Motion_for_leave_augment_expert_witness_list_and_declarationMotionCal. Super. - 2nd Dist.September 12, 2018Electronically FILED by Superior Court of California, County of Los Angeles on 02/06/2020 08:37 AM Sherri R. Carter, Executive Officer/Clerk of Court, by K. Hung,Deputy Clerk 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WAYNE YEE (#83055) Attorney at Law 3030 West Eighth Str Ste 405 Los Angeles, California 90005 (213) 716-6635 Attorney for Defendant NEW STAR REALTY, INC., and JENNY S. NAM SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, CENTRAL DISTRICT ROBERT VARTZAR, ADENA ASSA- Case No. BC721623 TOORIAN, Assigned: Hon. ROBERT DRAPER Dept 78 Plaintiffs, NOTICE OF MOTION AND MOTION OF DEFENDANTS JENNY S. NAM AND NEW STAR REALTY, INC., TO AUGMENT DEFENDANTS’ EXPERT WITNESS LIST AND DECLARATION; DECLARATION OF WAYNE YEE AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT HEREOF vs. NEW STAR REALTY, INC., JENNY S. LAM, JIN CHAN NAM, and DOES 3 TE 505 rr N r N r n r Ni t rt a a rt a r Sa a r a r Defendants. ) Complaint Filed: Sept. 12 2018 Trial Date: Mar. 9, 2020 FSC Date: Feb. 24. 2020 DATE: March 10, 2020 TIME: 8:30 a.m. DEPT: 78 RESERVATION ID 390291038608 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that, on March 10,2020, at 8:30 a.m., or as soon thereafter as the matter may be heard, in Department 78 of the above- entitled court located at 111 No. Hill Street, Los Angeles, California 90012, defendants JENNY S. NAM, erroneously named as JENNY 5S. LAM, and NEW STAR REALTY, INC., will move the court for an order to augment NOTICE OF MOTION AND MOTION TO AUGMENT EXPERT WITNESS LIST = 1 = oO \O oo ~ AN 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 defendants’ expert witness designation by adding the name and address of an expert witness who has been subsequently retained, as permitted by California Code of Civil Procedure §2034.610(a) (1 . This motion is made on the grounds that expert witness testimony of a forensic engineer would assist in determination of causation in plaintiffs’ sole claim of damages caused by the negligence of defendants in this action. This motion is based on the declaration of WAYNE YEE; the memorandum of points and authorities attached hereto; the files and records in this action; and on any evidence which may be received at the hearing of this motion. DATED: February 4, 2020. ] MAA IAs < WAYNE YEE, Aftorney flor Defendants JENNY NAM ang / NEW STAR REALTY, INC. N\ NOTICE OF MOTION AND MOTION TO AUGMENT EXPERT WITNESS LIST 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF WAYNE YEE TN SUPPORT OF MOTION TO AUGMENT DEFENDANTS’ EXPERT WITNESS LIST AND DECLARATION I, WAYNE YEE, declare: 1. I am an attorney at law duly licensed to practice before the courts of the State of California and have personal knowledge of the facts stated herein, except for those matters based on information and belief, and as to those matters I believe them to be true. 2 I am a sole practitioner and am the attorney of record for defendants JENNY S. NAM, erroneously named as JENNY S. LAM in the amended complaint on file herein, and NEW STAR REALTY, INC., in this action. 3. On January 21, 2020, after receipt of an email with plaintiffs’ expert witness list and declaration attached, defendants emailed and mailed their expert witness designation and declaration to plaintiffs’ attorneys, without waiving objections to plaintiffs’ demand or the exchange itself. 4. Plaintiffs’ First Amended Complaint alleges a single cause of action for negligence; that “On or about January 9, 2018, Plaintiffs’ PROPERTY sustained significant water damage caused by water intrusion due to Defendants . . . lack of maintenance of their property, including but not limited to faulty roof drainage system and piping [First Amended Complaint, page 4, subparagraph 2];”. that “Defendants knew of the aforementioned issues with the drainage and piping as they have previously caused the same or similar damage to the PROPERTY and paid Plaintiffs to repair said damage [First Amended Complaint, page 4, subparagraph 5].” 5. On January 28, 2020, I took the deposition of plaintiff ROBERT VARTZAR, wherein Mr. VARTZAR testified that his claim included water DECLARATION OF WAYNE YEE ~ 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 damage from the northern portion of the western wall of 17549 Chatsworth Street, Granada Hills, California. Mr. VARTZAR also claim that intrusion was from water from the parking lot on property of defendant JENNY S. NAM, and that he became aware of this cause after this action was commenced. 6. On February 3, 2020, at an Informal Discovery Conference conducted by this Court, I sought permission to augment defendants’ list and declaration of expert witnesses by adding a civil engineer as an expert witness. This Court asked if plaintiffs would stipulate to augmentation, which plaintiffs’ attorneys refused to do. Without further discussion, the Court invited defendants to bring a motion and seek an order shortening time to hear the motion before trial, which is scheduled for March 9, 2020. 7. On February 4, 2020, TI called the offices of plaintiffs’ attorneys and asked to meet and confer regarding augmenting defendants’ expert witness list and declaration. Neither were available to take the call, and I asked that they return my call. I also sent an email to ABRAHAM DERVISHIAN seeking the meet and confer regarding augmenting defendants’ expert witness list and declaration.. 8. By email, Mr. DERVISHIAN emailed objection to any amendment of defendants’ expert witness designation. A copy of Mr. DERVISHIAN’s email response and my request to meet and confer is attached hereto as Exhibit ST and incorporated herein by reference as though set forth in full. 9. Defendants seek to add PHILIP ROSESCU as an expert witness in this action. Mr. ROSESCU has agreed to be designated and to testify in this matter. I am informed and believe that he will be sufficiently familiar with this action after an inspection and related activities to DECLARATION OF WAYNE YEE be conducted on February 10, 2020, and will submit to a meaningful deposition, including his opinions and their bases. 10. Mr. ROSESCU obtained the degree of Masters of Science in Civil Engineering; is a forensic engineer certified by the National Academy of Forensic Engineers (No. 1109M); and also holds other certifications. 11. Mr. ROSESCU is expected to render opinions on the following, as such opinions relate to alleged water intrusion into building owned by plaintiffs ROBERT VARTZAR and ADENA ASSATOORIAN, commonly known as 17547 - 17549 Chatsworth Street, Granada Hills, California, as they relate to plaintiffs’ claims of water intrusion: Parking lot design; Code compliance; Design and construction defects; Remediation/repairs; Inspection of 17547 - 17549 Chatsworth Street, Granada Hills, California; Inspection of 17551 Chatsworth Street, Granada Hills, California; Review and comment on testimony and reports of all other expert s who offer opinions within these areas of expertise. 12, I am informed and believe the hourly rate for trial and deposition of Mr. ROSESCU is $350.00 per hour, with a minimum of two hours. Fees for deposition of Mr. ROSESCU are due and pay able at the conclusion of his deposition. 13. Defendants also amend Paragraph 5, line 4 of page 2 of the declaration of WAYNE YEE by changing “$375.00" to “$350.00" as the hourly rate for trial and deposition testimony, with a two-hour minimum , I declare under penalty of perjury that the foregoing is true and DECLARATION OF WAYNE YEE © == ] ~N A N wr EE 10 11 13 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 correct. Executed on February 6, DECLARATION OF WAYNE YEE 2020, at Los Angeles, California. 4 lwrom | A oC = | \J EXHIBIT I Re: MEET AND CONFER ON MOTION TO AUGMENT EXPERT WITNESS LIST From: Abraham Dervishian (abraham@dzlawgroup.org) To: wyeelaw@yahoo.com; lucy@dzlawgroup.org Date: Wednesday, February 5, 2020, 12:24 PM PST Wayne, Plaintiff will object to your amending the subject 2034 designation. Please be mindful of including Ms. Khachatrian in any and all correspondence from this point forward. Also, please advise of your expert's availability. We are awaiting word from our expert regarding his schedule. Abe On Tue, Feb 4, 2020 at 10:05 AM wayne yee wrote: Mr. DERVISHIAN: I telephone your office and left a message for you or Ms. KHACHATRIAN to call me about a meet and confer on augmenting defendants" expert witness list by adding a civil engineer to testify about all issues raised by your client at his deposition on January 28, 2020. I am preparing a motion to augment defendants’ witness list and will ask for an order shortening time to have the matter heard before trial. Please call so that we can discuss. Leave a message if [ am unavailable to take your call. Thank you for your cooperation, since we have a trial date of March 9, 2020, and my clients do not wish any delay in having the matter heard. WAYNE YE (213) 716-6635 Sent from Yahoo Mail. Get the app Abraham Dervishian Attorney at Law D & Z Law Group, LLP 330 N. Brand Blvd., Suite 920 Glendale, CA 91203 Telephone: 818 937-9433 Facsimile: 818 230-1910 ABOUT THIS E-MAIL: The information transmitted is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any review, retransmission, dissemination or other use of or taking of any action in reliance upon this information by persons or entities other than the intended recipient is prohibited. If you received this email in error, please contact the sender and delete the material from any computer. 10 11 12 13 14 15 16 17 18 19 20 21 22 | 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO AUGMENT DEFENDANTS’ EXPERT WITNESS DESIGNATION Defendants JENNY S. NAM!, erroneously named in the first amended complaint as JENNY S. LAM, and NEW STAR REALTY, INC.?, submit the following memorandum of points and authorities in support of this motion to augment defendants’ expert witness designation by adding an expert witness subsequently retained by defendants in this action, as per mitted by California Code of Civil Procedure §2034.610 et seq. BACKGROUND Defendant NAM is the owner of commercial real property located at 17551 - 17559 Chatsworth Street, Granada Hills, California [referred to in this memorandum as NAM’S PROPERTY]. Defendant NEW STAR is a corporation and a tenant of 175 59 Chatsworth Street, Granada Hills, California, and has no o wnership interest in NAM’S PROPERTY. Plaintiffs ROBERT VARTZAR and ADENA ASSATOORIAN are owners of commercial real property located at 17547 - 17549 Chatsworth Street, Granada Hills, California, and allege that water i ntrudes into 17549 Chatsworth Street [referred to in this memorandu m as PLAINTIFFS’ PREMISES] from NAM’S PROPERTY in January 2018 beca use of defendants’ negligence in maintaining NAM'S PROPERTY when it rained. The deposition of plaintiff ROBERT VARTZAR [referred to in this memorandum as VARTZAR] was taken on January 28, 2020. At the deposition, 1 JENNY S. NAM is referred to in this memora ndum as NAM. 2 NEW STAR REALTY, INC., is referred to as NEW STAR in this memorandum. MEMORANDUM OF POINTS AND AUTHORITIES (MOTION TO A UGMENT) = J] = 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 26 27 28 Mr. VARTZAR asserted a claim for damage due to water intrusion at the northern portion of the western wall of 17549 Chatsworth Street, Granada Hills, California, from the parking lot at the rear of property located at 17551 - 17559 Chatsworth Street, Granada Hills, California, which is owned by defendant JENNY S. NAM [referred to as NAM’S PROPERTY]. Mr. VARTZAR also said he became aware of this claim after his complaint was filed. The complaint alleges a single cause of action for negligence. Plaintiffs describe the negligence as “due to Defendants lack of maintenance of their property, including but not limited to faulty roof drainage system and piping [First Amended Complaint [FAC], page 4, subparagraph 2].” The complaint fails to mention the parking lot as a basis for plaintiffs’ claim. To succeed, plaintiffs must prove the breach of a duty was the proximate cause of plaintiffs’ damages [see, Mitchell v. Gonzales (1991) 54 Cal.3d 1041 @ 1057, 1 Cal.Rptr.2d 913, 819 P.2d 872]. Resolution of this dispute requires a determination of factors which cause any water intrusion from NAM’S PROPERTY into PLAINTIFFS’ PREMISES. Plaintiffs have made previous claims against NAM for water intrusion, which were associated with the roof drain located at the southeast corner of 17551 Chatsworth Street, Granada Hills, California. The most recent claim made before the claim alleged in this action was denied by NAM's insurer. I A PARTY MAY AUGMENT ITS EXPERT WITNESS DESIGNATION Upon motion by a party who has participated in an exchange of expert witness information, a party may augment its expert witness list and MEMORANDUM OF POINTS AND AUTHORITIES (MOTION TO AUGMENT) 0 ~ SN je ] \O 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 declaration by adding the name and address of an expert witness subsequently retained [California Code of Civil Procedure §2034.610(a) (1) 1]. On January 21, 2020, after receipt by email of plaintiffs’ expert witness list and declaration and without waiving any objections, defendants emailed and mailed their expert witness lists and declarations to plaintiffs’ attorneys. The first amended complaint filed by plaintiffs alleges a single cause of action for negligence. Plaintiffs claim that negligence of defendants in maintaining their property, specifically a “faulty roof drainage system and piping [First Amended Complaint, page 4, subparagraph 21.” At the deposition of plaintiff ROBERT VARTZAR on January 28, 2020, Mr. VARTZAR claimed damage to the northern portion of the western wall of PLAINTIFFS’ PREMISES because of water from the parking lot at the rear of NAM’S PROPERTY, of which he became aware after this action was commenced. Defendants seek to add PHILIP ROSESCU, a forensic engineer, to its expert witness list and declaration. Mr. ROSESCU is a certified forensic engineer with experience in parking lot design, general constructicn, code compliance, and other topics related to plaintiffs’ claims. The testimony will assist in determine the causes of water intrusion and apportionment of responsibility for repairs. Lol: PREJUDICE TO DEFENDANTS The deposition of plaintiff ROBERT VARTZAR first raised the issue of the parking lot of NAM’S PROPERTY being a cause of water intrusion into the northern portion of the western wall of PLAINTIFFS’ PREMISES. MEMORANDUM OF POINTS AND AUTHORITIES (MOTION TO AUGMENT) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants had previously noticed the deposition of plaintiff ROBERT VARTZAR to be taken on October 2, 2019, and filed a motion to compel appearance and production of documents at deposition on December 11, 2019, after the parties were unable to agree upon a date for the deposition. Had the deposition been taken earlier, defendants would have been able to determine whether additional experts were required before January 21, the date expert witness information was exchanged by the parties. Plaintiffs’ attorneys, having known that a claim that defendants’ alleged negligence included issues arising from the parking lot, failed to amend their complaint or otherwise notify defendants of factors other than “faulty roof drainage system and piping” as an alleged basis for negligence. CONCLUSION The statutory scheme for identifying and discovery of expert witnesses is definite and unambiguous. Defendants are entitled to adding PHILIP ROSESCU as an expert witness in this action, pursuant to C.C.P. §2034.610(a) (1). DATED: February 6, 2020. Respectfully submitted, . \ ~~ Aug ( | oe WAYNE YEE, Attorngy for Defendants JENNY S. NAM and\ NEW TAR REALTY, INC. MEMORANDUM OF POINTS AND AUTHORITIES (MOTION TO AUGMENT) - 10 11 12 13 14 15 16 17 18 19 20 21 i) 23 24 25 26 27 28 DECLARATION OF SERVICE I, WAYNE YEE, declare: 1. I am over eighteen years of age and not a party to this action. My business address is 3030 West Eighth Street, Ste 405, Los Angeles, California 90005. 2. I have personal knowledge of the facts stated herein and can testify thereto. 3. On February 6, 2020, I served a copy of NOTICE OF MOTION AND MOTION OF DEFENDANTS JENNY S. NAM AND NEW STAR REALTY, INC., TO AUGMENT DEFENDANTS’ EXPERT WITNESS LIST AND DECLARATION; DECLARATION OF WAYNE YEE AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT HEREOF on all interested parties by depositing a copy in a sealed envelope in the United States mail in Los Angeles, California, with postage ther eon fully prepaid, addressed as follows: D&Z LAW GROUP LLP Attn: Abraham Dervishian 330 No. Brand Blvd Ste 920 Glendale, California 91203 and emailed a copy to abraham@dé&zlawgroup.org. I declare under penalty of perjury that the foregoing is true and correct. Executed on February 6, 2020, at Los Angeles, California. 1 Drm Hee = WAYNE| YEE | No DECLARATION OF SERVICE \ Journal Technologies Court Portal Court Reservation Receipt Reservation Reservation ID: Status: 390291038608 RESERVED Reservation Type: Motion for Leave (AUGMENT EXPERT WITNESS LIST Number of Motions: AND DECLARATION) 1 Case Number: Case Title: BC721623 ROBERT VARTZAR ET ALVS NEW STAR REALTY INC Filing Party: Location: New Star Realty Inc. (Defendant) Stanley Mosk Courthouse - Department 78 Date/Time: Confirmation Code: March 10th 2020, 8:30AM CR-QMRHSI9XFK7AHXKDH Fees Description Fee Qty Amount Motion for Leave (name extension) 60.00 1 60.00 Credit Card Percentage Fee (2.75%) 1.65 1 1.65 TOTAL $61.65 Payment Amount: Type: $61.65 Visa Account Number: Authorization: XXXX7655 06423A < Back to Main | I= Print Page | Copyright © Journal Technologies, USA. All rights reserved.
