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4 V
1 (SBN 191082)
Keith Gillette
Summer M. Smith (SBN 21425 1)
Zg 2 BULLIVANT'HOUSER BAILEY PC
\
101 Montgomery 2600
Street, Suite
L,“ 3 San Francisco, CA
94104-4146 ‘
F I L Emmg}WT“
SAN MATH“
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Telephone: 415.352.2700 -
4 Facsimile: 415.352.2701
E-mail: keith.gillett§@bulliv_ant.com
JAN 1 ‘0 2020
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summer.sm1th@bulhvant.com
Attorneys for Defendants
i
BY“
Cl
1 I g dim 00%
4m
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a
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> AMERIGAS PROPANE, LP; AMERIGAS
2 7 PROPANE, INC.; and AMERIGAS, INC.
3
\ 8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
ILI
10 COUNTY OF SAN MATEO
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1 1
12 BRICEIDA LOPEZ, an individual, JOSE Case No.2 18CIV01696
SOLIS, an individual,
13 EX PARTE APPLICATION FOR ORDER
Plaintiffs, SHORTENING TIME TO HEAR
14 MOTION TO COMPEL INDEPENDENT
v. MEDICAL EXAMINATION OF
15 .
‘
PLAINTIFF BRICEIDA LOPEZ AND
PAUL BONIFACIO, an individual; JOSE SOLIS
16 MARGARET HYUN, an individual; '
AMERIGAS PROPANE, INC., a corporation;
17 AMERIGAS, INC., a corporation; and DOES DATE: January 10, 2020
ONE through ONE-HUNDRED, inclusive, TIME: 2:00 p.m.
18. DEPT: Law and Motion
Defendants. COMPLAINT: April 6, 2018
x
19 FAC: September 20, 2018
SAC: July l6, 2019
20 TRIAL: Februarv 18. 2020
fi 21
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TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
E 22 PLEASE TAKE NOTICE that on January 10, 2020 at 2:00 p.m., or as soon thereafter as
E
E g
‘23 the matter may be heard, in the Law and Motion Department of the above-entitled Court, -
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1o~clv—u1696
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EPA
EN
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located at
AmeriGas
400 County Center Redwood
Inc., and AmeriGas Propane,
City, CA 94063, defendants AmeriGas Propane, L.P.,
Inc. (collectively, “AmeriGas Defendants”) will apply
26 ex parte to the Court for an order shortening time to hear the AmeriGas Defendants’ motion to
27 compel the independent medical examination of plaintiffs Briceida Lopez and Jose Solis.
28
_ _ 1
EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION TO COMPEL
INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF BRICEIDA LOPEZ AND JOSE SOLIS
As more fully explained in the memorandum of points and authorities set forth below,
the AmeriGas Defendants seek an order shortening time because: after timely serving demands
DJN
for Independent Medical Examinations for both Briceida Lopez and Jose Solis for January 15,
2020 back on December 13, 2019, only on Friday January 3, 2020 did Plaintiff s counsel first
make passing mention of an intent to obj ect to the location of the IMEs. The IME’s were
QQU‘I
noticed in an effort to have Plaintiffs examined in a facility wherein they have received other ‘
treatment and noticed other discovery in this action believing it to be within mileage
requirements oftheir residence and because of their comfort with the facility.
Plaintiff‘s had not filed any formal obj ection or provided notice of any issue with the
10 demand for IME’s when received or through January 2, 2020. However, based on passing
11 comment about the location they were scheduled for in other communications, defense counsel
12 maintained the time and date for the independent medical examinations as always set forth, but
13 as a courtesy, located another facility closer to Plaintiffs for the IME’s to go forward. In this
14 regard counsel for AmeriGas sent a follow up amended notice on January 2, 2020 to all counsel
15 with an alternative location in the Truckee area. While this modification comes at significant
16 expense to defendants who are incurring $1000 dollars an hour for the doctor’s travel time to
17 complete this activity closer to Plaintiffs, counsel nonetheless made arrangements With the
18 examining doctor to travel the additional distance as a courtesy.
19 Only after this notice was re-served on all counsel with a location change only have
20 Plaintiff s obj ected to the same. The date and time have remained constant for the IME’s from
21 the original notice sent pursuant to code.
22 The recent obj ection to a change in location for Plaintiffs” convenience and at defendants
23 expense is not well taken or perceived as a meritorious obj ection as opposed to an effort to
24 extract other strategic advantage as Plaintiffs counsel has identified that it will withdraw its
25 obj ection to the IMEs if defendants will stipulate to the admissibility of certain medical records
26 or damage numbers in an action where they have recently made a demand of $90 million dollars
27 including a request for punitive damages. This is all the more basis for the compelling of the
28 independent medical examinations when the obj ection is being used in an attempt to extort
_2_
EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION TO COMPEL
INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF BRICEIDA LOPEZ AND JOSE SOLIS
strategic advantage as to damage claims and January 15, 2020 has long been made known to
Plaintiffs as a date for this activity to occur.
K» In compliance with CRC Rule 3.1203, AmeriGas Defendant? counsel provided notice
.h of the hearing on this ex parte application on January 9, 2020, th approximately 9:05 a.m. by
email to counsel for Plaintiffs Spencer J. Pahlke, and counsel for Paul Bonifacio and Margaret
O\
Hyun Julie Azevedo. (Declaration of Summer M. Smith (“Smith Dec.”) 115.) See, also
\J
EXHIBIT A to the Declaration of Summer M. Smith.
a)
This application is based on this notice and ex parte application, the Court’s file in this
\O action, the memorandum of points and authorities stating the necessity of an order shortening
10 time to hear the motion to compel, the accompanying declaration of Summer M. Smith, and any
11 other evidence or argument presented to this Court either prior to or at the hearing 0n this
12 application.
13 DATED: January 9, 2020
14 BULLIVANT HOUSER BAILEY PC
15
16 BYI '
61th Gillette
17 Summer M. Smith
18 Attorneys for Defendants
AMERIGAS PROPANE, LP; AMERIGAS
19 PROPANE, INC.; and AMERIGAS, INC.
20
4850-8873—5664.1
21
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_3_
EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION TO COMPEL
INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF BRICEIDA LOPEZ AND JOSE SOLIS
MEMORANDUM OF POINTS AND AUTHORITIES
I. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
On January 9, 2020, at approximately 9:05 a.m. the AmeriGas Defendants gave notice to
counsel for plaintiffs and counsel for defendants Paul Bonifacio and Margaret Hyun of the ex
parte application and hearing. (Smith Dec. 115; see also EXHIBIT A.) This notice follows and
\OOONONUl-P
is in response to learning that Plaintiffs’ counsel obj ects to the notice for independent medical
examinations of Briceida Lopez and Jose Solis served on December 13, 2019 for January 15,
2020. Only after the location was recently revised (but not the date or time) to make the IME’s
1o yet more convenient to Plaintiffs has this application become necessary. The location revision
11 was made after Plaintiffs’ counsel made passing informal complaint to the location selected
12 despite that Plaintiffs have relied on and noticed other discovery activities to occur there on
13 numerous occasions, and it has been the location of prior treatment received.
14 II. LEGAL ANALYSIS
15 Good cause for granting this Order exists and this application is made on the grounds
16 that:
17 ‘
1. California Code of Civil Procedure (“CCP”) Section 1005(b) provides that “the
18 Court, 0r a Judge thereof, may prescribe a shorter time for the notice of mofions than the 16
19 court—day requirement enumerated in under that section.
20 2. California Rules of Court (“CRC”), Rule 3.1300(b), fithher provides that “[t]he
21 court, on its own motion or on application for an order shortening time supported by a
22 declaration showing good cause, may prescribe shorter times for the filing and service of papers
23 than the times specified in Code of Civil Procedure section 1005.”
24 3. If the instant request is not granted, the defendants will be irreparably harmed in
25 that the plaintiff has only recently objected to the Demand for Medical Examination as to
26 Plaintiffs Brecedia Lopez and Jose Solis. These demands were properly served in éarly
27 December 2019 for January 15, 2020. Only after passing mention of an obj ection to the
28 location 0f the examinations did defense counsel relocate the examinations to Truckee to
~4_
EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION TO COMPEL
INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF BRICEIDA LOPEZ AND JOSE SOLIS
accommodate Plaintiffs rather than mquire that they occur Where they have received treatment
and have noticed discovery activities to occur. In the face of amending the notice as to location
only for Plaintiffs convenience and not the date or times for these exams, Plaintiff has objected
L to them as untimely. Defendants will be irreparably harmed if they are not allowed to conduct
and IME of Plaintiffs who are making a demand of 9O million dollars in connection with their
claims in this litigation, including punitive damages against AMERIGAS INC. Trial is
\OOOQONUI
scheduled to begin in this matter on February 18, 2020. The subj ect motion to compel cannot be
timely made without this attendant request for shortened time.
4. Compelling this deposition 0n shortened time will cause no prejudice to the
10 parties as the date and time for these IME’s to have been conducted have been known to
11 Plaintiffs and their counsel for a time period required by code. A11 that has been provided by
12 way of the amended notice was a new location closer to Plaintiffs residence and for their
13 convenience. That amended notice drew obj ection to the IME demands.
14 5. If this motion is not heard on shortened time, this issue will be unresolved by the
15 deadline for expert discovery cutoffs. Given the nature of the Plaintiff’s inj uries and the
16 extensive demand made to date in this action, the ability to conduct an IME is critical and
17 significant. Shortened time will not cause any prejudice to the parties to this action. A copy of
18 the proposed motion to compel is attached as Exhibit A to the declaration of Summer Smith.
19 6. On January 9, 2020, email notice was given to plaintiffs’ counsel that we would
20 be appearing exparte on January 10, 2020 in the Law and Motion Department at 2:00 p.m. t0
21 present this ex parte application. which is based on the parties’ stipulation, attached hereto as
22 EXHIBIT A. Opposing counsel has advised that he will not be able to attend the ex parte
23 application hearing as he is already scheduled to attend a deposition. He opposes both the
24 motion to compel and the request for shortened time therefore unless the defendants are willing
25 to enter into other discovery based stipulationé.
26 7. The instant Application is made pursuant to CCP §1005 and CRC Rule 3.1300,
27 and is made in conformance with CRC Rule 3.1200, et seq. ,
on the grounds that (a) the Court is
28 authorized to grant the requested relief; (b) good cause exists to grant the relief requested; and
_5_
EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION TO COMPEL
INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF BRICEIDA LOPEZ AND JOSE SOLIS
(c) irreparable harm will be suffered if the relief requested is not granted because the parties will
have had an inadequate opportunity to complete the necessary discovery and prepare the case
for trial.
8. This ex parte application is further based on the declaration of Summer Smith set
forth below, including his deciaration of notice given under Rule 3.1204; the memorandum of
pqints and authorities set forth below; the proposed order submitted herewith; the pleadings and
\OOOVONUI-b
papers on file in this matter; and upon such other evidence and argument as may be presented to
the court.
III. CONCLUSION
10 It is respectfully requested that this application for an order shortening time be granted
11 as set forth herein and further supported by the Declaration of Summer Smith in support of the
12 san’le.
13
14 DATED: January 9, 2020
15 BULLIVANT HOUSER BAILEY PC
16
17
elt Gillette
18 Summer M. Smith
19 Attorneys for Defendants
AMERIGAS PROPANE, LP; AMERIGAS
20 PROPANE, INC.; and AMERIGAS, INC.
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EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION TO COMPEL
INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF BRICEIDA LOPEZ AND JOSE SOLIS
PROOF OF SERVICE
al. v. Paul Bonifacio, et al.
Briceida Lopez, et
[\J
San Mateo Superior Court N0. 18CIV01696
I am employedin the City and County of San Francisco by the law firm of Bullivant
Houser Bailey (“the business”), 101 Montgomery Street, Suite 2600, San Francisco, CA 94104.
I am over the age of eighteen (1 8) and not a party to this action. On Januaryfl, 2020, I served the
document entitled: /a
EX PARTE APPLICATION FOR ORDER SHORTENING TIME OT
HEAR MOTION TO COMPEL INDEPENDENT MEDICAL
\OWNONUI-PUJ
EXAMINATION OF PLAINTIFFS BRICEIDA LOPEZ AND JOSE SOLIS
upon the following parties:
COUNSEL EMAIL ADDRESSES)
10 MATTHEW D. DAVIS mdavis@walkuplawoffice.com
SPENCER J. PAHLKE spahlke@walkuplawoffice.com
11 Walkup’, Melodia, Kelly & Schoenberger kbenzien@walkuplawoffice.com
650 California Street, 26th Floor ssaephan@walkuplawoffice.com
12
San Francisco, CA 94108—2615 vrose@walkuplawoffice.com _
13
Telephone: 415.981.7210 1mccombe@walkuplawoffice.com
Facsimile: 415.391.6965
14 Attorneys for: Plaintiffs BRICEIDA LOPEZ and JOSE
SOLIS
15
16
SHAWN A. TOLIVER Shawn.toliver@lewisbrisbois.com
JULIE M. AZEVEDO julie.azevedo@lewisbrisbois.com
17 Lewis Brisbois Bisgaard & Smith, LLP rose.chan@lewisbrisbois.com
21 85 North California Boulevard, Suite 300
18 Walnut Creek, CA 94596
Telephone: 925.357.3456
19
Facsimile: 925.478.3260
20 Attorneys for: Defendants PAUL BONIFACIO and
MARGARET HYUN
21
JAMES T. HULTQUIST jhultquist@reedsmith.com
22 ‘
Reed Smith LLP dkirby@reedsmith.com
10 South Wacker Drive mchin@reedsmith.com
23 Chicago, IL 60606-7507
Telephone: 312.207.1000
24 Facsimile: 312.207.6400
Attornevs for: Defendant AMERIGAS PROPANE, LP
25
26 ( ) BY MAIL (CCP 81013(a)): I am readily familiar with the ordinary practice of the
business with respect to the collection and processing of correspondence for mailing with
the United States Postal Service. I placed a true and correct copy of the above-titled
27
document in an envelope addressed as above, with first class postage thereon fully prepaid.
I sealed the aforesaid envelope and placed it for collection and mailing by the United
28
States Postal Service in accordance with the ordinary practice of the business.
_7_
EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION TO COMPEL
INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF BRICEIDA LOPEZ AND JOSE SOLIS
\>\-r
Correspondence so placed is ordinarily deposited by the business with the United States
Postal Service 0n the same day.
(X) BY EMAIL OR ELECTRONIC TRANSFER: Pursuant to the parties’ stipulation to _
.bUJN
electronic service, I caused a copy of the document to be sent from e—mail address
roberta.beach@bullivant.com to the persons at the e-mail addressed listed in the service
list. I did not, within a reasonable time after the transmission, any electronic message or
other indication that the transmission was unsuccessfill.
(A
() '
BY FACSIMILE TRANSMiSSION (CCP $1013“), CRC 2.306): I transmitted the
O\
document by facsimile transmission by placing it in a facsimile machine (telephone
number 415-352-2701) and transmitting it to the facsimile machine telephone number
\J
listed above. A transmission report was properly issued by the transmitting facsimile
machine. The transmission was reported as complete and without error. A true and correct
00
copy of the transmission report is attached hereto.
‘0
() BY OVERNIGHT DELIVERY (CCP 81013(c)): I am readily familiar with the ordinary
practice of the business with respect to the collection and processing of correspondence
10 for mailing by Express Mail and other carriers providing for overnight delivery. Iplaced
a true and correct copy of the above-titled document in an envelope addressed as above,
11 with first class postage thereon fully prepaid. I sealed the aforesaid envelope and placed
it for collection and mailing by Express Mail or other carrier for overnight delivery in
12 accordance with the ordinary practice of the business. Correspondence so placed is
ordinarily deposited by the business With Express Mail or other carrier on the same day.
13
() BY PERSONAL SERVICE UPON AN ATTORNEY (CCP $101] (ah: I placed a true
14‘ and correct copy ofthe above-titled document in a sealed envelope ac.dressed as indicated
above. I delivered said envelopes by hand to a receptionist or a person authorized to accept
15 same at the address on the envelope,- or, if no person was present, by leaving the envelope
in a conspicuous place in the office between the hours of nine in the morning and five in
16 the afternoon.
17 () BY MESSENGER SERVICE: I placed a true and correct copy of the above-entitled
document in a sealec envelope addressed as indicated above and provided it to a
18 professional messenger service for delivery during normal business hours on this date.
19 () BY PERSONAL SERVICE UPON A PARTY (CCP 81011(b)): I placed a true and
correct copy of the above—titled document in a sealed envelope addressed as indicated
20 above. I delivered each envelope by hand to a person of not less than eighteen (1 8) years
of age at the address listed on the envelope, between the hours of eight in the morning and
21 six in the evening.
22 ‘
I declare under penalty of peljury; under the laws of the State of California, that the
foregoing is‘ true and correctlo
23
Exeéuted on January 9', 2020, at San Francisco, California.
24
r
25 RdBERTA c’. BEACH
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_8_
EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION TO COMPEL
INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF BRICEIDA LOPEZ AND JOSE SOLIS
Preview
’ 4 V 1 (SBN 191082) Keith Gillette Summer M. Smith (SBN 21425 1) Zg 2 BULLIVANT'HOUSER BAILEY PC \ 101 Montgomery 2600 Street, Suite L,“ 3 San Francisco, CA 94104-4146 ‘ F I L Emmg}WT“ SAN MATH“ ‘ Telephone: 415.352.2700 - 4 Facsimile: 415.352.2701 E-mail: keith.gillett§@bulliv_ant.com JAN 1 ‘0 2020 ‘ 5 6 summer.sm1th@bulhvant.com Attorneys for Defendants i BY“ Cl 1 I g dim 00% 4m . a ‘ . > AMERIGAS PROPANE, LP; AMERIGAS 2 7 PROPANE, INC.; and AMERIGAS, INC. 3 \ 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA ILI 10 COUNTY OF SAN MATEO E - 1 1 12 BRICEIDA LOPEZ, an individual, JOSE Case No.2 18CIV01696 SOLIS, an individual, 13 EX PARTE APPLICATION FOR ORDER Plaintiffs, SHORTENING TIME TO HEAR 14 MOTION TO COMPEL INDEPENDENT v. MEDICAL EXAMINATION OF 15 . ‘ PLAINTIFF BRICEIDA LOPEZ AND PAUL BONIFACIO, an individual; JOSE SOLIS 16 MARGARET HYUN, an individual; ' AMERIGAS PROPANE, INC., a corporation; 17 AMERIGAS, INC., a corporation; and DOES DATE: January 10, 2020 ONE through ONE-HUNDRED, inclusive, TIME: 2:00 p.m. 18. DEPT: Law and Motion Defendants. COMPLAINT: April 6, 2018 x 19 FAC: September 20, 2018 SAC: July l6, 2019 20 TRIAL: Februarv 18. 2020 fi 21 ‘ TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD: E 22 PLEASE TAKE NOTICE that on January 10, 2020 at 2:00 p.m., or as soon thereafter as E E g ‘23 the matter may be heard, in the Law and Motion Department of the above-entitled Court, - ' = 1o~clv—u1696 I (’4 EPA EN "1 3% 3 24 25 located at AmeriGas 400 County Center Redwood Inc., and AmeriGas Propane, City, CA 94063, defendants AmeriGas Propane, L.P., Inc. (collectively, “AmeriGas Defendants”) will apply 26 ex parte to the Court for an order shortening time to hear the AmeriGas Defendants’ motion to 27 compel the independent medical examination of plaintiffs Briceida Lopez and Jose Solis. 28 _ _ 1 EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF BRICEIDA LOPEZ AND JOSE SOLIS As more fully explained in the memorandum of points and authorities set forth below, the AmeriGas Defendants seek an order shortening time because: after timely serving demands DJN for Independent Medical Examinations for both Briceida Lopez and Jose Solis for January 15, 2020 back on December 13, 2019, only on Friday January 3, 2020 did Plaintiff s counsel first make passing mention of an intent to obj ect to the location of the IMEs. The IME’s were QQU‘I noticed in an effort to have Plaintiffs examined in a facility wherein they have received other ‘ treatment and noticed other discovery in this action believing it to be within mileage requirements oftheir residence and because of their comfort with the facility. Plaintiff‘s had not filed any formal obj ection or provided notice of any issue with the 10 demand for IME’s when received or through January 2, 2020. However, based on passing 11 comment about the location they were scheduled for in other communications, defense counsel 12 maintained the time and date for the independent medical examinations as always set forth, but 13 as a courtesy, located another facility closer to Plaintiffs for the IME’s to go forward. In this 14 regard counsel for AmeriGas sent a follow up amended notice on January 2, 2020 to all counsel 15 with an alternative location in the Truckee area. While this modification comes at significant 16 expense to defendants who are incurring $1000 dollars an hour for the doctor’s travel time to 17 complete this activity closer to Plaintiffs, counsel nonetheless made arrangements With the 18 examining doctor to travel the additional distance as a courtesy. 19 Only after this notice was re-served on all counsel with a location change only have 20 Plaintiff s obj ected to the same. The date and time have remained constant for the IME’s from 21 the original notice sent pursuant to code. 22 The recent obj ection to a change in location for Plaintiffs” convenience and at defendants 23 expense is not well taken or perceived as a meritorious obj ection as opposed to an effort to 24 extract other strategic advantage as Plaintiffs counsel has identified that it will withdraw its 25 obj ection to the IMEs if defendants will stipulate to the admissibility of certain medical records 26 or damage numbers in an action where they have recently made a demand of $90 million dollars 27 including a request for punitive damages. This is all the more basis for the compelling of the 28 independent medical examinations when the obj ection is being used in an attempt to extort _2_ EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF BRICEIDA LOPEZ AND JOSE SOLIS strategic advantage as to damage claims and January 15, 2020 has long been made known to Plaintiffs as a date for this activity to occur. K» In compliance with CRC Rule 3.1203, AmeriGas Defendant? counsel provided notice .h of the hearing on this ex parte application on January 9, 2020, th approximately 9:05 a.m. by email to counsel for Plaintiffs Spencer J. Pahlke, and counsel for Paul Bonifacio and Margaret O\ Hyun Julie Azevedo. (Declaration of Summer M. Smith (“Smith Dec.”) 115.) See, also \J EXHIBIT A to the Declaration of Summer M. Smith. a) This application is based on this notice and ex parte application, the Court’s file in this \O action, the memorandum of points and authorities stating the necessity of an order shortening 10 time to hear the motion to compel, the accompanying declaration of Summer M. Smith, and any 11 other evidence or argument presented to this Court either prior to or at the hearing 0n this 12 application. 13 DATED: January 9, 2020 14 BULLIVANT HOUSER BAILEY PC 15 16 BYI ' 61th Gillette 17 Summer M. Smith 18 Attorneys for Defendants AMERIGAS PROPANE, LP; AMERIGAS 19 PROPANE, INC.; and AMERIGAS, INC. 20 4850-8873—5664.1 21 ***** 22 23 24 25 26 27 28 _3_ EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF BRICEIDA LOPEZ AND JOSE SOLIS MEMORANDUM OF POINTS AND AUTHORITIES I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY On January 9, 2020, at approximately 9:05 a.m. the AmeriGas Defendants gave notice to counsel for plaintiffs and counsel for defendants Paul Bonifacio and Margaret Hyun of the ex parte application and hearing. (Smith Dec. 115; see also EXHIBIT A.) This notice follows and \OOONONUl-P is in response to learning that Plaintiffs’ counsel obj ects to the notice for independent medical examinations of Briceida Lopez and Jose Solis served on December 13, 2019 for January 15, 2020. Only after the location was recently revised (but not the date or time) to make the IME’s 1o yet more convenient to Plaintiffs has this application become necessary. The location revision 11 was made after Plaintiffs’ counsel made passing informal complaint to the location selected 12 despite that Plaintiffs have relied on and noticed other discovery activities to occur there on 13 numerous occasions, and it has been the location of prior treatment received. 14 II. LEGAL ANALYSIS 15 Good cause for granting this Order exists and this application is made on the grounds 16 that: 17 ‘ 1. California Code of Civil Procedure (“CCP”) Section 1005(b) provides that “the 18 Court, 0r a Judge thereof, may prescribe a shorter time for the notice of mofions than the 16 19 court—day requirement enumerated in under that section. 20 2. California Rules of Court (“CRC”), Rule 3.1300(b), fithher provides that “[t]he 21 court, on its own motion or on application for an order shortening time supported by a 22 declaration showing good cause, may prescribe shorter times for the filing and service of papers 23 than the times specified in Code of Civil Procedure section 1005.” 24 3. If the instant request is not granted, the defendants will be irreparably harmed in 25 that the plaintiff has only recently objected to the Demand for Medical Examination as to 26 Plaintiffs Brecedia Lopez and Jose Solis. These demands were properly served in éarly 27 December 2019 for January 15, 2020. Only after passing mention of an obj ection to the 28 location 0f the examinations did defense counsel relocate the examinations to Truckee to ~4_ EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF BRICEIDA LOPEZ AND JOSE SOLIS accommodate Plaintiffs rather than mquire that they occur Where they have received treatment and have noticed discovery activities to occur. In the face of amending the notice as to location only for Plaintiffs convenience and not the date or times for these exams, Plaintiff has objected L to them as untimely. Defendants will be irreparably harmed if they are not allowed to conduct and IME of Plaintiffs who are making a demand of 9O million dollars in connection with their claims in this litigation, including punitive damages against AMERIGAS INC. Trial is \OOOQONUI scheduled to begin in this matter on February 18, 2020. The subj ect motion to compel cannot be timely made without this attendant request for shortened time. 4. Compelling this deposition 0n shortened time will cause no prejudice to the 10 parties as the date and time for these IME’s to have been conducted have been known to 11 Plaintiffs and their counsel for a time period required by code. A11 that has been provided by 12 way of the amended notice was a new location closer to Plaintiffs residence and for their 13 convenience. That amended notice drew obj ection to the IME demands. 14 5. If this motion is not heard on shortened time, this issue will be unresolved by the 15 deadline for expert discovery cutoffs. Given the nature of the Plaintiff’s inj uries and the 16 extensive demand made to date in this action, the ability to conduct an IME is critical and 17 significant. Shortened time will not cause any prejudice to the parties to this action. A copy of 18 the proposed motion to compel is attached as Exhibit A to the declaration of Summer Smith. 19 6. On January 9, 2020, email notice was given to plaintiffs’ counsel that we would 20 be appearing exparte on January 10, 2020 in the Law and Motion Department at 2:00 p.m. t0 21 present this ex parte application. which is based on the parties’ stipulation, attached hereto as 22 EXHIBIT A. Opposing counsel has advised that he will not be able to attend the ex parte 23 application hearing as he is already scheduled to attend a deposition. He opposes both the 24 motion to compel and the request for shortened time therefore unless the defendants are willing 25 to enter into other discovery based stipulationé. 26 7. The instant Application is made pursuant to CCP §1005 and CRC Rule 3.1300, 27 and is made in conformance with CRC Rule 3.1200, et seq. , on the grounds that (a) the Court is 28 authorized to grant the requested relief; (b) good cause exists to grant the relief requested; and _5_ EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF BRICEIDA LOPEZ AND JOSE SOLIS (c) irreparable harm will be suffered if the relief requested is not granted because the parties will have had an inadequate opportunity to complete the necessary discovery and prepare the case for trial. 8. This ex parte application is further based on the declaration of Summer Smith set forth below, including his deciaration of notice given under Rule 3.1204; the memorandum of pqints and authorities set forth below; the proposed order submitted herewith; the pleadings and \OOOVONUI-b papers on file in this matter; and upon such other evidence and argument as may be presented to the court. III. CONCLUSION 10 It is respectfully requested that this application for an order shortening time be granted 11 as set forth herein and further supported by the Declaration of Summer Smith in support of the 12 san’le. 13 14 DATED: January 9, 2020 15 BULLIVANT HOUSER BAILEY PC 16 17 elt Gillette 18 Summer M. Smith 19 Attorneys for Defendants AMERIGAS PROPANE, LP; AMERIGAS 20 PROPANE, INC.; and AMERIGAS, INC. 21 22 23 24 25 26 27 28 ~6_ EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF BRICEIDA LOPEZ AND JOSE SOLIS PROOF OF SERVICE al. v. Paul Bonifacio, et al. Briceida Lopez, et [\J San Mateo Superior Court N0. 18CIV01696 I am employedin the City and County of San Francisco by the law firm of Bullivant Houser Bailey (“the business”), 101 Montgomery Street, Suite 2600, San Francisco, CA 94104. I am over the age of eighteen (1 8) and not a party to this action. On Januaryfl, 2020, I served the document entitled: /a EX PARTE APPLICATION FOR ORDER SHORTENING TIME OT HEAR MOTION TO COMPEL INDEPENDENT MEDICAL \OWNONUI-PUJ EXAMINATION OF PLAINTIFFS BRICEIDA LOPEZ AND JOSE SOLIS upon the following parties: COUNSEL EMAIL ADDRESSES) 10 MATTHEW D. DAVIS mdavis@walkuplawoffice.com SPENCER J. PAHLKE spahlke@walkuplawoffice.com 11 Walkup’, Melodia, Kelly & Schoenberger kbenzien@walkuplawoffice.com 650 California Street, 26th Floor ssaephan@walkuplawoffice.com 12 San Francisco, CA 94108—2615 vrose@walkuplawoffice.com _ 13 Telephone: 415.981.7210 1mccombe@walkuplawoffice.com Facsimile: 415.391.6965 14 Attorneys for: Plaintiffs BRICEIDA LOPEZ and JOSE SOLIS 15 16 SHAWN A. TOLIVER Shawn.toliver@lewisbrisbois.com JULIE M. AZEVEDO julie.azevedo@lewisbrisbois.com 17 Lewis Brisbois Bisgaard & Smith, LLP rose.chan@lewisbrisbois.com 21 85 North California Boulevard, Suite 300 18 Walnut Creek, CA 94596 Telephone: 925.357.3456 19 Facsimile: 925.478.3260 20 Attorneys for: Defendants PAUL BONIFACIO and MARGARET HYUN 21 JAMES T. HULTQUIST jhultquist@reedsmith.com 22 ‘ Reed Smith LLP dkirby@reedsmith.com 10 South Wacker Drive mchin@reedsmith.com 23 Chicago, IL 60606-7507 Telephone: 312.207.1000 24 Facsimile: 312.207.6400 Attornevs for: Defendant AMERIGAS PROPANE, LP 25 26 ( ) BY MAIL (CCP 81013(a)): I am readily familiar with the ordinary practice of the business with respect to the collection and processing of correspondence for mailing with the United States Postal Service. I placed a true and correct copy of the above-titled 27 document in an envelope addressed as above, with first class postage thereon fully prepaid. I sealed the aforesaid envelope and placed it for collection and mailing by the United 28 States Postal Service in accordance with the ordinary practice of the business. _7_ EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF BRICEIDA LOPEZ AND JOSE SOLIS \>\-r Correspondence so placed is ordinarily deposited by the business with the United States Postal Service 0n the same day. (X) BY EMAIL OR ELECTRONIC TRANSFER: Pursuant to the parties’ stipulation to _ .bUJN electronic service, I caused a copy of the document to be sent from e—mail address roberta.beach@bullivant.com to the persons at the e-mail addressed listed in the service list. I did not, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessfill. (A () ' BY FACSIMILE TRANSMiSSION (CCP $1013“), CRC 2.306): I transmitted the O\ document by facsimile transmission by placing it in a facsimile machine (telephone number 415-352-2701) and transmitting it to the facsimile machine telephone number \J listed above. A transmission report was properly issued by the transmitting facsimile machine. The transmission was reported as complete and without error. A true and correct 00 copy of the transmission report is attached hereto. ‘0 () BY OVERNIGHT DELIVERY (CCP 81013(c)): I am readily familiar with the ordinary practice of the business with respect to the collection and processing of correspondence 10 for mailing by Express Mail and other carriers providing for overnight delivery. Iplaced a true and correct copy of the above-titled document in an envelope addressed as above, 11 with first class postage thereon fully prepaid. I sealed the aforesaid envelope and placed it for collection and mailing by Express Mail or other carrier for overnight delivery in 12 accordance with the ordinary practice of the business. Correspondence so placed is ordinarily deposited by the business With Express Mail or other carrier on the same day. 13 () BY PERSONAL SERVICE UPON AN ATTORNEY (CCP $101] (ah: I placed a true 14‘ and correct copy ofthe above-titled document in a sealed envelope ac.dressed as indicated above. I delivered said envelopes by hand to a receptionist or a person authorized to accept 15 same at the address on the envelope,- or, if no person was present, by leaving the envelope in a conspicuous place in the office between the hours of nine in the morning and five in 16 the afternoon. 17 () BY MESSENGER SERVICE: I placed a true and correct copy of the above-entitled document in a sealec envelope addressed as indicated above and provided it to a 18 professional messenger service for delivery during normal business hours on this date. 19 () BY PERSONAL SERVICE UPON A PARTY (CCP 81011(b)): I placed a true and correct copy of the above—titled document in a sealed envelope addressed as indicated 20 above. I delivered each envelope by hand to a person of not less than eighteen (1 8) years of age at the address listed on the envelope, between the hours of eight in the morning and 21 six in the evening. 22 ‘ I declare under penalty of peljury; under the laws of the State of California, that the foregoing is‘ true and correctlo 23 Exeéuted on January 9', 2020, at San Francisco, California. 24 r 25 RdBERTA c’. BEACH 26 ***** 27 28 _8_ EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF BRICEIDA LOPEZ AND JOSE SOLIS