Judge: Stephen I. Goorvitch, Case: 19STCV24527, Date: 2023-02-24 Tentative Ruling

Case Number: 19STCV24527    Hearing Date: February 24, 2023    Dept: 39

Priscilla Caputo v. Coscto Wholesale Corporation
Case No. 19STCV24527

Final Status Conference

A.        Trial Estimate

            The Court granted summary adjudication of most causes of action.  (See Court’s Minute Order, dated July 12, 2022.)  The following causes of action will be proceeding to trial:

Third Cause of Action – Failure to provide meal and rest periods

Fourth Cause of Action – Failure to furnish and keep accurate wage statements

Fifth Cause of Action – Failure to pay compensation at the time of termination

Seventh Cause of Action – Violation of Business and Professions Code section 17200

Eighth Cause of Action – Harassment under FEHA

The Court has reviewed the parties’ joint witness list.  The parties did not prepare the witness list in conformity with the Court’s order.  More important, notwithstanding the narrow scope of this case, the parties’ trial estimates are excessive to the point of absurdity.  Plaintiff’s counsel anticipates that his examinations should take 124 to 186 hours.  Defendant’s counsel anticipates that his examinations should take approximately 21 to 23 hours, which is still excessive. 

            Based upon the foregoing, the Court is forced to set its own trial estimate for this case.  In their case management statements, Plaintiff’s counsel estimated that the trial should take three to five days, and Defendant’s counsel estimated that the trial should take five to seven days.  The Court considers the narrow scope of the case following its grant of summary adjudication, as well as its experience trying cases of this nature.  Absent unforeseen circumstances or other good cause, each party shall have eight (8) hours for everything from opening statements to closing arguments, including all examinations and sidebars.  This would result in a trial estimate of five to six days, including jury selection.  However, voir dire shall be treated separately and shall not be counted against this estimate.   

            The Court orders the parties to disclose all witnesses who will be called in their respective cases-in-chief absent unforeseen circumstances or other good cause on or before March 1, 2023. 

B.        Exhibit List

            The parties did not prepare the exhibit list in conformity with the Court’s order.  First, there is no column for the date on which the exhibit was identified.  Second, the parties did not complete the column indicating whether there are stipulations or whether there will be objections to exhibits. 

Third, and perhaps most important, the parties appear to have grouped exhibits together when they should be marked as separate exhibits.  The Court will not admit “compilation” exhibits or individual pages of exhibits.  Each exhibit must be authenticated and introduced as a whole, though the Court will conditionally admit a complete exhibit based upon a proffer that a subsequent witness will lay the remaining foundation. 

            Finally, it is unclear why certain documents are being marked as exhibits.  It is unclear why Plaintiff seeks to introduce entire deposition transcripts.  It is unclear why the parties seek to introduce the entirety of the discovery responses without any apparent effort to isolate what may be relevant and admissible.  It is unclear why Defendant seeks to introduce expert witnesses resumes and files. 

            The Court orders the parties to do the following on or before March 1, 2023: (1) Meet-and-confer concerning their exhibits; (2) Revise the exhibit list; and (3) Exchange all exhibits that will be introduced in their case-in-chief absent unforeseen circumstances or other good cause.  The Court provides notice that any logistical problems with exhibits that occur during trial will be deducted from Plaintiff and/or Defendant’s time for trial.     

C.        Statement of the Case

            The parties filed a joint statement of the case on February 16, 2023.  The Court will read this statement to the jury.  The Court also will give the parties two (2) minutes each to make a brief opening statement during voir dire.

D.        Joint Verdict Form

            The parties did not prepare and file a proposed special verdict form.  Rather, each party submitted their own verdict form.  The Court orders the parties to meet-and-confer and review the sample verdict forms in CACI instructions.  The Court orders the parties to submit a proposed special verdict form, or to submit a joint statement explaining on which issues the parties agree and on which issues the parties disagree, on or before March 1, 2023. 

E.         Jury Instructions

            The parties agree on all jury instructions except for CACI 2509, 2521(c), 2700, and 2704.  The Court rules as follows:

            1.         CACI 2509 – Give

            2.         CACI 2521(c) – Give

            3.         CACI 2700 – Give

            4.         CACI 2704 – Give

F.         Defendant’s Motions in Limine

1.         To exclude untimely alleged harassment – DENIED.  The Court addressed this issue in denying summary adjudication of Plaintiff’s eighth cause of action.  The Court incorporates its order of July 12, 2022, by reference.

2.         To exclude alleged unpaid wages other than rest break premiums – GRANTED IN PART; DENIED IN PART.  Plaintiff alleges that she was not paid all of her wages, rendering her wage statements inaccurate and resulting in delay in her receiving her final wages.  During her deposition, Plaintiff was asked about any wages she was not paid. (See Court’s Minute Order, dated July 12, 2022, p. 9.)  Plaintiff identified not having been paid for certain rest breaks, certain pay having been withheld due to an order, and having received a three-day unpaid suspension per the union rules. (Ibid.)  The failure to pay meal and rest break premiums can form the basis of the fourth and fifth causes of action. (Naranjo v. Spectrum Security Services, Inc. (2022) 13 Cal.5th 93.)  Now, Defendant seeks to exclude other basis for these causes of action, e.g., deductions in compliance with a court-ordered withholding order; deductions for Plaintiff’s union dues; deductions due to Plaintiff’s voluntary participation in an employee fund; deductions for an unpaid suspension which Plaintiff contends was longer than permitted under the union agreement; and missing extra pay she would have earned under the union agreement.  In her opposition, Plaintiff opposes the motion only in two respects.  First, Plaintiff argues that she was not paid extra compensation for cashiering.  Second, Plaintiff argues that she was not paid for one day during her suspension for which she should have received pay.  Plaintiff’s counsel does not intend to predicate these claims on any other theories.  Therefore, the motion is GRANTED except with respect to these two theories.  The motion is DENIED with respect to these two theories.  It is the role of the jury to determine whether Plaintiff should have received extra pay for cashiering, and whether she should have been paid for the one day of her suspension. 

3.         To exclude witnesses not identified in discovery – DENIED without prejudice.  The Court will address this issue at trial if necessary.

4.         To exclude argument/evidence that Defendant violated Labor Code section 226 – DENIED.  Plaintiff’s fourth cause of action is failure to furnish and keep accurate wage statements and payroll records, in violation of Labor Code section 226.  “An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not exceeding an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorney’s fees.”  (Lab. Code, § 226(e).)  In Defendant’s motion for summary judgment, Defendant’s counsel argued that “Plaintiff’s fourth claim for inaccurate wage statements fails” because “[t]he statute of limitations for a Labor Code section 226 claim is one year.”  (Defendant’s Memorandum of Points and Authorities in Support of Motion for Summary Judgment, p. 25:6-10.)  There is no dispute that Plaintiff received her final wage statement on September 27, 2017, and this action was filed on July 11, 2019.  The statute of limitations for a section 226 “penalty claim” is one year.  (See Naranjo v. Spectrum Sec. Servs., Inc., 40 Cal. App. 5th 444, 468 (2019), as modified on denial of reh'g (Oct. 10, 2019), aff'd in part, rev’d in part and remanded, 13 Cal. 5th 93, 509 P.3d 956 (2022) (citing Falk v. Children’s Hospital Los Angeles, 237 Cal.App.4th 1454, 1469 (2015)); see also Code Civ. Proc., § 340(a).)  Plaintiff’s counsel does not dispute this but argues that he is pursuing a claim for actual damages and injunctive relief.  Accordingly, the Court denied Defendant’s motion for summary adjudication on this issue and denies Defendant’s motion in limine, as well. 

5.         To exclude card from Leonard Sosa – DENIED.  Defendant seeks to exclude a card Leonard Sosa gave to Plaintiff because it was not produced until his deposition, on May 26, 2021.  Plaintiff’s counsel represents that the card was not located until shortly before the deposition.  The Court cannot exclude witnesses or evidence not identified or produced during discovery unless the omission violated a court order or otherwise was willful.  (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422-1434; see also Mitchell v. Superior Court (2015) 243 Cal.App.4th 269, 272; Saxena v. Goffney (2008) 159 Cal.App.4th 316, 334.)  This record does not support exclusion.  Nor is there any prejudice, since Defendant will have had the card for almost two years before trial.  Therefore, the motion in limine is denied.

6.         To exclude Plaintiff’s handwritten notes – DENIED WITHOUT PREJUDICE.  Defendant seeks to exclude a series of handwritten notes that purport to record a series of events at work, arguing that they are hearsay.  Plaintiff’s counsel argues that the notes may be admissible.  Per Evidence Code section 1241, statements are not made inadmissible by the hearsay rule if it is offered to explain the conduct of the declarant and was made while the declarant was engaged in the relevant conduct.  Per Evidence Code section 1250, as limited by section 1252, statements are not made inadmissible by the hearsay rule if offered to prove the declarant’s state of mind.  The statements might be admissible as prior consistent statements under Evidence Code sections 1236 and 791.  The Court cannot resolve these issues in advance of trial.  Therefore, the motion is denied without prejudice.  The Court orders that Plaintiff’s counsel may not publish the notes to the jury without first laying a foundation and seeking permission from the Court. 

7.         To exclude Dr. Alex Avila and Dr. Lucila Estrada – DENIED WITHOUT PREJUDICE.  Per Code of Civil Procedure section 2034.230, expert designations are due 50 days before trial, or 20 days of service after the demand, whichever is closer to trial.  (See Code Civ. Proc., § 2034.230.)  Most recently, the trial date was June 28, 2022, which meant that expert designations were due on May 9, 2022.  Plaintiff served expert designations on May 4, 2022, naming the following non-retained expert witnesses: (1) Experts from West Hills Hospital and Medical Center, and (2) Carmela Duarte.  (See Declaration of Matthew S. McConnell, Exh. #3.)  Defendant’s counsel does not state when he served his expert witness designations.  Assuming he served Defendant’s designations on the deadline via email, Plaintiff’s supplemental designations would have been due on June 1, 2022.  However, on May 25, 2022, the Court advanced and vacated the trial date.  (See Court’s Minute Order, dated May 25, 2022.)  Plaintiff made no supplemental designations in response to Defendant’s expert witness designations.

The Court heard Defendant’s motion for summary judgment, and held a trial setting conference on July 12, 2022.  (See Court’s Minute Order, dated July 12, 2022.)  The parties had the following exchange: 

The Court:  Anything else, Mr. McConnell?

Defendant’s Counsel:  Just one quick point, your Honor.  The parties have already done an exchange of expert designations, and I just want to clarify that that remains in place and that we’re not going to redo that.

The Court:  Is that okay with you, Mr. Gabriel?

Plaintiff’s Counsel:  Yeah, that’s fine.  Yeah, we’ve done it back and forth, so it’s all good.

The Court:  Okay.  So I’ll just say that the prior designations satisfy the requirement.  How’s that?

Defendant’s Counsel:  That works.

Plaintiff’s Counsel:  Very Good. 

(Declaration of Matthew S. McConnell, Exh. #4, p. 9:2-12.)  Therefore, the Court set trial for March 7, 2023, and ordered: “The fact and expert cut-offs shall be based on the new trial date.  Per the parties’ stipulation, the previously-served expert designations need not be re-served.”  (Ibid.)  Now, there is a dispute over the parties’ stipulation.  Defendant’s counsel argues that the parties stipulated not to continue the expert designation deadlines.  Plaintiff’s counsel argues that the parties merely stipulated not to redo the initial expert designations.  Plaintiff’s counsel argues that the Court re-set the discovery and motions deadlines in the minute order and there was nothing prohibiting Plaintiff from serving supplemental designations based upon the deadline for initial disclosures that would have applied based on the new trial date.

There also is a dispute whether the experts are retained or non-retained, and whether they truly are supplemental expert witnesses.  Defendant’s counsel argues: “Dr. Avila and Dr. Estrada are not Plaintiff’s treating physicians; they were retained for the specific purpose of providing a ‘medical-legal report in this litigation.  Plaintiff knew all along that she would designate Dr. Avila and Dr. Estrada but inexcusably waited to designate them until the eve of trial.”  (Defendant’s Motion, p. 2:28-3:5.)  Plaintiff’s counsel states: “[O]n Saturday, January 28, 2023, Premier Forensic Psychology sent my office a signed psychological report which showed that . . . Dr. Estrada under the guidance of Clinical Psychologist Dr. Avila had also administrated an evaluation examination before treatment started.  The findings of this evaluation directly rebut Defendant’s expert witness Dr. Mark A. Kalish’s findings from the mental examination that took place on April 27, 2022 and on January 9, 2023.”  (Plaintiff’s Opposition, p. 2:25-3:3.)  The Court cannot resolve this discrepancy at this stage.

            The Court is not prepared to grant Defendant’s motion at this point.  There is ambiguity in the parties’ stipulation, and on this record, the Court cannot find that Plaintiff’s counsel willfully subverted his discovery obligations.  Nor can the Court find prejudice to Defendant. Had the Court set the expert designation deadlines based on the new trial date, initial designations would have been due on January 16, 2023, and assuming they were served via email, supplemental designations would have been due on February 8, 2023.  Plaintiff served these new deadlines before that date, on January 30, 2023.  Finally, had Plaintiff filed a motion for leave to serve untimely supplemental designations, the Court likely would have been required to grant the motion based upon Plaintiff’s counsel’s declaration, absent a finding of affirmative misconduct. 

            At heart, both parties are responsible for this problem, given their unclear stipulation.   Based upon the foregoing, the Court orders as follows: 

            1.         The Court denies Defendant’s motion in limine without prejudice except as noted by this order.

            2.         The testimony of Dr. Alex Avila and Dr. Lucila Estrada shall be governed by Code of Civil Procedure sections 2034.280 and 2034.300.  In other words, they may testify concerning the results of the evaluation that rebuts Dr. Mark A. Kalish’s opinion, per section 2034.280.  They also may testify about  any other areas permitted under Code of Civil Procedure section 2034.300.

            3.         The parties should be able to complete the depositions before trial, as the areas of examination are relatively narrow.  The deposition of Dr. Lucila Estrada shall occur on March 1, 2023, at 9:00 a.m.  The deposition of Dr. Alex Avila shall occur on March 2, 2023, at 9:00 a.m.  The parties may reschedule these depositions only if they submit a stipulation and proposed order to the Court.  If Plaintiff’s counsel does not make the witnesses available for deposition as ordered by the Court, the Court will reconsider this ruling on the first day of trial and may exclude the witnesses at that point.