Opposition To Mil No 5

Opposition

Cal. Super. - 1st Dist.February 20, 2015

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exempt from payment of filing fees (Government Code § 6103) LOUIS A. LEONE, ESQ. (SBN 099874) MARINA B. PITTS, ESQ. (SBN 120973) LEONE & ALBERTS A Professional Corporation 2175 N. California Blvd., Suite 900 Walnut Creek, CA 94596 Telephone: (925) 974-8600 Facsimile: (925) 974-8601 Attorneys for Defendant FREMONT UNIFIED SCHOOL DISTRICT SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF ALAMEDA ALANKRITA DAYAL, Case No.: HG15759421 [ASSIGNED FOR ALL PURPOSES TO Plaintiff, HON. DENNIS HAYASHI, DEPT. 303] VS. DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 5 FREMONT UNIFIED SCHOOL DISTRICT, TO EXCLUDE FRANK PEREZ FROM a public entity, and DOES 1 TO 40, TESTIFYING AS EXPERT Defendants. Trial date: August 15, 2016 COMES NOW defendant FREMONT UNIFIED SCHOOL DISTRICT with this opposition to plaintiff's motion in limine no. 5 to exclude Frank Perez Ph.D. from testifying as an expert witness: A. The Initial Disclosure Was Timely Served. In what appears to be an effort to have an “I gotcha” moment, plaintiff's expert disclosure was personally served, but without an agreement or notification to defense counsel that such was plaintiff's preference. Of interest, plaintiff's courier did not ask for defense trial counsel when delivering the document. Additionally, the envelope to the document was addressed to another attorney in the office and marked “personal” and DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 5 TO EXCLUDE FRANK PEREZ FROM TESTIFYING AS EXPERT 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 remained on that attorney’s desk until the following morning when the “personal” mail was opened. Notwithstanding, the Code provides that the expert witness exchange of information may occur at a meeting of the attorneys for the parties involved or by mailing on or before the date of exchange. See CCP § 2034.260(a). Here, as plaintiff did not request a meeting, defendant's disclosure served by mail was timely and served in the manner proscribed by the Code. B. The Deposition Of The Supplemental Expert Has Been Set. The deposition of Dr. Perez was unilaterally set by opposing counsel on July 25, 2016. As Dr. Perez had been on vacation and was out of his office, it could not be ascertained until July 22, 2016 that he was not available for deposition as noticed, and an alternate date was provided. [Exhibit A.] Plaintiff's attorney has agreed to take the deposition of Dr. Perez on August 3, 2016. [Exhibit B.] As such, there has not been a refusal to produce Dr. Perez for deposition or multiple delays, as claimed by plaintiff's counsel. [Again, see Exhibit B re: the availability of plaintiff's counsel for deposition.] It should also be emphasized that plaintiff's counsel herself has noticed a deposition to occur after the expert discovery cutoff date: one of plaintiff's treating practitioners. [Exhibit C] As such, any discovery cutoff dates relative to expert witnesses have been waived by plaintiff. Opposing counsel cannot “waive” the discovery cutoff date for herself and then unilaterally impose it on others. C. The Supplemental Expert Will Address Those Issues Consistent With Plaintiff's Expert Disclosure. In plaintiff's expert disclosure, it was represented that: Mr. Bluer is expected to testify regarding deficiencies in the manner and method by which work was being performed in the area of the accident at the time of the accident. He will also testify as to how such repairs should have been made with respect to proper protocols and proper safety concerns and steps should have been taken to ensure the safety of individuals not involved in the repair at the time it was being made. [See Exhibit A to plaintiff's motion in limine, p. 2:21-27.] DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 5 TO EXCLUDE FRANK PEREZ FROM TESTIFYING AS EXPERT 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As set forth in the disclosure, the scope of Dr. Perez’ opinion is also safety, although he is analyzing the issue from a different discipline. By way of specific example, Mr. Bluer’s opinion is that the utility cart stretching across an open doorway is “subject to interpretation” and that “children/teenagers/ anyone may not fully grasp the meaning of a cart across the doorway, not being able to see that there was work in progress on the other side.” [Exhibit D] Mr. Bluer is also of the opinion that “both access points need to be effectively addressed to prevent incursions onto the work area.” [Exhibit D] Mr. Bluer is also of the opinion that “there were no warning signs or other means to render this room inaccessible on either side ‘means of entry onto this area’.” [Exhibit D.] As such, Dr. Perez can clearly rebut what visual cues would have alerted someone that there was work in progress, what was visible from various vantage points, and how access points were addressed to prevent entry into the area undergoing repair. Simply because plaintiff's expert is analyzing safety from a construction and maintenance standpoint, this does not render Dr. Perez’ analysis of safety from a human factors standpoint inappropriate under the Code nor render him an improper supplemental expert witness. As such, based on the foregoing, plaintiff's motion in limine to exclude Frank Perez, Ph.D. as an expert witness should be denied. Dated: July 27) , 2016 LEONE & ALBERTS “Pamelor MARINA B. PITTS, ESQ. Attorney for Defendant FREMONT UNIFIED SCHOOL DISTRICT DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 6 TO EXCLUDE FRANK PEREZ FROM TESTIFYING AS EXPERT 3 EXHIBIT A LAW OFFICES LEONE & ALBERTS A PROFESSIONAL CORPORATION 2175 N. CALIFORNIA BOULEVARD SUITE 900 WALNUT CREEK, CA 94596 (925) 974-8600 MARINA B. PITTS (925) 974-8601 FAX JAMES T. GOTCH KATHLEEN DARMAGNAC CLAUDIA LEED BRIAN A. DUUS SETH L. GORDON SARAH M. CASTELHANO LOUIS A. LEONE KATHERINE A. ALBERTS July 22, 2016 VIA FACSIMILE ONLY Dawn Ceizler, Esq. Law Offices of Dawn Ceizler 165 Lennon Lane, Suite 101 Walnut Creek, CA 94598 Re: Alankrita Dayal v. Fremont Unified School District, et al. Dear Ms. Ceizler: Dr. Perez is not available for deposition on Monday, July 25, 2016. His assistant has advised his first available date is August 4, 2016. | have asked that a date be cleared for next week if possible, and hope to know by the end of the day. Very truly yours, Timi RE MARINA B. PITTS, ESQ. MBP :kja Ge Mahesh Bajoria (via facsimile only) S:\docs\clients\L.ou\Dayal v. Fremont USD\Correspondence\Ceizler011.Itr.7.22.16.docx BROADCAST REPORT TIME © B7/22/20816 12:21 NAME : LEONEALBERTS FAX 5259748681 TEL 1 9259748681 SER. # : BROL9JS97472 a1 FAX NO. /NAME DURATION PAGE(S) RESULT COMMENT 15187919912 16 a1 OK ECM 2264849 21 al OK BUSY: BUSY/NO RESPONSE NG : POOR LINE CONDITION Cv : COVERPAGE EXHIBIT B Kathe Alexander From: Dawn Ceizler [dc@ceizier.com] Sent: Wednesday, July 27, 2016 6:45 AM To: Susan Fish; Marina Pitts Cc: Kathe Alexander; Mahesh Bajoria (mahesh@bajorialaw.com); Katy Subject: Gregori subpoena Attachments: 16-07-26 Depo Subpoena Gregori.pdf Ladies, Attached is Dr. Gregori’s subpoena. My office has arranged for a court reporter. We will not need more than 2 hours of the doctor’s time. | am out of the office this week in various hearings, mediations, and depositions. If you have any issues, please email me and | will try to get back to you within a day. Ms. Pitts, | am out this week and cannot take Dr. Slabaugh’s deposition on July 29. | need more than 2 days’ notice of his availability. Please provide me with dates next week on which he is available. My schedule is being rearranged so | can take Dr. Perez's deposition on the morning of the 3. | will not be able to send an amended notice of deposition until later this week, but please advise him it will be at my office starting at 9 a.m. on the 3™. The document demand will remain the same. If you need this email faxed to you, please have Kathe contact my assistant and she will do so. However, | have had several faxes rejected by your office this week and no similar problems with other fax recipients. It would seem email is more reliable at this point. | will be out of pocket until 6:30 tomorrow morning and email will still be the best way to reach me at that time. Thanks, Dawn. Dawn Ceizler Law Offices of Dawn Ceizler 165 Lennon Lane, Suite 101 Walnut Creek, CA 94598 dc(@ceizler.com www.ceizler.com =} Phone: (925) 932-8225 [I Fax: (925) 226-4849 CONFIDENTIALITY NOTICE: This message and any attachments are intended only for the recipients named above, and may contain information that is confidential or privileged. If you believe that this email may have been sent to you in error please notify the sender and then delete all copies. Thank you. EXHIBIT C SUBP-020 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Ba number, 8nd 80drsss); ’ FOR COURT USE ONLY Dawn Ceizler, 214873 — Law Offices of Dawn Ceizler 165 Lennon Lane, Suite 101 Walnut Creek, CA 94598 TELEPHONE NO: (925) 932-8225 FAX NO. (Optionan: (925) 226-4849 E-MAIL ADDRESS (Options): dc(@ceizler.com ATTORNEY FOR (Nemo): Plaintiff, Alankrita Dayal SUPERIOR COURT OF CALIFORNIA, COUNTY OF Alameda streeT anoress: 2233 Shoreline Drive MAILING ADDRESS. CITY AND ZIP CODE: Alameda, CA 94501 srancHame George E. McDonald Hall of Justice PLAINTIFF/PETITIONER: Alankrita Dayal DEFENDANT/RESPONDENT: Fremont Unified School District, et al. DEPOSITION SUBPOENA CASE NUMBER: FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AND THINGS HG15759421 THE PEOPLE OF THE STATE OF CALIFORNIA, TO (name, address, and telephone number of deponent, if known): Jeffery Gregori,DPM, Palo Alto Medical Foundation, 3200 Keamey Street, Fremont, CA 94538 1. YOU ARE ORDERED TO APPEAR IN PERSON TO TESTIFY AS A WITNESS in this action at the following date, time, and place: Date: August 4, 2016 Time: 1:00 p.m. Address: 3200 Kearney Street, Fremont, CA 94538 a. [[_] Asa deponentwho is not a natural person, you are ordered to designate one or more persons to testify on your behalf as to the matters described in item 4. (Code Civ. Proc., § 2025.230.) b. You are ordered to produce the documents and things described in itern 3. & This deposition will be recorded stenographically {CJ through the instant visual display of testimony andby [| audiotape [1] videotape. d. [J This videotape deposition is intended for possible use at trial under Code of Civil Procedure section 2025.620(d). 2. The personal attendancs of the custodian or other qualified witness and the production of the original records are required by this subpoena. The procedure authorized by Evidence Code sections 1560(b), 1561, and 1562 will not be deemed sufficient compliance with this subpoena. 3. The documents and things to be produced and any testing or sampling being sought are described as follows: Your treatment records related to Alankrita Dayal from 2/1/10 to the present [1] Continued on Attachment 3, 4. Ifthe witness is a representative of a business or other entity, the matters upon which the witness is to be examined are described as follows: [(] Continued on Attachment 4. S$. IF YOU HAVE BEEN SERVED WITH THIS SUBPOENA AS A CUSTODIAN OF CONSUMER OR EMPLOYEE RECORDS UNDER CODE OF CIVIL PROCEDURE SECTION 1986.3 OR 1986.6 AND A MOTION TO QUASH OR AN OBJEGTION HAS BEEN SERVED ON YOU, A COURT ORDER OR AGREEMENT OF THE PARTIES, WITNESSES, AND CONSUMER OR EMPLOYEE AFFECTED MUST BE OBTAINED BEFORE YOU ARE REQUIRED TO PRODUCE CONSUMER OR EMPLOYEE RECORDS. 6. At the deposition, you will be asked questions under oath. Questions and answers are recorded stenographicelly at the deposition; later they are transcribed for possible use at trial. You may read the written record and chahge any incorrect answers before you sign the deposition, You sre entitled to receive witness fees and mileage actually traveled both ways. The money mus! be paid, at the option of the party giving notice of the deposition, either with service of this subpoena or at the time of the deposition. Unless the court orders or you agree otherwise, if you are being deposed as an individual, the deposition must take place within 75 miles of your residence or within 150 miles of your residence if the deposition will be taken within the county of the court where the action is pending. The location of the deposition for all deponents is governed by Code of Civil Procedure section 2025,250, DISOBEDIENCE OF THIS SUBPOENA MAY BE PUNISHED AS CONTEMPT BY THIS COURT. YOU WILL ALSO BE LIABLE FOR THE SUM OF $500 AND ALL DAMAGES RESULTING FROM YOUR FAILURE TO OBEY. ; 0 3 fy Date issued: July 20, 2016 ) (iy hn LIAN (4 2% - (SIGNATURE DF PERSON ISSUING SUBPOENA) Dawn Ceizler Attorney for Plaintiff (TYPE OR PRINT NAME) {Proof of service on reverse) (TITLE) : Page 1 of2 A et To” DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE 0 So oe a ease. SUBP-020 [Rav January 1, 2008] AND PRODUCTION OF DOCUMENTS AND THINGS Govemment Cade, § 68097 4 www.coutinfo.ca gov NS o e N o y nn A w 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The deposition will be taken before a certified shorthand reporter or other officer authorized to administer oaths and will be recorded stenographically. The deposition shall continue from day-to-day, excluding Saturdays, Sundays and holidays, until completed. PLEASE TAKE FURTHER NOTICE that Plaintiff demands the deponent produce at the deposition and permit the inspection and copying of the following documents: All treatment records related to Alankrita Dayal from 2/1/10 to the present. Dated: July 20, 2016 THE LAW OFFICES OF DAWN CEIZLER DAWN CEIZLER 165 Lennon Lane, Suite 101 Walnut Creek, CA 94598 Alankrita Dayal +B a GREGORI DEPOSITION NOTICE EXHIBIT D NOTES The training is both specific and general, so that work can be done safely. How the entity expects people to do their job not just efficiently but safely. The fact is that this is a school and there are children all over the place. The cart was never intended as a barrier. It could block / prevent a door from opening but a cart set across an open doorway is subject to interpretation. Children / teenagers / anyone may not fully grasp the meaning of a cart across a doorway, not being able to see that there was work in progress on the other side. Both access points need to be effectively addressed to prevent incursions onto the work area. Issues such as a heat gun, wet glue, sharp cutting tools, debris warrant special attention as they pose a greater risk of injury. There were no warning signs or other appropriate means to render this room inaccessible on either side (means of entry onto this area). This area was not taped off with yellow warning / caution tape, red reflective cones, barricades, flashing safety / warning lights, folding safety sawhorses, free standing signage (c.g. work area - do not enter / pass), warning ropes, etc. There was only one work-person tending to this job that would render the job site unsecured. The means to block this door constitute a fire hazard. Yellow tape, cones, etc. can be walked over or easily removed / push aside. The arrangement implemented would only acceptable if the building is not occupied (e.g. weekend, holiday, vacation). The glue being used was “wet”. The procedures for wet surfaces were not being used at time of accident. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Re: Alankrita Dayal v. Fremont Unified School District, et al. Alameda County Superior Court Action No. HG15759421 PROOF OF SERVICE |, the undersigned, declare that | am employed in the City of Walnut Creek, State of California. | am over the age of 18 years and not a party to the within cause; my business address is 2175 N. California Blvd., Suite 900, Walnut Creek, California. On July 28, 2016, | served the following documents: 1. DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 56 TO EXCLUDE FRANK PEREZ FROM TESTIFYING AS EXPERT on the following interested party(s) in said cause: PLAINTIFF'S COUNSEL PLAINTIFF'S CO-COUNSEL Mahesh Bajoria, Esq. Dawn Ceizler, Esq. Law Offices of Mahesh Bajoria P.C. Law Offices of Dawn Ceizler 39355 California Street, Suite 310 165 Lennon Lane, Suite 101 Fremont, CA 94538 Walnut Creek, CA 94598 Tel: (5610) 791-9911 Tel: (925) 932-8225 Fax: (5610) 791-9912 Fax: (925) 226-4849 VIA MAIL - CCP §§1013(a), 2015.5 [] By placing a true copy thereof enclosed in a sealed envelope(s), addressed as above, and placing each for collection and mailing on that date following ordinary business practices. | am readily familiar with my firm's business practice of collection and processing of correspondence for mailing with the United States Postal Service and correspondence placed for collection and mailing would be deposited with the United States Postal Service at Walnut Creek, California, with postage thereon fully prepaid, that same day in the ordinary course of business. [1] By placing a true copy thereof enclosed in a sealed envelope(s), addressed as above, and depositing each envelope(s), with postage thereon fully prepaid, in the mail at Walnut Creek, California. VIA OVERNIGHT MAIL/COURIER - CCP §§1031(c), 2015.5 x By placing a true copy thereof enclosed in a sealed envelope(s), addressed as above, and placing each for collection by overnight mail service, or overnight courier service. | am readily familiar with my firm's business practice of collection and processing of correspondence/documents for overnight mail or overnight courier service, and that it is to be delivered to an authorized courier or driver authorized by the overnight mail carrier to receive documents, with delivery fees paid or provided for, that same day, for delivery on the following business day. PROOF OF SERVICE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VIA FACSIMILE - CCP §§1013(e), CRC 2008 [] By arranging for facsimile transmission from facsimile number 925-974-8601 to the above listed facsimile number(s) prior to 5:00 p.m. | am readily familiar with my firm's business practice of collection and processing of correspondence via facsimile transmission(s) and any such correspondence would be transmitted via facsimile to the designated numbers in the ordinary course of business. The facsimile transmission(s) was reported as complete and without error. VIA ELECTRONIC MAIL TRANSMISSION - CCP §1010.6(a)(6), CRC 2060(a)(2)(b) [] Based on court order or an agreement of the parties to accept service by e-mail or electronic transmission at the following address: mahesh@bajorialaw.com and dc@ceizler.com. | caused the documents to be sent to the persons at the e-mail addresses listed above prior to 3:00 p.m. | did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. VIA HAND-DELIVERY - CCP §§1011, 2015.5 Lo By placing a true copy thereof enclosed in a sealed envelope(s), addressed as above, and causing each envelope(s) to be hand-served on that day by D&T Services, Ltd. in the ordinary course of my firm's business practice. | declare under penalty of perjury that the foregoing is true and correct and that this KATHERINE [LEXANDER PROOF OF SERVICE