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  • SUSAN CHEN VS. STEVE DROSOS ET AL WRONGFUL EVICTION document preview
  • SUSAN CHEN VS. STEVE DROSOS ET AL WRONGFUL EVICTION document preview
  • SUSAN CHEN VS. STEVE DROSOS ET AL WRONGFUL EVICTION document preview
  • SUSAN CHEN VS. STEVE DROSOS ET AL WRONGFUL EVICTION document preview
  • SUSAN CHEN VS. STEVE DROSOS ET AL WRONGFUL EVICTION document preview
  • SUSAN CHEN VS. STEVE DROSOS ET AL WRONGFUL EVICTION document preview
  • SUSAN CHEN VS. STEVE DROSOS ET AL WRONGFUL EVICTION document preview
  • SUSAN CHEN VS. STEVE DROSOS ET AL WRONGFUL EVICTION document preview
						
                                

Preview

é o 0 g > 3 2 B A Professional Law Corporation www.bvlawsf.com nN a Ryan J. Vlasak (SBN 241581) Betzy Bras-Gonzalez (SBN 328716) BRACAMONTES & VLASAK, P.C. 220 Montgomery Street, Suite 870 San Francisco, CA 94104 Phone: (415) 835-6777 Fax: (415) 835-6780 Attorneys for Plaintiff Susan Chen ELECTRONICALLY FILED Superior Court of California, County of San Francisco 01/08/2020 Clerk of the Court BY: BOWMAN LIU Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION SUSAN CHEN, Plaintiff, vs. STEVE DROSOS, individually and as trustee of the Steve Drosos and Margo C. Drosos 2015 Revocable Trust dated September 10, 2015, MARGO DROSOS, individually and as trustee of the Steve Drosos and Margo C. Drosos 2015 Revocable Trust dated September 10, 2015, PHILIP CHAIPPARI, an individual, ANNETTE CHAIPPARI, and individual, C. COURNALE & CO, and DOES 1 to 20, inclusive, Defendants. CASE NO.: CGC-19-573470 PLAINTIFF SUSAN CHEN’S OPPOSITION TO DEFENDANTS’ EX PARTE APPLICATION FOR LEAVE TO AMEND/AUGMENT WITNESS LIST BY REPLACING MOLD EXPERT COMPTON WITH PEARCE DATE: — January 8, 2020 TIME: 9:00 a.m. DEPT.: Dept. 501 FIRST AM. COMPL. FILED: March 5, 2019 TRIAL DATE: February 3, 2020 io Chen v. Drosos, et al. — Plaintiff Susan Chen’s Opposition to Defendants’ Ex Parte Application for Leave to Amend/Augment Witness List by Replacing Mold Expert Compton with Pearce1 MEMORANDUM OF POINTS AND AUTHORITIES 2 STATEMENT OF FACTS 3 This is a habitability case. Plaintiff Susan Chen (“Plaintiff”) brought the instant suit against 4 || Defendants after they failed to take adequate remedial measures, upon notice of multiple habitability 5 |[issues at 2935 Folsom Street, San Francisco, CA (“Subject Premises”). Defendants had actual or 6 || constructive notice of the following: water intrusion, mold and microbial growth, faulty weather 7\| protection, faulty windows, excessive moisture, inadequate ventilation, inadequate security, and 8 || plumbing leaks. The City and County of San Francisco Department of Building Inspections issued 9 || several Notices of Violation because of habitability defects in the Subject Premises. Due to the 0 || uninhabitable conditions at the Subject Premises, Plaintiff was forced to surrender possession of the 1 |]Subject Premises on February 4, 2018. Plaintiff filed her first amended complaint for this case on March 5, 2019. 2 3) On November 20, 2019, Plaintiff served a demand for exchange of expert trial witness information 4 WSO K vidoan Law Corporation www.bvlawsf.com and demand for production of expert reports and writings. (Bras-Gonzalez § 3.) On December 16, 2019, the parties exchanged expert witness information. (Bras-Gonzalez Decl. § 4.) Plaintiff timely disclosed Richard Devine, PHD and Claudio A. Bluer as expert witnesses. (Bras-Gonzalez Decl. { 4; A Professi W. Compton, only, as expert witnesses. (Bras-Gonzalez Decl. { 5; Ex. B to Bras-Gonzalez Decl.) 5 6 17 || Ex. A to Bras-Gonzalez Decl.) Defendant disclosed M. Eric Gershwin, MD, MACR, MACP and Scott 8 9 In Defendant’s Disclosure of Expert Witnesses, defense counsel declared under penalty of perjury 20 || that “Scott Compton has agreed to testify at trial and will be sufficiently familiar with the pending 21 |}action to submit to a meaningful oral deposition concerning his specific testimony, including any 22 || opinion and its basis, that he expects to give at trial.” (Ex. B.) However, on December 31, 2019, 23 || Defendants notified Plaintiff that Scott Compton, their mold expert, was no longer available or willing 24 || to make time for either the deposition or trial. (Bras-Gonzalez § 6; Ex. C to Bras-Gonzalez Decl.) 25 On January 6, 2020, Defendants notified Plaintiff that they would be bringing an ex parte 26 |] application to amend/augment the expert list to replace Scott Compton with Cheryl Pearce. (Id.) 27 On January 7, 2020, Plaintiff served an objection to Defendants’ Amended/Augmented Disclosure 28 || of Witness. (Bras-Gonzalez Decl. § ; Ex. D to Bras-Gonzalez Decl.) oe Chen v. Drosos, et al. — Plaintiff Susan Chen’s Opposition to Defendants’ Ex Parte Application for Leave to Amend/Augment Witness List by Replacing Mold Expert Compton with PearceLed & VIddan 5 s © 5 2 5 °° = & § 3S 2 g 33 28 ois oe< www.bviawsf.com Noe a ARGUMENT I. THE COURT SHOULD DENY DEFENDANTS’ LEAVE TO AMEND/AUGMENT THEIR EXPERT WITNESS LIST PURSUANT TO C.C.P. § 2034.300, BECAUSE IT IS UNTIMELY AND NON-COMPLIANT WITH C.C.P. § 2034.260. Parties that have appeared in an action must “exchange information concerning expert witnesses in writing on or before the date of exchange specified in the demand.” Cal. Code Civ. Proc. § 2034.260. The trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to list the witness as an expert under C.C.P. § 2034.260. The purpose of the expert witness discovery statutes is ‘to give fair notice of what an expert will say at trial... [and] allows the parties to assess whether to take the expert’s deposition, to fully explore the relevant subject area at any such deposition, and to select an expert who can respond with a competing opinion on that subject area.’” Cottini v. Enloe Medical Center, 226 Cal. App. 4th 401, 416 (2014). The California Supreme Court has stated: “Late disclosures of experts...frustrates the very purposes of the discovery statutes, and should be permitted, with an appropriate safeguards and limits, only when absolutely necessary to avoid a miscarriage of justice.”” Bonds v. Roy, 20 Cal. 4th 140, 147 (1999) (emphasis added). Here, Plaintiff timely disclosed her expert witnesses; Defendants did not. Defendants failed to timely disclose Cheryl Pearce as their mold expert on December 16, 2019, the date of exchange. Instead, Defendants had disclosed Scott Compton, a Certified Asbestos Consultant and Certified Lead Inspector, as the expert that would be called to testify about his review of two mold reports supplied by Plaintiff's counsel. (Ex. B.) In same disclosure of expert witnesses, Defendants’ counsel declared under penalty of perjury that Scott Compton was “prepared to provide opinion testimony concerning laboratory analysis of a sample” and that he “will also testify about standards and protocols for mold testing and microbial analysis in living quarters, including plaintiffs.” (Id.) Further, the expert disclosure stated that “Scott Compton has agreed to testify at trial and will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning his specific testimony, including any opinion and its basis, that he expects to give at trial.” (Id.) However, in Defendants’ Exhibit 3 to their Ex Parte Application for Leave to Augment/Amend Expert Witness List, Defendants -3- Chen v. Drosos, et al. — Plaintiff Susan Chen's Opposition to Defendants’ Ex Parte Application for Leave to Amend/Augment Witness List by Replacing Mold Expert Compton with Pearce1 || seemingly place Scott Compton as a place holder emphasizing that the expert disclosure date was set 2 || for Monday, December 16 and that the matter might resolve before trial. 3 Now, less than one month from trial and days from the proposed deposition date for Scott Compton, 4 || Defendants are attempting to substitute their expert witness for an untimely disclosed expert witness. Defendants claim that they don’t understand what happened. (Defs’ Ex Parte App. § 7.) All they can offer is their belief that it was a mistake of some sort. (Id.) Defendants have not offered any evidence that allowing the late expert disclosure is absolutely 5 6 7 8 || necessary to avoid a miscarriage of justice. In fact, Defendants have proffered that the proposed 9 || substitute expert witness, Cheryl Pearce was previously asked by Defendants to testify at trial as a 0 || percipient witness. i Further, Plaintiff promptly objected to Defendants’ amended/augmented list of expert witnesses as untimely and non-compliant with C.C.P. section 2034.260. Since Defendants failed to produce a report Law Corporation www.bvlawsf.com 2) 3 |] or even a declaration per C.C.P. section 2034.260 of the new expert witness at the date of exchange, 4 Plaintiff will be unfairly prejudiced. Defendants now have the advantage of surprise. Defendants should not be rewarded for their own preventable error. Accordingly, the court should deny Defendant’s Ex Parte Application for Leave to Il. DEFENDANT’S PROPOSED NEW EXPERT DISCLOSURE IS DEFICIENT UNDER > 6 7 || Amend/Augment their Expert Witness List. 8 9 C.C.P. § 2034.260. 20 If a witness on the expert disclosure list is a retained expert, “the exchange shall also include or be 21 |] accompanied by an expert witness declaration signed only by the attorney for the party designating the 22 || expert... [t]his declaration shall be under penalty of perjury.” Cal. Code. Civ. Proc. § 2034.260(c). 23 Here, Defendants’ proposed new expert disclosure is deficient because it fails to provide a 24 |) declaration under penalty of perjury. Accordingly, the proposed new expert disclosure is deficient 25 || under C.C.P. § 2034.260. 26 CONCLUSION 27 Based on the foregoing, Plaintiff respectfully requests that the Court deny Defendants’ Ex Parte 28 || Application for Leave to Amend/Augment Witness List. -4- Chen y. Drosos, et al. — Plaintiff Susan Chen's Opposition to Defendants’ Ex Parte Application for Leave to Amend/Augment Witness List by Replacing Mold Expert Compton with PearceDated: January 7, 2020 ° By: VA 3 yan J. Vlasak, Esq. 4 Betzy Bras-Gonzalez, Esq. BRACAMONTES & VLASAK, P.C. 5 Attorneys for Plaintiff Soo) A Professional Law Corporation www.bvlawsf.com Cm nN DH BF WN NN YN NN NN DY ord ann KF wbwN = S -5- Chen v. Drosos, et al. ~ Plaintiff Susan Chen's Opposition to Defendants’ Ex Parte Application for Leave to Amend/Augment Witness List by Replacing Mold Expert Compton with Pearce