declaration in support of defendants motion to continue trialCal. Super. - 1st Dist.January 27, 20201 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- ____________________________________________ Declaration of Counsel in Support of Motion to Continue Trial ABHIRAJ CHOWDHURY, ESQ. (SBN 318447) PHILIP M. ANDERSEN & ASSOCIATES Employees of the Law Department State Farm Mutual Automobile Insurance Company 6210 Stoneridge Mall Road, Suite 550 Pleasanton, California 94588 Telephone: (925) 225-6838 Facsimile: (855) 732-9437 Attorneys for Defendant JINYUAN YE IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO / UNLIMITED JURISDICTION CHRISTOPHER CUNNINGHAM, Plaintiff, v. JINYUAN YE; AND DOES 1 TO 10, Defendants. NO. CGC18571095 DECLARATION IN SUPPORT OF DEFENDANT’S MOTION TO CONTINUE TRIAL DATE: AUGUST 15, 2019 TIME: 9:30 AM DEPT: 206 I, ABHIRAJ CHOWDHURY, declare and state as follows: 1. I am an attorney at law licensed to practice in the State of California, and I am an associate with the Law Offices of Philip M. Andersen & Associates, attorneys of record herein for defendant Jinyuan Ye. I have personal knowledge as to the matters stated herein, and if called upon to do so, I could and would competently testify thereto. 2. This matter arises out of a two vehicle accident that took place on September 23, 2018 at approximately 9:30 pm in San Francisco. Trial in this matter is currently set for September 16, 2019. ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 07/24/2019 Clerk of the Court BY: YOLANDA TABO-RAMIREZ Deputy Clerk 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- ____________________________________________ Declaration of Counsel in Support of Motion to Continue Trial 3. Suit was filed against defendant shortly after the subject incident on November 5, 2018. 4. Discovery responses to defendant’s propounded discovery were not served upon defendant until March 22, 2019, well after the original due date of January 30, 2019. These responses were received without verifications and many were objected to as “premature.” Defendant found several deficiencies in plaintiff’s responses to discovery and sent a meet and confer letter to plaintiff regarding these deficient responses on June 28, 2018. A copy of this meet and confer letter is attached heretofore as Exhibit “A.” Plaintiff did not provide a response to this letter until July 19, 2019. 5. Furthermore, plaintiff’s deposition was only recently taken on July 18, 2019 due to continued delays by plaintiff’s counsel to produce plaintiff after an initially cancelled deposition date of March 25, 2019. Until the deposition, defendant was only aware that plaintiff had had moderate treatment with a chiropractor. At the deposition, defendant learned of plaintiff’s potential need for surgery. 6. In addition, defendant has only just received plaintiff’s employment records regarding plaintiff’s wage loss claims on July 19, 2019 despite initially requesting these documents in discovery served on December 26, 2018. 7. Defendant has made diligent efforts to schedule an IME with Dr. Clement Jones prior to trial. Currently, an IME is scheduled for July 25, 2019. However, more time is required to receive and properly evaluate Dr. Jones’s report. 8. Defendant has also made a diligent effort to schedule a mediation ahead of the September 16, 2019 trial date. Currently, we have a mediation scheduled for August 20, 2019. 9. Despite defendant’s efforts to appropriately prepare for trial, defendant’s defense would be incomplete without the deposition of plaintiff’s chiropractor and plaintiff’s retained expert. Attempts are being made to schedule the depositions of Ronald R. Desmarais, DC, DACNB and Kenneth Light, MD. However, attempts to schedule both depositions have been unsuccessful. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- ____________________________________________ Declaration of Counsel in Support of Motion to Continue Trial 10. Defendant has also yet to receive a demand from plaintiff which hinders defendant’s ability to negotiate a potential settlement early in the litigation process. 11. Given all of the information recently received by defendant and all of the information yet to be received by defendant, a continuance is strongly warranted at this time in order to give defendant ample time and opportunity to evaluate the matter at hand and either reach a resolution or prepare an adequate defense at trial. A date no later than December 16, 2019 should not prejudice the plaintiff as it is within a few months of the current trial date and only a little over a year removed from the subject incident, for which plaintiff is still treating. 12. Due to the defendant’s inability to obtain essential testimony, documents, or other material evidence despite diligent efforts, I contacted plaintiff’s counsel, Thomas Purtell, Esq. on June 18, 2019, to advise that an IME had not been scheduled yet, and a proper evaluation of the case could not be completed before the scheduled mediation date. Based on this information, I requested a stipulation for a trial continuance. It was further explained to Thomas Purtell, Esq. in a follow up email that a deposition had only recently been scheduled and records from Kasier Permanente regarding plaintiff’s treatment had not yet been produced. Despite this information, Thomas Purtell, Esq. explained that they could not stipulate to a trial continuance because his client did not want to continue the current trial date. Mr. Purtell did not respond to further inquiries about why his client did not want to continue the current trial date. The parties could not come to an agreement at this time. For those reasons, defendant is forced to bring a motion to continue trial. A copy of the email correspondence to Mr. Purtell is attached hereto as Exhibit “B” 13. Defendant JINYUAN YE will not be adequately prepared for trial due to an inability to obtain essential testimony, documents, or other material evidence despite diligent efforts. Trial must be continued. 14. If the trial is not continued, defendant will suffer undue prejudice in his ability to prepare and present a defense. Moreover, defendant would be extremely prejudiced 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- ____________________________________________ Declaration of Counsel in Support of Motion to Continue Trial if the matter were not continued since Defendant JINYUAN YE is a named defendant in this case and has a right to testify and have his day in court. 15. As soon as I learned of defendant’s inability to obtain essential testimony, documents, or other material evidence despite diligent efforts, I diligently and promptly prepared this declaration to bring the matter to the court’s attention immediately. This is the first trial continuance in this case. I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this _24_ day of __July___ 2019 in Pleasanton, California. Abhiraj Chowdhury Electronic signature pursuant to Civil Code §1633.7(d). EXHIBIT A Kymberly Aleem-Duncan Philip M. Andersen Deborah T. Bjonerud Deanne J. Broglio Abhiraj “Raj” Chowdhury Michael J. Daley Michael J. Dodson Kelli E. George Aron K. Liang PHILIP M. ANDERSEN & ASSOCIATES ATTORNEYS AT LAW Employees of the Law Department State Farm Mutual Automobile Insurance Company 6210 Stoneridge Mall Road, Suite 550 Pleasanton, California 94588 Telephone: (925) 225-6838 Facsimile: (855) 732-9437 Jeanette N. Little James R. Picker Tim A. Schweigerdt Michael R. Welch Roy S. Woo Maria S. Yancich Milan "Buzz" Yancich Melissa Grant Zamora June 28, 2019 Sent Via Fax, Email and US Mail Thomas Purtell The Law Offices of Thomas W. J. Purtell 534 Pacific Avenue, Ste 200 San Francisco, CA 94133 Re: Cunningham v. Ye San Francisco Superior Court, Case No: CGC18571095 Dear Mr. Purtell: Please consider this a meet and confer letter with regard to Plaintiff's Responses to Request for Production of Documents, Set Number One, Plaintiff’s Responses to Special Interrogatories, Set Number One, and Plaintiff's Responses to Form Interrogatories, Set Number One, served December 26, 2018. These discovery responses were received unverified. Unverified responses are the same as not providing any response at all. “Unsworn responses are tantamount to no responses at all.” Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636. As such, your client's unverified responses are untimely and subject to a motion to compel. Furthermore, upon reviewing plaintiff’s responses to propounded discovery, we have discovered several deficiencies addressed below. It should be noted that many of these responses were objected to as “premature” or not responded to on the basis that “investigation is ongoing.” It should also be noted that defense counsel has contacted your office in an attempt to reach an agreement as to continuing the current September 16, 2019 trial date regarding the above- captioned matter to give each party more time to prepare and investigate. Unfortunately, because an agreement could not be reached as to continuing the current trial date, we are being forced to expedite the discovery process in anticipation of our day in court. Because your office is choosing to proceed with the current trial date we must assume that you are prepared or at least nearly prepared to litigate the matter at hand. As such, our interrogatories and requests for Re: Cunningham v. Ye Page 2 production can no longer reasonably be considered “premature” or objected to on the basis of ongoing investigation. Please address the deficient responses below: Form Interrogatories (6.4) Plaintiff’s response to Form Interrogatory 6.4 only provides partial information and therefore is insufficient where no description of the charges to date for each health care provider that provided a consultation, examination or treatment are provided. Please provide complete responses to this interrogatory as requested. (6.5) No responses were given. Please provide complete responses to this interrogatory as requested. (6.7) Plaintiff’s response to Form Interrogatory 6.7 only provides partial information and therefore is insufficient where no description of the nature, duration or estimated cost of future or additional treatment for any injuries that you attribute to the incident are provided. Please provide complete responses to this interrogatory as requested. (7.1) Plaintiff’s response to Form Interrogatory 7.1 only provides partial information and therefore is insufficient where no description of the nature and location of the damage to the property, the amount of damage plaintiff is claiming for each item of property, how the amount was calculated and whether the property was sold and, if so, the name, address and telephone number of the seller, date of sale and sale price are provided. Please provide complete responses to this interrogatory as requested. (7.2) Plaintiff’s response to Form Interrogatory 7.2 only provides partial information and therefore is insufficient where no indication of whether a written estimate or evaluation has been made for any item of property referred to in plaintiff’s response to 7.1 is provided. Furthermore, if an estimate has been made, no name, address, or telephone number of the person who prepared the written estimate or evaluation, the date prepared, the name, address, or telephone number of each person who has a copy of it, and the amount of damage stated has been provided. Please provide complete responses to this interrogatory as requested. (7.3) Plaintiff’s response to Form Interrogatory 7.3 only provides partial information and therefore is insufficient where no indication of whether any item of property referred to in plaintiff’s response to 7.1 has been repaired is provided. Furthermore, if any item of property has been repaired, no date repaired, description of the repair, cost of repair, the name, address, and telephone number of the person who repaired the property or the name, address, and telephone number of the person who paid for the repair has been provided. Please provide complete responses to this interrogatory as requested. Re: Cunningham v. Ye Page 3 (8.1-8.8) Plaintiff responded to Form Interrogatories 8.1 to 8.8 together indicating a wage loss claim but not giving any specific answers to the individual interrogatories. Please provide answers to each interrogatory as requested if indeed a wage loss claim is being made. (9.1) Plaintiff’s response to Form Interrogatory 9.1 only provides partial information and therefore is insufficient where no amount of any other damages claimed has been provided. Please provide complete responses to this interrogatory as requested. (9.2) Plaintiff’s response to Form Interrogatory 9.2 only provides partial information and therefore is insufficient where no documents supporting the existence or amount of any item of damages claimed in interrogatory 9.1 have been identified and no name, address, and telephone number of the person who has each document has been provided. Please provide complete responses to this interrogatory as requested. (11.1-11.2) No responses were given. Please provide complete responses to these interrogatories as requested. Request for Production of Documents (1-12) Plaintiff’s response to Requests for Production 1 through 12 was, “Without waiving said objection, Plaintiff responds as follows: Plaintiff is currently investigating to obtain this information. Plaintiff reserves the right to amend this response.” As noted above, because your office is choosing to move forward with the current trial date, we have to assume that your investigation is nearly complete. With this in mind, defendant will need documentation in order to properly evaluate plaintiff’s claims for damages and prepare our defense. Please provide documentation responsive to these requests. Special Interrogatories (2) Plaintiff’s response to Special Interrogatory 2 was, “Without waiving said objection, Plaintiff responds as follows: Plaintiff is currently investigating to obtain this information. Plaintiff reserves the right to amend this response.” As noted above, because your office is choosing to move forward with the current trial date, we have to assume that your investigation is nearly complete. Please provide complete responses to these interrogatories as requested. (4) Plaintiff’s response to Special Interrogatory 4 was, “Without waiving said objection, Plaintiff responds as follows: Plaintiff is currently investigating to obtain this information. Plaintiff reserves the right to amend this response.” As noted above, because your office is choosing to move forward with the current Re: Cunningham v. Ye Page 4 trial date, we have to assume that your investigation is nearly complete. Please provide complete responses to these interrogatories as requested. Please note that if we do not receive verified responses to the above by July 12, 2019, we will have no choice but to file a motion to compel plaintiff to respond to these requests, including a request for sanctions. Please also note that our office does not accept service via e-service or email. Responses must be mailed or personally served. Thank you for your immediate attention and cooperation in this matter. If you have any questions or wish to discuss this issue further, please do not hesitate to contact me. Thank you for your anticipated cooperation in this regard. Very truly yours, Abhiraj Chowdhury AC/lf EXHIBIT B From: Abhiraj Chowdhury To: "Thomas W. J. Purtell" Subject: RE: [EXTERNAL] RE: Christopher Cunningham v. Jinyuan Ye Date: Tuesday, June 25, 2019 1:31:00 PM Hi Tom, I’ll get back to you on Dr. Hayes as well as the mediators you listed. Is there a particular reason why your client does not want to move the trial date? His deposition was only recently scheduled, and from discovery all of the treatments we have are from a chiropractor. We still have not received Kaiser records. We do not know what further treatments he has, or whether he is still treating. If he is still treating, such a quick turnaround would greatly impair our ability to property evaluate the case. The accident occurred last year, is there any particular reason to not push it back a couple of months or so? Best, Raj From: Thomas W. J. Purtell [mailto:tpurtell@thomaswjpurtell-law.com] Sent: Tuesday, June 25, 2019 1:02 PM To: Abhiraj Chowdhury Subject: RE: [EXTERNAL] RE: Christopher Cunningham v. Jinyuan Ye Hi Raj, Our client doesn't want to move his trial date. We still have a lot of time to get everything done, and a Defendant in another case we have just got a DME date within 2 weeks from Dr. Darrell Hayes. Can you try him? (Also, we can push out dates if you need to and we will work with you to try to get this case resolved). For Mediators, please let me know if you are agreeable to either the Hon. Ernest Goldsmith (ret.) at ADR or Rachel Erhlich, Esq. at Judicate West. Thanks. Regards, Tom Thomas W. J. Purtell The Law Offices of Thomas W. J. Purtell 534 Pacific Ave., Suite 200 San Francisco, CA 94133 T: 415-722-6291 F: 415-834-5591 Website: www.thomaswjpurtell-law.com -------- Original Message -------- Subject: RE: [EXTERNAL] RE: Christopher Cunningham v. Jinyuan Ye From: Abhiraj Chowdhury Date: Fri, June 21, 2019 4:45 pm To: "Thomas W. J. Purtell" Hi Tom, So the earliest dates I’m getting from doctors to do an IME is late August. This definitely won’t give me enough time to turn around for mediation before trial. I know you said Judge Wong is denying stips to continue trial, but I think we have a good reason for a continuance here. If we agree on a mediator, or at least agree to mediate (mediator selection pending), and give the court a few dates for a new trial, I would think they would grant it, since we are still moving things along as much as we can. I would think their major concern is if a case has been sitting around for a year with no movement but that’s not the case here in my opinion. I’ll give you the date for the IME as soon as I get it scheduled. Let me know if this works, if so I can draft a stip for your review, and we can see if the court will grant it. Best, Raj From: Thomas W. J. Purtell [mailto:tpurtell@thomaswjpurtell-law.com] Sent: Tuesday, June 18, 2019 12:30 PM To: Cassidy Holmes Cc: Abhiraj Chowdhury Subject: [EXTERNAL] RE: Christopher Cunningham v. Jinyuan Ye Hi Cassidy, per my conversation with Raj today, we requested a 1pm Deposition in SF. Thanks. Regards, Tom Thomas W. J. Purtell The Law Offices of Thomas W. J. Purtell 534 Pacific Ave., Suite 200 San Francisco, CA 94133 T: 415-722-6291 F: 415-834-5591 Website: www.thomaswjpurtell-law.com -------- Original Message -------- Subject: Christopher Cunningham v. Jinyuan Ye From: Cassidy Holmes Date: Tue, June 18, 2019 8:28 am To: "tpurtell@thomaswjpurtell-law.com" Mr. Purtell, Raj is available 7/18 as well. Would you like a morning or afternoon deposition? Thanks. Cassidy Holmes Legal Secretary to Kelli George and Raj Chowdhury Philip M. Andersen & Associates Employees of the Law Department State Farm Mutual Automobile Insurance Company Tel: 925-225-6838 Fax: 855-732-9437 Pleasanton CLC website re3markable™ Every Associate | Every Interaction | Every Day Notice: This electronic mail transmission may constitute a privileged attorney-client communication and/or attorney work product. It is not intended for transmission or receipt by any unauthorized persons. If you received this electronic mail transmission in error, please delete it from your system without copying it, and notify the sender by reply e-mail or by calling (925) 225-6838, so that our address record can be corrected. Your receipt of this email communication does not constitute agreement to accept electronic service per CCP 1010.6(a)(2). Email service must be specifically agreed to by the signatory to this email address in writing.
