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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
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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.)
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17 || Ex. A to Bras-Gonzalez Decl.) Defendant disclosed M. Eric Gershwin, MD, MACR, MACP and Scott
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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.)
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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
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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
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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
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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
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3 |] or even a declaration per C.C.P. section 2034.260 of the new expert witness at the date of exchange,
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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
>
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7 || Amend/Augment their Expert Witness List.
8
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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.
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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
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By: VA
3 yan J. Vlasak, Esq.
4 Betzy Bras-Gonzalez, Esq.
BRACAMONTES & VLASAK, P.C.
5 Attorneys for Plaintiff
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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