Complaint Information

THOMAS J. WEISS, State Bar No. 63167 tweiss@weisslawla.com

ZAMAN, State Bar No. 306224 szaman@weisslawla.com LAW OFFICES OF THOMAS J. WEISS 1925 Century Park East, Suite 2140 Los Angeles, California 90067 Telephone: £3 10% 788-0710 Facsimile: (310) 788-0735

Attorneys for Plaintiff EMANUEL

AFRAMIAN FILED

Superior Court of California Countv of Los Angeles

DEC 03 2017

Sherri R. Cacter, Lxecunye Officer/Clerk Byw, Deputy

Moses Soto

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES - UNLIMITED JURISDICTION

EMANUEL AFRAMIAN, an individual. |

Plaintiff, VS.

KOUSHA BEROKIM, an individual; and DOES 1-10, inclusive.

Defendant.

NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT ON

PLAINTIFF’S COMPLAINT. OR, IN THE ALTERNATIVE, SUMMARY

ADJUDICATION OF ISSUES:

MEMORANDUM OF POINTS AND "AUTHORITIES

[FILED CONCURRENTLY WITH:

1) COMPENDIUM OF EXHIBITS

CLUDING (a DECLARATIISI)N OF

EXHIBITS: (%}%)ECLARATION OF THOMAS J. WEISS WITH EXHIBITS; c) DECLARATION OF EXPERT

TNESS LAWRENCE JACOBSON

WITH EXHIBITS;

2) SEPARATE STATEMENT OF

ISPUTED FACTS; and

(3) [PROPOSED] ORDER]

Date: February 23, 2017 Time: 8:30 a.m. Dept: 3 Reservation No. 170810241773 Complaint Filed: January 9, 20 November'27, 20

17 Trial Date: 18 -

Tentative Rulings

Case Number: BC646091    Hearing Date: August 17, 2020    Dept: 37

HEARING DATE: August 17, 2020

CASE NUMBER: BC646091

CASE NAME: Emanuel Aframian v. Kousha Berokim, et al.

MOVING PARTY: Plaintiff Emanuel Aframian

RESPONDING PARTY: Defendant Kousha Berokim

TRIAL DATE: None

PROOF OF SERVICE: OK

PROCEEDING: Plaintiff’s Motion to Exclude Testimony of Defendant’s Experts

OPPOSITION: August 4, 2020

REPLY: August 10, 2020

TENTATIVE: Plaintiff’s motion to exclude Defendant from offering expert witness testimony is DENIED without prejudice. Plaintiff is to give notice.

Background

This is a legal attorney malpractice action that Emanuel Aframian (“Plaintiff”) commenced against Kousha Berokim (“Defendant”) following a civil case regarding the enforcement of a $1,000,000 loan and personal guaranty. Plaintiff alleges that he retained Defendant to represent him in a civil matter that sought to recover money owed to him under the loan and personal guaranty. Plaintiff alleges that prior to retaining Defendant’s legal service a writ of attachment had been granted in connection to the loan and guaranty. Plaintiff further alleges that due to Defendant’s negligent legal representation, the attachment was ultimately discharged and Plaintiff was unable to recover from the attached property. Plaintiff alleges that he was unable fully recover under the loan and guaranty due to Defendant’s legal representation. In the Complaint, Plaintiff alleges a single cause of action for legal malpractice against the Defendant

Plaintiff now moves to preclude Defendant from calling an expert witness or introducing any material prepared by an expert witness at trial. Defendant opposes the motion.

Discussion

Pursuant to Code of Civil Procedure, section 2034.210, subdivision (a) any party may demand that all parties “simultaneously exchange information concerning each other’s expert trial witnesses.” The parties shall exchange lists containing the “names and addresses” of any person whose testimony the party intends to offer as an expert. Further, the exchange of expert witness information shall include either a list setting forth the name and contact information of all experts a party intends to offer, or a statement that the party does not presently intend to offer testimony of an expert witness. (Code Civ. Proc. § 2034.260(b)(1)-(2).) Further, on “on objection of any party who has made a complete and timely compliance with Section 2034.260,” the court shall exclude the testimony of any expert witness who was not properly designated. (Code Civ. Proc. § 2034.300, subd. (a).) Finally, the deadline to exchange expert witness information is as follows:

“(b) The demand shall specify the date for the exchange of lists of expert trial witnesses, expert witness declarations, and any demanded production of writings. The specified date of exchange shall be 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date, unless the court, on motion and a showing of good cause, orders an earlier or later date of exchange.”

(Code Civ. Proc. § 2034.230, subd. (b).)

It is undisputed that on September 6, 2018, Defendant served his demand for exchange of expert witnesses with an exchange date of October 1, 2018, more than 50 days before the then trial date of November 27, 2018. (Motion, Exhibit 1.) Thereafter, Plaintiff objected, arguing that the proper date for exchange was October 8, 2018, exactly 50 days before the then trial date of November 27, 2018. (Motion, Exhibit 2.)

On October 1, 2018, Defendant served a statement that he did not presently intend to call expert witnesses but reserved “the right to submit supplement expert witness list pursuant to C.C.P. 2034.280 and to introduce expert testimony to impeach Plaintiff’s experts pursuant to C.C.P. 2034.310.” (Defendant Decl. ¶ 3, Exhibit A.) Plaintiff designated his experts on October 2, 2018, including an expert to testify to the topic of “129 S. Rockingham Ave property’s fee simple value as of 11/12/2012 through 11/12/2013” (Defendant Decl. ¶ 4.) On October 22, 2018, Defendant designated Fred Moradi to testify on “129 S. Rockingham Ave property’s Fee Simple Value, equity value, and appraisal value in 2009 through 2013.” (Defendant Decl. ¶ 5, Exhibit 3.) On August 2, 2019 and after informing Plaintiff that Fred Moradi was now unavailable for the new trial date, Defendant served a second supplemental designation. (Defendant Decl. ¶¶ 8-9.) The August 2, 2019 designation designated Nader Malek to testify to “129 S. Rockingham Ave property’s Fee Simple Value, equity value, and appraisal value in 2009 through 2013”.” (Defendant Decl. ¶ 9, Exhibit 4.) Defendant also offered Malek for deposition in the same correspondence.

Plaintiff contends that Defendant should be precluded from introducing any expert witness’ testimony at trial because Defendant did not participate in the initial expert witness exchange. (Motion, 3-5.) Plaintiff further contends that allowing Defendant to introduce expert witness testimony would prejudice Plaintiff because Defendant has failed to make his new expert available for deposition or otherwise provide anymore information on the new expert. (Id.)

In opposition, Defendant contends that Nader Malek is properly designated as an impeachment witness in response to Plaintiff’s October 2, 2018 designation. (Opposition, 3-4.) Further, Defendant contends that Plaintiff will not be prejudiced by allowing Nader Malek’s testimony as there is no trial date and his deposition has not yet been taken. (Opposition, 4-5.)

The court disagrees with Plaintiff that testimony from Defendant’s experts must be excluded because Defendant failed to participate in the initial exchange of expert witnesses. Pursuant to Code of Civil Procedure, section 2034.260, Defendant was permitted to either disclose expert witnesses or provide a statement that he did not intend to offer expert witness testimony at the time. Defendant elected to provide the latter statement, which was proper. Further, the court agrees that Defendant has a right to call an expert for impeachment of Plaintiff’s expert. Given that Defendant timely stated that he did not intend to call an expert witness as of October 1, 2018, Defendant properly preserved his right to make a supplemental designation. The designation of Moradi was appropriate.

This case does not have a current trial date set, so there will be many months before trial. Consequently, a motion to exclude expert testimony is premature given the provisions of Code of Civil Procedure, sections 2034.610 & 2034.710.

Plaintiff’s motion is denied without prejudice.

Conclusion

Plaintiff’s motion to exclude Defendant from offering expert witness testimony is DENIED without prejudice. Plaintiff is to give notice.