On March 21, 2019 a
Motion,Ex Parte
was filed
involving a dispute between
Mahaffey, Ashley,
Mahaffey, Brian,
and
Colorama Wholesale Nursery,
Medina, Jose,
Wilson, Richard,
for Personal Injury Motor Vehicle Unlimited
in the District Court of San Bernardino County.
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Kimberly S. Oberrecht [C.S.B. No. 190794] fix?! I&TEi‘gquOHNIA
Cherie A. Enge [C.S.B. No. 134998] ‘F
Cheyenne J. Page [C.S.B. No. 323354] ' "
HORTON, OBERRECHT & KIRKPATRICK
101 W. Broadway, Suite 600
'
j AN 0 f;
’
2021
San Diego, California 92101
,
(619) 232-1 183 * (619) 696-5719 [facsimile]
y; V
RY PU ~53.";¢>i’l(«/:7_:<_gm 5
EXTEPHAME 2,213.99. DEPUTY
mm
Attorneys for Defendants RICHARD WILSON; JOSE MEDINA; and COLORAMA
WHOLESALE NURSERY dba COLORAMA
\OOOQQ
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN BERNARDINO
10 CENTRAL JUDICIAL DISTRICT RV p4 X
11 BRIAN MAHAFFEY & ASHLEY MAHAFFEY,) CASE NO. CIVDSl908657
)
12 Plaintiff,
) DECLARATION OF CHERIE A.
) ENGE IN SUPPORT 0F
13 vs. DEFENDANTS’ EXPARTE
)
) APPLICATION FOR ORDER
14 RICHARD WILSON; JOSE MEDINA; ) SHORTENING TIME FOR
COLORAMA WHOLESALE NURSERY dba ) HEARING ON MOTIONS FOR
15 COLORAMA, and DOES through 100, 1
) PROTECTIVE ORDER AND FOR A
Inclusive,
) COURT ORDER TO COMPEL
16 MENTAL IMEOF PLAINTIFF
)
Defendants. ) BRIAN MAHAFFEY
17
)
Action Filed: March 21, 2019
18 Trial Date: March 15, 2021
19 Dept. S30
I, Cherie A. Enge, declare as follows:
20
1. I am an attorney admitted to practice law before all of the courts in the State of
21
California.
22
2. I am an associate with the law firm of Horton, Oberrecht & Kirkpatrick, attorneys
23
ofrecord for Defendants RICHARD WILSON; JOSE MEDINA; and COLORAMA WHOLESALE
24
NURSERY dba COLORAMA (hereinafter collectively “Defendants”).
25
3. I am familiar with all of the matters asserted herein and if called upon to testify,
26
would and could competently testify thereto.
27
4. The instant case arises out of a motor vehicle accident that occurred 0n April 11,
28
DECLARATION OF CHERIE A. ENGE IN SUPPORT OF DEFENDANTS’ EXPARTE
APPLICATION FOR ORDER SHORTENING TIME
G:\CLIENTS\5845\Pleadings\Ex Part6 OST\Ex Pane Dcc of CAE.wpd 1 .
201 8. Plaintiffs BRIAN MAHAFFEY and ASHLEY MAHAFFEY (hereinafter collectively
“Plaintiffs”) allegedly sustained significant orthopedic injuries as a result of the accident. Plaintiff
BRIAN MAHAFFEY also claims that the accident has caused him to suffer a traumatic brain
injury.
5. Based on the above representations, I noticed Independent Medical Examinations
(“IME”) 0f both Plaintiffs to take place on January 4, 2021 with orthopedist Dr. Anthony Fenison,
M.D. A true and correct copy of the IME notices are attached hereto as Exhibit “A.”
6. The IMEs were strategically scheduled to take place in the event the case did not
settle during a private mediation with Attorney Troy Roe on December 18, 2020.
10 7. On December 11, 2020, Plaintiffs served a Response to Defendants’ Demand for
11 Physical Examination; Demand for Production of IME report. A true and correct copy of the
12 Response is attached hereto as Exhibit “B”.
13 8. Nowhere in the Response is a notification that Plaintiffs’ counsel would appear to
14 observe the IMEs on a Zoom platform, or any notice that Plaintiffs’ counsel intended to record the
15 Zoom meeting, effectively videotaping the examinations.
16 9. Both Plaintiffs appeared for their duly noticed IME. Upon arrival, Dr. Fenison was
17 informed 0f Plaintiffs’ attorney Ian Herzog, plan to attend Via Zoom, and that the Zoom meeting
18 would be recorded. Dr. Fenison immediately notified me about Mr. Herzog’s plan. I did not object
19 to Mr. Herzog observing the proceedings Via the Zoom platform. However, we both objected to Mr.
20 Herzog’s plan to record the Zoom meeting, effectively recording the entirety of the examinations.
21 10. I called Mr. Herzog and he stated his intent to record the Zoom proceeding,
22 effectively video recording the entire IMEs. I did not agree to this, as the Code of Civil Procedure
23 only allows for either audio or stenographic recordings 0f IME proceedings.
24 1 1 . Mr. Herzog maintained that he would Video record the IMEs, effectively interfering
25 with the IMEs in a manner not authorized by Code. I attempted to “meet and confer” with Mr.
26 Herzog, as I cited the applicable statute, and asked him for any legal authority that permitted the
27 recording of the Zoom meeting. Mr. Herzog told me he was not going t0 argue with me and that he
28 was going through with his plan to record the Zoom meeting. I was left with no choice but to
DECLARATION OF CHERIE A. ENGE IN SUPPORT OF DEFENDANTS’ EXPARTE
APPLICATION FOR ORDER SHORTENING TIME
G:\CLIENTS\5845\Plcadings\Ex Pane OST\Ex Pane Dec of CAE,wpd 2.
Document Filed Date
January 06, 2021
Case Filing Date
March 21, 2019
Category
Personal Injury Motor Vehicle Unlimited
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Kimberly S. Oberrecht [C.S.B. No. 190794] fix?! I&TEi‘gquOHNIA Cherie A. Enge [C.S.B. No. 134998] ‘F Cheyenne J. Page [C.S.B. No. 323354] ' " HORTON, OBERRECHT & KIRKPATRICK 101 W. Broadway, Suite 600 ' j AN 0 f; ’ 2021 San Diego, California 92101 , (619) 232-1 183 * (619) 696-5719 [facsimile] y; V RY PU ~53.";¢>i’l(«/:7_:<_gm 5 EXTEPHAME 2,213.99. DEPUTY mm Attorneys for Defendants RICHARD WILSON; JOSE MEDINA; and COLORAMA WHOLESALE NURSERY dba COLORAMA \OOOQQ SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN BERNARDINO 10 CENTRAL JUDICIAL DISTRICT RV p4 X 11 BRIAN MAHAFFEY & ASHLEY MAHAFFEY,) CASE NO. CIVDSl908657 ) 12 Plaintiff, ) DECLARATION OF CHERIE A. ) ENGE IN SUPPORT 0F 13 vs. DEFENDANTS’ EXPARTE ) ) APPLICATION FOR ORDER 14 RICHARD WILSON; JOSE MEDINA; ) SHORTENING TIME FOR COLORAMA WHOLESALE NURSERY dba ) HEARING ON MOTIONS FOR 15 COLORAMA, and DOES through 100, 1 ) PROTECTIVE ORDER AND FOR A Inclusive, ) COURT ORDER TO COMPEL 16 MENTAL IMEOF PLAINTIFF ) Defendants. ) BRIAN MAHAFFEY 17 ) Action Filed: March 21, 2019 18 Trial Date: March 15, 2021 19 Dept. S30 I, Cherie A. Enge, declare as follows: 20 1. I am an attorney admitted to practice law before all of the courts in the State of 21 California. 22 2. I am an associate with the law firm of Horton, Oberrecht & Kirkpatrick, attorneys 23 ofrecord for Defendants RICHARD WILSON; JOSE MEDINA; and COLORAMA WHOLESALE 24 NURSERY dba COLORAMA (hereinafter collectively “Defendants”). 25 3. I am familiar with all of the matters asserted herein and if called upon to testify, 26 would and could competently testify thereto. 27 4. The instant case arises out of a motor vehicle accident that occurred 0n April 11, 28 DECLARATION OF CHERIE A. ENGE IN SUPPORT OF DEFENDANTS’ EXPARTE APPLICATION FOR ORDER SHORTENING TIME G:\CLIENTS\5845\Pleadings\Ex Part6 OST\Ex Pane Dcc of CAE.wpd 1 . 201 8. Plaintiffs BRIAN MAHAFFEY and ASHLEY MAHAFFEY (hereinafter collectively “Plaintiffs”) allegedly sustained significant orthopedic injuries as a result of the accident. Plaintiff BRIAN MAHAFFEY also claims that the accident has caused him to suffer a traumatic brain injury. 5. Based on the above representations, I noticed Independent Medical Examinations (“IME”) 0f both Plaintiffs to take place on January 4, 2021 with orthopedist Dr. Anthony Fenison, M.D. A true and correct copy of the IME notices are attached hereto as Exhibit “A.” 6. The IMEs were strategically scheduled to take place in the event the case did not settle during a private mediation with Attorney Troy Roe on December 18, 2020. 10 7. On December 11, 2020, Plaintiffs served a Response to Defendants’ Demand for 11 Physical Examination; Demand for Production of IME report. A true and correct copy of the 12 Response is attached hereto as Exhibit “B”. 13 8. Nowhere in the Response is a notification that Plaintiffs’ counsel would appear to 14 observe the IMEs on a Zoom platform, or any notice that Plaintiffs’ counsel intended to record the 15 Zoom meeting, effectively videotaping the examinations. 16 9. Both Plaintiffs appeared for their duly noticed IME. Upon arrival, Dr. Fenison was 17 informed 0f Plaintiffs’ attorney Ian Herzog, plan to attend Via Zoom, and that the Zoom meeting 18 would be recorded. Dr. Fenison immediately notified me about Mr. Herzog’s plan. I did not object 19 to Mr. Herzog observing the proceedings Via the Zoom platform. However, we both objected to Mr. 20 Herzog’s plan to record the Zoom meeting, effectively recording the entirety of the examinations. 21 10. I called Mr. Herzog and he stated his intent to record the Zoom proceeding, 22 effectively video recording the entire IMEs. I did not agree to this, as the Code of Civil Procedure 23 only allows for either audio or stenographic recordings 0f IME proceedings. 24 1 1 . Mr. Herzog maintained that he would Video record the IMEs, effectively interfering 25 with the IMEs in a manner not authorized by Code. I attempted to “meet and confer” with Mr. 26 Herzog, as I cited the applicable statute, and asked him for any legal authority that permitted the 27 recording of the Zoom meeting. Mr. Herzog told me he was not going t0 argue with me and that he 28 was going through with his plan to record the Zoom meeting. I was left with no choice but to DECLARATION OF CHERIE A. ENGE IN SUPPORT OF DEFENDANTS’ EXPARTE APPLICATION FOR ORDER SHORTENING TIME G:\CLIENTS\5845\Plcadings\Ex Pane OST\Ex Pane Dec of CAE,wpd 2.