On September 24, 2007 a
Party Discovery
was filed
involving a dispute between
and
for (Breach of Contract/Warranty)
in the District Court of Sacramento County.
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1 Todd A. Jones (Bar No. 198024)
Gregory K. Federico (BarNo. 242184)
2 ARCHER NORRIS
A Professional Law Corporation
3 301 University Avenue, Suite 110
Sacramento, Califomia 95825
4 Telephone: 916.646.2480
Facsimile: 916.646.5696
5
Attomeys for Defendants
6 RICHARD KIRK RUYBALID, individually and
dba CA CONSTRUCTION
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10
11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
ABBOTT,
12 CA CONSTRUCTION'S OPPOSITION TO
Plaintiffs, PLAINTIFFS' MOTION IN LIMINE TO
13 ADMIT DEPOSITION TESTIMONY OF
PERCIPIENT EXPERT BRYAN HILL AS
14 UNAVAILABLE UNDER CODE OF CIVIL
RONALD PAUL BRITSCHGI, et al. PROCEDURE §2025.620
15
Defendants. Action Filed: September 24, 2007
16
Trial Date: January 18,2011
17 Time: 8:30 a.m.
Location: Department 43
18
AND ALL RELATED CROSS-ACTIONS.
19
20
I.
21 INTRODUCTION
22 Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION
23 (hereinafter "CA CONSTRUCTION") hereby submits this Opposition to Plaintiffs' Motion in
24 Limine to Admit Deposition Testimony Of Percipient Expert Bryan Hill As Unavailable Under
25 Code ofCivil Procedure §2025.620. CA CONSTRUCTION does not dispute the practical
26 realities of Mr. Hill's relocation to Texas. However, the Court must approach Mr. Hill's
27 testimony with care for several important reasons: (1) His testimony is still subject to the other
28 mles of Evidence; (2) CA CONSTRUCTION must be allowed to object to and seek to exclude
NlO549/1077278-i
OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE TO ADMIT DEPO TESTIMONY OF HILL
1 any irrelevant or improper evidence pursuant to the Evidence Code; (3) CA CONSTRUCTION
2 will seek to exclude some or all of Mr. Hill's testimony, prior to it being offered into evidence,
3 pursuant to an Evidence Code Section 402 hearing; and (4) Subject to the Court's technical
4 capabilities, Mr. Hill should be required to provide his testimony via video conferencing.
^ A. Mr. Hill's Testimony Is Still Subject To All Applicable Rules Of Evidence
g And CA Construction Should Be Entitled to Object And Challenge Any
Deposition Testimony Offered By Plaintiffs
7 Plaintiffs argue that the testimony is automatically admissible pursuant to Code of Civil
8 Procedure § 2025.620(c)(1), which it is not. Pursuant to Code ofCivil Procedure § 2025.620,
9 any part or all ofa deposition may be used against any party so long "as admissible under the
10 mles of evidence." This section clearly states that the evidence can be admitted so long as it does
11 not violate any other mles of evidence. As such. Plaintiffs must provide CA CONSTRUCTION
12 the testimony of Mr. Hill they wish to introduce at trial via deposition well in advance. Then, CA
13 CONSTRUCTION should be entitled to object to said evidence and have the Court rule on the
14 objections based on the Evidence Code prior to the evidence being deemed admitted.
15
The practical importance ofthis procedure is significant based on Mr. Hill's unavailability.
16
Plaintiffs allege that CA CONSTRUCTION was entitled to cross-examine Mr. Hill in deposition.
17
This is not entirely tme. CA CONSTRUCTION took his deposition prior to knowing that he
18
would be designated by Plaintiffs as an expert. Counsel for CA CONSTRUCTION asked him
19
about his report and his findings. Plaintiffs examined Mr. Hill for about 10 minutes after counsel
20
for CA CONSTRUCTION elicted the majority of testimony from Mr. Hill, and counsel for CA
21
CONSTRUCTION made all necessary objections during those 10 minutes. However, what was
22
CA CONSTRUCTION supposed to do - ask its own questions on the report/opinions and then
23
object to its own questions? As has been stated to this Court before, Plaintiffs designated Mr. Hill
24
as an expert witness after his deposition was already complete. Thus, CA CONSTRUCTION
25
should be afforded all protections under the Evidence Code to object to, and have the Court rule
26
on, the admissibility ofany proposed testimony from Mr. Hill at trial.
27
NiO549/i077278-i 2
28
OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE TO ADMIT DEPO TESTIMONY OF HILL
1 Also, CA CONSTRUCTION must be afforded the opportunity to introduce other portions
2 ofthe testimony of Mr. Hill to place the testimony in its proper context.
3 B. Mr. Hill's Testimony Will Be Challenged Pursuant To An Evidence Code
4 Section 402 Hearing
CA CONSTRUCTION will seek to challenge Mr. Hill's proposed testimony pursuant to
5
an Evidence Code § 402 hearing, and it hereby requests said hearing as to Mr. Hill. Defendant
6
will be subjected to extreme prejudice if Plaintiffs' are allowed to put on unsupported and
7
impermissible expert testimony. Pursuant to Evidence Code § 402 and 403, the Court must hold
8
all necessary hearings to determine whether the plaintiffs experts, who are the proponents of
9
such evidence, can prove the necessary preliminary facts and personal knowledge of those
10
witnesses. This is an initial burden of proof that rests with the plaintiffs.
11
12 C. Mr. Hill Should Be Required To Testify Via Video Conferencing Or An
Equivalent Method
13
Subject to the Court's technical capabilities, Mr. Hill should provide testimony via video
14
conferencing methods, such as Skype or its equivalent. This would provide the best possible
15
means for thejury to weigh both the evidence, testimony and credibility of Mr. Hill as a witness.
16
Ifthe witness is available via this means, he is not unavailable as defined by the Code. In order to
17
accommodate this request, Mr. Hill's testimony can be taken out of order, ifnecessary.
18
19 Dated: January 16, 2011 ARCHER NORRIS
20
21 k
Gregory K. Federico
22 Attomeys for Defendants RICHARD KIRK
RUYBALID, individually and dba CA
23 CONSTRUCTION
24
25
26
27 NlC549/i077278-i
28
OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE TO ADMIT DEPO TESTIMONY OF HILL
Document Filed Date
January 18, 2011
Case Filing Date
September 24, 2007
Category
(Breach of Contract/Warranty)
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1 Todd A. Jones (Bar No. 198024) Gregory K. Federico (BarNo. 242184) 2 ARCHER NORRIS A Professional Law Corporation 3 301 University Avenue, Suite 110 Sacramento, Califomia 95825 4 Telephone: 916.646.2480 Facsimile: 916.646.5696 5 Attomeys for Defendants 6 RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 ABBOTT, 12 CA CONSTRUCTION'S OPPOSITION TO Plaintiffs, PLAINTIFFS' MOTION IN LIMINE TO 13 ADMIT DEPOSITION TESTIMONY OF PERCIPIENT EXPERT BRYAN HILL AS 14 UNAVAILABLE UNDER CODE OF CIVIL RONALD PAUL BRITSCHGI, et al. PROCEDURE §2025.620 15 Defendants. Action Filed: September 24, 2007 16 Trial Date: January 18,2011 17 Time: 8:30 a.m. Location: Department 43 18 AND ALL RELATED CROSS-ACTIONS. 19 20 I. 21 INTRODUCTION 22 Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 23 (hereinafter "CA CONSTRUCTION") hereby submits this Opposition to Plaintiffs' Motion in 24 Limine to Admit Deposition Testimony Of Percipient Expert Bryan Hill As Unavailable Under 25 Code ofCivil Procedure §2025.620. CA CONSTRUCTION does not dispute the practical 26 realities of Mr. Hill's relocation to Texas. However, the Court must approach Mr. Hill's 27 testimony with care for several important reasons: (1) His testimony is still subject to the other 28 mles of Evidence; (2) CA CONSTRUCTION must be allowed to object to and seek to exclude NlO549/1077278-i OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE TO ADMIT DEPO TESTIMONY OF HILL 1 any irrelevant or improper evidence pursuant to the Evidence Code; (3) CA CONSTRUCTION 2 will seek to exclude some or all of Mr. Hill's testimony, prior to it being offered into evidence, 3 pursuant to an Evidence Code Section 402 hearing; and (4) Subject to the Court's technical 4 capabilities, Mr. Hill should be required to provide his testimony via video conferencing. ^ A. Mr. Hill's Testimony Is Still Subject To All Applicable Rules Of Evidence g And CA Construction Should Be Entitled to Object And Challenge Any Deposition Testimony Offered By Plaintiffs 7 Plaintiffs argue that the testimony is automatically admissible pursuant to Code of Civil 8 Procedure § 2025.620(c)(1), which it is not. Pursuant to Code ofCivil Procedure § 2025.620, 9 any part or all ofa deposition may be used against any party so long "as admissible under the 10 mles of evidence." This section clearly states that the evidence can be admitted so long as it does 11 not violate any other mles of evidence. As such. Plaintiffs must provide CA CONSTRUCTION 12 the testimony of Mr. Hill they wish to introduce at trial via deposition well in advance. Then, CA 13 CONSTRUCTION should be entitled to object to said evidence and have the Court rule on the 14 objections based on the Evidence Code prior to the evidence being deemed admitted. 15 The practical importance ofthis procedure is significant based on Mr. Hill's unavailability. 16 Plaintiffs allege that CA CONSTRUCTION was entitled to cross-examine Mr. Hill in deposition. 17 This is not entirely tme. CA CONSTRUCTION took his deposition prior to knowing that he 18 would be designated by Plaintiffs as an expert. Counsel for CA CONSTRUCTION asked him 19 about his report and his findings. Plaintiffs examined Mr. Hill for about 10 minutes after counsel 20 for CA CONSTRUCTION elicted the majority of testimony from Mr. Hill, and counsel for CA 21 CONSTRUCTION made all necessary objections during those 10 minutes. However, what was 22 CA CONSTRUCTION supposed to do - ask its own questions on the report/opinions and then 23 object to its own questions? As has been stated to this Court before, Plaintiffs designated Mr. Hill 24 as an expert witness after his deposition was already complete. Thus, CA CONSTRUCTION 25 should be afforded all protections under the Evidence Code to object to, and have the Court rule 26 on, the admissibility ofany proposed testimony from Mr. Hill at trial. 27 NiO549/i077278-i 2 28 OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE TO ADMIT DEPO TESTIMONY OF HILL 1 Also, CA CONSTRUCTION must be afforded the opportunity to introduce other portions 2 ofthe testimony of Mr. Hill to place the testimony in its proper context. 3 B. Mr. Hill's Testimony Will Be Challenged Pursuant To An Evidence Code 4 Section 402 Hearing CA CONSTRUCTION will seek to challenge Mr. Hill's proposed testimony pursuant to 5 an Evidence Code § 402 hearing, and it hereby requests said hearing as to Mr. Hill. Defendant 6 will be subjected to extreme prejudice if Plaintiffs' are allowed to put on unsupported and 7 impermissible expert testimony. Pursuant to Evidence Code § 402 and 403, the Court must hold 8 all necessary hearings to determine whether the plaintiffs experts, who are the proponents of 9 such evidence, can prove the necessary preliminary facts and personal knowledge of those 10 witnesses. This is an initial burden of proof that rests with the plaintiffs. 11 12 C. Mr. Hill Should Be Required To Testify Via Video Conferencing Or An Equivalent Method 13 Subject to the Court's technical capabilities, Mr. Hill should provide testimony via video 14 conferencing methods, such as Skype or its equivalent. This would provide the best possible 15 means for thejury to weigh both the evidence, testimony and credibility of Mr. Hill as a witness. 16 Ifthe witness is available via this means, he is not unavailable as defined by the Code. In order to 17 accommodate this request, Mr. Hill's testimony can be taken out of order, ifnecessary. 18 19 Dated: January 16, 2011 ARCHER NORRIS 20 21 k Gregory K. Federico 22 Attomeys for Defendants RICHARD KIRK RUYBALID, individually and dba CA 23 CONSTRUCTION 24 25 26 27 NlC549/i077278-i 28 OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE TO ADMIT DEPO TESTIMONY OF HILL