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1 Todd A. Jones (Bar No. 198024)
Gregory K. Federico (Bar No. 242184) FILED e-
2 ARCHERNORRIS 2.1
A Professional Law Corporation
3 301 University Avenue, Suite 110
Sacramento, Califomia 95825 DEC 3 0 2010
-4- Telephone: 916:646:2480"
Facsimile: 916 646.5696
5 Bv ° PUSSrLL
! Oec.-v L e-'
Attomeys for Defendants
6 RICHARD KIRK RUYBALID, individually and
dba CA CONSTRUCTION; and R4C0RP., INC,
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SACRAMENTO
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11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
ABBOTT,
12 CA CONSTRUCTION'S REPLY IN
Plaintiffs, SUPPORT OF MOTION IN LIMINE NO. 3
13 TO EXCLUDE TESTIMONY OF
PLAINTIFFS' EXPERT JAMES
14 DILLINGHAM RELATING TO THE
RONALD PAUL BRITSCHGI, et al.. EXISTENCE OF DEFECTS NOT
15 PERSONALLY OBSERVED OR TESTED
Defendants.
16 Action Filed: September 24,2007
17 Hearing Date. January 7,2011
Trial Date: January 18,2011
18 Time: 8:30 a.m.
Location: Department 43
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AND ALL RELATED CROSS-ACTIONS,
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21 I.
INTRODUCTION
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Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION
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(hereinafter "CA CONSTRUCTION") hereby files tiiis Reply Brief in Support of its Motion in
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Limine No. 3. The matters discussed in this reply are identical to the issues discussed in CA
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CONSTRUCTION'S reply in support of Motion in Limine No, 1. Thus, to avoid repetition, CA
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CONSTRUCTION hereby incorporates the arguments contained in its reply to Motion in Limine
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No. 1 by reference herein.
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NIC549/10686S5-1
MOTION IN LIMINE NO. 3 - REPLY (DILLINGHAM)
1 Plaintiffs disclosure of expert James Dillingham and his subsequent deposition clearly
2 exemplifies how plaintiff experts' reliance on one another's speculative and unsupported
3 "opinions" is merely a house of cards. Incredibly, plaintiff fails to even respond to the select
•4 portions of Dillingham's deposition testimony cited in CA CONSTRUCTION'S moving papers.
5 As Dillingham himself testified: (1) he did no testing; (2) he took no measurements; (3) he did not
6 review the constmction documents; (4) admits he has no evidence the garage slab was on
7 uncompacted fill; (5) he "assumes" the foundation conttactor did the grading; and (6) has no
8 opinions whether there has been movement of house framing or movement of tiie foundation of
9 the house. Such honest testimony from Dillingham establishes in and of itself, that his opinions
10 are not based on admissible preliminary facts as required under Evidence Code §403.
11
Dated: December 30, 2010 ARCHERNORRIS
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14 Gregory K. Federico
Attorneys for Defendants RICHARD KIRK
15 RUYBALID, individually and dba CA
CONSTRUCTION
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NICS49/1068655-1
MOTION IN LIMINE NO 3 - REPLY (DILLINGHAM)
1 PROOF OF SERVICE
2 Name of Action: Rodney Abbott, et aL v. Ronald Paul Britschgi, et al.
Court and Action No: Sacrameijto County Superior No. 07AS04450
3
I, Cindy A. Ingland, declare that I am over the age of 18 years and not a party to this
4 actton or proceeding. My business address is 301 University Avenue; Suite liO, Sacramento,
Califomia 95825. On December 30, 2010,1 caused tiie following document(s) to be served:
5
CA CONSTRUCTION'S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 3 TO
6 EXCLUDE TESTIMONY OF PLAINTIFFS' EXPERT JAMES DILLINGHAM
RELATING TO THE EXISTENCE OF DEFECTS NOT PERSONALLY OBSERVED
7 OR TESTED
8 J—I By placing a true copy ofthe documents listed above, enclosed in a sealed envelope,
addressed as set forth below, for collection and mailing on die date and at the business
" address shown above following our ordinary business practices. I ara readily familiar
, r, with this busmess' practice for collection and processing of correspondence for
mailing with the United States Postal Service. On the same day that a sealed envelope
11 is placed for collection and mailing, it is deposited in tiie ordinary course of business
with tiie United States Postal Service with postage fully prepaid.
12
I—I By having a true copy ofthe document(s) listed abovettansmittedby facsimile to the
13 person(s) at the facsimile number(s) set forth below before 5-00 p.m. The transmission
was reported as complete without error by a report issued by the ttansmitting facsimile
machine.
By placing a true copy ofthe document(s) listed above, in a box or other facility
16 ' ' regularly maintained by UPS, an express service carrier, or delivered to a courier or
driver authorized by tiie express service carrier to receive documents, in an envelope
17 designated by the express service carrier, with delivery fees paid or provided for,
addressed as set forth below.
1o
J5 Q bv having personal delivery bv FIRST LEGAL SUPPORT SERVICES a true copy of
the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the
20 address(es) set forth below.
21
[SEE ATTACHED SERVICE LIST]
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I declare under penalty of perjury that the foregoing is true and correct Executed on
23 December 30,2010, at Sacramento, Califomia.
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DY A, INGLAND
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NIC341/608293-1
PROOF OF SERVICE
1 Service List
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Stephanie Finelli PLAINTIFFS
3 Law Offices of Stephanie J Finelli
1007 Seventh Street, Suite 500 Tel (916)443-2144
4 Sacramento, CA 95814 Fax:(916)443-1511
E-mail- sfinelli700@yahoo com
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Richard D Sopp Counsel for CADRE DESIGN GROUP, INC.
6 Wheatley Sopp LLP
1004 River Rock Drive, Suite 245 Tel (916) 988-3857
7 Folsom, CA 95630 Fax:(916)988-5296
Email: rds@mwsblaw.com
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Mark Smith In Pro Per
9 8549 Willow Valley Place
Granite Bay, CA 95746
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Richard W. Freeman Counsel for R4C0RP
11 Scott S. Brooks
WOOD SMITH HENNING & BERMAN LLP Tel: (925) 356-8200
12 1401 Willow Pass Road. Suite 700 Fax: (925) 356-8250
Concord, CA 94520-7982
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NIC341/608293-1
SERVICE LIST
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1 Todd A. Jones (Bar No. 198024) Gregory K. Federico (Bar No. 242184) FILED e- 2 ARCHERNORRIS 2.1 A Professional Law Corporation 3 301 University Avenue, Suite 110 Sacramento, Califomia 95825 DEC 3 0 2010 -4- Telephone: 916:646:2480" Facsimile: 916 646.5696 5 Bv ° PUSSrLL ! Oec.-v L e-' Attomeys for Defendants 6 RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION; and R4C0RP., INC, 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 ABBOTT, 12 CA CONSTRUCTION'S REPLY IN Plaintiffs, SUPPORT OF MOTION IN LIMINE NO. 3 13 TO EXCLUDE TESTIMONY OF PLAINTIFFS' EXPERT JAMES 14 DILLINGHAM RELATING TO THE RONALD PAUL BRITSCHGI, et al.. EXISTENCE OF DEFECTS NOT 15 PERSONALLY OBSERVED OR TESTED Defendants. 16 Action Filed: September 24,2007 17 Hearing Date. January 7,2011 Trial Date: January 18,2011 18 Time: 8:30 a.m. Location: Department 43 19 AND ALL RELATED CROSS-ACTIONS, 20 21 I. INTRODUCTION 22 Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 23 (hereinafter "CA CONSTRUCTION") hereby files tiiis Reply Brief in Support of its Motion in 24 Limine No. 3. The matters discussed in this reply are identical to the issues discussed in CA 25 CONSTRUCTION'S reply in support of Motion in Limine No, 1. Thus, to avoid repetition, CA 26 CONSTRUCTION hereby incorporates the arguments contained in its reply to Motion in Limine 27 No. 1 by reference herein. 28 NIC549/10686S5-1 MOTION IN LIMINE NO. 3 - REPLY (DILLINGHAM) 1 Plaintiffs disclosure of expert James Dillingham and his subsequent deposition clearly 2 exemplifies how plaintiff experts' reliance on one another's speculative and unsupported 3 "opinions" is merely a house of cards. Incredibly, plaintiff fails to even respond to the select •4 portions of Dillingham's deposition testimony cited in CA CONSTRUCTION'S moving papers. 5 As Dillingham himself testified: (1) he did no testing; (2) he took no measurements; (3) he did not 6 review the constmction documents; (4) admits he has no evidence the garage slab was on 7 uncompacted fill; (5) he "assumes" the foundation conttactor did the grading; and (6) has no 8 opinions whether there has been movement of house framing or movement of tiie foundation of 9 the house. Such honest testimony from Dillingham establishes in and of itself, that his opinions 10 are not based on admissible preliminary facts as required under Evidence Code §403. 11 Dated: December 30, 2010 ARCHERNORRIS 12 13 ,1' 14 Gregory K. Federico Attorneys for Defendants RICHARD KIRK 15 RUYBALID, individually and dba CA CONSTRUCTION 16 17 18 19 20 21 22 23 24 25 26 27 28 NICS49/1068655-1 MOTION IN LIMINE NO 3 - REPLY (DILLINGHAM) 1 PROOF OF SERVICE 2 Name of Action: Rodney Abbott, et aL v. Ronald Paul Britschgi, et al. Court and Action No: Sacrameijto County Superior No. 07AS04450 3 I, Cindy A. Ingland, declare that I am over the age of 18 years and not a party to this 4 actton or proceeding. My business address is 301 University Avenue; Suite liO, Sacramento, Califomia 95825. On December 30, 2010,1 caused tiie following document(s) to be served: 5 CA CONSTRUCTION'S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 3 TO 6 EXCLUDE TESTIMONY OF PLAINTIFFS' EXPERT JAMES DILLINGHAM RELATING TO THE EXISTENCE OF DEFECTS NOT PERSONALLY OBSERVED 7 OR TESTED 8 J—I By placing a true copy ofthe documents listed above, enclosed in a sealed envelope, addressed as set forth below, for collection and mailing on die date and at the business " address shown above following our ordinary business practices. I ara readily familiar , r, with this busmess' practice for collection and processing of correspondence for mailing with the United States Postal Service. On the same day that a sealed envelope 11 is placed for collection and mailing, it is deposited in tiie ordinary course of business with tiie United States Postal Service with postage fully prepaid. 12 I—I By having a true copy ofthe document(s) listed abovettansmittedby facsimile to the 13 person(s) at the facsimile number(s) set forth below before 5-00 p.m. The transmission was reported as complete without error by a report issued by the ttansmitting facsimile machine. By placing a true copy ofthe document(s) listed above, in a box or other facility 16 ' ' regularly maintained by UPS, an express service carrier, or delivered to a courier or driver authorized by tiie express service carrier to receive documents, in an envelope 17 designated by the express service carrier, with delivery fees paid or provided for, addressed as set forth below. 1o J5 Q bv having personal delivery bv FIRST LEGAL SUPPORT SERVICES a true copy of the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the 20 address(es) set forth below. 21 [SEE ATTACHED SERVICE LIST] 22 I declare under penalty of perjury that the foregoing is true and correct Executed on 23 December 30,2010, at Sacramento, Califomia. 24 25 DY A, INGLAND 26 27 28 NIC341/608293-1 PROOF OF SERVICE 1 Service List 2 Stephanie Finelli PLAINTIFFS 3 Law Offices of Stephanie J Finelli 1007 Seventh Street, Suite 500 Tel (916)443-2144 4 Sacramento, CA 95814 Fax:(916)443-1511 E-mail- sfinelli700@yahoo com 5 Richard D Sopp Counsel for CADRE DESIGN GROUP, INC. 6 Wheatley Sopp LLP 1004 River Rock Drive, Suite 245 Tel (916) 988-3857 7 Folsom, CA 95630 Fax:(916)988-5296 Email: rds@mwsblaw.com 8 Mark Smith In Pro Per 9 8549 Willow Valley Place Granite Bay, CA 95746 10 Richard W. Freeman Counsel for R4C0RP 11 Scott S. Brooks WOOD SMITH HENNING & BERMAN LLP Tel: (925) 356-8200 12 1401 Willow Pass Road. Suite 700 Fax: (925) 356-8250 Concord, CA 94520-7982 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NIC341/608293-1 SERVICE LIST