Judge: Stephen I. Goorvitch, Case: 19STCV24527, Date: 2023-05-01 Tentative Ruling

Case Number: 19STCV24527    Hearing Date: May 1, 2023    Dept: 39

Priscilla Caputo v. Costco Wholesale Corporation

Case No. 19STCV24527

Motion to Compel

            Plaintiff Priscilla Caputo (“Plaintiff”) filed this employment action against Defendant Costco Wholesale Corporation (“Defendant”).  The Court granted summary adjudication of every cause of action and of the prayer for punitive damages except as follows:

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

Plaintiff allegedly suffered non-economic damages as a result of the harassment and attended therapy sessions with Carmela Duarte, who is one of Plaintiff’s unretained expert witnesses.  Now, Defendant moves to compel Duarte to produce relevant medical records. 

Code of Civil Procedure section 1987.1 provides, “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by [a party or a witness] . . . may make an order . . . directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.”  (Code Civ. Proc., § 1987.1.)

Plaintiff has waived any right to privacy in these medical records by seeking damages for these injuries and designating Duarte as a non-retained expert witness.  (See Britt v. Superior Court (1978) 20 Cal.3d 844, 855-856.)  There was no objection to the subpoena, and the motion is not opposed.  Therefore, the Court grants Defendant’s motion and orders Carmela Duarte to produce all subpoenaed medical records on or before May 26, 2023. 

Defendant seeks sanctions against Carmela Duarte in the amount of $4,240.  The Court finds that Defendant has made sufficient efforts to resolve this motion without litigation.  The Court finds that there is no good cause for Duarte not to have produced the records in response to a subpoena.  The Court finds that the requested sanctions are reasonable.  Therefore, the Court orders Carmela Duarte to pay Defendant sanctions in the amount of $4,240.  However, the Court stays the order of sanctions.  If Duarte produces the records on or before May 26, 2023, the sanctions order shall be automatically vacated.  In other words, if Duarte produces the records on or before May 26, 2023, she will not be required to pay the sanctions. 

Based upon the foregoing, the Court orders as follows:

1.         The Court grants Defendant’s motion to compel Carmela Duarte to produce the subpoenaed records.  The Court orders Duarte to produce all subpoenaed records on or before May 26, 2023. 

2.         The Court grants Defendant’s request for sanctions and orders Carmela Duarte to pay sanctions in the amount of $4,240.

3.         The Court stays the sanctions order.  If Carmela Duarte produces the subpoenaed records on or before May 26, 2023, the sanctions order shall be automatically vacated and she will not be required to pay the sanctions.

4.         Defendant may lodge a proposed order for the Court’s signature if necessary.

5.         Defendant’s counsel shall provide notice and file proof of such with the Court.