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BY FAX
Co ey nA uM PF WH
10
Joseph Antonelli, Esq. (Bar No. 137039)
JAntonelli@antonellilaw.com
Janelle Carney, Esq. (Bar No. 201570)
JCame’ antonel|ilaw. com
LAW OFFICE OF JOSEPH ANTONELLI
14758 Pipeline Ave., Suite E, 2nd Floor
Chino Hills, CA 9 1709
Tel.: (909) 393-0223 / Fax: (909) 393-0471
Joseph Lavi, Esq. (SBN 209776)
Vincent C, Granberry, Esq. (SBN 276483)
LAVI & EBRAHIMIAN, LLP
8889 W. Olympic Blyvd., Suite 200
Beverly Hills, California 90211
Telephone: (310) 432-0000
Facsimile: (310) 432-0001
David M. deRubertis (SBN 208709)
The deRubertis Law Firm, APC
4219 Coldwater Canyon Avenue
Studio City, California 91604
Telephone: (818) 761-2322 °
Facsimile: (818) 761-2323
e-mail: David@deRubertisLaw.com
Attorneys for PLAINTIFF REGINALD LYLE,
on behalf of himself and others similarly situated,
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN JOAQUIN
REGINALD LYLE, on behalf of himself and
others similarly situated,
Plaintiff,
Vv.
DOCTORS HOSPITAL OF MANTECA, INC.;
AUXILLARY OF DOCTORS HOSPITAL OF
MANTECA; DRS HOSP OF MANTECA INC;
SP OF MANTECA INC; TENET
HEALTHCARE CORPORATION; TENET
HEALTH INTEGRATED SERVICES, INC.;
TENET HEALTH; and DOES 1 to 100,
inclusive,
Defendants
ee ee ee eee
SUP LD:
OG MAR 20 PH 1: 23
AGGA JUNOUEIG, CLERK
Case No.: STK-CV-UOE-2016-6523
Hon. Michael Mulvihill
Dept. 10C
CLASS ACTION
PLAINTIFF’S OBJECTIONS TO THE
DECLARATION OF JOSE MACIAS
FILED WITH DEFENDANT’S REPLY
IN SUPPORT OF DEFENDANT'S
MOTION FOR NONCERTIFICATION
Date; March 21, 2019
Time: 9:00 a.m.
Dept.: 10C
Action Filed: July 5, 2016
Trial Date: June 10, 2019
PLAINTIFF’S OBJECTIONS TO THE DECLARATION OF JOSE MACIAS FILED WITH
DEFENDANT’S REPLY [IN SUPPORT OF DEFENDANT’S MOTION FOR NONCERTIFICATIONCwm Aw BF wD
INTRODUCTION
Plaintiff hereby respectfully submits his Objection and Request to Strike Defendant’s
Declaration of Jose Macias filed with Defendant’s Reply in Support of Defendant’s Motion for
Noncertification, Plaintiff reserves his right to orally argue further objections at the hearing on
Defendant’s Motion for Noncertification currently set for March 21, 2019.
Absent exceptional” circumstances, it is improper to submit new evidence on reply.
Plenuer v. Alza Corp., | | Cal. App. 4th 349, 362, n.8 (1992); see also Hahn v. Diaz-Barba. 194
Cal.App. 4th 1177, 1193 (2011) ("evidentiary matter submitted with the reply ordinarily should
not be allowed"). Defendant fails to identify any “exceptional” circumstances here. Accordingly,
the new evidence should be stricken. Defendant has no right to submit evidence that has never
been provided to Plaintiff, despite provisions in the California Code of Civil Procedure and per
parties’ stipulation to do so if such evidence existed. As such, this evidence should be stricken in
its entirety, as unauthorized. (See Nazir, supra, 178 Cal.App.4th at 252 ("No such evidence [in
reply] is generally allowed”); see also San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A.
(2002) 102 Cal.App.4" 308, 316 (rejecting evidence submitted with reply, finding that admitting
late-filed evidence violated opposing party’s due process rights to be informed of the issues it
must meet to defeat the motion).
Plaintiff's specific objections to said declaration are as follows:
1, Page 1, Lines 22-23
“Attached hereto as Exhibit C is a true and correct copy of the clarifications made by
Ms. Castillo to her deposition transcript on her errata sheet.”
Objection:
Plaintiff objects to the changes made to Ms. Castillo’s deposition transcript and to the
exhibit, as the Defendant failed to provide the changes to Plaintiff's counsel as is requested,
stipulated to, and required by California Code of Civil Procedure § 2025.5209(c):
Alternatively, within this same period, the deponent may change the form or the
substance of the answer to any question and may approve or refuse to approve the
1
PLAINTIFF’S OBJECTIONS TO THE DECLARATION OF JOSE MACIAS FILED WITH
DEFENDANT’S REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR NONCERTIFICATIONCO NI AH BF BN
Ss
1
transcript by means of a letter to the deposition officer signed by the deponent
which is mailed by certified or registered mail with return receipt requested. A
copy of that letter shall be sent by first-class mail to all parties attending the
deposition. [emphasis added]
Additionally, prior to the conclusion of the deposition, the parties stipulated to meet and
confer to attempt to have any changes to Plaintiffs counsel within a week from receiving
the transcript. However, the parties did agree that the changes would be made per code if
this could not be accomplished. (Deposition of Castillo, 53:19-24). Pursuant to CCP §
2025.520(b), Defendant had thirty (30) days to make changes. Still, Plaintiff never
received any notification, letter, or errata page from Defendant, and “[i]f the deponent
fails or refuses to approve the transcript within the allotted period, the deposition shall be
given the same effect as though it had been approved, subject to any changes timely made
by the deponent.” CCP § 2025.520(f). Plaintiff reasonably assumed there were no
changes.
Sustained
Overruled
2. Page 1, Lines 26-27
“Attached hereto as Exhibit E is a true and correct copy of the clarifications made by Mr.
Ugalino to his deposition transcript on his errata sheet.”
Objection:
Plaintiff objects to the changes made to Mr. Ugalino’s deposition transcript and to the
exhibit, as the Defendant failed to provide the changes to Plaintiff's counsel as is requested,
stipulated to, and required by California Code of Civil Procedure § 2025.5209(c):
Alternatively, within this same period, the deponent may change the form or the
substance of the answer to any question and may approve or refuse to approve the
transcript by means of a letter to the deposition officer signed by the deponent
which is mailed by certified or registered mail with return receipt requested. A
copy of that letter shall be sent by first-class mail to all parties attending the
deposition. [emphasis added]
2
PLAINTIFF’S OBJECTIONS TO THE DECLARATION OF JOSE MACIAS FILED WITH
DEFENDANT'S REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR NONCERTIFICATIONeC me YN Dh BBN
°
Additionally, prior to the conclusion of the deposition, Mr. Macias agreed to shorten the
time window for review of the transcript, and he indicated that Mr. Ugalino had two
weeks after February 13, 2019 to review it for changes. (Deposition of Ugalino, 81:16-
20). Still, Plaintiff never received any notification, letter, or errata page from Defendant,
and “[i]f the deponent fails or refuses to approve the transcript within the allotted period,
the deposition shall be given the same effect as though it had been approved, subject to
any changes timely made by the deponent.” CCP § 2025.520(f). Plaintiff reasonably
assumed there were no changes.
Sustained
Overruled
Dated: March 19, 2019
By:
IT IS ORDERED:
Dated: , 2019
LAW OFFICE OF JOSEPH ANTONELLI
Tener, Attorney for Plaichitt)
Hon. Michael Mulvihill,
Judge of the Superior Court
3
PLAINTIFF’S OBJECTIONS TO THE DECLARATION OF JOSE MACIAS FILED WITH
DEFENDANT’S REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR NONCERTIFICATION
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BY FAX Co ey nA uM PF WH 10 Joseph Antonelli, Esq. (Bar No. 137039) JAntonelli@antonellilaw.com Janelle Carney, Esq. (Bar No. 201570) JCame’ antonel|ilaw. com LAW OFFICE OF JOSEPH ANTONELLI 14758 Pipeline Ave., Suite E, 2nd Floor Chino Hills, CA 9 1709 Tel.: (909) 393-0223 / Fax: (909) 393-0471 Joseph Lavi, Esq. (SBN 209776) Vincent C, Granberry, Esq. (SBN 276483) LAVI & EBRAHIMIAN, LLP 8889 W. Olympic Blyvd., Suite 200 Beverly Hills, California 90211 Telephone: (310) 432-0000 Facsimile: (310) 432-0001 David M. deRubertis (SBN 208709) The deRubertis Law Firm, APC 4219 Coldwater Canyon Avenue Studio City, California 91604 Telephone: (818) 761-2322 ° Facsimile: (818) 761-2323 e-mail: David@deRubertisLaw.com Attorneys for PLAINTIFF REGINALD LYLE, on behalf of himself and others similarly situated, SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN JOAQUIN REGINALD LYLE, on behalf of himself and others similarly situated, Plaintiff, Vv. DOCTORS HOSPITAL OF MANTECA, INC.; AUXILLARY OF DOCTORS HOSPITAL OF MANTECA; DRS HOSP OF MANTECA INC; SP OF MANTECA INC; TENET HEALTHCARE CORPORATION; TENET HEALTH INTEGRATED SERVICES, INC.; TENET HEALTH; and DOES 1 to 100, inclusive, Defendants ee ee ee eee SUP LD: OG MAR 20 PH 1: 23 AGGA JUNOUEIG, CLERK Case No.: STK-CV-UOE-2016-6523 Hon. Michael Mulvihill Dept. 10C CLASS ACTION PLAINTIFF’S OBJECTIONS TO THE DECLARATION OF JOSE MACIAS FILED WITH DEFENDANT’S REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR NONCERTIFICATION Date; March 21, 2019 Time: 9:00 a.m. Dept.: 10C Action Filed: July 5, 2016 Trial Date: June 10, 2019 PLAINTIFF’S OBJECTIONS TO THE DECLARATION OF JOSE MACIAS FILED WITH DEFENDANT’S REPLY [IN SUPPORT OF DEFENDANT’S MOTION FOR NONCERTIFICATIONCwm Aw BF wD INTRODUCTION Plaintiff hereby respectfully submits his Objection and Request to Strike Defendant’s Declaration of Jose Macias filed with Defendant’s Reply in Support of Defendant’s Motion for Noncertification, Plaintiff reserves his right to orally argue further objections at the hearing on Defendant’s Motion for Noncertification currently set for March 21, 2019. Absent exceptional” circumstances, it is improper to submit new evidence on reply. Plenuer v. Alza Corp., | | Cal. App. 4th 349, 362, n.8 (1992); see also Hahn v. Diaz-Barba. 194 Cal.App. 4th 1177, 1193 (2011) ("evidentiary matter submitted with the reply ordinarily should not be allowed"). Defendant fails to identify any “exceptional” circumstances here. Accordingly, the new evidence should be stricken. Defendant has no right to submit evidence that has never been provided to Plaintiff, despite provisions in the California Code of Civil Procedure and per parties’ stipulation to do so if such evidence existed. As such, this evidence should be stricken in its entirety, as unauthorized. (See Nazir, supra, 178 Cal.App.4th at 252 ("No such evidence [in reply] is generally allowed”); see also San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4" 308, 316 (rejecting evidence submitted with reply, finding that admitting late-filed evidence violated opposing party’s due process rights to be informed of the issues it must meet to defeat the motion). Plaintiff's specific objections to said declaration are as follows: 1, Page 1, Lines 22-23 “Attached hereto as Exhibit C is a true and correct copy of the clarifications made by Ms. Castillo to her deposition transcript on her errata sheet.” Objection: Plaintiff objects to the changes made to Ms. Castillo’s deposition transcript and to the exhibit, as the Defendant failed to provide the changes to Plaintiff's counsel as is requested, stipulated to, and required by California Code of Civil Procedure § 2025.5209(c): Alternatively, within this same period, the deponent may change the form or the substance of the answer to any question and may approve or refuse to approve the 1 PLAINTIFF’S OBJECTIONS TO THE DECLARATION OF JOSE MACIAS FILED WITH DEFENDANT’S REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR NONCERTIFICATIONCO NI AH BF BN Ss 1 transcript by means of a letter to the deposition officer signed by the deponent which is mailed by certified or registered mail with return receipt requested. A copy of that letter shall be sent by first-class mail to all parties attending the deposition. [emphasis added] Additionally, prior to the conclusion of the deposition, the parties stipulated to meet and confer to attempt to have any changes to Plaintiffs counsel within a week from receiving the transcript. However, the parties did agree that the changes would be made per code if this could not be accomplished. (Deposition of Castillo, 53:19-24). Pursuant to CCP § 2025.520(b), Defendant had thirty (30) days to make changes. Still, Plaintiff never received any notification, letter, or errata page from Defendant, and “[i]f the deponent fails or refuses to approve the transcript within the allotted period, the deposition shall be given the same effect as though it had been approved, subject to any changes timely made by the deponent.” CCP § 2025.520(f). Plaintiff reasonably assumed there were no changes. Sustained Overruled 2. Page 1, Lines 26-27 “Attached hereto as Exhibit E is a true and correct copy of the clarifications made by Mr. Ugalino to his deposition transcript on his errata sheet.” Objection: Plaintiff objects to the changes made to Mr. Ugalino’s deposition transcript and to the exhibit, as the Defendant failed to provide the changes to Plaintiff's counsel as is requested, stipulated to, and required by California Code of Civil Procedure § 2025.5209(c): Alternatively, within this same period, the deponent may change the form or the substance of the answer to any question and may approve or refuse to approve the transcript by means of a letter to the deposition officer signed by the deponent which is mailed by certified or registered mail with return receipt requested. A copy of that letter shall be sent by first-class mail to all parties attending the deposition. [emphasis added] 2 PLAINTIFF’S OBJECTIONS TO THE DECLARATION OF JOSE MACIAS FILED WITH DEFENDANT'S REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR NONCERTIFICATIONeC me YN Dh BBN ° Additionally, prior to the conclusion of the deposition, Mr. Macias agreed to shorten the time window for review of the transcript, and he indicated that Mr. Ugalino had two weeks after February 13, 2019 to review it for changes. (Deposition of Ugalino, 81:16- 20). Still, Plaintiff never received any notification, letter, or errata page from Defendant, and “[i]f the deponent fails or refuses to approve the transcript within the allotted period, the deposition shall be given the same effect as though it had been approved, subject to any changes timely made by the deponent.” CCP § 2025.520(f). Plaintiff reasonably assumed there were no changes. Sustained Overruled Dated: March 19, 2019 By: IT IS ORDERED: Dated: , 2019 LAW OFFICE OF JOSEPH ANTONELLI Tener, Attorney for Plaichitt) Hon. Michael Mulvihill, Judge of the Superior Court 3 PLAINTIFF’S OBJECTIONS TO THE DECLARATION OF JOSE MACIAS FILED WITH DEFENDANT’S REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR NONCERTIFICATION