Preview
1 Todd A. Jones (Bar No. 198024)
tjones(^archemoms.com
2 Gregory K. Federico (Bar No. 242184)
gfederico@archemorris.com
3 ARCHER NORRIS
A Professional Law Corporation
4 301 University Avenue, Suite 110
Sacramento, Califomia 95825-5537
5 Telephone: 916.646.2480
Facsimile: 916.646.5696
6
Attomeys for Defendants and Cross-Defendants
7 RICHARD KIRK RUYBALID, individually, and
dba CA CONSTRUCTION
8
SUPERIOR COURT OF CALIFORNIA
9
COUNTY OF SACRAMENTO
10
11
RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
12 ABBOTT,
DEFENDANTS RICHARD KIRK
13 Plaintiffs, RUYBALID, individually, and dba CA
CONSTRUCTION REQUEST FOR
14 EVIDENCE CODE §402 HEARING
REGARDING FOUNDATION FOR THE
15 RONALD PAUL BRITSCHGI, et al.. OPINIONS OF PLAINTIFFS' EXPERT
JAMES ROBERT LEE, JR.
16 Defendants.
Trial: January 18, 2011
17 Time: 8:30 a.m.
Dept.: 43
18
19
AND ALL RELATED CROSS-ACTIONS.
20
21 COME NOW Defendants RICHARD KIRK RUYBALID, individually, and dba CA
22 CONSTRUCTION (hereinafter collectively referred to as "Defendants") which present the
23 following Motion for an Evidence Code Section 402 hearing regarding the testimony of plaintiff
24 expert, JAMES ROBERT LEE, JR, regarding issues of allegedly improper or failed compaction
25 and standard of care for foundation contractors and related opinions pertaining to the subject
26 residence and the absence of essential predicate facts upon which Lee's opinions are apparently
27 based.
28 ///
N1C341/1079330-I 1
DEFENDANTS' REQUEST FOR EVIDENCE CODE § 402 HEARING RE LEE
1 I. FACTUAL BACKGROUND
2 The case at issue involves claims, presented by two plaintiff home owners, as to the
3 allegedly defective constmction of their single family residence in Fair Oaks, Sacramento
4 County, Califomia and more specifically their claims that the foundation was improperly dug and
5 prepared by Defendants. Plaintiffs have retained as one of their constmction experts James
6 Robert Lee, Jr. a licensed Califomia landscape architect, who has given opinions in deposition
7 that defendants failed to properly compact the soils and fill materials underlying the garage slab,
8 thereby causing unspecified damage to the plaintiffs' home.
9 II. LEGAL AUTHORITY
10 A. Prejudicial, Confusing or Misleading Evidence May Be Excluded at the Court's
Discretion.
11
12 Califomia Evidence Code section 352 states in pertinent part that:
13 The Court in its discretion may exclude evidence if its probative
value is substantially outweighed by the probability that its
14 admission will (a) necessitate undue consumption oftime or, (b)
create substantial danger of undue prejudice, of confiising the
15 issues, or misleading the jury.
16 As will be demonstrated below, there is substantial risk of prejudice, jury confiision and
17 deception and undue consumption of the jury's time since adequate foundation for the opinions
18 Lee intends to render at trial is lacking.
19 B. An Evidence Code Section 402 Hearing is Warranted Prior to Lee's Testimony to
Determine Foundational or Preliminary Facts.
20
21 Califomia Evidence Code section 402 (a) and (b) state in pertinent part that when the
22 existence of a preliminary (predicate) fact is disputed, the court may hear and determine the
23 question ofthe admissibility of evidence out ofthe presence or hearing of the jury.
24 Under Califomia Evidence Code section 403, the proponent of proffered evidence has the
25 burden of producing evidence as to the existence ofthe preliminary fact. In this case, plaintiffs
26 have the burden of proving the predicate or preliminary facts (foundation) upon which Lee will
27 base his opinions at trial. Defendants believe, as set forth below, that Lee does not have evidence
28 ofthe existence of key preliminary facts upon which to base his opinions, he has based his
NIC341/I079330-1 2
DEFENDANTS' REQUEST FOR EVIDENCE CODE § 402 HEARING RE LEE
1 opinions on assumptions, speculation or outdated or irrelevant information and a desire to merely
2 advocate for the plaintiffs and foundation for hi opinions is wholly lacking. A 402 hearing will
3 be necessary to explore the absence of requisite foundation outside the presence ofthe jury.
4 III. ARGUMENT
^ A. Lee's Opinions Lack Requisite Foundation and Should Be Precluded / 402 Request
6 As the Court stated in Kennemur v. State ofCalifornia (1982) 133 Cal.App.3d 907 stated,
7 ".. .like a house built on sand, the expert's opinion is no better than the facts upon which it is
8 based." The Court should exercise its discretion in precluding the testimony of Lee regarding the
9 alleged failure to adequately compact the soils under the garage slab of plaintiffs' home on the
10 bases that as demonstrated by Lee in his expert depositions, taken April 27, 2009 and January 12,
11 2011, he lacks any direct knowledge ofthe as-built conditions or ofthe actual constmction
12 practices employed by the defendants in the digging and preparation ofthe foundation ofthe
13 Plaintiffs' home. In addition and more importantly, he lacks the requisite expertise to offer expert
14 opinion on the subject of compaction of soils for the support of concrete constmction in a
15 residential setting.
16 1. No Direct Knowledge or Even Hearsay Knowledge Upon Which to Base His
Opinions:
17
18 Lee appeared for his expert deposition, day one, on April 27, 2009, and testified that he is
19 a registered landscape architect whose practice "has little or nothing to do with landscape." He
20 primarily does site planning, feasibilities, physical site mapping and grading plans for permit (See
21 Declaration of Mike McGuire, Exhibit "A" thereto. Deposition Transcript of James Robert Lee,
22 Jr., taken April 27, 2009; pp. 34:14-21, incorporated by reference herein). Lee's Expert
23 Disclosure provided to Defendants pursuant to Code ofCivil Procedure § 2034.260 stated, inter
24 aha, that:
25 .. .He will be sufficiently familiar with the pending action to
provide a meaningful oral deposition conceming the specific
26 testimony he is expected to give at trial. He is expected to testify as
to the different options available to the parties to build the house
27 according to plans and the approximate cost of such options, he will
also provide an as-built site map showing the house and the
28 property as it is currently built, a topography model showing the
N1C341/1079330-1 3
DEFENDANTS' REQUEST FOR EVIDENCE CODE § 402 HEARING RE LEE
1 topography ofthe property prior to grading or house constmction
and a grading plan that could have been used to grade the property
2 so as to build the house according to plans...
3 (See Declaration of McGuire, Exhibit "B," Plaintiffs' Expert Disclosure, p. 2:2-9).
4 Instead, Lee testified that:
5 1) He was not provided with a scope of work or scope of retention by Plaintiffs, but,
6 rather, he provided a proposal to them which they accepted (Declaration of McGuire, Exhibit
7 "A," p. 41:24-25);
8 (2) That the only thing he was "attesting to" was whether or not it appeared that the intent
9 ofthe plans was fiilfilled and as to that charge, "I'm not sure how" (Declaration of McGuire,
10 Exhibit "A," p.42:1-11).
11 (3) He testified that he was not then prepared to render opinions on the different options
12 available to the parties to build the house according to the plans and the approximate cost of such
13 opfions (Declaration of McGuire, Exhibit "A," p. 44:8-12).
14 (4) He also testified that he had not been authorized or requested to create a grading plan
15 for permit (Declaration of McGuire, Exhibit "A," pp. 44:18-25; 45:1-5; 47:23-25; 48:1-7).
16 (5) That he had not reached opinions with regard to the work performed by any ofthe
17 contractors in the action (Declaration of McGuire, Exhibit "A," p.48:15-20).
18 (6) That he had never seen a grading plan for the project (Declaration of McGuire, Exhibit
19 "A," p. 68).
20 (7) That he did not know if the compaction ofthe fill for the garage slab was adequate or
21 not but that such a decision must be made by a geotechnical engineer (Declaration of McGuire,
22 Exhibit "A," p. 74:15-19).
23 (8) That he did not know what the substance of any conversations between general
24 contractor Britschgi and Abbott were or what Britschgi's scope of work or duties in the project
25 were (Declaration of McGuire, Exhibit "A," p. 94:1-16).
26 (9) That he opined that there was fill added outside the foundation of the garage but that
27 he had no idea what was added under the garage slab (Declaration of McGuire, Exhibit "A," p.
28 99:7-13).
NIC341/1079330-1 4
DEFENDANTS' REQUEST FOR EVIDENCE CODE § 402 HEARING RE LEE
1 (10) That Abbott never provided him with any set ofthe plans for the constmction ofthe
2 home (Declaration of McGuire, Exhibit "A," p. 105:4-7).
3 (11) That he had no idea how or why or what decisions were made with respect to certain
4 elevations in terms ofthe relationship ofthe garage to the house (Declaration of McGuire,
5 Exhibit "A," p. 124:7-13).
6 (12) He never read any ofthe depositions taken in the case nor did he review any ofthe
7 exhibits to said depositions (Declaration of McGuire, Exhibit "A," p. 125:3-12).
8 (13) At his second day of expert deposition on January 12, 2011, Lee testified that after
9 his first day of deposition he observed the digging of an "observation pit" solely for the use of a
10 geotechnical engineer but he (Lee) was not aware of whether the geotechnical engineer ever came
11 to view the pit.(See Declaration of McGuire, Exhibit "C" thereto, Deposition Transcript of Lee,
12 dated January 12,2011, p. 176:8-25).
13 Lee clearly has no basis upon which to render any opinion relevant to the claims ofthe
14 Plaintiffs and any testimony he may provide would be purely speculative and not based on any
15 direct knowledge or investigation that would assist the trier-of-fact. Indeed, any testimony by
16 Lee would only serve to prolong the trial and waste valuable time and resources ofthe court and
17 confuse the jury.
18 2. Lee Has No Appropriate Expertise:
19 Lee is a registered Landscape Architect (Declaration of McGuire, Exhibit "A," p. 34:14-
20 21) but he holds no constmction or constmction related licenses issued by the State ofCalifomia
21 (Declaration of McGuire, Exhibit "A," p. 146:17-19). Lee has admitted that he has no basis upon
22 which to opine about compaction but that only a geotechnical engineer should or could
23 (Declaration of McGuire, Exhibit "A," p. 74:15-19).
24 This above listed testimony points to complete lack ofany significant investment ofthis
25 expert's training or career experience to the subject matter on which he intends to render
26 opinions and points to a significant lack of foundation for those opinions.
27 ///
28 ///
NIC341/1079330-1 5
DEFENDANTS' REQUEST FOR EVIDENCE CODE § 402 HEARING RE LEE
1 IV. CONCLUSION
2 Lee's deposition testimony demonstrates that he intends to offer opinions that go to
3 establishing an essential predicate or preliminary fact in the absence ofthe required foundation.
4 He has testified to his acknowledged lack of expertise in determining proper compaction or even
5 diagnosing improper compaction. He has testified that although his retention was limited in
6 nature, he cannot opine as to those limited requirements of his retention. Finally, he lacks even
7 the most mdimentary knowledge ofthe case as to the facts ofthe constmction ofthe subject
8 residence as he has never seen or reviewed the plans which called for specific step-by-step work
9 by specific trades and for said constmction to be carried out within certain finish parameters.
10 Allowing Lee to testify would to this information would prejudice the defendants by
11 planting a suggestion m the jury's mind that there is substance to his opinions and that he is,
12 somehow, qualified to render such opinions. Defendants believe that the appropriate foundation
13 is totally lacking on multiple levels and that Lee should not be allowed to testify as an expert for
14 plaintiffs on any subject but in particular, subjects related to compaction and proper constmction
15 in accordance with the plans.
16 Due to the obvious lack of any foundation for the opinions to be offered by Lee,
17 defendants hereby request a 402 hearing outside the presence of the jury to establish the lack of
18 any appropriate foundation for his opinion(s) and to exclude his testimony from trial.
19
Dated: January 21, 2011 ARCHER NORRIS
20
21
22 Todd A.Jones
Gregory K. Federico
23 Attomeys for Defendants/Cross-Defendants
RICHARD KIRK RUYBALID, individually
24 and dba CA CONSTRUCTION
25
26
27
28
NIC341/1079330-1
DEFENDANTS' REQUEST FOR EVIDENCE CODE § 402 HEARING RE LEE
Preview
1 Todd A. Jones (Bar No. 198024) tjones(^archemoms.com 2 Gregory K. Federico (Bar No. 242184) gfederico@archemorris.com 3 ARCHER NORRIS A Professional Law Corporation 4 301 University Avenue, Suite 110 Sacramento, Califomia 95825-5537 5 Telephone: 916.646.2480 Facsimile: 916.646.5696 6 Attomeys for Defendants and Cross-Defendants 7 RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 12 ABBOTT, DEFENDANTS RICHARD KIRK 13 Plaintiffs, RUYBALID, individually, and dba CA CONSTRUCTION REQUEST FOR 14 EVIDENCE CODE §402 HEARING REGARDING FOUNDATION FOR THE 15 RONALD PAUL BRITSCHGI, et al.. OPINIONS OF PLAINTIFFS' EXPERT JAMES ROBERT LEE, JR. 16 Defendants. Trial: January 18, 2011 17 Time: 8:30 a.m. Dept.: 43 18 19 AND ALL RELATED CROSS-ACTIONS. 20 21 COME NOW Defendants RICHARD KIRK RUYBALID, individually, and dba CA 22 CONSTRUCTION (hereinafter collectively referred to as "Defendants") which present the 23 following Motion for an Evidence Code Section 402 hearing regarding the testimony of plaintiff 24 expert, JAMES ROBERT LEE, JR, regarding issues of allegedly improper or failed compaction 25 and standard of care for foundation contractors and related opinions pertaining to the subject 26 residence and the absence of essential predicate facts upon which Lee's opinions are apparently 27 based. 28 /// N1C341/1079330-I 1 DEFENDANTS' REQUEST FOR EVIDENCE CODE § 402 HEARING RE LEE 1 I. FACTUAL BACKGROUND 2 The case at issue involves claims, presented by two plaintiff home owners, as to the 3 allegedly defective constmction of their single family residence in Fair Oaks, Sacramento 4 County, Califomia and more specifically their claims that the foundation was improperly dug and 5 prepared by Defendants. Plaintiffs have retained as one of their constmction experts James 6 Robert Lee, Jr. a licensed Califomia landscape architect, who has given opinions in deposition 7 that defendants failed to properly compact the soils and fill materials underlying the garage slab, 8 thereby causing unspecified damage to the plaintiffs' home. 9 II. LEGAL AUTHORITY 10 A. Prejudicial, Confusing or Misleading Evidence May Be Excluded at the Court's Discretion. 11 12 Califomia Evidence Code section 352 states in pertinent part that: 13 The Court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its 14 admission will (a) necessitate undue consumption oftime or, (b) create substantial danger of undue prejudice, of confiising the 15 issues, or misleading the jury. 16 As will be demonstrated below, there is substantial risk of prejudice, jury confiision and 17 deception and undue consumption of the jury's time since adequate foundation for the opinions 18 Lee intends to render at trial is lacking. 19 B. An Evidence Code Section 402 Hearing is Warranted Prior to Lee's Testimony to Determine Foundational or Preliminary Facts. 20 21 Califomia Evidence Code section 402 (a) and (b) state in pertinent part that when the 22 existence of a preliminary (predicate) fact is disputed, the court may hear and determine the 23 question ofthe admissibility of evidence out ofthe presence or hearing of the jury. 24 Under Califomia Evidence Code section 403, the proponent of proffered evidence has the 25 burden of producing evidence as to the existence ofthe preliminary fact. In this case, plaintiffs 26 have the burden of proving the predicate or preliminary facts (foundation) upon which Lee will 27 base his opinions at trial. Defendants believe, as set forth below, that Lee does not have evidence 28 ofthe existence of key preliminary facts upon which to base his opinions, he has based his NIC341/I079330-1 2 DEFENDANTS' REQUEST FOR EVIDENCE CODE § 402 HEARING RE LEE 1 opinions on assumptions, speculation or outdated or irrelevant information and a desire to merely 2 advocate for the plaintiffs and foundation for hi opinions is wholly lacking. A 402 hearing will 3 be necessary to explore the absence of requisite foundation outside the presence ofthe jury. 4 III. ARGUMENT ^ A. Lee's Opinions Lack Requisite Foundation and Should Be Precluded / 402 Request 6 As the Court stated in Kennemur v. State ofCalifornia (1982) 133 Cal.App.3d 907 stated, 7 ".. .like a house built on sand, the expert's opinion is no better than the facts upon which it is 8 based." The Court should exercise its discretion in precluding the testimony of Lee regarding the 9 alleged failure to adequately compact the soils under the garage slab of plaintiffs' home on the 10 bases that as demonstrated by Lee in his expert depositions, taken April 27, 2009 and January 12, 11 2011, he lacks any direct knowledge ofthe as-built conditions or ofthe actual constmction 12 practices employed by the defendants in the digging and preparation ofthe foundation ofthe 13 Plaintiffs' home. In addition and more importantly, he lacks the requisite expertise to offer expert 14 opinion on the subject of compaction of soils for the support of concrete constmction in a 15 residential setting. 16 1. No Direct Knowledge or Even Hearsay Knowledge Upon Which to Base His Opinions: 17 18 Lee appeared for his expert deposition, day one, on April 27, 2009, and testified that he is 19 a registered landscape architect whose practice "has little or nothing to do with landscape." He 20 primarily does site planning, feasibilities, physical site mapping and grading plans for permit (See 21 Declaration of Mike McGuire, Exhibit "A" thereto. Deposition Transcript of James Robert Lee, 22 Jr., taken April 27, 2009; pp. 34:14-21, incorporated by reference herein). Lee's Expert 23 Disclosure provided to Defendants pursuant to Code ofCivil Procedure § 2034.260 stated, inter 24 aha, that: 25 .. .He will be sufficiently familiar with the pending action to provide a meaningful oral deposition conceming the specific 26 testimony he is expected to give at trial. He is expected to testify as to the different options available to the parties to build the house 27 according to plans and the approximate cost of such options, he will also provide an as-built site map showing the house and the 28 property as it is currently built, a topography model showing the N1C341/1079330-1 3 DEFENDANTS' REQUEST FOR EVIDENCE CODE § 402 HEARING RE LEE 1 topography ofthe property prior to grading or house constmction and a grading plan that could have been used to grade the property 2 so as to build the house according to plans... 3 (See Declaration of McGuire, Exhibit "B," Plaintiffs' Expert Disclosure, p. 2:2-9). 4 Instead, Lee testified that: 5 1) He was not provided with a scope of work or scope of retention by Plaintiffs, but, 6 rather, he provided a proposal to them which they accepted (Declaration of McGuire, Exhibit 7 "A," p. 41:24-25); 8 (2) That the only thing he was "attesting to" was whether or not it appeared that the intent 9 ofthe plans was fiilfilled and as to that charge, "I'm not sure how" (Declaration of McGuire, 10 Exhibit "A," p.42:1-11). 11 (3) He testified that he was not then prepared to render opinions on the different options 12 available to the parties to build the house according to the plans and the approximate cost of such 13 opfions (Declaration of McGuire, Exhibit "A," p. 44:8-12). 14 (4) He also testified that he had not been authorized or requested to create a grading plan 15 for permit (Declaration of McGuire, Exhibit "A," pp. 44:18-25; 45:1-5; 47:23-25; 48:1-7). 16 (5) That he had not reached opinions with regard to the work performed by any ofthe 17 contractors in the action (Declaration of McGuire, Exhibit "A," p.48:15-20). 18 (6) That he had never seen a grading plan for the project (Declaration of McGuire, Exhibit 19 "A," p. 68). 20 (7) That he did not know if the compaction ofthe fill for the garage slab was adequate or 21 not but that such a decision must be made by a geotechnical engineer (Declaration of McGuire, 22 Exhibit "A," p. 74:15-19). 23 (8) That he did not know what the substance of any conversations between general 24 contractor Britschgi and Abbott were or what Britschgi's scope of work or duties in the project 25 were (Declaration of McGuire, Exhibit "A," p. 94:1-16). 26 (9) That he opined that there was fill added outside the foundation of the garage but that 27 he had no idea what was added under the garage slab (Declaration of McGuire, Exhibit "A," p. 28 99:7-13). NIC341/1079330-1 4 DEFENDANTS' REQUEST FOR EVIDENCE CODE § 402 HEARING RE LEE 1 (10) That Abbott never provided him with any set ofthe plans for the constmction ofthe 2 home (Declaration of McGuire, Exhibit "A," p. 105:4-7). 3 (11) That he had no idea how or why or what decisions were made with respect to certain 4 elevations in terms ofthe relationship ofthe garage to the house (Declaration of McGuire, 5 Exhibit "A," p. 124:7-13). 6 (12) He never read any ofthe depositions taken in the case nor did he review any ofthe 7 exhibits to said depositions (Declaration of McGuire, Exhibit "A," p. 125:3-12). 8 (13) At his second day of expert deposition on January 12, 2011, Lee testified that after 9 his first day of deposition he observed the digging of an "observation pit" solely for the use of a 10 geotechnical engineer but he (Lee) was not aware of whether the geotechnical engineer ever came 11 to view the pit.(See Declaration of McGuire, Exhibit "C" thereto, Deposition Transcript of Lee, 12 dated January 12,2011, p. 176:8-25). 13 Lee clearly has no basis upon which to render any opinion relevant to the claims ofthe 14 Plaintiffs and any testimony he may provide would be purely speculative and not based on any 15 direct knowledge or investigation that would assist the trier-of-fact. Indeed, any testimony by 16 Lee would only serve to prolong the trial and waste valuable time and resources ofthe court and 17 confuse the jury. 18 2. Lee Has No Appropriate Expertise: 19 Lee is a registered Landscape Architect (Declaration of McGuire, Exhibit "A," p. 34:14- 20 21) but he holds no constmction or constmction related licenses issued by the State ofCalifomia 21 (Declaration of McGuire, Exhibit "A," p. 146:17-19). Lee has admitted that he has no basis upon 22 which to opine about compaction but that only a geotechnical engineer should or could 23 (Declaration of McGuire, Exhibit "A," p. 74:15-19). 24 This above listed testimony points to complete lack ofany significant investment ofthis 25 expert's training or career experience to the subject matter on which he intends to render 26 opinions and points to a significant lack of foundation for those opinions. 27 /// 28 /// NIC341/1079330-1 5 DEFENDANTS' REQUEST FOR EVIDENCE CODE § 402 HEARING RE LEE 1 IV. CONCLUSION 2 Lee's deposition testimony demonstrates that he intends to offer opinions that go to 3 establishing an essential predicate or preliminary fact in the absence ofthe required foundation. 4 He has testified to his acknowledged lack of expertise in determining proper compaction or even 5 diagnosing improper compaction. He has testified that although his retention was limited in 6 nature, he cannot opine as to those limited requirements of his retention. Finally, he lacks even 7 the most mdimentary knowledge ofthe case as to the facts ofthe constmction ofthe subject 8 residence as he has never seen or reviewed the plans which called for specific step-by-step work 9 by specific trades and for said constmction to be carried out within certain finish parameters. 10 Allowing Lee to testify would to this information would prejudice the defendants by 11 planting a suggestion m the jury's mind that there is substance to his opinions and that he is, 12 somehow, qualified to render such opinions. Defendants believe that the appropriate foundation 13 is totally lacking on multiple levels and that Lee should not be allowed to testify as an expert for 14 plaintiffs on any subject but in particular, subjects related to compaction and proper constmction 15 in accordance with the plans. 16 Due to the obvious lack of any foundation for the opinions to be offered by Lee, 17 defendants hereby request a 402 hearing outside the presence of the jury to establish the lack of 18 any appropriate foundation for his opinion(s) and to exclude his testimony from trial. 19 Dated: January 21, 2011 ARCHER NORRIS 20 21 22 Todd A.Jones Gregory K. Federico 23 Attomeys for Defendants/Cross-Defendants RICHARD KIRK RUYBALID, individually 24 and dba CA CONSTRUCTION 25 26 27 28 NIC341/1079330-1 DEFENDANTS' REQUEST FOR EVIDENCE CODE § 402 HEARING RE LEE