Judge: Stephen I. Goorvitch, Case: 19STCV24527, Date: 2023-09-26 Tentative Ruling
Case Number: 19STCV24527 Hearing Date: November 3, 2023 Dept: 39
Priscilla Caputo
v. Costco Wholesale Warehouse Corporation
Case No.
19STCV24527
Order #1 of 3
Motion for
Reconsideration of Defendant’s Motions in Limine
Defendant’s
counsel filed a motion to compel inspection of Plaintiff’s mobile devices based
upon her discovery abuses. Based upon
the contents of the motion, the Court noticed its own motion for
reconsideration of its rulings on Defendant’s Motion in Limine Number Eight and
Number Nine, which sought to exclude the same evidence. (See Court’s Minute Order, dated August 25,
2023.) The Court originally set the
motion for hearing on September 26, 2023, but the Court continued the hearing
because Plaintiff’s counsel was unavailable.
Previously, Plaintiff sought to
introduce evidence of alleged harassment by two men, Shihan Dias and Robert
Weissman. Plaintiff produced text
messages from Dias, and the text messages with dates were sent after she was no
longer employed at Costco. (Declaration of Nadia D. Adams, ¶¶ 2-3 & Exh.
#2.) There was one string of texts that
were not dated. (Id., Exh. #2.) During her deposition on August 26, 2021,
Plaintiff was asked about the undated text messages, and she testified that she
did not know when they were sent, but she “believe[d]” she received them while
employed at Costco. (Id., Exh. #2, p. 564:7-19.) Then, on March 24, 2022, Costco propounded
Special Interrogatories, Set One (“SROGs”) to Plaintiff, which asked Plaintiff
to state all facts in support of her cause of action for harassment. (Id., Exh.
#4.) Plaintiff did not identify any
harassment by Dias, notwithstanding her detailed responses. (Id., Exhs. #4
& #5.)
Defendant’s
counsel filed Motion in Limine Number Eight and Number Nine, seeking to exclude
undisclosed evidence of harassment by Shihan Dias and Robert Weissman,
respectively. With respect to evidence
of Shihan Dias, the Court granted the motion, finding that “the failure to
identify Dias or any related harassment in Plaintiff’s discovery responses or
[to] provide any additional detail other than the text messages was a willful
attempt to circumvent her discovery obligations.” (See Court’s Minute Order, dated June 13,
2023, p. 4.) The Court denied the motion
with respect to one undated Facebook text message chain, provided that
Plaintiff testified that the text message was sent before she was terminated,
i.e., on or before September 27, 2017:
Dias: “Think about it. It’s just
sex.”
Plaintiff: “No I got a boyfriend I
can’t.”
Dias: “When you don’t have any body
let me know, I want to make love to you!”
(See Court’s Minute Order, dated June 13, 2023.) After the Court ruled on this motion,
Defendant’s counsel developed evidence that this Facebook text message was sent
after Plaintiff was terminated. (See
Declaration of Nadia Adams, ¶¶ 15 & 16 & Exh. L.) More troubling, Plaintiff did not produce all relevant
communications in response to Defendant’s requests for production of
documents. (See Declaration of Nadia
Adams, ¶¶ 15 & 16.) Although
Plaintiff alleged that Dias harassed her before her termination, Plaintiff
failed to produce a text message while she was employed at Costco to the
contrary: “Hi Shihan I got your message you’re so sweet. It means a lot to me, you’re a good person
and good friend. I’m ok I’ve just been
off for a while. I hope you’re doing ok. You’re going through a lot, you’re a strong
man. Get better soon sending prayers
your way.” (See id., ¶ 16 & Exh. L.) Plaintiff also failed to produce Facebook
messages demonstrating that she and Dias maintained their relationship for
years after Plaintiff was terminated.
(See id., ¶ 16 & Exh. L.)
Neither Plaintiff nor Plaintiff’s counsel’s declaration addresses these
failures to the satisfaction of the Court.
Similarly,
Plaintiff did not produce text messages between her and Robert Weissman that
contradict her allegations that Weissman sexually harassed her. (See id., ¶ 16 & Exh. O.) For example, Plaintiff sent Weissman a text
message on April 13, 2017, confirming that Plaintiff did not interpret Weissman
as having harassed her: “Hi, I just got your message. I never thought you were after me at all. I know you’re just being nice and friendly no
worries, same here.” (Id., Exh. O.) Neither Plaintiff nor Plaintiff’s counsel’s
declaration addresses these failures to the satisfaction of the Court.
Based upon
the foregoing, the Court grants its own motion for reconsideration and now
grants both of Defendant’s motions in limine.
As an initial matter, the Court grants Motion in Limine Number Eight and
excludes all evidence of harassment by Shihan Dias, because the only text
message at issue was sent after Plaintiff’s termination. Accordingly, there is little, if any,
probative value, and any probative value is greatly outweighed by the
prejudice, per Evidence Code section 352.
More
important, the Court grants both motions in limine because the Court finds that
Plaintiff engaged in a willful attempt to evade her discovery responsibilities
and conceal evidence (e.g., Facebook communications) that undermined her claims
against Defendant. The Court grants these
motions as a discovery sanction. (See 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.)
Defendant’s counsel shall provide
notice and file proof of such with the Court.
Order #2 of 3
Motion to Compel
Further Responses to SROG
Motion to Compel
Further Responses to RPDs
Defendant
moves to compel further responses to special interrogatories (“SROG”)
concerning alleged harassment by Shihan Dias and Robert Weissman. Defendant also moves to compel further
responses to requests for production of documents (“RPDs”) relating to alleged
harassment by Shihan Dias and Robert Weissman.
The Court has excluded all evidence of alleged harassment by Shihan Dias
and Robert Weissman. Therefore, these
motions are denied as moot.
Defendant
requests monetary sanctions against Plaintiff and Plaintiff’s counsel in the
amount of $4,240 in connection with the first discovery motion and $2,210 in
connection with the second discovery motion.
Although the Court finds that the motions are moot by virtue of the
Court’s ruling on Defendant’s motions in limine #8 and #9, the Court finds that
sanctions are warranted. These motions
were necessary by virtue of Plaintiff’s willful discovery abuses.
Based upon
the foregoing, the Court orders as follows:
1. Defendant’s motions to compel further
responses are denied as moot.
2. The Court grants Defendant’s request
for monetary sanctions against Plaintiff Priscilla Caputo. The Court orders Plaintiff to pay Defendant,
by and through counsel, monetary sanctions in the amount of $6,450 within
thirty (30) days.
3. The Court denies Defendant’s request
for monetary sanctions against Plaintiff’s counsel, Mr. Gavril T. Gabriel,
Esq. The Court cannot conclude that his
conduct, as opposed to that of his client, constituted an abuse of the
discovery process.
4. Defendant’s counsel shall provide
notice and file proof of such with the Court.
Order #3 of 3
Motion to Compel
Inspection of Plaintiff’s Mobile Devices and Communication Accounts
Motion to Compel
Plaintiff’s Deposition
Defendant
seeks to compel an inspection of Plaintiff’s mobile devices and to take
Plaintiff’s deposition again. Defendant’s
counsel has concerns that Plaintiff did not produce additional discovery
concerning other acts of alleged harassment.
Defendant’s counsel previously filed the motions on August 30,
2023. However, the notices of motion had
a technical defect in that they did not expressly seek to reopen discovery in
order to compel an inspection and re-take Plaintiff’s deposition. (See Pelton-Shepherd Industries, Inc. v.
Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1588-1589.) Defendant’s counsel corrected the defect by
filing amended notices of motion on October 9, 2023.
The Court
shares Defendant’s counsel’s concerns that Plaintiff did not produce discovery
from her mobile devices. There have been
repeated discovery problems in this case.
First, Plaintiff did not disclose her experts in a timely manner, and
the Court ordered that Plaintiff may not call Dr. Lucila Estrada or Dr. Alex
Avila in her case-in-chief. (See Court’s
Minute Order, dated February 24, 2023.)
Second, the Court excluded evidence of Plaintiff’s past medical
expenses:
“In this case, the Court finds that
Plaintiff engaged in a willful attempt to conceal this evidence during
discovery. Defendant propounded discovery on August 5, 2019, seeking all
documents relating to Plaintiff’s damages. (Declaration of Nadia D. Adams, ¶
12.) Plaintiff did not identify past medical expenses or produce any medical
bills. (Ibid.) Plaintiff was deposed on December 20, 2019, February 28, 2020,
and August 26, 2021, and did not testify about her past medical expenses. (Id.,
¶ 3.) Defendant propounded special interrogatories on March 24, 2022,
requesting the amounts of economic damages. (Id., ¶ 4.) Plaintiff identified no
past medical expenses. (Ibid.) Plaintiff supplemented her responses on June 24,
2022, and did not identify any past medical expenses. (Ibid.) Nevertheless,
Plaintiff had been seeing a therapist through Premier Forensic Psychology on
January 18, 2022. (Id., ¶ 5.) Plaintiff filed a trial brief on February 16,
2023, which did not list medical expenses. (Id., ¶ 9.) Then, these expenses in
the amount of $20,400 were added to the amended trial brief that was filed on
March 1, 2023. (Id., ¶ 10.) Plaintiff’s counsel advances no legitimate
explanation for not disclosing this evidence before March 1, 2023, especially
when his client started seeing a therapist in January 2022, before responding
to the discovery requests.”
(See Court’s Minute Order, dated June 13, 2023.) Most recently, in granting Defendant’s motions
in limine #8 and #9, the Court found that Plaintiff engaged in a willful
attempt to evade her discovery responsibilities and conceal evidence (e.g.,
Facebook communications) that undermined her claims against Defendant. Therefore, the Court orders as follows:
1. The Court grants Defendant’s motions to
reopen discovery and compel an inspection of Plaintiff’s mobile devices and communication
accounts on the condition that Defendant use a third-party service provider who
will search for, and segregate, any privileged communications (e.g.,
communications between Ms. Caputo and Mr. Gabriel, etc.) and any files/communications
unrelated to the case so that Defendant’s counsel do not review them.
2. The Court grants Defendant’s motion to
compel a further deposition of Plaintiff.
3. The Court orders the parties to
meet-and-confer concerning Defendant’s further inspection and the deposition of
Plaintiff. The Court orders the parties
to file a joint status report on or before November 15, 2023, concerning the
dates during which this discovery will be completed and potential trial
dates.
4. The Court continues the trial setting
conference to November 27, 2023, at 1:30 p.m.
The Court will resolve any discovery disputes concerning the inspection
and deposition on that date/time.
5. Defendant’s counsel shall provide
notice and file proof of such with the Court.