Preview
SHAPERO LAW FIRM, PC
1 Sarah Shapero (Bar No. 281748)
100 Pine St., Ste. 530
2 San Francisco, California 94111
Telephone: (415) 273-3504 ELECTRONICALLY
3 Facsimile: (415) 273-3508 FILED
Superior Court of California,
4 County of San Francisco
Attorneys for Plaintiff
5 07/19/2023
Clerk of the Court
BY: VERA MU
6 Deputy Clerk
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SAN FRANCISCO
10 )
) Case No.: CGC-18-571279
11 EDUARDO PANIAGUA and )
ELENA ASTURIAS, individuals, )
12 )
) PLAINTIFF’S REPLY TO MOTION
Plaintiffs, TO DESIGNATE REBUTTAL
13 )
v. ) EXPERT WITNESS
14 )
)
15 MILESTONE FINANCIAL, LLC, a California )
corporation; BEAR BRUIN VENTURES, INC., a ) DATE: July 26, 2023
16 California Corporation; WILLIAM R. STUART, ) TIME: 9:00 AM
an individual; CAROLYN T. STUART, an ) DEPT: 501
17 individual; and DOES 1-100, inclusive, )
)
18 Defendants. )
)
19 )
)
20 )
)
21 )
)
22 )
)
23 )
)
24 )
)
25
26
27
28 MEMORANDUM OF POINTS AND AUTHORITIES
1
PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO DESIGNATE REBUTTAL EXPERT WITNESS
1 I. INTRODUCTION
2 In its Opposition to Plaintiff’s instant Motion, Defendants blame Plaintiff for being unprepared to
3 address “expected expert testimony” when Defendants did not make that expert available for
4 deposition until after the rebuttal expert designation deadline and the expert gave specific testimony
5 well beyond the disclosure statement. Defendants essentially sandbagged Plaintiff with unexpected
6 testimony, and, due to the timing they made this expert available, handicapped Plaintiff’s ability to
7 find a rebuttal witness. Therefore, there is “good cause” to designate a rebuttal expert after the
8 designation deadline.
9 II. ARGUMENT
10 A. Plaintiff Correctly Articulates the Standard For Designating a Rebuttal Expert After the
11 Deadline.
12 In his moving papers, Plaintiff cited Kennemur v. State of California, (1982) 133 Cal. App. 3d 907,
13 a case directly discussing expert disclosure and under designation. (Motion pg. 5.) Despite this,
14 Defendant puzzlingly argues that this citation is misleading, irrelevant and inapposite. (Opposition, pg.
15 10.) Kennemur directly discusses CCP § 2037.3 and states, “The party must disclose either in his witness
16 exchange list or at his expert's deposition, if the expert is asked, the substance of the facts and the
17 opinions which the expert will testify to at trial. Only by such a disclosure will the opposing party have
18 reasonable notice of the specific areas of investigation by the expert, the opinions he has reached and
19 the reasons supporting the opinions, to the end the opposing party can prepare for cross-examination
20 and rebuttal of the expert's testimony. Kennemur v. State of California (1982) 133 Cal.App.3d 907, 910
21 [184 Cal.Rptr. 393].) The basis for Plaintiff’s motion is that Defendants failed to properly designate and
22 disclose Ms. Randich’s expected testimony, and thereby by sandbagged Plaintiff’s ability to prepare
23 rebuttal expert testimony. Defendant is correct that pursuant to CCP § 2034.720, to allow expert
designation post-deadline, Plaintiff must show:
24
25
(1) He failed to submit the information as the result of mistake, inadvertence, surprise, or excusable
26 neglect.
(2) He sought leave to submit the information promptly after learning of the mistake, inadvertence,
27 surprise, or excusable neglect.
28 (3) He promptly thereafter served a copy of the proposed expert witness information described in
Section 2034.260 on all other parties who have appeared in the action. See CCP § 2034.720(c) (1-3).
2
PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO DESIGNATE REBUTTAL EXPERT WITNESS
1 The issues discussed in Kennemur and CCP § 2034.720 are not inapposite, as they both contemplate
2 adequate disclosure of experts and corresponding preparation for trial. In addition, Plaintiff simply and
3 innocuously stating that they must show “good cause” is not misleading—as good cause is a general
4 legal standard that practically all motions must meet. As discussed below, with CCP § 2034.720(c) (1-
5 3) as the standard, Plaintiff can satisfy the test and thereby show “good cause.”
6 B. Defendants Cite Fairfax Which is Actually Inapposite.
7 In its Opposition, Defendants cite to Fairfax v. Lords (2006) 138 Cal. App. 4th 1019, 1021 for the
8 proposition that a “wait-and-see” strategy is frowned upon in expert disclosures. (Opposition, pg. 8-9.)
9 In Fairfax, the Plaintiff served its expert designation with several witnesses and experts, and then
10 Defendant simultaneously served its expert designation but did not list any witnesses or experts
11 witnesses whatsoever. Fairfax v. Lords (2006) 138 Cal. App. 4th 1019, 1022. After seeing the
12 Plaintiff’s list, Defendant then belatedly disclosed rebuttal witnesses after the deadline and after seeing
13 Plaintiff’s list. Id. This was clearly bad faith and a tactic to intentionally not participate in the designation
14 and “wait-and-see” what Plaintiff disclosed and belatedly designate its own rebuttal experts. The Court
15 admonished this completely transparent strategy and held that such a sequence of events directly
16 contradicts the rules of expert designation. Id. at p. 1024 and 1026. In this case, the sequence of events
17 was entirely different. Plaintiff engaged in good faith and simultaneously designated experts along with
18 Defendants. Then, Defendants did not make Ms. Randich available for deposition until after the rebuttal
19 expert designation deadline passed. Defendants finally made Ms. Randich available for deposition on
20 June 5, 2023. Then, in her deposition, Ms. Randich testified to issues that went beyond the expert
21 disclosure statements. This is completely inapposite from Fairfax because Plaintiff did engage in good-
22 faith exchange, but instead was simply surprised by Ms. Randich’s testimony. Further, the timing which
23 Defendants made Ms. Randich available prejudiced Plaintiff’s ability to timely designate a rebuttal
expert. If there is any bad faith actor in this sequence of events, it is Defendants for failing to make Ms.
24
Randich available and allowing the true content of her testimony to be revealed a mere two weeks before
25
trial.
26
27
28
3
PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO DESIGNATE REBUTTAL EXPERT WITNESS
1 C. Plaintiff Failed to Designate this Rebuttal Expert Due to Surprise Because Defendants
2 Belatedly Presented Ms. Randich and her Testimony Went Beyond the Disclosure.
3 Defendant is correct that the “purpose” of the loan at issue and usury are ultimate issues in this
4 case and are discussed throughout the Complaint. (Opposition, 4-6.) However, the issue and the basis
5 for this motion is that Defendant failed to disclose that Ms. Randich was an expert who expected to
6 testify about such issues. Defendant under designated Ms. Randich and failed to disclose that she
7 would be making specific opinions about dispositive issues in this case.
8 The disclosure stated that Ms. Randich would provide expert opinions at trial as follows:
9 Ms. Randich will testify generally regarding real estate asset based lending and real
estate brokers in lending transactions including, among other things:
10
11 (1) with respect to real estate lenders and loans for business, commercial or
investment purposes, the lender’s duties, standards of practices, and standards of
12 care as to loan origination, compliance, loan servicing, and underwriting;
13 (2) with respect to lenders of consumer, residential mortgage loans, the lender’s
14 duties, standards of practice and standards of care as to loan origination, compliance,
loan servicing, licensing, and underwriting;
15
(3) the differences between lenders who make real estate loans primarily for
16 business, commercial or investment purposes, and lenders who make consumer,
residential mortgage loans, and the differences between a real estate loan made
17
primarily for business, commercial or investment purposes and a consumer,
18 residential mortgage loan;
19 (4) the duties, standards of practice, standards of care, and roles of real estate
brokers and agents involved in real estate loan transactions;
20
(5) the relationships between a lender, a real estate broker, and its borrower client in
21
the wholesale, real estate lending industry;
22
(6) generally accepted practices and procedures for real estate lenders, private
23 money lenders, wholesale lenders, and commercial lenders; and
24 (7) the transactions, dealings and circumstances alleged in the pleadings in this
25 action. Ms. Randich will also provide analysis and/or opinions regarding all aspects
of other experts’ testimony as it is learned.
26
27 (Ex. A at ¶ 7).
28
4
PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO DESIGNATE REBUTTAL EXPERT WITNESS
1 In her deposition, Ms. Randich specifically stated and offered an opinion that the subject loan was for
2 business purposes. In addition, Ms. Randich provided several opinions that embraced ultimate issues
3 in this case, including whether the loan was usurious, licensing requirements for this specific
4 transaction and information regarding balloon payments on late fees. (Shapero Decl. ¶ 7; Ex. B,
5 Excerpts of Randich Deposition). As well, Ms. Randich offered ultimate opinions as to the scope of
6 Defendant Zoe Hamilton’s role in the transaction and whether the loan in this case was, in fact, broker-
7 arranged. (Ex. B, 64:15 – 68:3).
8 In Defendants’ accompanying declaration, it clearly states that Ms. Randich would testify
9 generally to categories 1 through 6. The declaration did not state that she would be giving a specific
10 opinion as to anything and would only be testifying about standards of care, not to ultimate opinions in
11 this case such as whether the loan was for a consumer or business purpose. Further, had Plaintiff knew
12 that Ms. Randich was going to give specific opinions on usury and whether the loan was for a
13 consumer purpose, he would have retained his own expert to testify specifically and refute such an
14 opinion.
15 VI. CONCLUSION
16 Based on the foregoing, Plaintiff respectfully requests that the Court grant this motion and
17 permit the designation of a rebuttal expert witness to address the new matters raised by Defendants’
18 expert witness during her deposition.
19
Dated: July 19, 2023 SHAPERO LAW FIRM, PC
20
21
22
______________________________
23
Sarah Shapero, Esq.
24 Attorney for Plaintiff
EDUARDO PANIAGUA
25
26
27
28
5
PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO DESIGNATE REBUTTAL EXPERT WITNESS
Preview
SHAPERO LAW FIRM, PC 1 Sarah Shapero (Bar No. 281748) 100 Pine St., Ste. 530 2 San Francisco, California 94111 Telephone: (415) 273-3504 ELECTRONICALLY 3 Facsimile: (415) 273-3508 FILED Superior Court of California, 4 County of San Francisco Attorneys for Plaintiff 5 07/19/2023 Clerk of the Court BY: VERA MU 6 Deputy Clerk 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN FRANCISCO 10 ) ) Case No.: CGC-18-571279 11 EDUARDO PANIAGUA and ) ELENA ASTURIAS, individuals, ) 12 ) ) PLAINTIFF’S REPLY TO MOTION Plaintiffs, TO DESIGNATE REBUTTAL 13 ) v. ) EXPERT WITNESS 14 ) ) 15 MILESTONE FINANCIAL, LLC, a California ) corporation; BEAR BRUIN VENTURES, INC., a ) DATE: July 26, 2023 16 California Corporation; WILLIAM R. STUART, ) TIME: 9:00 AM an individual; CAROLYN T. STUART, an ) DEPT: 501 17 individual; and DOES 1-100, inclusive, ) ) 18 Defendants. ) ) 19 ) ) 20 ) ) 21 ) ) 22 ) ) 23 ) ) 24 ) ) 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES 1 PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO DESIGNATE REBUTTAL EXPERT WITNESS 1 I. INTRODUCTION 2 In its Opposition to Plaintiff’s instant Motion, Defendants blame Plaintiff for being unprepared to 3 address “expected expert testimony” when Defendants did not make that expert available for 4 deposition until after the rebuttal expert designation deadline and the expert gave specific testimony 5 well beyond the disclosure statement. Defendants essentially sandbagged Plaintiff with unexpected 6 testimony, and, due to the timing they made this expert available, handicapped Plaintiff’s ability to 7 find a rebuttal witness. Therefore, there is “good cause” to designate a rebuttal expert after the 8 designation deadline. 9 II. ARGUMENT 10 A. Plaintiff Correctly Articulates the Standard For Designating a Rebuttal Expert After the 11 Deadline. 12 In his moving papers, Plaintiff cited Kennemur v. State of California, (1982) 133 Cal. App. 3d 907, 13 a case directly discussing expert disclosure and under designation. (Motion pg. 5.) Despite this, 14 Defendant puzzlingly argues that this citation is misleading, irrelevant and inapposite. (Opposition, pg. 15 10.) Kennemur directly discusses CCP § 2037.3 and states, “The party must disclose either in his witness 16 exchange list or at his expert's deposition, if the expert is asked, the substance of the facts and the 17 opinions which the expert will testify to at trial. Only by such a disclosure will the opposing party have 18 reasonable notice of the specific areas of investigation by the expert, the opinions he has reached and 19 the reasons supporting the opinions, to the end the opposing party can prepare for cross-examination 20 and rebuttal of the expert's testimony. Kennemur v. State of California (1982) 133 Cal.App.3d 907, 910 21 [184 Cal.Rptr. 393].) The basis for Plaintiff’s motion is that Defendants failed to properly designate and 22 disclose Ms. Randich’s expected testimony, and thereby by sandbagged Plaintiff’s ability to prepare 23 rebuttal expert testimony. Defendant is correct that pursuant to CCP § 2034.720, to allow expert designation post-deadline, Plaintiff must show: 24 25 (1) He failed to submit the information as the result of mistake, inadvertence, surprise, or excusable 26 neglect. (2) He sought leave to submit the information promptly after learning of the mistake, inadvertence, 27 surprise, or excusable neglect. 28 (3) He promptly thereafter served a copy of the proposed expert witness information described in Section 2034.260 on all other parties who have appeared in the action. See CCP § 2034.720(c) (1-3). 2 PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO DESIGNATE REBUTTAL EXPERT WITNESS 1 The issues discussed in Kennemur and CCP § 2034.720 are not inapposite, as they both contemplate 2 adequate disclosure of experts and corresponding preparation for trial. In addition, Plaintiff simply and 3 innocuously stating that they must show “good cause” is not misleading—as good cause is a general 4 legal standard that practically all motions must meet. As discussed below, with CCP § 2034.720(c) (1- 5 3) as the standard, Plaintiff can satisfy the test and thereby show “good cause.” 6 B. Defendants Cite Fairfax Which is Actually Inapposite. 7 In its Opposition, Defendants cite to Fairfax v. Lords (2006) 138 Cal. App. 4th 1019, 1021 for the 8 proposition that a “wait-and-see” strategy is frowned upon in expert disclosures. (Opposition, pg. 8-9.) 9 In Fairfax, the Plaintiff served its expert designation with several witnesses and experts, and then 10 Defendant simultaneously served its expert designation but did not list any witnesses or experts 11 witnesses whatsoever. Fairfax v. Lords (2006) 138 Cal. App. 4th 1019, 1022. After seeing the 12 Plaintiff’s list, Defendant then belatedly disclosed rebuttal witnesses after the deadline and after seeing 13 Plaintiff’s list. Id. This was clearly bad faith and a tactic to intentionally not participate in the designation 14 and “wait-and-see” what Plaintiff disclosed and belatedly designate its own rebuttal experts. The Court 15 admonished this completely transparent strategy and held that such a sequence of events directly 16 contradicts the rules of expert designation. Id. at p. 1024 and 1026. In this case, the sequence of events 17 was entirely different. Plaintiff engaged in good faith and simultaneously designated experts along with 18 Defendants. Then, Defendants did not make Ms. Randich available for deposition until after the rebuttal 19 expert designation deadline passed. Defendants finally made Ms. Randich available for deposition on 20 June 5, 2023. Then, in her deposition, Ms. Randich testified to issues that went beyond the expert 21 disclosure statements. This is completely inapposite from Fairfax because Plaintiff did engage in good- 22 faith exchange, but instead was simply surprised by Ms. Randich’s testimony. Further, the timing which 23 Defendants made Ms. Randich available prejudiced Plaintiff’s ability to timely designate a rebuttal expert. If there is any bad faith actor in this sequence of events, it is Defendants for failing to make Ms. 24 Randich available and allowing the true content of her testimony to be revealed a mere two weeks before 25 trial. 26 27 28 3 PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO DESIGNATE REBUTTAL EXPERT WITNESS 1 C. Plaintiff Failed to Designate this Rebuttal Expert Due to Surprise Because Defendants 2 Belatedly Presented Ms. Randich and her Testimony Went Beyond the Disclosure. 3 Defendant is correct that the “purpose” of the loan at issue and usury are ultimate issues in this 4 case and are discussed throughout the Complaint. (Opposition, 4-6.) However, the issue and the basis 5 for this motion is that Defendant failed to disclose that Ms. Randich was an expert who expected to 6 testify about such issues. Defendant under designated Ms. Randich and failed to disclose that she 7 would be making specific opinions about dispositive issues in this case. 8 The disclosure stated that Ms. Randich would provide expert opinions at trial as follows: 9 Ms. Randich will testify generally regarding real estate asset based lending and real estate brokers in lending transactions including, among other things: 10 11 (1) with respect to real estate lenders and loans for business, commercial or investment purposes, the lender’s duties, standards of practices, and standards of 12 care as to loan origination, compliance, loan servicing, and underwriting; 13 (2) with respect to lenders of consumer, residential mortgage loans, the lender’s 14 duties, standards of practice and standards of care as to loan origination, compliance, loan servicing, licensing, and underwriting; 15 (3) the differences between lenders who make real estate loans primarily for 16 business, commercial or investment purposes, and lenders who make consumer, residential mortgage loans, and the differences between a real estate loan made 17 primarily for business, commercial or investment purposes and a consumer, 18 residential mortgage loan; 19 (4) the duties, standards of practice, standards of care, and roles of real estate brokers and agents involved in real estate loan transactions; 20 (5) the relationships between a lender, a real estate broker, and its borrower client in 21 the wholesale, real estate lending industry; 22 (6) generally accepted practices and procedures for real estate lenders, private 23 money lenders, wholesale lenders, and commercial lenders; and 24 (7) the transactions, dealings and circumstances alleged in the pleadings in this 25 action. Ms. Randich will also provide analysis and/or opinions regarding all aspects of other experts’ testimony as it is learned. 26 27 (Ex. A at ¶ 7). 28 4 PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO DESIGNATE REBUTTAL EXPERT WITNESS 1 In her deposition, Ms. Randich specifically stated and offered an opinion that the subject loan was for 2 business purposes. In addition, Ms. Randich provided several opinions that embraced ultimate issues 3 in this case, including whether the loan was usurious, licensing requirements for this specific 4 transaction and information regarding balloon payments on late fees. (Shapero Decl. ¶ 7; Ex. B, 5 Excerpts of Randich Deposition). As well, Ms. Randich offered ultimate opinions as to the scope of 6 Defendant Zoe Hamilton’s role in the transaction and whether the loan in this case was, in fact, broker- 7 arranged. (Ex. B, 64:15 – 68:3). 8 In Defendants’ accompanying declaration, it clearly states that Ms. Randich would testify 9 generally to categories 1 through 6. The declaration did not state that she would be giving a specific 10 opinion as to anything and would only be testifying about standards of care, not to ultimate opinions in 11 this case such as whether the loan was for a consumer or business purpose. Further, had Plaintiff knew 12 that Ms. Randich was going to give specific opinions on usury and whether the loan was for a 13 consumer purpose, he would have retained his own expert to testify specifically and refute such an 14 opinion. 15 VI. CONCLUSION 16 Based on the foregoing, Plaintiff respectfully requests that the Court grant this motion and 17 permit the designation of a rebuttal expert witness to address the new matters raised by Defendants’ 18 expert witness during her deposition. 19 Dated: July 19, 2023 SHAPERO LAW FIRM, PC 20 21 22 ______________________________ 23 Sarah Shapero, Esq. 24 Attorney for Plaintiff EDUARDO PANIAGUA 25 26 27 28 5 PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO DESIGNATE REBUTTAL EXPERT WITNESS