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1 Todd A. Jones (BarNo. 198024)
2
Gregory K. Federico (BarNo. 242184)
ARCHERNORRIS ENDORSED
A Professional Law Corporation 'OOEC-7 M i l : IS
3 301 University Avenue, Suite 110
Sacramento, Califomia 95825 LEGAL PROCESS ;i^7
4 Telephone: 916.646.2480
Facsimile: 916.646.5696
5
Attorneys 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 MOTION IN LIMINE NO. 13 REQUEST
Plainfiffs, FOR JURY VIEW OF PROPERTY
13 PURSUANT TO CODE OF CIVIL
V. PROCEDURE § 651
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RONALD PAUL BRITSCHGI, et al., Action Filed: September 24,2007
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Defendants. Trial Date: January 17, 2011
16 Time: 8:30 a.m.
Location: Department 43
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AND ALL RELATED CROSS-ACTIONS.
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I.
20 INTRODUCTION
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Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION
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(hereinafter "CA CONSTRUCTION") and Defendant R4C0RP., INC. (hereinafter "R4C0RP")
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(hereinafter collectively "Defendants") hereby incorporate by reference herein the "Introducfion"
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secfion set forth in its Motion in Limine No. 1.
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NIC549/1058524-I
DEFENDANTS' MOTION IN LIMINE NO 13 REQUEST FOR JURY VIEW OF PROPERTY
1 MOTION IN LIMINE NO. 13 REQUEST FOR JURY VIEW OF PROPERTY PURSUANT
TO CODE OF CIVIL PROCEDURE § 651
2
Defendants hereby respectfully request an order permitting the jury to view the subject
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property located at 8601 Rolling Green Way in Fair Oaks, Califomia, pursuant to Code of Civil
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Procedure, §651. As this case involves compacfion claims, elevation deficiency claims, claims as
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to whether the property required and/or was properly graded, and allegedly extensive damage to
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the Plainfiffs' home, a first hand visual inspecfion by the jury would greatly assist the jury in its
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understanding ofthe issues in this case. Photographs give a limited view ofthe property and
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verbal descriptions are only partially adequate.
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The Court has the power to order a jury view where it would aid the trier of fact. Code of
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Civil Procedure § 651 provides as follows:
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(a) On its own motion or the mofion ofa party, where the court finds that such a view
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would be proper and would aid the trier of fact in its determination ofthe case, the court may
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order a view of...
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(1) The property which is the subject ofthe lifigation.
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Allowing a jury to inspect is a matter within the sound discretion ofthe court. Cassell v.
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McGuire and Hester (1960) 187 Cal.2d 579. Because a jury view would enhance the jury's
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understanding ofthe facts and arguments of counsel without prejudicing any party or unduly
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consuming the court's time, the court should grant the mofion under certain condifions discussed
19
below. It is anticipated that during the course ofthe trial, parties will present diagrams and
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photographs to depict the property damage that has allegedly occurred at the subject home.
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However, an accurate appreciafion ofthe actual conditions ofthe subject home and surrounding
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topography is essential to the jury's clear understanding of not only the damage but the overall
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area where the damage allegedly occurred and where future repairs are allegedly required.
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Without a viewing, the jury would be limited to an artificial environment of only
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photographs and diagrams upon which to base their liability and damage determinations. This
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would result in the jury having no real appreciafion ofthe actual condifion ofthe subject home or
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understanding ofthe proposed scope of repair.
28 NIC549/I058524-I 7
DEFENDANTS' MOTION IN LIMINE NO 13 REQUEST FOR JURY VIEW OF PROPERTY
1 The need for a jury view outweighs concems about undue consumption of time and
2 expense. The only way for a jury to realistically understand the overall condifion and realisfically
3 evaluate the liability and damages would be to visit the property. Limiting a jury's consideration
4 of causafion, liability and damages to photographs, charts, models, and tesfimony would prejudice
5 all the parties and complicate the jury's tasks.
6 A site visit to the property would not result in an undue consumption ofthe Court's time.
7 A site view could be accomplished in a single oufing, lasfing for less than half a day. As many of
8 the construction issues may be outside the jurors' understanding, the more information provided
9 to the jurors regarding the physical locations, layouts and topography ofthe project, the easier it
10 will be for jury to understand the evidence. Although a photograph may be useful, it means little
11 without the overall context afforded by an onsite view.
12 A suggested list of conditions for the jury view would include the following:
13 1. No communications by counsel, parties or experts to the jurors should take place.
14 2 The inspection should include a walk around the areas claimed as defective
15 without the presence of plainfiffs or occupants, including both the interior and exterior ofthe
16 home.
17 3. That the allegedly defective areas of property be presented "as is" with no
18 alterations or staging of alleged defect areas.
19 4. That the jury be read a brief joint statement prepared by counsel for the parties
20 generally describing the areas to be walked through.
21 5. That all parties equally share the costs for the jury's travel to the scene.
22 II.
23 CONCLUSION
24 For the above reasons. Defendants respectfully request that this Court order that a jury site
yr visit be conducted at the property, under such conditions as the court deems appropriate
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//r'cS49/l058524-I 3
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DEFENDANTS' MOTION IN LIMINE NO 13 REQUEST FOR JURY VIEW OF PROPERTY
1 Dated: December 6, 2010 ARCHERNORRIS
2
3 K ^
Gregory K. Federico
4 Attomeys for Defendants RICHARD KIRK
RUYBALID, individually and dba CA
5 CONSTRUCTION; and R4C0RP., INC.
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IT IS SO ORDERED.
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DATED.
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12 JUDGE OF THE SUPERIOR COURT
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NIC549/1058524-I
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DEFENDANTS' MOTION IN LIMINE NO 13 REQUEST FOR JURY VIEW OF PROPERTY
1 PROOF OF SERVICE
2 Name of Action: Rodney Abbott, et al. v. Ronald Paul Britschgi, et al.
Court and Action No: Sacramento 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 acfion or proceeding. My business address is 301 University Avenue, Suite 110, Sacramento,
California 95825. On December 7, 2010,1 caused the following document(s) to be served:
5
MOTION IN LIMINE NO. 13 REQUEST FOR JURY VIEW OF PROPERTY
6 PURSUANT TO CODE OF CIVIL PROCEDURE § 651
7 Rcl By placing a true copy ofthe documents listed above, enclosed in a sealed envelope,
addressed as set forth below, for collection and mailing on the date and at the business
address shown above following our ordinary business pracfices. I am readily familiar
g with this business' pracfice for collection and processing of correspondence for
mailing with the United States Postal Service. On the same day that a sealed envelope
10 is placed for collection and mailing, it is deposited in the ordinary course ofbusiness
with the United States Postal Service with postage fully prepaid.
I—I By having a true copy ofthe document(s) listed above transmitted by facsimile to the
12 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 transmitting facsimile
13 machine.
14
I I By placing a true copy ofthe document(s) listed above, in a box or other facility
15 regularly maintained by UPS, an express service carrier, or delivered to a courier or
driver authorized by the express service carrier to receive documents, in an envelope
16 designated by the express service carrier, with delivery fees paid or provided for,
addressed as set forth below.
17
Ig rn bv having personal deliverv bv FIRST LEGAL SUPPORT SERVICES a true copv of
the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the
19 address(es) set forth below.
20
[SEE ATTACHED SERVICE LIST]
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I declare under penalty ofperjury that the foregoing is tme and correct. Executed on
22 December 7, 2010, at Sacramento, Califomia.
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NIC341/608293-I
PROOF OF SERVICE
^^ 'l
/ y
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
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
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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 2
SERVICE LIST
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1 Todd A. Jones (BarNo. 198024) 2 Gregory K. Federico (BarNo. 242184) ARCHERNORRIS ENDORSED A Professional Law Corporation 'OOEC-7 M i l : IS 3 301 University Avenue, Suite 110 Sacramento, Califomia 95825 LEGAL PROCESS ;i^7 4 Telephone: 916.646.2480 Facsimile: 916.646.5696 5 Attorneys 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 MOTION IN LIMINE NO. 13 REQUEST Plainfiffs, FOR JURY VIEW OF PROPERTY 13 PURSUANT TO CODE OF CIVIL V. PROCEDURE § 651 14 RONALD PAUL BRITSCHGI, et al., Action Filed: September 24,2007 15 Defendants. Trial Date: January 17, 2011 16 Time: 8:30 a.m. Location: Department 43 17 AND ALL RELATED CROSS-ACTIONS. 18 19 I. 20 INTRODUCTION 21 Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 22 (hereinafter "CA CONSTRUCTION") and Defendant R4C0RP., INC. (hereinafter "R4C0RP") 23 (hereinafter collectively "Defendants") hereby incorporate by reference herein the "Introducfion" 24 secfion set forth in its Motion in Limine No. 1. 25 /// 26 /// 27 /// 28 NIC549/1058524-I DEFENDANTS' MOTION IN LIMINE NO 13 REQUEST FOR JURY VIEW OF PROPERTY 1 MOTION IN LIMINE NO. 13 REQUEST FOR JURY VIEW OF PROPERTY PURSUANT TO CODE OF CIVIL PROCEDURE § 651 2 Defendants hereby respectfully request an order permitting the jury to view the subject 3 property located at 8601 Rolling Green Way in Fair Oaks, Califomia, pursuant to Code of Civil 4 Procedure, §651. As this case involves compacfion claims, elevation deficiency claims, claims as 5 to whether the property required and/or was properly graded, and allegedly extensive damage to 6 the Plainfiffs' home, a first hand visual inspecfion by the jury would greatly assist the jury in its 7 understanding ofthe issues in this case. Photographs give a limited view ofthe property and 8 verbal descriptions are only partially adequate. 9 The Court has the power to order a jury view where it would aid the trier of fact. Code of 10 Civil Procedure § 651 provides as follows: 11 (a) On its own motion or the mofion ofa party, where the court finds that such a view 12 would be proper and would aid the trier of fact in its determination ofthe case, the court may 13 order a view of... 14 (1) The property which is the subject ofthe lifigation. 15 Allowing a jury to inspect is a matter within the sound discretion ofthe court. Cassell v. 16 McGuire and Hester (1960) 187 Cal.2d 579. Because a jury view would enhance the jury's 17 understanding ofthe facts and arguments of counsel without prejudicing any party or unduly 18 consuming the court's time, the court should grant the mofion under certain condifions discussed 19 below. It is anticipated that during the course ofthe trial, parties will present diagrams and 20 photographs to depict the property damage that has allegedly occurred at the subject home. 21 However, an accurate appreciafion ofthe actual conditions ofthe subject home and surrounding 22 topography is essential to the jury's clear understanding of not only the damage but the overall 23 area where the damage allegedly occurred and where future repairs are allegedly required. 24 Without a viewing, the jury would be limited to an artificial environment of only 25 photographs and diagrams upon which to base their liability and damage determinations. This 26 would result in the jury having no real appreciafion ofthe actual condifion ofthe subject home or 27 understanding ofthe proposed scope of repair. 28 NIC549/I058524-I 7 DEFENDANTS' MOTION IN LIMINE NO 13 REQUEST FOR JURY VIEW OF PROPERTY 1 The need for a jury view outweighs concems about undue consumption of time and 2 expense. The only way for a jury to realistically understand the overall condifion and realisfically 3 evaluate the liability and damages would be to visit the property. Limiting a jury's consideration 4 of causafion, liability and damages to photographs, charts, models, and tesfimony would prejudice 5 all the parties and complicate the jury's tasks. 6 A site visit to the property would not result in an undue consumption ofthe Court's time. 7 A site view could be accomplished in a single oufing, lasfing for less than half a day. As many of 8 the construction issues may be outside the jurors' understanding, the more information provided 9 to the jurors regarding the physical locations, layouts and topography ofthe project, the easier it 10 will be for jury to understand the evidence. Although a photograph may be useful, it means little 11 without the overall context afforded by an onsite view. 12 A suggested list of conditions for the jury view would include the following: 13 1. No communications by counsel, parties or experts to the jurors should take place. 14 2 The inspection should include a walk around the areas claimed as defective 15 without the presence of plainfiffs or occupants, including both the interior and exterior ofthe 16 home. 17 3. That the allegedly defective areas of property be presented "as is" with no 18 alterations or staging of alleged defect areas. 19 4. That the jury be read a brief joint statement prepared by counsel for the parties 20 generally describing the areas to be walked through. 21 5. That all parties equally share the costs for the jury's travel to the scene. 22 II. 23 CONCLUSION 24 For the above reasons. Defendants respectfully request that this Court order that a jury site yr visit be conducted at the property, under such conditions as the court deems appropriate /// 26 /// 27 //r'cS49/l058524-I 3 28 DEFENDANTS' MOTION IN LIMINE NO 13 REQUEST FOR JURY VIEW OF PROPERTY 1 Dated: December 6, 2010 ARCHERNORRIS 2 3 K ^ Gregory K. Federico 4 Attomeys for Defendants RICHARD KIRK RUYBALID, individually and dba CA 5 CONSTRUCTION; and R4C0RP., INC. 6 7 IT IS SO ORDERED. 8 9 DATED. 10 11 12 JUDGE OF THE SUPERIOR COURT 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 NIC549/1058524-I 28 DEFENDANTS' MOTION IN LIMINE NO 13 REQUEST FOR JURY VIEW OF PROPERTY 1 PROOF OF SERVICE 2 Name of Action: Rodney Abbott, et al. v. Ronald Paul Britschgi, et al. Court and Action No: Sacramento 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 acfion or proceeding. My business address is 301 University Avenue, Suite 110, Sacramento, California 95825. On December 7, 2010,1 caused the following document(s) to be served: 5 MOTION IN LIMINE NO. 13 REQUEST FOR JURY VIEW OF PROPERTY 6 PURSUANT TO CODE OF CIVIL PROCEDURE § 651 7 Rcl By placing a true copy ofthe documents listed above, enclosed in a sealed envelope, addressed as set forth below, for collection and mailing on the date and at the business address shown above following our ordinary business pracfices. I am readily familiar g with this business' pracfice for collection and processing of correspondence for mailing with the United States Postal Service. On the same day that a sealed envelope 10 is placed for collection and mailing, it is deposited in the ordinary course ofbusiness with the United States Postal Service with postage fully prepaid. I—I By having a true copy ofthe document(s) listed above transmitted by facsimile to the 12 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 transmitting facsimile 13 machine. 14 I I By placing a true copy ofthe document(s) listed above, in a box or other facility 15 regularly maintained by UPS, an express service carrier, or delivered to a courier or driver authorized by the express service carrier to receive documents, in an envelope 16 designated by the express service carrier, with delivery fees paid or provided for, addressed as set forth below. 17 Ig rn bv having personal deliverv bv FIRST LEGAL SUPPORT SERVICES a true copv of the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the 19 address(es) set forth below. 20 [SEE ATTACHED SERVICE LIST] 21 I declare under penalty ofperjury that the foregoing is tme and correct. Executed on 22 December 7, 2010, at Sacramento, Califomia. 23 24 25 26 27 28 NIC341/608293-I PROOF OF SERVICE ^^ 'l / y 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 s 24 25 26 27 28 NIC341/608293-1 2 SERVICE LIST