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Electronically Filed
CHRISTOPHER W. WOOD, ESQ. / SBN: 193955 2/22/2022 12:19 PM
CAMNHUNG T. LE, ESQ. / SBN: 319570 Superior Court of California
DREYER BABICH BUCCOLA WOOD CAMPORA, LLP County of Stanislaus
20 Bicentennial Circle Clerk of the Court
Sacramento, CA 95826 By: J oshua Teixeira, Deputy
Telephone: (916) 379-3500
Facsimile: (916) 379-3599 $60 PAID
BBWC-ESERVICE@dbbwc.com
Attorneys for Plaintiffs
SUPERIOR COURT OF CALIFORNIA
COUNTY OF STANISLAUS
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11 TIFFANY BURR and RYAN BURR, Individually Case No.: CV-19-001129
and as Guardian ad Litem for TAYLOR BURR,
12 a minor, PLAINTIFFS’ EX PARTE APPLICATION
FOR AN ORDER SHORTENING TIME FOR
13 Plaintiffs, MOTION TO STRIKE DEFENDANTS’
AMENDED/SUPPLEMENTAL
14 v DESIGNATION OF EXPERT WITNESSES
15 GURNEY TRUCKING, INC., Date: February 23, 2022
ANTONIO JOSE MENDOZA and Time: 8:30 a.m.
16 DOES 1 through 10, inclusive, Dept.: 23
17 Defendants. Trial Date: March 15, 2022
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19 PLEASE TAKE NOTICE that on February 23, 2022 at 8:30 a.m. in Department 23 of this
20 Court, Plaintiffs will move this Court for Ex Parte Application an Order shortening time for a Motion
21 to Strike Defendants’ Amended/Supplemental Designation of Expert Witnesses, pursuant to Code
22 of Civil Procedure §1005(b) and California Rules of Court, rule 3.1200 et. seq. and California Rules
23 of Court 3.1300(b).
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Plaintiffs’ Ex Parte Application for an Order Shortening Time for Motion to Strike Defendants’
Amended/Supplemental Designation of Expert Witnesses
APPLICATION AND MEMORANDUM
This Ex Parte Application is made on the following grounds:
1 This case is set to begin Trial on March 15, 2022. Insufficient time remains prior to
the Trial date to bring the Motion Strike Defendants’ Amended/Supplemental Designation of Exert
Witnesses on regular noticed hearing.
2 This Application is based on the Complaint on file herewith in this matter, this
Memorandum, Declaration of Camnhung T. Le, Esq., and all other papers and pleadings filed
herein, and all further evidence as may be presented at the hearing on this matter.
3 This lawsuit involves the injuries and damages of Plaintiffs TIFFANY BURR and
10 TAYLOR BURR, a minor, arising out of a high velocity, clear liability tractor-trailer versus motor
11 vehicle collision that occurred on February 21, 2018 in Modesto, California. Plaintiff RYAN BURR
12 has a Loss of Consortium claim in connection to this case.
13 4 The subject collision caused injuries to Ms. BURR’s spine which ultimately required
14 her to undergo surgery at C3-4, C4-5 and C5-6. The cervical spine surgery was helpful; however,
15 Ms. BURR continues to experience chronic pain that requires ongoing pain management
16 treatment. Ms. BURR also experiences cognitive issues due to the traumatic brain injury as a
17 result of the collision. She is currently receiving speech therapy treatment for her cognitive
18 deficits.
19 5. On January 24, 2022, Defendants served onto Plaintiffs their Designation of Expert
20 Witnesses and identified the following retained experts: William Hooker, Ph.D.;
21 Praveen Prasad, M.D.; Steven McIntire, M.D.; Dean Stolworthy, Ph.D.; Karen Flinn-Fowler;
22 David Weiner/Richard Ruiz; Rick Sarkisian, Ph.D; John Lieu, M.D.
23 6 On January 24, 2022, Plaintiffs served onto Defendants their Disclosure of Experts
24 and identified the following retained experts: Richard Barnes; Randall Epperson, Ph.D.;
25 Vinay Reddy, M.D.; Jeffrey R. Levin, M.D.; Syed Jafri, M.D.; Tyler Smith, M.D.; Carol Hyland;
26 Van Buren Lemons, M.D.
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Plaintiffs’ Ex Parte Application for an Order Shortening Time for Motion to Strike Defendants’
Amended/Supplemental Designation of Expert Witnesses
7 On February 14, 2022, Defendants served Plaintiffs their Amended/Supplemental
Designation of Expert Witnesses. Dr. Lieu was omitted from this Designation of Expert Witnesses
and Defendants identified two new expert witnesses, Arthur Dublin, M.D. and Stephen Mann, M.D.
8 A party may demand a mutual and simultaneous exchange of expert witness that
any party expect to offer in evidence at trial. (Code of Civ. Proc., § 2034.210(a).) The designation
of an expert witness shall be accompanied by an expert witness declaration which outlines the
following: (1) a narrative statement of the qualifications of each expert, (2) a narrative statement
of the general substance of testimony that the expert is expected to give. (Code of Civ. Proc., §
2034.260(c).) Parties are permitted to supplement their expert disclosure 20 days after the initial
10 exchange of (1) the supplemental expert will provide opinions on an issue covered by an expert
11 designated by the adverse party to the changed and (2) the party disclosing the
12 supplemental expert has not previously retained an expert to testify on that subject.
13 (Code of Civ. Proc., § 2034.260(a) emphasis added.)
14 9 The substance of Dr. Mann and Dr. Dublin’s trial testimony, as outlined in their
15 respective declarations, overlap and have already been addressed by Defendants’ initially
16 disclosed expert witnesses. Moreover, the scope of Dr. Dublin’s trial testimony was identical to
17 Defendant's previously disclosed expert, Dr. Lieu; who was omitted entirely from Defendants ,
18 Amended/Supplemental Designation of Expert Witnesses.
19 10. Plaintiffs’ meet and confer efforts regarding the cumulative and duplicative nature of
20 Dr. Mann and Dr. Dublin’s trial testimony were ignored.
21 11. The Court may, upon a motion made, strike out all or any part of any pleading not
22 drawn or filed in conformity with the laws, court rule or an order of the court. (Code of Civ. Proc.,
23 § 436(b).) A motion to strike under Code of Civil Procedure Section 436 is proper to prevent the
24 use of a deficient expert designation or supplemental disclosure. (Fairfax v. Lords (2006) 138
25 Cal.App. 4th 1027-1028.)
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Plaintiffs’ Ex Parte Application for an Order Shortening Time for Motion to Strike Defendants’
Amended/Supplemental Designation of Expert Witnesses
12. The disclosure of two new cumulative experts would be prejudicial as Plaintiffs must
complete the pending depositions of Defendants’ experts, expend additional resources to take the
depositions of Dr. Mann and Dr. Dublin and consult with their experts. Defendants will not face
prejudice.
13. Accordingly, Plaintiff respectfully requests this Court grant an Order shortening time
to hear a Motion to Strike Defendants’ Amended/Supplemental Designation of Expert Witnesses.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed this 22" day of February 2922 at Sacramento, California.
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CAMNHUNG T.
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Plaintiffs’ Ex Parte Application for an Order Shortening Time for Motion to Strike Defendants’
Amended/Supplemental Designation of Expert Witnesses
PROOF OF SERVICE - CCP § 1013, 1013a, 2015.5
and California Rules of Court, Rules 2.306, 2.251
Burr v. Gurney Trucking Inc., et al.
Stanislaus County Superior Case No.: CV-19-001129
I, Erica Placeres, declare that:
I am a citizen of the United States and am over the age of eighteen years and not a
party to the within above-entitled action. I am an employee of Dreyer Babich Buccola Wood
Campora, LLP and my business address is 20 Bicentennial Circle, Sacramento, CA 95826.
On February 22, 2022, I served the within document:
PLAINTIFFS’ EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME FOR MOTION
TO STRIKE DEFENDANTS’ AMENDED/SUPPLEMENTAL DESIGNATION OF EXPERT
10 WITNESSES
11 On the parties in said action addressed as follows:
12 SEE ATTACHED SERVICE LIST
13 Oo BY MAIL: I am familiar with my employer's practice for the collection and processing of
correspondence for mailing with the United States Postal Service and that each day’s mail
14 is deposited with the United States Postal Service that same day in the ordinary course of
business. On the date set forth above, I served the aforementioned document(s) on the
15 parties in said action by placing a true and correct copy thereof enclosed in a sealed
envelope with postage thereon fully prepaid, for collection and mailing on this date,
16 following ordinary business practices, at Sacramento, CA, addressed as set forth above.
17 BY ELECTRONIC TRANSMISSION: Based on a Court order or an agreement of the
parties to accept service by electronic transmission, I caused the documents to be
18 electronically sent to the persons on the attached service list. I did not receive, within a
reasonable time after the transmission, any electronic message or other indication that the
19 transmission was unsuccessful.
20 BY PERSONAL SERVICE: By personally delivering a true copy thereof to the office of the
addressee above.
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Oo BY OVERNIGHT COURIER: By causing a true copy and/or original thereof to be
22 personally delivered via the following overnight courier service:
23 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct, and that this declaration was executed on February 22, 2022, at
24 Sacramento, CA.
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Erica Placeres
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Plaintiffs’ Ex Parte Application for an Order Shortening Time for Motion to Strike Defendants’
Amended/Supplemental Designation of Expert Witnesses
SERVICE LIST
Daniel P. Schrader, Esq. Attorneys for Defendants,
Mary Katherine Back, Esq. GURNEY TRUCKING, INC. and
Kelley T. Mahoney, Esq. ANTONIO JOSE MENDOZA
MANNING GROSS + MASSENBURG, LLP
201 Spear Street, 18" Floor
San Francisco, CA 94105
Telephone: (415) 512-4381
Facsimile: (415) 512-6791
Email: dschrader@mgqmlaw.com;
KMahoney@mgmlaw.com;
MBack@mgqmlaw.com;
Miller@mqmlaw.com;
MEstus@mgmlaw.com; LSilva@mgqmlaw.com
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Plaintiffs’ Ex Parte Application for an Order Shortening Time for Motion to Strike Defendants’
Amended/Supplemental Designation of Expert Witnesses
Preview
Electronically Filed CHRISTOPHER W. WOOD, ESQ. / SBN: 193955 2/22/2022 12:19 PM CAMNHUNG T. LE, ESQ. / SBN: 319570 Superior Court of California DREYER BABICH BUCCOLA WOOD CAMPORA, LLP County of Stanislaus 20 Bicentennial Circle Clerk of the Court Sacramento, CA 95826 By: J oshua Teixeira, Deputy Telephone: (916) 379-3500 Facsimile: (916) 379-3599 $60 PAID BBWC-ESERVICE@dbbwc.com Attorneys for Plaintiffs SUPERIOR COURT OF CALIFORNIA COUNTY OF STANISLAUS 10 11 TIFFANY BURR and RYAN BURR, Individually Case No.: CV-19-001129 and as Guardian ad Litem for TAYLOR BURR, 12 a minor, PLAINTIFFS’ EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME FOR 13 Plaintiffs, MOTION TO STRIKE DEFENDANTS’ AMENDED/SUPPLEMENTAL 14 v DESIGNATION OF EXPERT WITNESSES 15 GURNEY TRUCKING, INC., Date: February 23, 2022 ANTONIO JOSE MENDOZA and Time: 8:30 a.m. 16 DOES 1 through 10, inclusive, Dept.: 23 17 Defendants. Trial Date: March 15, 2022 18 19 PLEASE TAKE NOTICE that on February 23, 2022 at 8:30 a.m. in Department 23 of this 20 Court, Plaintiffs will move this Court for Ex Parte Application an Order shortening time for a Motion 21 to Strike Defendants’ Amended/Supplemental Designation of Expert Witnesses, pursuant to Code 22 of Civil Procedure §1005(b) and California Rules of Court, rule 3.1200 et. seq. and California Rules 23 of Court 3.1300(b). 24 M1 25 M1 26 M1 27 M1 28 M1 -1- Plaintiffs’ Ex Parte Application for an Order Shortening Time for Motion to Strike Defendants’ Amended/Supplemental Designation of Expert Witnesses APPLICATION AND MEMORANDUM This Ex Parte Application is made on the following grounds: 1 This case is set to begin Trial on March 15, 2022. Insufficient time remains prior to the Trial date to bring the Motion Strike Defendants’ Amended/Supplemental Designation of Exert Witnesses on regular noticed hearing. 2 This Application is based on the Complaint on file herewith in this matter, this Memorandum, Declaration of Camnhung T. Le, Esq., and all other papers and pleadings filed herein, and all further evidence as may be presented at the hearing on this matter. 3 This lawsuit involves the injuries and damages of Plaintiffs TIFFANY BURR and 10 TAYLOR BURR, a minor, arising out of a high velocity, clear liability tractor-trailer versus motor 11 vehicle collision that occurred on February 21, 2018 in Modesto, California. Plaintiff RYAN BURR 12 has a Loss of Consortium claim in connection to this case. 13 4 The subject collision caused injuries to Ms. BURR’s spine which ultimately required 14 her to undergo surgery at C3-4, C4-5 and C5-6. The cervical spine surgery was helpful; however, 15 Ms. BURR continues to experience chronic pain that requires ongoing pain management 16 treatment. Ms. BURR also experiences cognitive issues due to the traumatic brain injury as a 17 result of the collision. She is currently receiving speech therapy treatment for her cognitive 18 deficits. 19 5. On January 24, 2022, Defendants served onto Plaintiffs their Designation of Expert 20 Witnesses and identified the following retained experts: William Hooker, Ph.D.; 21 Praveen Prasad, M.D.; Steven McIntire, M.D.; Dean Stolworthy, Ph.D.; Karen Flinn-Fowler; 22 David Weiner/Richard Ruiz; Rick Sarkisian, Ph.D; John Lieu, M.D. 23 6 On January 24, 2022, Plaintiffs served onto Defendants their Disclosure of Experts 24 and identified the following retained experts: Richard Barnes; Randall Epperson, Ph.D.; 25 Vinay Reddy, M.D.; Jeffrey R. Levin, M.D.; Syed Jafri, M.D.; Tyler Smith, M.D.; Carol Hyland; 26 Van Buren Lemons, M.D. 27 M1 28 M1 -2- Plaintiffs’ Ex Parte Application for an Order Shortening Time for Motion to Strike Defendants’ Amended/Supplemental Designation of Expert Witnesses 7 On February 14, 2022, Defendants served Plaintiffs their Amended/Supplemental Designation of Expert Witnesses. Dr. Lieu was omitted from this Designation of Expert Witnesses and Defendants identified two new expert witnesses, Arthur Dublin, M.D. and Stephen Mann, M.D. 8 A party may demand a mutual and simultaneous exchange of expert witness that any party expect to offer in evidence at trial. (Code of Civ. Proc., § 2034.210(a).) The designation of an expert witness shall be accompanied by an expert witness declaration which outlines the following: (1) a narrative statement of the qualifications of each expert, (2) a narrative statement of the general substance of testimony that the expert is expected to give. (Code of Civ. Proc., § 2034.260(c).) Parties are permitted to supplement their expert disclosure 20 days after the initial 10 exchange of (1) the supplemental expert will provide opinions on an issue covered by an expert 11 designated by the adverse party to the changed and (2) the party disclosing the 12 supplemental expert has not previously retained an expert to testify on that subject. 13 (Code of Civ. Proc., § 2034.260(a) emphasis added.) 14 9 The substance of Dr. Mann and Dr. Dublin’s trial testimony, as outlined in their 15 respective declarations, overlap and have already been addressed by Defendants’ initially 16 disclosed expert witnesses. Moreover, the scope of Dr. Dublin’s trial testimony was identical to 17 Defendant's previously disclosed expert, Dr. Lieu; who was omitted entirely from Defendants , 18 Amended/Supplemental Designation of Expert Witnesses. 19 10. Plaintiffs’ meet and confer efforts regarding the cumulative and duplicative nature of 20 Dr. Mann and Dr. Dublin’s trial testimony were ignored. 21 11. The Court may, upon a motion made, strike out all or any part of any pleading not 22 drawn or filed in conformity with the laws, court rule or an order of the court. (Code of Civ. Proc., 23 § 436(b).) A motion to strike under Code of Civil Procedure Section 436 is proper to prevent the 24 use of a deficient expert designation or supplemental disclosure. (Fairfax v. Lords (2006) 138 25 Cal.App. 4th 1027-1028.) 26 M1 27 M1 28 M1 -3- Plaintiffs’ Ex Parte Application for an Order Shortening Time for Motion to Strike Defendants’ Amended/Supplemental Designation of Expert Witnesses 12. The disclosure of two new cumulative experts would be prejudicial as Plaintiffs must complete the pending depositions of Defendants’ experts, expend additional resources to take the depositions of Dr. Mann and Dr. Dublin and consult with their experts. Defendants will not face prejudice. 13. Accordingly, Plaintiff respectfully requests this Court grant an Order shortening time to hear a Motion to Strike Defendants’ Amended/Supplemental Designation of Expert Witnesses. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 22" day of February 2922 at Sacramento, California. 10 CAMNHUNG T. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- Plaintiffs’ Ex Parte Application for an Order Shortening Time for Motion to Strike Defendants’ Amended/Supplemental Designation of Expert Witnesses PROOF OF SERVICE - CCP § 1013, 1013a, 2015.5 and California Rules of Court, Rules 2.306, 2.251 Burr v. Gurney Trucking Inc., et al. Stanislaus County Superior Case No.: CV-19-001129 I, Erica Placeres, declare that: I am a citizen of the United States and am over the age of eighteen years and not a party to the within above-entitled action. I am an employee of Dreyer Babich Buccola Wood Campora, LLP and my business address is 20 Bicentennial Circle, Sacramento, CA 95826. On February 22, 2022, I served the within document: PLAINTIFFS’ EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME FOR MOTION TO STRIKE DEFENDANTS’ AMENDED/SUPPLEMENTAL DESIGNATION OF EXPERT 10 WITNESSES 11 On the parties in said action addressed as follows: 12 SEE ATTACHED SERVICE LIST 13 Oo BY MAIL: I am familiar with my employer's practice for the collection and processing of correspondence for mailing with the United States Postal Service and that each day’s mail 14 is deposited with the United States Postal Service that same day in the ordinary course of business. On the date set forth above, I served the aforementioned document(s) on the 15 parties in said action by placing a true and correct copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, for collection and mailing on this date, 16 following ordinary business practices, at Sacramento, CA, addressed as set forth above. 17 BY ELECTRONIC TRANSMISSION: Based on a Court order or an agreement of the parties to accept service by electronic transmission, I caused the documents to be 18 electronically sent to the persons on the attached service list. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the 19 transmission was unsuccessful. 20 BY PERSONAL SERVICE: By personally delivering a true copy thereof to the office of the addressee above. 21 Oo BY OVERNIGHT COURIER: By causing a true copy and/or original thereof to be 22 personally delivered via the following overnight courier service: 23 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on February 22, 2022, at 24 Sacramento, CA. 25 Erica Placeres 26 27 28 -5- Plaintiffs’ Ex Parte Application for an Order Shortening Time for Motion to Strike Defendants’ Amended/Supplemental Designation of Expert Witnesses SERVICE LIST Daniel P. Schrader, Esq. Attorneys for Defendants, Mary Katherine Back, Esq. GURNEY TRUCKING, INC. and Kelley T. Mahoney, Esq. ANTONIO JOSE MENDOZA MANNING GROSS + MASSENBURG, LLP 201 Spear Street, 18" Floor San Francisco, CA 94105 Telephone: (415) 512-4381 Facsimile: (415) 512-6791 Email: dschrader@mgqmlaw.com; KMahoney@mgmlaw.com; MBack@mgqmlaw.com; Miller@mqmlaw.com; MEstus@mgmlaw.com; LSilva@mgqmlaw.com 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- Plaintiffs’ Ex Parte Application for an Order Shortening Time for Motion to Strike Defendants’ Amended/Supplemental Designation of Expert Witnesses