Party Discovery: Rodney Abbott, et al vs. Ronald Paul Britschgi, et al

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                                1   STEPHANIE J. FINELLI, SBN 173462
     Law Office of Stephanie J. Finelli
 2   1007-7th Street, Suite 500
     Sacramento, CA 95814
 3   tel 916-443-2144
     fax 916-443-1511
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     Attomey for Plaintiffs,
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     FLORENTINE and RODENY ABBOTT
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 7                  IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
 8                          IN AND FOR THE COUNTY OF SACRAMENTO
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10   FLORENTINE AND RODNEY ABBOTT,                           CaseNo.:07AS04450
II                  Plaintiffs,                              PLAINTIFFS' MOTION IN LIMINE TO
                                                             ADMIT DEPOSITION TESTIMONY OF
12          vs.                                              PERCIPIENT EXPERT BRYAN HILL AS
                                                             UNAVAILABLE UNDER CCP 2025.620
13   RONALD BRITSCHGI, et. al.,
                                                             Hearing on Motion: January 14, 2011
14                  Defendants                               Time: 10:00 a.m.
                                                             Trial Date: January 18, 2011
15                                                           Judge: Brian Van Camp
                                                             Dept: 43
16   and related cross-action
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18                                           I.       INTRODUCTION
19          By this motion, plaintiffs seek an order from this Court that plaintiffs may introduce the
20   deposition testimony of percipient expert Bryan Hill on the basis that he is unavailable, as he
21   resides in Texas, which is well over 150 miles from the court house.
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23                                     II.        BACKGROUND FACTS
24          In late December or early January of this year, Bryan Hill moved to Texas. Defendants
25   have known this, and in fact questioned him about it in his December 21, 2010 deposition. That
26   deposition lasted approximately 3 and '/a hours, of which plaintiffs' questioning spanned 10
27   minutes. Plaintiffs axe in the process of obtaining that deposition for use at trial.
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                         Motion to Allow Deposition Testimony of Unavailable Percipient Expert - 1
 1                                      III.      LEGAL ARGUMENT
 2   A.     If a Witness Is Unavailable, His Deposition Testimony Is Admissible
 3          Code of Civil Procedure section 2025.620(c)(1) permits the introduction of deposition
4    testimony in lieu of live testimony ifthe deponent "resides more than 150 miles from the place
 5   of the trial or other hearing." (Code Civ.Proc. §2025.620(c)(1).) Unavailability need not be
 6   shown, and hearsay can be used to provide the foimdation to establish that a deponent resides
 7   150 milesfi-omthe courthouse. (Ibid, Monroy v City of Los Angeles (2008) 164 Cal.App.4th
 8   248, 264.) This Court may and should take judicial notice that Texas is more than 150 miles
 9   from the courthouse in Sacramento, Califomia. (Evid. Code, § 452(h); Monroy, supra at p. 264,
10   citing Dept of Social Welfare v. Gandy (1942) 56 Cal.App.2d 209, 211.)
11          Because Bryan Hill is imavailable as a witness, he should be permitted to testify via
12   deposition. Defendants will not be prejudiced by this. They had the opportunity to cross-
13   examine him on December 21, 2010 and did so with the knowledge and understanding that Mr
14   Hill would be unavailable to testify in person, as he was moving to Texas.
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16   Dated: January 14, 2011                                     By:
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                                                                          Stephanie J. Finelli,
                                                                          Attomey for Plaintiffs
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                        Motion to Allow Deposition Testimony of Unavailable Percipient Expert - 2