defendants responded to these requests with objections contending the requests sought financial condition discovery without leave of court under section 3295. (Motion Exh. I.)
Plaintiff contends that financial condition discovery is permissible under section 3295 because it is very likely that she will prevail on her claim for punitive damages against the named defendants. Plaintiff presents her deposition testimony concerning the many instances of unwanted sexual advances and touching inflicted upon her by defendant Andy Torres. (Motion Exh. C.) She also presents the testimony of another co-worker to whom Torres also directed unwanted and explicit sexual advances. (Motion Exh. D.) Plaintiff also presents evidence that Torres was a “managing agent” of 795 Enterprises such that his conduct is sufficient to attribute liability to that corporate defendant. (Motion at pp. 1–3.) This is because Torres was the sole manager of the Tujunga IHOP location that was the sole business of 795 Enterprises, and it was he who was entrusted with the day-to-day power of enacting the policies of the corporation. (Motion Exh. A at pp. 43–44; Exh. B at pp. 68–69.)
In response, Defendants highlight the following evidence. They point out that Plaintiff testified that she worked with Torres at another location without incident before coming to the Tujunga IHOP. (Opposition at p. 2.) They note that 795 Enterprises has a zero-tolerance harassment policy. (Opposition at pp. 2–3.) Defendant Mohammad Ashraf contends that Plaintiff never reported any harassment to him, that he did not know of any workplace injury until Plaintiff’s attorney sent a letter. (Mohammad Decl. ¶¶ 21, 24–25.) Mohammad also denies that Torres possessed check-signing authority or the authority to make or change company policy. (Mohammad Decl. ¶¶ 33–34.) They point to testimony by Torres denying any unwelcome sexual contact and claiming that Plaintiff voluntarily resigned after he discussed with her the availability of accommodations for her claimed injury. (Mohammad Decl. Exh. 5.) Defendants also present the testimony of Martha Guardarrama, who says that Plaintiff spoke to her about another lawsuit brought by an acquaintance against IHOP, and that Plaintiff thought such a suit might be a good way of making money. (Opposition at pp. 4–5.)
Defendants also cite procedural difficulties with this motion. Specifically, they note that similar discovery requests to the one at issue were served in October 2018, and the time has run in which to seek further responses on that discovery. (Motion at pp. 14–15.) Furthermore, Defendants note that they served their objections to the discovery presently at issue in November 2020, and that the deadline for a motion to compel further responses to those requests was January 27, 2021. (Opposition at p. 15.) Thus, the present motion, filed on March 1, 2021, was one month late.
Defendants are correct in part on their procedural argument. To the extent Plaintiff seeks to compel further responses from Defendants to the particular discovery requests at issue, the motion is governed by the deadlines set forth in the Discovery Act. As such, since the motion is untimely under Code of Civil Procedure ; 2031.310, the court is without authority to rule upon Plaintiffs’ requests for further responses “other than to deny them.” (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)
This does not mean, however, that the court lacks authority to grant Plaintiff leave to conduct financial condition discovery under Civil Code ; 3295, based on potential discovery other than that already propounded upon Defendants. Such an order is not based on particular discovery requests, which would remain otherwise subject to the Discovery Act, but on a showing of likelihood of prevailing on the merits of the claims. (Civ. Code ; 3295, subd. (b).) Since such a showing is not necessarily connected to the service of any particular discovery, the passage of the deadline for the particular requests identified in the motion is not fatal to Plaintiff’s argument.
However, the evidence presented is not sufficient to allow the discovery that Plaintiff seeks here. First, there has been no showing of a likelihood of prevailing against the Ashraf Defendants by virtue of their conduct or their ownership of 795 Enterprises. Plaintiff presents no evidence that they directed or ratified Torres’s conduct, or that they were otherwise aware of it while it occurred. Although Plaintiff alleges alter ego liability against them via 795 Enterprises, Plaintiff presents no evidence for this court to conclude that it is substantially likely to prove their liability for punitive damages in that fashion. Thus, the motion is DENIED as to the Ashraf Defendants.
The motion is a closer case with respect to 795 Enterprises. Plaintiff has presented compelling evidence that Torres is a “managing agent” of 795 Enterprises under Civil Code ; 3294. A managing agent is someone with “substantial discretionary authority over decisions that ultimately determine corporate policy” (Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358, 369.) And while Torres did not directly draft any corporate policy, he was the only day-to-day manager of 795 Enterprises’ sole business: the Tujunga IHOP franchise. In this respect, he had the power to hire, train, discipline, and fire employees, direct their schedules, their duties, and other matters. (Motion Exh. B at pp. 67–68.) Although 795 Enterprises’ written policies may have been drafted by the Ashraf Defendants, it was Torres, in practice, who had the ultimate day-to-day discretion to interpret and enforce them. This practical power over company policy is akin to the activity of a managing agent. (See Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358, 372 [holding that supervisor with authority to enforce anti-discrimination policies could be managing agent].)
This notwithstanding, the evidence is insufficient to conclude that Plaintiff is “very likely” to prevail upon her claim for punitive damages. Plaintiff’s claims for harassment and wrongful termination are supported by her own testimony. Her claim for harassment is corroborated by the “me too” testimony of Denise Coronado. (Motion Exh. D.) At the same time, Torres denies that he harassed Plaintiff, and testifies that instead of firing her, she walked off the job. Plaintiff’s credibility may be called into question by the testimony of Martha Guadarrama, who says that Plaintiff discussed suing IHOP as a means of making money. (Opposition Exh. 10.) Weighing the evidence together, there is not a “strong likelihood” that Plaintiff will be able to obtain punitive damages.
Accordingly, the motion is DENIED.
The Ashraf Defendants ask for $6,375.00 in sanctions against Plaintiff under Code of Civil Procedure ; 2031.310, representing 15 hours of attorney work at $425.00 per hour. (Hacohen Decl. ¶ 19.) The court finds that no sanctions are warranted, since this motion is properly characterized as one under Civil Code ; 3295, rather than the Discovery Act.
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