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STEPHANIE J. FINELLI, SBN 173462
Law Office of Stephanie J. Finelli
2 1007-7th Street, Suite 500 FEB 1 7 2011
Sacramento, CA 95814
3 tel 916-443-2144
fax 916-443-1511 By L VVhitf'sfd
4 Depi't" Clerk
Attorney for Plaintiffs,
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FLORENTINE and RODNEY ABBOTT
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF SACRAMENTO
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10 FLORENTINE AND RODNEY ABBOTT, CaseNo.: 07AS04450
II Plaintiffs, NOTICE OF INTENTION TO MOVE FOR
NEW TRIAL, MOTION FOR NEW TRIAL;
12 vs MEMORANDUM OF POINTS &
AUTHORITIES IN SUPPORT,
13 RONALD BRITSCHGI, et a l , DECLARATION OF STEPHANIE J FINELLI
14 Defendants Trial Date- January 18, 2011
Judgment. February 3, 2011
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Dept: 43
16 and related cross-actions Judge- Brian Van Camp
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NOTICE OF MOTION
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
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PLEASE TAKE NOTICE THAT Plaintiffs Florentine and Rodney Abbott intend to
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move this Court to set aside the Judgment entered on February 3, 2011 on the jury verdict
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rendered in this action and to grant a new trial.
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This motion will be made at a time and place to be set by the Court pursuant to Code of
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Civil Procedure section 661
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This motion will be made on each ofthe following grounds, which materially affected the
26 substantial rights ofthe moving party and prevented a fair trial'
27 (1) Irregularity in the proceedings ofthe court (CCP §657(1));
28 (2) Insufficient evidence to support the verdict (CCP §657(6));
Motion for New Trial - 1
1 (3) The verdict is contrary to law (CCP §657(6)); and
2 (4) The judgment is inconsistent with the special verdict (CCP 663(2))
3 This motion will be made pursuant to Code of Civil Procedure sections 656, 657, and 659
4 and will be based on this Notice, the evidence presented at trial, all pleadings, papers and records
5 ofthis Court; and the memorandum of pomts & authorities attached hereto
6 This motion will also be based upon the Declaration of Stephanie J. Finelli, supporting
7 the first ground enumerated above, as required by Code of Civil Procedure section 658, as served
8 and filed herewith.
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10 Dated- February \ 7 ,2011
Stephanie J Fine
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Attorney for Plaintlffs,
12 Florentine & Rodney Abbott
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Motion for New Trial - 2
1 MEMORANDUM OF POINTS & AUTHORITIES
2 I. INTRODUCTION
3 Plamtlffs move for a new trial based upon several grounds.
4 First, there was irregularity in the proceedings in that the parties did not have sufficient
5 time to try their respective cases; plaintiffs did not offer all of the relevant evidence they would
6 have offered had they had more time; and plaintiffs did not fully cross-examine defendants'
7 witnesses because ofthe time pressures.
8 Second, there was insufficient evidence to support the verdict in that there was no
9 evidence, substantial or otherwise, upon which the jury could have found that plaintiffs did not
10 do all or substantially all ofthe significant things the contract required them to do, and there was
11 no evidence, substantial or otherwise, upon which the jury could have found that defendant CA
12 Construction's negligence was not a substantial factor in causing plaintiffs' harm.
13 Third, the verdict is also contrary to law in that the jury had no legal or factual basis foi
14 fmding that plaintlffs did not do all or substantially all of the significant things the contraci
15 required them to do, and the jury had no legal or factual basis for finding that defendant CA
16 Construction's negligence was not a substantial factor in causing plaintiffs' harm. Furthermore
17 the jury specifically found that defendant CA Construction willfully departed from accepted
18 trade standards for good and workmanlike construction, yet it inexplicably found that such did
19 not cause plaintiffs' harm.
20 Fourth, the judgment is inconsistent with the special verdict in that the jury specifically
21 found that defendant CA Construction was negligent and that it departed from accepted trade
22 standards for good and workmanlike construction Nevertheless, thejury inexplicably found that
23 such did not cause plaintiffs' harm.
24 A new trial is required
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26 II. LEGAL ARGUMENT
27 A. Irregularity in the Proceedings
28 First, the parties did not have sufficient time to try their respective cases. As set forth in
the Declaration of Stephanie J Finelli ["Finelli Decl."], attached hereto, the trial was nestled into
Motion for New Trial - 3
the two week period from January 18 to January 28, 2011. (Id at ^ 2.) The Court stated on more
2 than one occasion that if trial was not concluded by January 28, 2011, it would result in a
3 mistrial. (Id. at T| 2 ) Once defendants concluded their case in chief, the trial concluded and the
4 court began instructing the jury and the parties gave closing statements (Id at ^ 3 ) Plaintiff
was given no opportunity to put on rebuttal evidence (Id. at ^ 3.) This is grounds for a new
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trial (See In re Marriage of Carlsson (2009) 163 Cal App 4th 281, 284, 291 )
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The lack of sufficient time to try a case is grounds for a new trial As the Third District
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Court of Appeal held in Marriage of Carlsson, a party must be afforded the right to put on all of
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his or her evidence before a decision may be rendered, and the failure of the court to allow a
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party to put on all ofsuch evidence is a denial of due process (Id at pp 284, 291 ) In that case,
10 the respondent in a family-law action had not quite finished putting on evidence, and was thus
11 completely deprived of offering any rebuttal testimony (Id at p. 290 ) Similarly, here, plaintiffs
12 had no opportunity to put on any rebuttal testimony; once defendants had finished their case-in-
13 chief, the court began instructing the jury, after which the parties were instructed to provide
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closing arguments (Finelli Decl at ^ 3 )
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That plaintiffs did not accede to a mistrial does not somehow waive the error "It is
unfair and unreasonable to compel a party to suffer the inconvenience and expense of a mistrial
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in order to preserve a due process claim on appeal " (Carlsson, supra at p 293.) In that case, the
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Third Distnct held that moving party "was not required to choose between a mistrial and a fair
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trial." (Ibid) Similarly, here, plaintlffs were not required to accede to a mistrial in order to
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preserve their right to assert that the denial of any rebuttal evidence and the lack of sufficient
20 time to put on the case was erroneous and requires a new trial.
21 Second, plaintiffs did not offer all of the relevant evidence they would have offered had
22 they had more time Certainly, plaintiffs would have put on rebuttal evidence, at least in the
23 form of Florentine Abbott, had time permitted. (See Finelli Decl. at T| 3 ) This may have made a
24 major difference in the outcome ofthe case
Notably, this was not a decision made by plaintiffs' counsel; there was no opportunity to
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offer rebuttal Once defendant Mark Smith ended his case-in-chief, the court began instructing
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thejury The court did not ask if plaintiffs had any rebuttal evidence, and did not give plaintiffs
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an opportunity to call any witness on rebuttal. (Finelli Decl. at ^ 3 )
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Motion for New Trial - 4
Third, plaintiffs did not fully cross-examine defendants' witnesses because of the fime
pressures. When the day concluded on January 26, 2011, defendants' witness, Dynan Keller was
on the stand and was being cross-examined by plaintiffs' counsel. (Finelli Decl. at Tf 4 ) She had
not concluded her cross-examination, yet acceded to move on to the next defense witness
because time was running out on the trial (Finelli Decl. at Tf 4 ) Similarly, plaintiffs' counsel
did not introduce at least one of plaintiffs' witnesses and did not cross-examine defendants'
witnesses as thoroughly as she would have preferred, because the threat of a mistrial was
constantly hanging over her head. (Finelli Decl. at TITI 2, 4.)
Plaintiffs' decision to forgo thorough cross-examination of defendants' witnesses was not
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a waiver of the right to a new trial. As noted in Marriage of Carlsson. supra, a party is "not
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required to choose between a mistrial and a fair trial." (Carlsson, supra at p. 293.) By forgoing a
II thorough cross-examination, plaintiff was choosing to avoid a mistrial. But that does not mean
12 that the trial was fair.
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14 B. Evidence Does Not Support the Jury Verdict
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Insufficiency ofthe evidence to justify the verdict is a mam reason to set aside the verdict
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and order a new trial (Code Civ Proc. §657(6).) In jury trials, the judge essentially acts as
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"thirteenth juror" and is entitled to weigh and evaluate evidence despite the factual resolutions by
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thejury (Norden v Hartman (1952) 111 Cal App 2d 751, 758; Candido v Huitt (1984) 151
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Cal.App 3d 918, 923 ) "The court may even grant a new trial event though there be sufficient
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evidence to sustain the jury's verdict on appeal, so long as the court determines the weight ofthe
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evidence is against the verdict." (Candido, supra at p 923.) "A new trial shall not be granted
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upon the ground of insufficiency ofthe evidence to justify the verdict or other decision, nor upon
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the ground of excessive or inadequate damages, unless after weighing the evidence the court is
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convinced from the entire record, including reasonable inferences therefrom, that the court oi
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jury clearly should have reached a different verdict or decision " (Code Civ Proc §657 )
26 Upon weighing the evidence and reviewing the entire record, this Court can only
27 conclude that the jury clearly should have reached a different verdict or decision
28 First, there was no evidence at all to support the jury's answer to question 2 ofthe special
verdict form that the Abbotts did not do all or substantially all of the significant things the
Motion for New Trial - 5
contract required them to do. There was thus insufficient evidence to support the verdict on
2 breach of contract. The only obligation the Abbotts had under the contract was to pay CA
3 Construction It was undisputed that the Abbotts paid CA Construction $53,206 under the
4 contract There was no evidence presented at trial that the Abbotts owed any additional funds
5 Richard Ruybalid testified that CA Construction was paid in full by the Abbotts If anything, the
6 Abbotts overpaid CA Construction. Because the evidence was insufficient—in fact non-
7 existent—to support the jury's verdict on the breach of contract action, a new trial must be
8 ordered as to that cause of action.
9 Second, the evidence was insufficient to support the jury's answer to question 8 of the
10 special verdict form that defendant CA Construction's negligence was not a substantial factor in
11 causing plaintiffs' harm. The jury specifically found in response to question 7 of the special
12 verdict form, that CA Construction was negligent. In fact, it found in response to question 15
13 that defendant CA Construction willfully departed from accepted trade standards for good and
14 workmanlike construction The jury thus had no legal or factual basis for finding that defendant
15 CA Construction's negligence was not a substantial factor in causing plaintiffs' harm
16 The evidence at trial was that CA Construction did not determine the relative elevation of
17 the foundation in relation to the surrounding area or the eventual cul-de-sac before building the
18 foundation. Even defendants' expert Donn Marinovich testified that this is below the standard of
19 care for a foundation contractor The only expert who did not so testify was David Heryet,
20 defendants' retained expert, who stated that such was not below the standard of care "in this
21 case" because he thought determining the elevations was something the Abbotts should have
22 done However, it was the failure to specify the elevations prior to building the foundation that
23 led to plaintiffs' harm of having the house well below street level Having concluded that CA
24 Construction was negligent and even willfully departed from accepted trade standards, the jury
25 could not have found, based upon the evidence at trial, that this was not a substantial factor in
26 causing plaintlffs harm The jury was obviously confused
27 Additionally, the evidence was clear at trial—by defendants' own admission—that the
28 retaining wall at the far end ofthe garage was not 7'/2 feet tall, as shown on the plans, but only 5
Motion for New Trial - 6
feet tall. This is a clear departure form the plans themselves which is not only negligent, but
which quite obviously caused plaintiffs damage. The garage is 10 feet lower than the street, thus
rendering it virtually unusable Had it been 2'/2 or even 2 feet higher, the garage might actually
be usable. Given that the contract specified that CA Construction was to perform the concrete
work "as per plans and specifications" (Exh 89) and given the undisputed evidence that they did
not follow the portion ofthe plans calling for a 7'/2 foot retaining wall, but only built the wall 5
feet tall, such is an undisputed departure from the plans that is not only a breach of contract, but
which is negligent and a substantial factor on causing plaintiffs' harm. Thejury erred as a matter
9 of law in determining that CA Constructions' negligence was not a substantial factor in causing
10 plaintiffs' harm.
11 Third, as noted above, the jury specifically found that defendant CA Construction
12 willfully departed from accepted trade standards for good and workmanlike construction, yet it
13 inexplicably found that such did not cause plaintiffs' harm Insufficient evidence supports the
14 jury's answer to question 18 ofthe special verdict form that this willful departure from accepted
15 trade standards did not cause plaintiffs harm
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17 C. The Verdict Is Contrary to Law
18 Third, the verdict is contrary to law in that the jury had no legal or factual basis for
19 finding that plaintiffs did not do all or substantially all of the significant things the contract
20 required them to do. Furthermore, the jury specifically found that defendant CA Construction
21 willfully departed from accepted trade standards for good and workmanlike construction, yet it
22 inexplicably found that such did not cause plaintiffs' harm. The basis for these arguments is set
23 forth in argument B above, and will not be reiterated herein
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D. The Judgment Is Inconsistent With the Special Verdict
26 Fourth, the judgment is inconsistent with the special verdict in that the jury specifically
27 found that defendant CA Construction was negligent and that it departed from accepted trade
28 standards for good and workmanlike construction Nevertheless, thejury inexplicably found that
Motion for New Trial - 7
such did not cause plaintiffs' harm As set forth above, this finding is inconsistent with the
2 ultimate verdict in the case, thus necessitating a new trial.
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4 Dated- February 17,2011
Stephanie J. FinelTi^
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Attorney for Plaintiffs
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DECLARATION OF STEPHANIE J. FINELLI
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9 1. Stephanie J Finelli, hereby declare as follows
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1 I am an attorney, duly licensed and practicing in the State of California I
represent plaintiffs Rodney and Florentine Abbott in the instant case
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2. I do not feel that I had sufficient time to try plaintiffs' case. Trial was limited to
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the two-week period from January 18 to January 28, 2011, and was required to be concluded by
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January 28, 2011. During trial, this Court stated on more than one occasion that if trial was not
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concluded by January 28, 2011, it would result in a mistrial. The trial itself involved complex
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construction issues that were difficult to properly explain to a lay jury in that amount of time
16 During trial, I constantly felt rushed and was always cognizant of hurrying the evidence along
17 As a result of time pressures, I did not call certain witnesses, including Gary Hunt, the framing
18 contractor, who I would have called as witnesses had I had more time to try the case.
19 3. Plaintiffs were given no opportunity for rebuttal evidence Once defendants had
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finished their case-in-chief, the court began instructing the jury, after which the parties were
instructed to provide closing arguments. The court did not ask if plaintlffs had any rebuttal
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evidence, and did not give plaintiffs an opportunity to call any witness on rebuttal. Had plaintiffs
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been afforded rebuttal evidence, I would have called Florentine Abbott to the stand to rebut
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many of the statements made by defendants' witnesses and to explain certain concepts to the
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jury This may have made a major difference in the outcome ofthe case
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4. I also did not fully cross-examine defendants' witnesses because of the time
26 pressures. When the day concluded on January 26, 2011, defendants' witness, Dynan Keller was
27 on the stand and I was cross-examining him. I had not concluded my cross-examination when
28 the court stated the trial was over for the day. Nevertheless, I acceded to move on to the next
defense witness because time was running out on the trial. I also did not cross-examine
Motion for New Trial - 8
defendants' witnesses as thoroughly as I would have preferred, because the threat of a mistrial
2 was constantly hanging over my head In fact, while I was examining defendants' retained
3 expert, Jason Newlin, and attempting to establish that he had not done a thorough job of
4 inspecting the cracks, as only one of over 100 photos he stated he took focused on the crack, I
was admonished by the court to hurry along, and informed that it appeared I was seeking to use
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the defendants' trial time.
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5. I feel certain the outcome ofthe trial would have been different had we had an
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extra day or two to put on evidence and fully explain the case While plaintiffs did use more
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time than defendants, much ofthat time was spent explaining the undisputed facts ofthe case to
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the jury, explaining how the contract came to be and the work that was done, concepts the
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defendants did not need to re-explain on their case-in-chief Moreover, defendants' witness, Pete
11 Atchison, who I called on plaintiffs' case-in-chief as an adversarial witness, was unnecessarily
12 long-winded and kept changing his answers, thus resulting in more time to try the case than I had
13 originally estimated.
14 I declare under penalty of perjury the foregoing is true and correct to the^best of my
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15 knowledge, and as to those matters stated on information and belief, I believe thenyto/be true
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17 Dated. February 17,2011 _
Stephanie J
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Motion for New Trial - 9
PROOF OF SERVICE BY MAIL
CASE NAME. Abbott v. Britschgi
CASE NUMBER- Sacramento County Superior Court 07AS04450
I declare that
I am a citizen ofthe United States and a resident ofthe County of Sacramento I am,
and at all times mentioned herein was, an active member of the State Bar of California and
not a party to the above-entitied cause My business address is 1007 Seventh Street, Suite
500, Sacramento, Califomia 95814.
On February 17, 2011, pursuant to CCP §1013A(2), I served the following-
NOTICE OF INTENTION TO MOVE FOR NEW TRIAL, MOTION FOR NEW
TRIAL, MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT;
DECLARATION OF STEPHANIE J FINELLI
BY MAIL- by depositing a copy of said document in the Umted States mail in Sacramento,
California, in a sealed envelope, with postage fully prepaid, addressed as follows-
Gregory Federico
Archer Norris
301 University Ave , Suite 110
Sacramento, CA 95825
Mark Smith
8549 Willow Valley Place
Granite Bay, CA 95746
Richard W Freeman, Jr.
Wood, Smith, Henning & Berman
1401 Willow Pass Road, Suite 700
Concord, CA 94520-7982
I declare under penalty of perjury under the laws of the StaJe of Califomi^he
foregoing is true and correct
Dated- February 17,2011
Stephanie J. FinbUi-
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•'' " •"'s / r ? p r f."v. ;''-i., r ' ^ 1 ' ~ 1 STEPHANIE J. FINELLI, SBN 173462 Law Office of Stephanie J. Finelli 2 1007-7th Street, Suite 500 FEB 1 7 2011 Sacramento, CA 95814 3 tel 916-443-2144 fax 916-443-1511 By L VVhitf'sfd 4 Depi't" Clerk Attorney for Plaintiffs, 5 FLORENTINE and RODNEY ABBOTT 6 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SACRAMENTO 9 10 FLORENTINE AND RODNEY ABBOTT, CaseNo.: 07AS04450 II Plaintiffs, NOTICE OF INTENTION TO MOVE FOR NEW TRIAL, MOTION FOR NEW TRIAL; 12 vs MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT, 13 RONALD BRITSCHGI, et a l , DECLARATION OF STEPHANIE J FINELLI 14 Defendants Trial Date- January 18, 2011 Judgment. February 3, 2011 15 Dept: 43 16 and related cross-actions Judge- Brian Van Camp 17 18 NOTICE OF MOTION 19 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 20 PLEASE TAKE NOTICE THAT Plaintiffs Florentine and Rodney Abbott intend to 21 move this Court to set aside the Judgment entered on February 3, 2011 on the jury verdict 22 rendered in this action and to grant a new trial. 23 This motion will be made at a time and place to be set by the Court pursuant to Code of 24 Civil Procedure section 661 25 This motion will be made on each ofthe following grounds, which materially affected the 26 substantial rights ofthe moving party and prevented a fair trial' 27 (1) Irregularity in the proceedings ofthe court (CCP §657(1)); 28 (2) Insufficient evidence to support the verdict (CCP §657(6)); Motion for New Trial - 1 1 (3) The verdict is contrary to law (CCP §657(6)); and 2 (4) The judgment is inconsistent with the special verdict (CCP 663(2)) 3 This motion will be made pursuant to Code of Civil Procedure sections 656, 657, and 659 4 and will be based on this Notice, the evidence presented at trial, all pleadings, papers and records 5 ofthis Court; and the memorandum of pomts & authorities attached hereto 6 This motion will also be based upon the Declaration of Stephanie J. Finelli, supporting 7 the first ground enumerated above, as required by Code of Civil Procedure section 658, as served 8 and filed herewith. 9 10 Dated- February \ 7 ,2011 Stephanie J Fine 11 Attorney for Plaintlffs, 12 Florentine & Rodney Abbott 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion for New Trial - 2 1 MEMORANDUM OF POINTS & AUTHORITIES 2 I. INTRODUCTION 3 Plamtlffs move for a new trial based upon several grounds. 4 First, there was irregularity in the proceedings in that the parties did not have sufficient 5 time to try their respective cases; plaintiffs did not offer all of the relevant evidence they would 6 have offered had they had more time; and plaintiffs did not fully cross-examine defendants' 7 witnesses because ofthe time pressures. 8 Second, there was insufficient evidence to support the verdict in that there was no 9 evidence, substantial or otherwise, upon which the jury could have found that plaintiffs did not 10 do all or substantially all ofthe significant things the contract required them to do, and there was 11 no evidence, substantial or otherwise, upon which the jury could have found that defendant CA 12 Construction's negligence was not a substantial factor in causing plaintiffs' harm. 13 Third, the verdict is also contrary to law in that the jury had no legal or factual basis foi 14 fmding that plaintlffs did not do all or substantially all of the significant things the contraci 15 required them to do, and the jury had no legal or factual basis for finding that defendant CA 16 Construction's negligence was not a substantial factor in causing plaintiffs' harm. Furthermore 17 the jury specifically found that defendant CA Construction willfully departed from accepted 18 trade standards for good and workmanlike construction, yet it inexplicably found that such did 19 not cause plaintiffs' harm. 20 Fourth, the judgment is inconsistent with the special verdict in that the jury specifically 21 found that defendant CA Construction was negligent and that it departed from accepted trade 22 standards for good and workmanlike construction Nevertheless, thejury inexplicably found that 23 such did not cause plaintiffs' harm. 24 A new trial is required 25 26 II. LEGAL ARGUMENT 27 A. Irregularity in the Proceedings 28 First, the parties did not have sufficient time to try their respective cases. As set forth in the Declaration of Stephanie J Finelli ["Finelli Decl."], attached hereto, the trial was nestled into Motion for New Trial - 3 the two week period from January 18 to January 28, 2011. (Id at ^ 2.) The Court stated on more 2 than one occasion that if trial was not concluded by January 28, 2011, it would result in a 3 mistrial. (Id. at T| 2 ) Once defendants concluded their case in chief, the trial concluded and the 4 court began instructing the jury and the parties gave closing statements (Id at ^ 3 ) Plaintiff was given no opportunity to put on rebuttal evidence (Id. at ^ 3.) This is grounds for a new 5 trial (See In re Marriage of Carlsson (2009) 163 Cal App 4th 281, 284, 291 ) 6 The lack of sufficient time to try a case is grounds for a new trial As the Third District 7 Court of Appeal held in Marriage of Carlsson, a party must be afforded the right to put on all of 8 his or her evidence before a decision may be rendered, and the failure of the court to allow a 9 party to put on all ofsuch evidence is a denial of due process (Id at pp 284, 291 ) In that case, 10 the respondent in a family-law action had not quite finished putting on evidence, and was thus 11 completely deprived of offering any rebuttal testimony (Id at p. 290 ) Similarly, here, plaintiffs 12 had no opportunity to put on any rebuttal testimony; once defendants had finished their case-in- 13 chief, the court began instructing the jury, after which the parties were instructed to provide 14 closing arguments (Finelli Decl at ^ 3 ) 15 That plaintiffs did not accede to a mistrial does not somehow waive the error "It is unfair and unreasonable to compel a party to suffer the inconvenience and expense of a mistrial 16 in order to preserve a due process claim on appeal " (Carlsson, supra at p 293.) In that case, the 17 Third Distnct held that moving party "was not required to choose between a mistrial and a fair 18 trial." (Ibid) Similarly, here, plaintlffs were not required to accede to a mistrial in order to 19 preserve their right to assert that the denial of any rebuttal evidence and the lack of sufficient 20 time to put on the case was erroneous and requires a new trial. 21 Second, plaintiffs did not offer all of the relevant evidence they would have offered had 22 they had more time Certainly, plaintiffs would have put on rebuttal evidence, at least in the 23 form of Florentine Abbott, had time permitted. (See Finelli Decl. at T| 3 ) This may have made a 24 major difference in the outcome ofthe case Notably, this was not a decision made by plaintiffs' counsel; there was no opportunity to 25 offer rebuttal Once defendant Mark Smith ended his case-in-chief, the court began instructing 26 thejury The court did not ask if plaintiffs had any rebuttal evidence, and did not give plaintiffs 27 an opportunity to call any witness on rebuttal. (Finelli Decl. at ^ 3 ) 28 Motion for New Trial - 4 Third, plaintiffs did not fully cross-examine defendants' witnesses because of the fime pressures. When the day concluded on January 26, 2011, defendants' witness, Dynan Keller was on the stand and was being cross-examined by plaintiffs' counsel. (Finelli Decl. at Tf 4 ) She had not concluded her cross-examination, yet acceded to move on to the next defense witness because time was running out on the trial (Finelli Decl. at Tf 4 ) Similarly, plaintiffs' counsel did not introduce at least one of plaintiffs' witnesses and did not cross-examine defendants' witnesses as thoroughly as she would have preferred, because the threat of a mistrial was constantly hanging over her head. (Finelli Decl. at TITI 2, 4.) Plaintiffs' decision to forgo thorough cross-examination of defendants' witnesses was not 9 a waiver of the right to a new trial. As noted in Marriage of Carlsson. supra, a party is "not 10 required to choose between a mistrial and a fair trial." (Carlsson, supra at p. 293.) By forgoing a II thorough cross-examination, plaintiff was choosing to avoid a mistrial. But that does not mean 12 that the trial was fair. 13 14 B. Evidence Does Not Support the Jury Verdict 15 Insufficiency ofthe evidence to justify the verdict is a mam reason to set aside the verdict 16 and order a new trial (Code Civ Proc. §657(6).) In jury trials, the judge essentially acts as 17 "thirteenth juror" and is entitled to weigh and evaluate evidence despite the factual resolutions by 18 thejury (Norden v Hartman (1952) 111 Cal App 2d 751, 758; Candido v Huitt (1984) 151 19 Cal.App 3d 918, 923 ) "The court may even grant a new trial event though there be sufficient 20 evidence to sustain the jury's verdict on appeal, so long as the court determines the weight ofthe 21 evidence is against the verdict." (Candido, supra at p 923.) "A new trial shall not be granted 22 upon the ground of insufficiency ofthe evidence to justify the verdict or other decision, nor upon 23 the ground of excessive or inadequate damages, unless after weighing the evidence the court is 24 convinced from the entire record, including reasonable inferences therefrom, that the court oi 25 jury clearly should have reached a different verdict or decision " (Code Civ Proc §657 ) 26 Upon weighing the evidence and reviewing the entire record, this Court can only 27 conclude that the jury clearly should have reached a different verdict or decision 28 First, there was no evidence at all to support the jury's answer to question 2 ofthe special verdict form that the Abbotts did not do all or substantially all of the significant things the Motion for New Trial - 5 contract required them to do. There was thus insufficient evidence to support the verdict on 2 breach of contract. The only obligation the Abbotts had under the contract was to pay CA 3 Construction It was undisputed that the Abbotts paid CA Construction $53,206 under the 4 contract There was no evidence presented at trial that the Abbotts owed any additional funds 5 Richard Ruybalid testified that CA Construction was paid in full by the Abbotts If anything, the 6 Abbotts overpaid CA Construction. Because the evidence was insufficient—in fact non- 7 existent—to support the jury's verdict on the breach of contract action, a new trial must be 8 ordered as to that cause of action. 9 Second, the evidence was insufficient to support the jury's answer to question 8 of the 10 special verdict form that defendant CA Construction's negligence was not a substantial factor in 11 causing plaintiffs' harm. The jury specifically found in response to question 7 of the special 12 verdict form, that CA Construction was negligent. In fact, it found in response to question 15 13 that defendant CA Construction willfully departed from accepted trade standards for good and 14 workmanlike construction The jury thus had no legal or factual basis for finding that defendant 15 CA Construction's negligence was not a substantial factor in causing plaintiffs' harm 16 The evidence at trial was that CA Construction did not determine the relative elevation of 17 the foundation in relation to the surrounding area or the eventual cul-de-sac before building the 18 foundation. Even defendants' expert Donn Marinovich testified that this is below the standard of 19 care for a foundation contractor The only expert who did not so testify was David Heryet, 20 defendants' retained expert, who stated that such was not below the standard of care "in this 21 case" because he thought determining the elevations was something the Abbotts should have 22 done However, it was the failure to specify the elevations prior to building the foundation that 23 led to plaintiffs' harm of having the house well below street level Having concluded that CA 24 Construction was negligent and even willfully departed from accepted trade standards, the jury 25 could not have found, based upon the evidence at trial, that this was not a substantial factor in 26 causing plaintlffs harm The jury was obviously confused 27 Additionally, the evidence was clear at trial—by defendants' own admission—that the 28 retaining wall at the far end ofthe garage was not 7'/2 feet tall, as shown on the plans, but only 5 Motion for New Trial - 6 feet tall. This is a clear departure form the plans themselves which is not only negligent, but which quite obviously caused plaintiffs damage. The garage is 10 feet lower than the street, thus rendering it virtually unusable Had it been 2'/2 or even 2 feet higher, the garage might actually be usable. Given that the contract specified that CA Construction was to perform the concrete work "as per plans and specifications" (Exh 89) and given the undisputed evidence that they did not follow the portion ofthe plans calling for a 7'/2 foot retaining wall, but only built the wall 5 feet tall, such is an undisputed departure from the plans that is not only a breach of contract, but which is negligent and a substantial factor on causing plaintiffs' harm. Thejury erred as a matter 9 of law in determining that CA Constructions' negligence was not a substantial factor in causing 10 plaintiffs' harm. 11 Third, as noted above, the jury specifically found that defendant CA Construction 12 willfully departed from accepted trade standards for good and workmanlike construction, yet it 13 inexplicably found that such did not cause plaintiffs' harm Insufficient evidence supports the 14 jury's answer to question 18 ofthe special verdict form that this willful departure from accepted 15 trade standards did not cause plaintiffs harm 16 17 C. The Verdict Is Contrary to Law 18 Third, the verdict is contrary to law in that the jury had no legal or factual basis for 19 finding that plaintiffs did not do all or substantially all of the significant things the contract 20 required them to do. Furthermore, the jury specifically found that defendant CA Construction 21 willfully departed from accepted trade standards for good and workmanlike construction, yet it 22 inexplicably found that such did not cause plaintiffs' harm. The basis for these arguments is set 23 forth in argument B above, and will not be reiterated herein 24 25 D. The Judgment Is Inconsistent With the Special Verdict 26 Fourth, the judgment is inconsistent with the special verdict in that the jury specifically 27 found that defendant CA Construction was negligent and that it departed from accepted trade 28 standards for good and workmanlike construction Nevertheless, thejury inexplicably found that Motion for New Trial - 7 such did not cause plaintiffs' harm As set forth above, this finding is inconsistent with the 2 ultimate verdict in the case, thus necessitating a new trial. 3 4 Dated- February 17,2011 Stephanie J. FinelTi^ 5 Attorney for Plaintiffs 6 7 DECLARATION OF STEPHANIE J. FINELLI 8 9 1. Stephanie J Finelli, hereby declare as follows 10 1 I am an attorney, duly licensed and practicing in the State of California I represent plaintiffs Rodney and Florentine Abbott in the instant case 11 2. I do not feel that I had sufficient time to try plaintiffs' case. Trial was limited to 12 the two-week period from January 18 to January 28, 2011, and was required to be concluded by 13 January 28, 2011. During trial, this Court stated on more than one occasion that if trial was not 14 concluded by January 28, 2011, it would result in a mistrial. The trial itself involved complex 15 construction issues that were difficult to properly explain to a lay jury in that amount of time 16 During trial, I constantly felt rushed and was always cognizant of hurrying the evidence along 17 As a result of time pressures, I did not call certain witnesses, including Gary Hunt, the framing 18 contractor, who I would have called as witnesses had I had more time to try the case. 19 3. Plaintiffs were given no opportunity for rebuttal evidence Once defendants had 20 finished their case-in-chief, the court began instructing the jury, after which the parties were instructed to provide closing arguments. The court did not ask if plaintlffs had any rebuttal 21 evidence, and did not give plaintiffs an opportunity to call any witness on rebuttal. Had plaintiffs 22 been afforded rebuttal evidence, I would have called Florentine Abbott to the stand to rebut 23 many of the statements made by defendants' witnesses and to explain certain concepts to the 24 jury This may have made a major difference in the outcome ofthe case 25 4. I also did not fully cross-examine defendants' witnesses because of the time 26 pressures. When the day concluded on January 26, 2011, defendants' witness, Dynan Keller was 27 on the stand and I was cross-examining him. I had not concluded my cross-examination when 28 the court stated the trial was over for the day. Nevertheless, I acceded to move on to the next defense witness because time was running out on the trial. I also did not cross-examine Motion for New Trial - 8 defendants' witnesses as thoroughly as I would have preferred, because the threat of a mistrial 2 was constantly hanging over my head In fact, while I was examining defendants' retained 3 expert, Jason Newlin, and attempting to establish that he had not done a thorough job of 4 inspecting the cracks, as only one of over 100 photos he stated he took focused on the crack, I was admonished by the court to hurry along, and informed that it appeared I was seeking to use 5 the defendants' trial time. 6 5. I feel certain the outcome ofthe trial would have been different had we had an 7 extra day or two to put on evidence and fully explain the case While plaintiffs did use more 8 time than defendants, much ofthat time was spent explaining the undisputed facts ofthe case to 9 the jury, explaining how the contract came to be and the work that was done, concepts the 10 defendants did not need to re-explain on their case-in-chief Moreover, defendants' witness, Pete 11 Atchison, who I called on plaintiffs' case-in-chief as an adversarial witness, was unnecessarily 12 long-winded and kept changing his answers, thus resulting in more time to try the case than I had 13 originally estimated. 14 I declare under penalty of perjury the foregoing is true and correct to the^best of my // 1 15 knowledge, and as to those matters stated on information and belief, I believe thenyto/be true 16 17 Dated. February 17,2011 _ Stephanie J 18 19 20 21 22 23 24 25 26 27 28 Motion for New Trial - 9 PROOF OF SERVICE BY MAIL CASE NAME. Abbott v. Britschgi CASE NUMBER- Sacramento County Superior Court 07AS04450 I declare that I am a citizen ofthe United States and a resident ofthe County of Sacramento I am, and at all times mentioned herein was, an active member of the State Bar of California and not a party to the above-entitied cause My business address is 1007 Seventh Street, Suite 500, Sacramento, Califomia 95814. On February 17, 2011, pursuant to CCP §1013A(2), I served the following- NOTICE OF INTENTION TO MOVE FOR NEW TRIAL, MOTION FOR NEW TRIAL, MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT; DECLARATION OF STEPHANIE J FINELLI BY MAIL- by depositing a copy of said document in the Umted States mail in Sacramento, California, in a sealed envelope, with postage fully prepaid, addressed as follows- Gregory Federico Archer Norris 301 University Ave , Suite 110 Sacramento, CA 95825 Mark Smith 8549 Willow Valley Place Granite Bay, CA 95746 Richard W Freeman, Jr. Wood, Smith, Henning & Berman 1401 Willow Pass Road, Suite 700 Concord, CA 94520-7982 I declare under penalty of perjury under the laws of the StaJe of Califomi^he foregoing is true and correct Dated- February 17,2011 Stephanie J. FinbUi-