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I STEPHANIE J. FINELLI, SBN 173462
Law Office of Stephanie J. Finelli
2 1007-7th Street, Suite 500
Sacramento, CA 95814
3 tel 916-443-2144
fax 916-443-1511
4
Attomey 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
11 Plaintiffs, PLAINTIFFS' SUPPLEMENTAL MOTION IN
LIMINE TO EXCLUDE EVIDENCE
12 vs. REGARDING FLO ABBOTT'S LATER-
ACQUIRED CONTRACTOR'S LICENSE
13 RONALD BRITSCHGI, et. al.,
Hearing on Motion: January 7, 2011
14 Defendants Time: 10:00 a.m.
Trial Date: January 18, 2011
15 Judge: Brian Van Camp
Dept: 43
16
17 A. Any Reference to Florentine Abbott's Status as General Contractor Should Be
Excluded
18
19 Defendants have sought to exclude any opinions by plaintiff Florentine Abbott based on
20 any expertise she may have as a licensed general building contractor. Plaintiffs agreed that
21 Florentine Abbott is not qualified to render such opinions, and that they will not seek to offer
22 expert testimony through her. This was based largely on the fact that Mrs. Abbott received her
23 contractor's license after the construction in question was completed. The court granted this
24 motion. As such, neither party is permitted to offer evidence of an expert nature from Flo Abbott
25 based upon any expertise she may have as a licensed building contractor.
26 As such any evidence regarding Flo Abbott's status as a licensed general building
27 contractor is likewise irrelevant and must be excluded. This includes evidence (1) regarding her
28 application for a contractor's license, and (2) any evidence that her license has been subject to
any type of legal action against her license.
Opposition to Motion in Limine - 1
1 First, if Flo Abbott is not pennitted to testify as an expert based upon the fact that she is a
2 licensed general contractor, yet defendants are permitted to introduce evidence that she applied
3 for a contractor's license, such will be confusing for the jury and will likely cause them to
4 speculate unnecessarily. For instance, the jury will wonder if she obtained her license. If that
5 question is answered in the affirmative for them through the introduction of evidence, they will
6 wonder why she is not testifying as an expert, given her qualifications. They may also believe
7 that she had her license at the time ofthe subject construction, which would lead them to impute
8 additional knowledge and expertise to her over and above that which she actually had. This will
9 prejudice plaintiffs and actually work an unfaimess against them.
10 Thus, allowing evidence as to Flo Abbott's contractor's application will open the door to
11 the very evidence defendants this Court has excluded. If, as defendants assert, Flo Abbott is not
12 qualified to testify as to any expert opinions, despite the fact that she obtained a general
13 contractor's license subsequent to the completion of her house, then any evidence regarding even
14 her application for such license should likewise be barred.
15 Second, any evidence regarding any legal action taken against Flo Abbott's contrator's
16 license is inadmissible under Evidence Code sections 1101 and 352. Section 1101(a) provides,
17 "Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence ofa
18 person's character or a trait of his or her character (whether in the form of an opinion, evidence
19 of reputation, or evidence of specific instances of his or her conduct) is inadmissible when
20 offered to prove his or her conduct on a specified occasion." Sections 1102, 1103, 1108 and
21 1109 are irrelevant, as those statutes deal with criminal cases.
22 Evidence regarding any legal action taken with respect to Flo Abbott's license is nothing
23 more than improper character evidence which must be excluded at trial. (See Bowen v. Ryan
24 (2008) 163 Cal.App.4th 916, 923.)
25 Section 1101 excludes evidence of character to prove conduct in a civil case for
the following reasons. First, character evidence is of slight probative value and
26
may be very prejudicial. Second, character evidence tends to distract the trier of
27 fact from the main question of what actually happened on the particular occasion
£ind permits the trier of fact to reward the good man cind to punish the bad man
28 because of their respective characters. Third, introduction of character evidence
may result in confusion of issues and require extended collateral inquiry.
Opposition to Motion in Limine - 2
1
(Bowen, supra at p. 923, citing the Law Revision Commission.)
2
Here, evidence concerning any legal action taken against Flo Abbott's license will be ol
3
slight (if any) probative value, but will be quite prejudicial. It will certainly distract the jury
4
from the issues at trial—which are whether plaintiffs have incurred damage to their property and
5
whether defendants are responsible—and it will absolutely result in confusion of the issues and
6
result in unnecessary time taken up with collateral irrelevant inquiry.
7
Such evidence should also be excluded under Evidence Code section 352 as unduly
8
prejudicial.
9
Therefore, in the interests of justice, particularly in light of this Court's ruling that Flo
10
Abbott may not offer expert opinions as a licensed contractor, this Court should exclude any and
11
all evidence regarding her status as a licensed building contractor, including her application and
12
obtaining ofa contractor's license and any later legal action conceming that license.
13
14
15
Dated- January 7, 2011
16 Stephanie J.Tmellf,
Attomey for Plaintiffs
17
18
19
20
21
22
23
24
25
26
27
28
Opposition to Motion in Limine - 3
PROOF OF SERVICE BY HAND
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 Califomia and
not a party to the above-entitled cause. My business address is 1007 Seventh Street, Suite
500, Sacramento, CaHfomia 95814.
On January 7, 2011, pursuant to CCP §1013A(2), I served the following:
PLAINTIFFS' SUPPLEMENTAL MOTION IN LIMINE TO EXCLUDE EVIDENCE
REGARDING FLO ABBOTT'S LATER-ACQUIRED CONTRACTOR'S LICENSE
BY HAND: by hand-delivering a copy of said document in court to the following:
Gregory Federico
Archer Norris
301 University Ave., Suite 110
Sacramento, CA 95825
Richard Sopp
Maloney, Wheatley, Sopp & Brooks
1004 Moon River Rock Drive, Suite 245
Folsom, CA 95630
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 State of Califomia the
foregoing is tme and correct.
DATED: January 7,2011
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I STEPHANIE J. FINELLI, SBN 173462 Law Office of Stephanie J. Finelli 2 1007-7th Street, Suite 500 Sacramento, CA 95814 3 tel 916-443-2144 fax 916-443-1511 4 Attomey 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 11 Plaintiffs, PLAINTIFFS' SUPPLEMENTAL MOTION IN LIMINE TO EXCLUDE EVIDENCE 12 vs. REGARDING FLO ABBOTT'S LATER- ACQUIRED CONTRACTOR'S LICENSE 13 RONALD BRITSCHGI, et. al., Hearing on Motion: January 7, 2011 14 Defendants Time: 10:00 a.m. Trial Date: January 18, 2011 15 Judge: Brian Van Camp Dept: 43 16 17 A. Any Reference to Florentine Abbott's Status as General Contractor Should Be Excluded 18 19 Defendants have sought to exclude any opinions by plaintiff Florentine Abbott based on 20 any expertise she may have as a licensed general building contractor. Plaintiffs agreed that 21 Florentine Abbott is not qualified to render such opinions, and that they will not seek to offer 22 expert testimony through her. This was based largely on the fact that Mrs. Abbott received her 23 contractor's license after the construction in question was completed. The court granted this 24 motion. As such, neither party is permitted to offer evidence of an expert nature from Flo Abbott 25 based upon any expertise she may have as a licensed building contractor. 26 As such any evidence regarding Flo Abbott's status as a licensed general building 27 contractor is likewise irrelevant and must be excluded. This includes evidence (1) regarding her 28 application for a contractor's license, and (2) any evidence that her license has been subject to any type of legal action against her license. Opposition to Motion in Limine - 1 1 First, if Flo Abbott is not pennitted to testify as an expert based upon the fact that she is a 2 licensed general contractor, yet defendants are permitted to introduce evidence that she applied 3 for a contractor's license, such will be confusing for the jury and will likely cause them to 4 speculate unnecessarily. For instance, the jury will wonder if she obtained her license. If that 5 question is answered in the affirmative for them through the introduction of evidence, they will 6 wonder why she is not testifying as an expert, given her qualifications. They may also believe 7 that she had her license at the time ofthe subject construction, which would lead them to impute 8 additional knowledge and expertise to her over and above that which she actually had. This will 9 prejudice plaintiffs and actually work an unfaimess against them. 10 Thus, allowing evidence as to Flo Abbott's contractor's application will open the door to 11 the very evidence defendants this Court has excluded. If, as defendants assert, Flo Abbott is not 12 qualified to testify as to any expert opinions, despite the fact that she obtained a general 13 contractor's license subsequent to the completion of her house, then any evidence regarding even 14 her application for such license should likewise be barred. 15 Second, any evidence regarding any legal action taken against Flo Abbott's contrator's 16 license is inadmissible under Evidence Code sections 1101 and 352. Section 1101(a) provides, 17 "Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence ofa 18 person's character or a trait of his or her character (whether in the form of an opinion, evidence 19 of reputation, or evidence of specific instances of his or her conduct) is inadmissible when 20 offered to prove his or her conduct on a specified occasion." Sections 1102, 1103, 1108 and 21 1109 are irrelevant, as those statutes deal with criminal cases. 22 Evidence regarding any legal action taken with respect to Flo Abbott's license is nothing 23 more than improper character evidence which must be excluded at trial. (See Bowen v. Ryan 24 (2008) 163 Cal.App.4th 916, 923.) 25 Section 1101 excludes evidence of character to prove conduct in a civil case for the following reasons. First, character evidence is of slight probative value and 26 may be very prejudicial. Second, character evidence tends to distract the trier of 27 fact from the main question of what actually happened on the particular occasion £ind permits the trier of fact to reward the good man cind to punish the bad man 28 because of their respective characters. Third, introduction of character evidence may result in confusion of issues and require extended collateral inquiry. Opposition to Motion in Limine - 2 1 (Bowen, supra at p. 923, citing the Law Revision Commission.) 2 Here, evidence concerning any legal action taken against Flo Abbott's license will be ol 3 slight (if any) probative value, but will be quite prejudicial. It will certainly distract the jury 4 from the issues at trial—which are whether plaintiffs have incurred damage to their property and 5 whether defendants are responsible—and it will absolutely result in confusion of the issues and 6 result in unnecessary time taken up with collateral irrelevant inquiry. 7 Such evidence should also be excluded under Evidence Code section 352 as unduly 8 prejudicial. 9 Therefore, in the interests of justice, particularly in light of this Court's ruling that Flo 10 Abbott may not offer expert opinions as a licensed contractor, this Court should exclude any and 11 all evidence regarding her status as a licensed building contractor, including her application and 12 obtaining ofa contractor's license and any later legal action conceming that license. 13 14 15 Dated- January 7, 2011 16 Stephanie J.Tmellf, Attomey for Plaintiffs 17 18 19 20 21 22 23 24 25 26 27 28 Opposition to Motion in Limine - 3 PROOF OF SERVICE BY HAND 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 Califomia and not a party to the above-entitled cause. My business address is 1007 Seventh Street, Suite 500, Sacramento, CaHfomia 95814. On January 7, 2011, pursuant to CCP §1013A(2), I served the following: PLAINTIFFS' SUPPLEMENTAL MOTION IN LIMINE TO EXCLUDE EVIDENCE REGARDING FLO ABBOTT'S LATER-ACQUIRED CONTRACTOR'S LICENSE BY HAND: by hand-delivering a copy of said document in court to the following: Gregory Federico Archer Norris 301 University Ave., Suite 110 Sacramento, CA 95825 Richard Sopp Maloney, Wheatley, Sopp & Brooks 1004 Moon River Rock Drive, Suite 245 Folsom, CA 95630 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 State of Califomia the foregoing is tme and correct. DATED: January 7,2011