Preview
1 JACKSON LEWIS P.C.
JAMES T. JONES (SBN 167967)
2 MANDY L. SIMS (SBN 278352)
400 Capitol Mall, Suite 1600
3 Sacramento, Califomia 95814 FlLED/ENDORSED
Telephone: (916)341-0404
4 Facsimile: (916)341-0141
Email: iames.iones(a),iacksonlewis.com AUG -9 2022
5 Email: mandv.sims(a)Jacksonlewis.com
Bv:. p. Vue
6 Attomeys for Defendant Deputy Clerk
LIQUI-BOX CORPORATION
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10 SAJIDA ZAMAN, CASE NO. 34-2019-00252121-CU-WT-GDS
11 Plaintiff, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
12 vs. DEFENDANT LIQUI-BOX
CORPORATION'S MOTION TO
13 LIQUI-BOX CORPORATION, and DOES ACCEPT DEFENDANT'S EXPERT
through 20, inclusive. WITNESS DESIGNATION
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Defendants. Date: October 20, 2022
15 Time: 1:30 p.m.
Dept: 53 BY FAX
16 Reservation No.: 2666068
17 Complaint Filed: March 8, 2019
Trial Date: September 12, 2022
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX
CORPORATION'S MOTION TO ACCEPT DEFENDANT'S EXPERT WITNESS DESIGNATION
1 I. INTRODUCTION
2 Defendant Liqui-Box Corporation ("Defendant") moves for order granting leave to submit
3 its Expert Witness Designation. This Motion is made pursuant to Califomia Code of Civil
4 Procedure §§ 2034.230(b), 2034.710, 2034.720, and 2034.730, on the following grounds:
5 Defendant's Expert Witness Information was timely pursuant to Califomia Code of Civil
6 Procedure section 2034.230(b) but was inconsistent with the date of disclosure listed in
7 Defendant's Demand for Mutual Exchange of Expert Witness Information. However, if the Court
8 concludes that the exchange was not timely, the delay was inadvertent and did not result in
9 prejudice to Plaintiff and should be permitted. Plaintiff unreasonably seeks to exclude Defendant
10 from using any experts on any anticipated issue despite knowing that the right thing to do is to
11 permit Defendant's use of such experts. However, Defendant acknowledges that it made an
12 inadvertent error causing this issue, and therefore Defendant does not seek sanctions for
13 Plaintiffs unwillingness to do what is right.
14 II. STATEMENT OF FACTS
15 On July 1, 2022, Defendant served its Demand for Exchange of Expert Witness
16 Information pursuant to Califomia Code of Civil Procedure section 2034.210, and erroneously set
17 the mutual initial expert witness exchange for July 21, 2022. (Declaration of James T. Jones
18 "Jones Decl." Tf2 and Exh. A.) A calendaring clerk at Jackson Lewis, P.C. calendared the
19 disclosure for July 25, 2022 pursuant to Califomia Code of Civil Procedure section 2034.230(b),
20 which states: expert witness data must be exchanged "no later than 50 days before the initial trial
21 date, or 20 days after service of the demand, whichever is closer to trial." (Jones Decl. at ^3.)
22 According to the code, because July 25, 2022 was closer to trial (September 9, 2022), it should
23 have been the expert disclosure date. (Ibid.) On July 14, 2022, Defense counsel received a pop-
24 up reminder from Outlook that the Expert Witness Disclosure was due on July 25, 2022. (Jones
25 Decl. at ^4 and Exh. B.) However, the calendaring clerk did not inform counsel that he was
26 changing the date. Ultimately, this led to an error because Defendant's counsel received
27 calendaring information thereafter reminding that the disclosure was due on July 25, while
28 Plaintiffs counsel continued to operate based on the July 21 date in the demand for exchange.
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MEMORANDUM OF POINTS AND AUTHORITIES EN SUPPORT OF DEFENDANT LIQUI-BOX
CORPORATION'S MOTION TO ACCEPT DEFENDANT'S EXPERT WITNESS DESIGNATION
1 Defense Counsel received Plaintiffs Expert Witness Disclosure on July 21, 2022 at 7:34
2 p.m., via email. (Jones Decl. at 1f5 and Exh. C.) After receiving Plaintiffs Expert Witness
3 Disclosure, Defense Counsel checked with his legal assistant who confirmed the disclosure date
4 was July 25, 2022. (Jones Dec. at ^6.) On July 25, 2022, Defendant's served its Expert Witness
5 Designation. (Jones Decl. at ^7 and Exh. D.) Thereafter, Defense Counsel called Joshua
6 Falakassa (Plaintiffs Counsel) to discuss the expert witness disclosure but received no response.
7 (Jones Dec. at 118.) Defense Counsel received an email from Joshua Falakassa (Plaintiffs
8 Counsel) timestamped July 28, 2022 at 10:54 a.m. asserting Defendant's expert witness
9 designation was untimely and that Defendant's right to use an expert on any anticipated issue was
10 terminated. (Jones Decl. at ^9 and Exh. E.) On July 28, 2022 at 2:58 p.m.. Defense Counsel sent
11 an email to Joshua Falakassa (Plaintiffs Counsel) explaining what had occurred and requesting
12 Plaintiffs counsel to stipulate on the timeliness of service of Defendant's Expert Witness
13 Designation served on July 25, 2022. (Jones Decl. at ^10 and Exh. F.) As of the date of this
14 motion, Defense Counsel has not received a response from Plaintiffs Counsel and was therefore
15 required to file this instant motion. (Jones Dec. at Tfl 1.) Further, Defendant agrees to arrange for
16 the experts to be available for deposition. (Jones Decl. tl2.)
17 m. LAW AND ARGUMENT
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A. Defendant's Expert Witness Disclosure Was Timely Served Pursuant to
19 California Code of Civil Procedure Section 2034.230(b).
20 Califomia Code of Civil Procedure section 2034.230(b), states in pertinent part: expert
21 witness data must be exchanged "no later than 50 days before the initial trial date, or 20 days after
22 service of the demand, whichever is closer to trial." [emphasis added.] C.C.P. §2034.230(b).
23 Based on the Code, Defendant's exchange of expert information would be considered
24 timely. Califomia Code of Civil Procedure section 2034.210. Trial is scheduled to commence on
25 September 12, 2022 and therefore, 50 days before trial (July 25, 2022) should have been the
26 correct date to mutually exchange expert witness information. Defendant served its Expert
27 Witness Disclosure on July 25, 2022, which was timely pursuant to Califomia Code of Civil
28 ///
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX
CORPORATION'S MOTION TO ACCEPT DEFENDANT'S EXPERT WITNESS DESIGNATION
1 Procedure section 2034.230(b), but created an error because of the July 21 date in the demand.
2 Defendant seeks relief from the Court to deem the Expert Witness Disclosure timely.
^ B. Alternatively, The Court Should Grant Defendants Leave to Submit a Tardy
Expert Witness Information Disclosure pursuant to California Code of Civil
4 Procedure Sections 2034.710(a), 2034.720.
5 Pursuant to Code of Civil Procedure § 2034.710(a), on motion of any party who has failed
6 to submit expert witness information on a date specified in a demand for that exchange, the Court
7 may grant leave to submit that information at a later date. Code of Civil Procedure § 2034.720
8 provides that on the motion of any party a court shall grant leave to submit a tardy expert
9 designation if all of the following conditions are satisfied:
10 (a) The court has taken into account the extent to which the opposing party has
^^ relied on the absence of a list of expert witnesses.
(b) The court has determined that any party opposing the motion will not be
12 prejudiced in maintaining that party's action or defense on the merits.
13 (c) The court has determined that the moving party did all of the following:
14 (1) Failed to submit the infonnation as the result of mistake, inadvertence,
^^ surprise, or excusable neglect.
(2) Sought leave to submit the information promptly after leaming of the
16 mistake, inadvertence, surprise, or excusable neglect.
1^ (3) Promptly thereafter served a copy of the proposed expert witness
information described in Section 2034.260 on all other parties who have
1^ appeared in the action.
19 (d) The order is conditioned on the moving party making the expert available
immediately for a deposition under Article 3 (commencing with Section
20 2034.410), and on any other terms as may be just, including, but not limited to,
leave to any party opposing the motion to designate additional expert witnesses or
21 to elicit additional opinions from those previously designated, a continuance of
the trial for a reasonable period of time, and the awarding of costs and litigation
22 expenses to any party opposing the motion.
23 Code of Civ. Proc. § 2034.720.
24 Here, all the conditions set forth in Code of Civil Procedure § 2034.720, for a Court to
25 grant leave to submit tardy expert witness information are met.
26 First, Plaintiff could not have substantially relied on Defendants' inadvertent failure to
27 serve Expert Witness Information. Plaintiff served her Expert Witness Disclosure on Thursday,
28 ///
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX
CORPORATION'S MOTION TO ACCEPT DEFENDANT'S EXPERT WITNESS DESIGNATION
1 July 21, 2022 at 7:34 p.m. Defendant served its Expert Witness Disclosure on Monday, July 25,
2 2022. Less than four days, including a weekend transpired between dates of service.
3 Second, Plaintiff has not been and will not be prejudiced by the difference in disclosure
4 dates. Defense Counsel promptly attempted to contact Plaintiffs Counsel by phone regarding the
5 potential difference in mutual exchange date.
6 Third, it was an inadvertent oversight that the service of Defendant's Expert Witness
7 Designation was inconsistent with the date identified in Defendant's Demand for Expert Witness
8 Disclosure.
9 Fourth, Defense Counsel contacted Plaintiffs Counsel to meet and confer regarding this
10 issue as soon as Defendant received Plaintiffs disclosure; however. Plaintiffs Counsel did not
11 respond to resolve the issue informally. Defense Counsel timely filed the present Motion. Lastly,
12 Defense Counsel agrees to arrange for availability of the disclosed experts for deposition.
13 The only party that would be prejudiced by Defendant not being allowed to submit Expert
14 Witness Disclosure and Infonnation will be Defendant. I f Defendant is denied the opportunity to
15 submit and have its Expert Witness Disclosure considered, Defendant will not have a full
16 opportunity to defend the case against it, particularly in the area of damages and suffer irreparable
17 prejudice.
18 As set forth above. Defendant served its Expert Witness Disclosure on July 25, 2022,
19 which was timely pursuant to Califomia Code of Civil Procedure section 2034.230(b).
20 Altematively, Defendant satisfied the requirements to submit expert witness information, and
21 expert discovery does not close until August 29, 2022. Plaintiff has not and will in no way be
22 prejudiced with the submission of Defendant's expert witness disclosure. Plaintiffs unwillingness
23 to cooperate and participate in good faith meet and confer efforts have caused the need for this
24 motion.
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28 ///
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX
CORPORATION'S MOTION TO ACCEPT DEFENDANT'S EXPERT WITNESS DESIGNATION
1 V. CONCLUSION
2 For the reasons stated above, Defendant requests this motion for leave to submit its expert
3 witness information under Califomia Code of Civil Procedure sections 2034.230(b), 2034.710,
4 2034.720, and 2034.730 be granted.
5 Dated: August 9, 2022 JACKSON LEWIS P.C.
6
7 By:_
JAMES T. JONES
8 MANDY L. SIMS
9 Attomeys for Defendant
LIQUI-BOX CORPORATION
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MEMORANDUM OF POINTS AND AUTHORITIES EN SUPPORT OF DEFENDANT LIQUI-BOX
CORPORATION'S MOTION TO ACCEPT DEFENDANT'S EXPERT WITNESS DESIGNATION
1 PROOF OF S E R V I C E
2 I am employed in the County of Sacramento, State of Califomia. I am over the age of
eighteen years and not a party to the within action; my business address is Jackson Lewis P.C,
3 400 Capitol Mall, Suite 1600, Sacramento, Califomia 95814.
4 On August 9, 2022,1 served the within:
5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT
LIQUI-BOX CORPORATION'S MOTION TO ACCEPT DEFENDANT'S E X P E R T
6 WITNESS DESIGNATION
7 on all interested parties in said action, through their attomeys of record as listed below, by placing
a tme and correct copy thereof, addressed as shown below, by the following means:
8
[3c| PERSONAL SERVICE - by causing personal delivery of a true and correct copy
9 thereof to the person at the address set forth below, in accordance with Code of Civil
Procedure section 1011(a).
10
P~| M A I L - by placing a tme and correct copy thereof enclosed in a sealed envelope with
11 postage thereon fully prepaid for deposit in the United States Post Office mailbox, at
my business address shown above, following Jackson Lewis P.C.'s ordinary business
12 practices for the collection and processing of mail, of which I am readily familiar, and
addressed as set forth below. On the same day correspondence is placed for collection
13 and mailing, it is deposited in the ordinary course of business with the United States
Postal Service.
14
|~| OVERNIGHT DELIVERY - by depositing a tme and correct copy thereof enclosed
15 in a sealed envelope with delivery fees thereon fully prepaid in a box or other facility
regularly maintained by UPS or delivering to an authorized courier or driver
16 authorized by UPS to receive documents, addressed as set forth below.
17 Q E-MAIL OR ELECTRONIC TRANSMISSION - Based on Califomia Code of Civil
Procedure Section 1010.6(e)(l)(2), I caused the document(s) described above to be
18 sent from e-mail address kellv.asano@iacksonlewis.com to the person(s) at the e-mail
address(es) listed below. I did not receive, within a reasonable time after the
19 transmission, any electronic message or other indication that the transmission was
unsuccessful.
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Arash S. Khosrowshahi (SBN 293246)
21 LIBERTY MAN LAW, P.C.
1010 F Street, Suite 300
22 Sacramento, CA 95814
Telephone: (916)573-0469
23 Facsimile: (866)700-0787
Email: ash(a),libertymanlaw.com
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I declare under penalty of perjury under the laws of the State of Califomia that the
25 foregoing is tme and correct, and that this declaration was executed on August 9, 2022 at
Sacramento, Califomia.
ZD '
28 Kelly Asano
PROOF OF SERVICE
1 PROOF OF S E R V I C E
2 I am employed in the County of Sacramento, State of Califomia. I am over the age of
eighteen years and not a party to the within action; my business address is Jackson Lewis P.C,
3 400 Capitol Mall, Suite 1600, Sacramento, Califomia 95814.
4 On August 9, 2022,1 served the within:
5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT
LIQUI-BOX CORPORATION'S MOTION TO ACCEPT DEFENDANT'S E X P E R T
6 WITNESS DESIGNATION
7 on all interested parties in said action, through their attomeys of record as listed below, by placing
a tme and correct copy thereof, addressed as shown below, by the following means:
8
I I PERSONAL SERVICE - by causing personal delivery of a true and correct copy
9 thereof to the person at the address set forth below, in accordance with Code of Civil
Procedure section 1011(a).
10
M A I L - by placing a true and correct copy thereof enclosed in a sealed envelope with
11 • postage thereon fully prepaid for deposit in the United States Post Office mailbox, at
my business address shown above, following Jackson Lewis P.C.'s ordinary business
12 practices for the collection and processing of mail, of which I am readily familiar, and
addressed as set forth below. On the same day correspondence is placed for collection
13 and mailing, it is deposited in the ordinary course of business with the United States
Postal Service.
14
OVERNIGHT DELIVERY - by depositing a tme and correct copy thereof enclosed
15 • in a sealed envelope with delivery fees thereon fully prepaid in a box or other facility
regularly maintained by UPS or delivering to an authorized courier or driver
16 authorized by UPS to receive documents, addressed as set forth below.
17 E-MAIL OR ELECTRONIC TRANSMISSION - Based on Califomia Code of Civil
[X|
Procedure Section 1010.6(e)(l)(2), I caused the document(s) described above to be
18 sent from e-mail address kellv.asano(5),iacksonlewis.com to the person(s) at the e-mail
address(es) listed below. I did not receive, within a reasonable time after the
19 transmission, any electronic message or other indication that the transmission was
unsuccessful.
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Joshua F. Falakassa (SBN 295045) Arash S. Khosrowshahi (SBN 293246)
21 FALAKASSA LAW, P.C. LIBERTY MAN LAW, P.C.
1901 Avenue of the Stars, Suite 450 1010 F Street, Suite 300
22 Los Angeles, CA 90067 Sacramento, CA 95814
Telephone: (818)456-6168 Telephone: (916)573-0469
23 Facsimile: (888) 505-0868 Facsimile: (866) 700-0787
Email: Josh(S),Falakassalaw.com Email: ashfojlibertvmanlaw.com
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I declare under penalty of perjury under the laws of the State of Califomia that the
25 foregoing is true and correct, and that this declaration was executed on August 9, 2022 at
26 Sacramento, Califomia.
27
28 Kelly Asano
PROOF OF SERVICE
Preview
1 JACKSON LEWIS P.C. JAMES T. JONES (SBN 167967) 2 MANDY L. SIMS (SBN 278352) 400 Capitol Mall, Suite 1600 3 Sacramento, Califomia 95814 FlLED/ENDORSED Telephone: (916)341-0404 4 Facsimile: (916)341-0141 Email: iames.iones(a),iacksonlewis.com AUG -9 2022 5 Email: mandv.sims(a)Jacksonlewis.com Bv:. p. Vue 6 Attomeys for Defendant Deputy Clerk LIQUI-BOX CORPORATION 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 SAJIDA ZAMAN, CASE NO. 34-2019-00252121-CU-WT-GDS 11 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 12 vs. DEFENDANT LIQUI-BOX CORPORATION'S MOTION TO 13 LIQUI-BOX CORPORATION, and DOES ACCEPT DEFENDANT'S EXPERT through 20, inclusive. WITNESS DESIGNATION 14 Defendants. Date: October 20, 2022 15 Time: 1:30 p.m. Dept: 53 BY FAX 16 Reservation No.: 2666068 17 Complaint Filed: March 8, 2019 Trial Date: September 12, 2022 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION TO ACCEPT DEFENDANT'S EXPERT WITNESS DESIGNATION 1 I. INTRODUCTION 2 Defendant Liqui-Box Corporation ("Defendant") moves for order granting leave to submit 3 its Expert Witness Designation. This Motion is made pursuant to Califomia Code of Civil 4 Procedure §§ 2034.230(b), 2034.710, 2034.720, and 2034.730, on the following grounds: 5 Defendant's Expert Witness Information was timely pursuant to Califomia Code of Civil 6 Procedure section 2034.230(b) but was inconsistent with the date of disclosure listed in 7 Defendant's Demand for Mutual Exchange of Expert Witness Information. However, if the Court 8 concludes that the exchange was not timely, the delay was inadvertent and did not result in 9 prejudice to Plaintiff and should be permitted. Plaintiff unreasonably seeks to exclude Defendant 10 from using any experts on any anticipated issue despite knowing that the right thing to do is to 11 permit Defendant's use of such experts. However, Defendant acknowledges that it made an 12 inadvertent error causing this issue, and therefore Defendant does not seek sanctions for 13 Plaintiffs unwillingness to do what is right. 14 II. STATEMENT OF FACTS 15 On July 1, 2022, Defendant served its Demand for Exchange of Expert Witness 16 Information pursuant to Califomia Code of Civil Procedure section 2034.210, and erroneously set 17 the mutual initial expert witness exchange for July 21, 2022. (Declaration of James T. Jones 18 "Jones Decl." Tf2 and Exh. A.) A calendaring clerk at Jackson Lewis, P.C. calendared the 19 disclosure for July 25, 2022 pursuant to Califomia Code of Civil Procedure section 2034.230(b), 20 which states: expert witness data must be exchanged "no later than 50 days before the initial trial 21 date, or 20 days after service of the demand, whichever is closer to trial." (Jones Decl. at ^3.) 22 According to the code, because July 25, 2022 was closer to trial (September 9, 2022), it should 23 have been the expert disclosure date. (Ibid.) On July 14, 2022, Defense counsel received a pop- 24 up reminder from Outlook that the Expert Witness Disclosure was due on July 25, 2022. (Jones 25 Decl. at ^4 and Exh. B.) However, the calendaring clerk did not inform counsel that he was 26 changing the date. Ultimately, this led to an error because Defendant's counsel received 27 calendaring information thereafter reminding that the disclosure was due on July 25, while 28 Plaintiffs counsel continued to operate based on the July 21 date in the demand for exchange. 2 MEMORANDUM OF POINTS AND AUTHORITIES EN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION TO ACCEPT DEFENDANT'S EXPERT WITNESS DESIGNATION 1 Defense Counsel received Plaintiffs Expert Witness Disclosure on July 21, 2022 at 7:34 2 p.m., via email. (Jones Decl. at 1f5 and Exh. C.) After receiving Plaintiffs Expert Witness 3 Disclosure, Defense Counsel checked with his legal assistant who confirmed the disclosure date 4 was July 25, 2022. (Jones Dec. at ^6.) On July 25, 2022, Defendant's served its Expert Witness 5 Designation. (Jones Decl. at ^7 and Exh. D.) Thereafter, Defense Counsel called Joshua 6 Falakassa (Plaintiffs Counsel) to discuss the expert witness disclosure but received no response. 7 (Jones Dec. at 118.) Defense Counsel received an email from Joshua Falakassa (Plaintiffs 8 Counsel) timestamped July 28, 2022 at 10:54 a.m. asserting Defendant's expert witness 9 designation was untimely and that Defendant's right to use an expert on any anticipated issue was 10 terminated. (Jones Decl. at ^9 and Exh. E.) On July 28, 2022 at 2:58 p.m.. Defense Counsel sent 11 an email to Joshua Falakassa (Plaintiffs Counsel) explaining what had occurred and requesting 12 Plaintiffs counsel to stipulate on the timeliness of service of Defendant's Expert Witness 13 Designation served on July 25, 2022. (Jones Decl. at ^10 and Exh. F.) As of the date of this 14 motion, Defense Counsel has not received a response from Plaintiffs Counsel and was therefore 15 required to file this instant motion. (Jones Dec. at Tfl 1.) Further, Defendant agrees to arrange for 16 the experts to be available for deposition. (Jones Decl. tl2.) 17 m. LAW AND ARGUMENT 18 A. Defendant's Expert Witness Disclosure Was Timely Served Pursuant to 19 California Code of Civil Procedure Section 2034.230(b). 20 Califomia Code of Civil Procedure section 2034.230(b), states in pertinent part: expert 21 witness data must be exchanged "no later than 50 days before the initial trial date, or 20 days after 22 service of the demand, whichever is closer to trial." [emphasis added.] C.C.P. §2034.230(b). 23 Based on the Code, Defendant's exchange of expert information would be considered 24 timely. Califomia Code of Civil Procedure section 2034.210. Trial is scheduled to commence on 25 September 12, 2022 and therefore, 50 days before trial (July 25, 2022) should have been the 26 correct date to mutually exchange expert witness information. Defendant served its Expert 27 Witness Disclosure on July 25, 2022, which was timely pursuant to Califomia Code of Civil 28 /// MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION TO ACCEPT DEFENDANT'S EXPERT WITNESS DESIGNATION 1 Procedure section 2034.230(b), but created an error because of the July 21 date in the demand. 2 Defendant seeks relief from the Court to deem the Expert Witness Disclosure timely. ^ B. Alternatively, The Court Should Grant Defendants Leave to Submit a Tardy Expert Witness Information Disclosure pursuant to California Code of Civil 4 Procedure Sections 2034.710(a), 2034.720. 5 Pursuant to Code of Civil Procedure § 2034.710(a), on motion of any party who has failed 6 to submit expert witness information on a date specified in a demand for that exchange, the Court 7 may grant leave to submit that information at a later date. Code of Civil Procedure § 2034.720 8 provides that on the motion of any party a court shall grant leave to submit a tardy expert 9 designation if all of the following conditions are satisfied: 10 (a) The court has taken into account the extent to which the opposing party has ^^ relied on the absence of a list of expert witnesses. (b) The court has determined that any party opposing the motion will not be 12 prejudiced in maintaining that party's action or defense on the merits. 13 (c) The court has determined that the moving party did all of the following: 14 (1) Failed to submit the infonnation as the result of mistake, inadvertence, ^^ surprise, or excusable neglect. (2) Sought leave to submit the information promptly after leaming of the 16 mistake, inadvertence, surprise, or excusable neglect. 1^ (3) Promptly thereafter served a copy of the proposed expert witness information described in Section 2034.260 on all other parties who have 1^ appeared in the action. 19 (d) The order is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 20 2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or 21 to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation 22 expenses to any party opposing the motion. 23 Code of Civ. Proc. § 2034.720. 24 Here, all the conditions set forth in Code of Civil Procedure § 2034.720, for a Court to 25 grant leave to submit tardy expert witness information are met. 26 First, Plaintiff could not have substantially relied on Defendants' inadvertent failure to 27 serve Expert Witness Information. Plaintiff served her Expert Witness Disclosure on Thursday, 28 /// MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION TO ACCEPT DEFENDANT'S EXPERT WITNESS DESIGNATION 1 July 21, 2022 at 7:34 p.m. Defendant served its Expert Witness Disclosure on Monday, July 25, 2 2022. Less than four days, including a weekend transpired between dates of service. 3 Second, Plaintiff has not been and will not be prejudiced by the difference in disclosure 4 dates. Defense Counsel promptly attempted to contact Plaintiffs Counsel by phone regarding the 5 potential difference in mutual exchange date. 6 Third, it was an inadvertent oversight that the service of Defendant's Expert Witness 7 Designation was inconsistent with the date identified in Defendant's Demand for Expert Witness 8 Disclosure. 9 Fourth, Defense Counsel contacted Plaintiffs Counsel to meet and confer regarding this 10 issue as soon as Defendant received Plaintiffs disclosure; however. Plaintiffs Counsel did not 11 respond to resolve the issue informally. Defense Counsel timely filed the present Motion. Lastly, 12 Defense Counsel agrees to arrange for availability of the disclosed experts for deposition. 13 The only party that would be prejudiced by Defendant not being allowed to submit Expert 14 Witness Disclosure and Infonnation will be Defendant. I f Defendant is denied the opportunity to 15 submit and have its Expert Witness Disclosure considered, Defendant will not have a full 16 opportunity to defend the case against it, particularly in the area of damages and suffer irreparable 17 prejudice. 18 As set forth above. Defendant served its Expert Witness Disclosure on July 25, 2022, 19 which was timely pursuant to Califomia Code of Civil Procedure section 2034.230(b). 20 Altematively, Defendant satisfied the requirements to submit expert witness information, and 21 expert discovery does not close until August 29, 2022. Plaintiff has not and will in no way be 22 prejudiced with the submission of Defendant's expert witness disclosure. Plaintiffs unwillingness 23 to cooperate and participate in good faith meet and confer efforts have caused the need for this 24 motion. 25 /// 26 /// 27 /// 28 /// MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION TO ACCEPT DEFENDANT'S EXPERT WITNESS DESIGNATION 1 V. CONCLUSION 2 For the reasons stated above, Defendant requests this motion for leave to submit its expert 3 witness information under Califomia Code of Civil Procedure sections 2034.230(b), 2034.710, 4 2034.720, and 2034.730 be granted. 5 Dated: August 9, 2022 JACKSON LEWIS P.C. 6 7 By:_ JAMES T. JONES 8 MANDY L. SIMS 9 Attomeys for Defendant LIQUI-BOX CORPORATION 10 •• 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES EN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION TO ACCEPT DEFENDANT'S EXPERT WITNESS DESIGNATION 1 PROOF OF S E R V I C E 2 I am employed in the County of Sacramento, State of Califomia. I am over the age of eighteen years and not a party to the within action; my business address is Jackson Lewis P.C, 3 400 Capitol Mall, Suite 1600, Sacramento, Califomia 95814. 4 On August 9, 2022,1 served the within: 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION TO ACCEPT DEFENDANT'S E X P E R T 6 WITNESS DESIGNATION 7 on all interested parties in said action, through their attomeys of record as listed below, by placing a tme and correct copy thereof, addressed as shown below, by the following means: 8 [3c| PERSONAL SERVICE - by causing personal delivery of a true and correct copy 9 thereof to the person at the address set forth below, in accordance with Code of Civil Procedure section 1011(a). 10 P~| M A I L - by placing a tme and correct copy thereof enclosed in a sealed envelope with 11 postage thereon fully prepaid for deposit in the United States Post Office mailbox, at my business address shown above, following Jackson Lewis P.C.'s ordinary business 12 practices for the collection and processing of mail, of which I am readily familiar, and addressed as set forth below. On the same day correspondence is placed for collection 13 and mailing, it is deposited in the ordinary course of business with the United States Postal Service. 14 |~| OVERNIGHT DELIVERY - by depositing a tme and correct copy thereof enclosed 15 in a sealed envelope with delivery fees thereon fully prepaid in a box or other facility regularly maintained by UPS or delivering to an authorized courier or driver 16 authorized by UPS to receive documents, addressed as set forth below. 17 Q E-MAIL OR ELECTRONIC TRANSMISSION - Based on Califomia Code of Civil Procedure Section 1010.6(e)(l)(2), I caused the document(s) described above to be 18 sent from e-mail address kellv.asano@iacksonlewis.com to the person(s) at the e-mail address(es) listed below. I did not receive, within a reasonable time after the 19 transmission, any electronic message or other indication that the transmission was unsuccessful. 20 Arash S. Khosrowshahi (SBN 293246) 21 LIBERTY MAN LAW, P.C. 1010 F Street, Suite 300 22 Sacramento, CA 95814 Telephone: (916)573-0469 23 Facsimile: (866)700-0787 Email: ash(a),libertymanlaw.com 24 I declare under penalty of perjury under the laws of the State of Califomia that the 25 foregoing is tme and correct, and that this declaration was executed on August 9, 2022 at Sacramento, Califomia. ZD ' 28 Kelly Asano PROOF OF SERVICE 1 PROOF OF S E R V I C E 2 I am employed in the County of Sacramento, State of Califomia. I am over the age of eighteen years and not a party to the within action; my business address is Jackson Lewis P.C, 3 400 Capitol Mall, Suite 1600, Sacramento, Califomia 95814. 4 On August 9, 2022,1 served the within: 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION TO ACCEPT DEFENDANT'S E X P E R T 6 WITNESS DESIGNATION 7 on all interested parties in said action, through their attomeys of record as listed below, by placing a tme and correct copy thereof, addressed as shown below, by the following means: 8 I I PERSONAL SERVICE - by causing personal delivery of a true and correct copy 9 thereof to the person at the address set forth below, in accordance with Code of Civil Procedure section 1011(a). 10 M A I L - by placing a true and correct copy thereof enclosed in a sealed envelope with 11 • postage thereon fully prepaid for deposit in the United States Post Office mailbox, at my business address shown above, following Jackson Lewis P.C.'s ordinary business 12 practices for the collection and processing of mail, of which I am readily familiar, and addressed as set forth below. On the same day correspondence is placed for collection 13 and mailing, it is deposited in the ordinary course of business with the United States Postal Service. 14 OVERNIGHT DELIVERY - by depositing a tme and correct copy thereof enclosed 15 • in a sealed envelope with delivery fees thereon fully prepaid in a box or other facility regularly maintained by UPS or delivering to an authorized courier or driver 16 authorized by UPS to receive documents, addressed as set forth below. 17 E-MAIL OR ELECTRONIC TRANSMISSION - Based on Califomia Code of Civil [X| Procedure Section 1010.6(e)(l)(2), I caused the document(s) described above to be 18 sent from e-mail address kellv.asano(5),iacksonlewis.com to the person(s) at the e-mail address(es) listed below. I did not receive, within a reasonable time after the 19 transmission, any electronic message or other indication that the transmission was unsuccessful. 20 Joshua F. Falakassa (SBN 295045) Arash S. Khosrowshahi (SBN 293246) 21 FALAKASSA LAW, P.C. LIBERTY MAN LAW, P.C. 1901 Avenue of the Stars, Suite 450 1010 F Street, Suite 300 22 Los Angeles, CA 90067 Sacramento, CA 95814 Telephone: (818)456-6168 Telephone: (916)573-0469 23 Facsimile: (888) 505-0868 Facsimile: (866) 700-0787 Email: Josh(S),Falakassalaw.com Email: ashfojlibertvmanlaw.com 24 I declare under penalty of perjury under the laws of the State of Califomia that the 25 foregoing is true and correct, and that this declaration was executed on August 9, 2022 at 26 Sacramento, Califomia. 27 28 Kelly Asano PROOF OF SERVICE