Preview
1 Todd A. Jones (Bar No. 198024)
Gregory K. Federico (Bar No. 242184)
2 ARCHERNORRIS
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 CALIFOflNIA
9 COUNTY OF SACRAMENTO
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11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
ABBOTT,
12 CA CONSTRUCTION'S OPPOSITION TO
Plaintiffs, PLAINTIFFS' SUPPLEMENTAL MOTION
13 IN LIMINE TO EXCLUDE EXPERT
TESTIMONY FROM CA
14 CONSTRUCTION'S SUPPLEMENTAL
RONALD PAUL BRITSCHGI, et al.^ RETAINED EXPERT JASON NEWLIN
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Defendants. Action Filed: September 24,2007
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Hearing Date: January 7,2011
17 Trial Date: January 18,2011
Time: 8:30 a.m.
18 Location: Depeutment 43
19 AND ALL RELATED CROSS-ACTIONS.
20
21 I.
INTRODUCTION
22
Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION
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(hereinafter "CA CONSTRUCTION") was served with Plaintiffs' Supplemental Motion in
24
Limine to Exclude Expert Testimony from Expert Jason Newlin (hereinafter "Supplemental
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Newlin Motion") by mail on January 4, 2011 CA CONSTRUCTION hereby files this Opposition
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to Plaintiffs' Supplemental Newlin Motion for the purposes ofthe hearing on all motions in
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limine scheduled for January 7,2011
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NIC549/1072441-I
DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE RE JASON NEWLIN
1 A. PLAINTIFFS' MOTION SIGNIFICANTLY DISTORTS THE FACTUAL
RECORD WITH RESPECT TO EXPERT DISCLOSURES ISSUED BY CA
2 CONSTRUCTION IN THIS MATTER
3 Plaintiffs state to this Court that Mr. Heryet and Mr. Newlin are the same type of expert.
4 At two (2) separate locations in Plaintiffs' Supplemental Motion, Plaintiffs indicate that Dave
5 Heryet is a "licensed professional civil engineer" (See Plaintiffs' Motion 1:27-28; 3:27-28). As
6 the initial disclosure and declaration clearly indicate, which are attached to Plaintiffs' moving
' papers, Mr Heryet is a licensed general contractor. He is clearly not an engineer and clearly not
° identified as the exact same type of expert as Jason Newlin.
9 B. DAVE HERYET AND JASON NEWLIN HAVE BEEN DISCLOSED ON
DIFFERENT TOPICS
10
Although there is minor overlap on the topics they will testify to, Mr. Heryet and Mr.
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Newlin have been retained to opine on separate subject matter. One is a general contractor and
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will testify on his designated subject matter from that perspective. The other is a licensed civil
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engineer and will testify on his designated subject matter from that perspective. The distinction
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in their respective spheres of testimony is also made clear in the initial expert disclosure and the
15
supplemental disclosure, the pertinent portions ofwhich I have included below.
16
._ Dave Heryet:
.„ This expert is expected to give testimony regarding all liability,
causation, standard of care, and damage aspects of this case,
.Q including but not limited to' (1) the work performed by CA
^^ CONSTRUCTION; (2) the work and design of all other trades
_„ and contractors, including the Owner/Builder, who worked on
^^ Plaintiff FLORENTINE and RODNEY ABBOTT's home
„. located at 8601 Rolling Green Way in Fair Oaks, California
^' (hereinafter "SUBJECT PROJECT"); (3) the design of the
r.^ SUBJECT PROJECT; and (4) the appropriate scope and cost
^^ of repairing the SUBJECT PROJECT, which are at issue in this
-., case The general description of Mr Heryet's testimony is not
intended to limit such testimony, but is merely an indication ofthe
_. broad area in which he may render an opinion if called to testify at
^^ trial.
25 Ill
26 III
27 NIC549/1072441-1
28
DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE RE JASON NEWLIN
1 With respect to Mr. Newlin, his disclosure/declaration states:
2 This expert is expected to give testimony regarding all liability,
causation, standard of care, design, and damage aspects ofthis case,
3 including but not limited to. (1) the work perfomied by CA
CONSTRUCTION; (2) the design of Plaintiff FLORENTINE and
4 RODNEY ABBOTT's home located at 8601 Rolling Green Way in
Fair Oaks, Califomia (hereinafter "SUBJECT PROJECT"); (3) all
5 engineering aspects associated with the structure, foundation
and underlying soil systems ofthe house and garage at the
6 SUBJECT PROPERTY; (4) the ability of the SUBJECT
PROPERTY, both the house and garage, to withstand wind and
7 seismic loads; and (5) the appropriate scope and cost of repairing
the SUBJECT PROJECT, which are at issue in this case. The
8 general description of Mr. Newlin's testimony is not intended to
limit such testimony, but is merely an indication ofthe broad areas
9 in which he may render an opinion if called to testify at trial.
10
Plaintiffs indicate that the designations are exactly the same. As seen in items 4 and 5 in
11
Mr. Newlin's disclosure, they are substantially different, Based on the arguments above and the
12
actual language ofthe disclosures. Plaintiffs' motion is improper.
13
C. CA CONSTRUCTION WAS NOT REQUIRED TO SEEK LEAVE OF
14 COURT TO AUGMENT AND/OR AMEND ITS EXPERT DISCLOSURES
15 Since CA CONSTRUCTION timely served its supplemental expert disclosure identifying
16 Mr. Newlin on separate subject matter than Mr. Heryet, it was not required to seek leave of
17 Court to augment and/or amend its expert list. Again, Plaintiffs' argument hinges on the
18 misrepresentation that the experts were disclosed on identical topics Plaintiffs' argument related
19 to Code ofCivil Procedure § 2034.280(a) simply does not apply.
20 Plaintiffs' own failure to seek leave of Court to depose CA CONSTRUCTION'S experts
21 (as suggested by the Court), Plaintiffs' failure to seek leave of Court to augment and/or amend
22 their expert list, and the issue of trial subpoenas to CA CONSTRUCTION'S experts has
23 previously been addressed in other motions in limine/oppositions on file in this case. CA
24 CONSTRUCTION maintains its arguments on these issues and it incorporates them herein.
25 D. PLAINTIFFS HAVE REFUSED TO WITHDRAW THIS MOTION
AND/OR CORRECT THE MISREPRESENTATIONS
26
On January 4, 2011, upon receipt of Plaintiffs' Supplemental Newlin Motion, CA
27 NIC549/107244 l-l 3
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DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE RE JASON NEWLIN
1 CONSTRUCTION sent Plaintiffs' counsel a meet and confer letter outlining its position and
2 'requesting that Plaintiffs' withdraw the present motion. To date, Plaintiffs have not responded to
3 this letter and/or withdrawn the motion. A copy of the meet and confer letter is attached hereto as
4 Exhibit "A".
5 Dated: January 6,2011 ARCHERNORRIS
6
7
Gregory K. Federico
8 Attomeys for Defendants RICHARD KIRK
9 RUYBALID, individually and dba CA
CONSTRUCTION
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DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE RE JASON NEWLIN
1 PROOF OF SERVICE
2 Nameof Action: Rodney Abbott, et aL v. Ronald Paul Britschgi, et al.
Court and Action No: Sacramento County Superior No. 07AS04450
3
I, Cindy A. Ingland, declare that I am over the age of 18 years and not a party to this
4 action or proceeding. My business address is 301 University Avenue, Suite 110, Sacramento,
Califomia 95825. On January 6,2011,1 caused the following document(s) to be served:
5
CA CONSTRUCTION'S OPPOSITION TO PLAINTIFFS' SUPPLEMENTAL
6 MOTION IN LIMINE TO EXCLUDE EXPERT TESTIMONY FROM CA
CONSTRUCTION'S SUPPLEMENTAL RETAINED EXPERT JASON NEWLIN
7
I I By placing a tme copy ofthe documents listed above, enclosed in a sealed envelope,
8 addressed as set forth below, for collection and mailing on the date and at the business
Q address shown above following our ordinary business practices. I am readily familiar
with this business' practice for collection and processing of correspondence for
IQ mailing with the United States Postal Service. On the same day that a sealed envelope
is placed for coliection and mailing, it is deposited in the ordinary course ofbusiness
11 with the United States Postal Service with postage fully prepaid.
12 ra By having a tme copy ofthe document(s) listed above transmitted by facsimile to the
person(s) at the facsimile number(s) set forth below before 5:00 p.m The transmission
13 was reported as complete without error by a report issued by the transmitting facsimile
machine.
14
15 I I By placing a tme copy ofthe document(s) listed above, in a box or other facility
regularly maintained by UPS, an express service carrier, or delivered to a courier or
16 driver authorized by the express service carrier to receive documents, in an envelope
designated by the express service carrier, with delivery fees paid or provided for,
^' addressed as set forth below
^^ rn bv having personal deliverv bv FIRST LEGAL SUPPORT SERVICES a tme copv of
19 the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the
address(es) set forth below.
20
21 [SEE ATTACHED SERVICE LIST]
22 I declare under penalty of perjury that the foregoing is tme and correct. Executed on
January 6, 2011, at Sacramento, Califomia.
23
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mC^
25 (, CJNDY A. INGLAND
26
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NIO41/608293-1
PROOF OF SERVICE
1 Service List
2
Stephanie Fmelli , PLAINTIFFS
3 Law Offices of Stephanie J Fmelli
1007 Seventh Street, Suite 500 Tel. (916)443-2144
4 Sacramento, GA 95814 Fax:(916)443-1511
E-mail: sfinelli700@yahoo com
5
Richard D. Sopp Counsel for CADRE DESIGN GROUP, INC.
6 Wheatley Sopp LLP
1004 River Rock Dnve, Suite 245 Tei (916)988-3857
7 Folsom, GA 95630 Fax; (916) 988-5296
Email. rds@mwsbiaw com
8
Mark Smith In Pro Per
9 8549 Willow Valley Ptace
Granite Bay, CA 95746
10 markdarlenesmith@gmail.com
11 Richard W. Freeman Counsel for R4C0RP
Scott S. Brooks
12 WOOD SMITH HENNING & BERMAN LLP Tel' (925) 356-8200
1401 Willow Pass Road, Suite 700 Fax: (925) 356-8250
13 Concord, CA 94520-7982
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NIC341/608293-1 2
SERVICE LIST
^^HIBIT-A,,
ARCHERNORRIS
A PROFESSIONAL LAW CORPORATION
301 University Avenue, Suite 110 GREGORY K FEDERICO
Sacramento, CA 95825-5537 gfedericoQarchernoms com
916 646 2480 916 678 5309
916 646 5696 (Fax)
www a r c h e r n o r r i s com
January 4, 2011
VIA FACSIMILE ONLY
Stephanie Finelli, Esq.
Law Offices of Stephanie J. Finelli
1007 Seventh Street, Suite 500
Sacramento, CA 95814
Re: Rodney and Florentine Abbott v. Ronald Paul Britschgi, et al.
Sacramento County Superior Court Case No. 07AS04456
My Client: Richard Ruybalid, individually and dba CA Constmction
Our File No.: NIC-341
Dear Stephanie,
I am in receipt of your Supplemental Motion in Limine to Exclude Expert Testimony By
CA Constmction's Retained Supplemental Expert Jason Newlin ("Supplemental Motion") in the
above referenced matter. We write this letter as a meet and confer attempt and request that you
withdraw this motion.
First, you misrepresent facts to the Court. You represent to the Court that Mr, Heryet and
Mr. Newlin are the sarae type of expert. At two (2) separate locations in your Supplemental
Motion, you indicate that Dave Heryet is a "licensed professional civil engineer" (See 1:27-28;
3:27-28). As the initial disclosure and declaration clearly indicate, Mr. Heryet is a licensed
general contractor. He is clearly not an engineer and clearly not identified as the exact same type
of expert as Jason Newlin. You make this same misrepresentation at several locations in your
other Supplemental Motion in Limine related to Bryan Hill, which is equally improper.
Second, although there is some overlap on the topics they will testify to, they have been
retained to opine on entirely separate subject matter. One is a general contractor and will testify
on his designated subject matter from that perspective. The other is a licensed civil engineer and
will testify on his designated subject matter from that perspective. The distinction in their
respective spheres of testimony is also made clear in the initial expert disclosure and the
supplemental disclosure, the pertinent portions of which I have included below:
WALNUT CREEK SACRAMENTO NEWPORT BEACH LOS ANGELES
NIC341/107I378-1
Stephanie Finelli, Esq.
Law Offices of Stephanie J. Finelli
January 4, 2011
Page 2
This expert is expected to give testimony regarding all liability,
causation, standard of care, and damage aspects ofthis case,
including but not limited to: (1) the work performed by CA
CONSTRUCTION; (2) the work and design ofall other trades
and contractors, including the Owner/Builder, who worked on
Plaintiff FLORENTINE and RODNEY ABBOTT's home
located at 8601 Rolling Green Way in Fair Oaks, California
(hereinafter "SUBJECT PROJECT"); (3) the design ofthe
SUBJECT PROJECT; and (4) the appropriate scope and cost
of repairing the SUBJECT PROJECT, which are at issue in this
case. The general description of Mr. Heryet's testimony is not
intended to limit such testimony, but is merely an indication ofthe
broad area in which he may render an opinion if called to testify at
trial.
With respect to Mr Newlin, his disclosure/declaration states:
This expert is expected to give testimony regarding all liability,
causation, standard of care, design, and damage aspects ofthis
case, including but not limited to: (1) the work performed by CA
CONSTRUCTION; (2) the design of Plamtiff FLORENTINE and
RODNEY ABBOTT'S home located at 8601 Rolling Green Way
in Fair Oaks, Califomia (hereinafter "SUBJECT PROJECT"); (3)
all engineering aspects associated with the structure,
foundation and underlying soil systems ofthe house and
garage at the SUBJECT PROPERTY; (4) the abUity of the
SUBJECT PROPERTY, both the house and garage, to
withstand wind and seismic loads; and (5) the appropriate scope
and cost of repairing the SUBJECT PROJECT, which are at issue
in this case. The general description of Mr. Newlin's testimony is
not intended to limit such testimony, but is merely an indication of
the broad areas in which he may render an opinion if called to
testify at trial.
You represent to the Court that their designations are exactly the same. Please see items
4 and 5 in Mr. Newlin's disclosure. They are different. Based on the arguments above and the
actual language ofthe disclosures, you have misrepresented facts. Thus, your motion is improper
and if not withdrawn, we will oppose accordingly.
Third, since CA CONSTRUCTION timely served its supplemental expert disclosure
identifymg Mr. Newlin on separate subject matter than Mr. Heryet, there was no need for CA
CONSTRUCTION to seek leave of Court to augment and/or amend its expert list. Again, your
argument hinges on your misrepresentation that the experts were disclosed on identical topics.
NIC341/1071378-1
Stephanie Finelli, Esq.
Law Offices of Stephanie J Finelli
January 4, 2011
Page 3
which we know is not tme. Your argument related to Code of Civil Procedure § 2034.280(a)
simply does not apply.
Finally, your failure to seek leave of Court to depose CA CONSTRUCTION'S experts,
your failure to seek leave of Court to augment and/or amend your expert list, and the issue of
trial subpoenas to CA CONSTRUCTION'S experts has abeady been addressed in the other
motions in limine on file in this case. We maintain our position on those issues.
Please withdraw your motion immediately.
Very tmly yours,
ARCHER NORRIS-—^
Gregory K. Federico
GKF/ci
NIC341/I071378-I
TRANSMISSION VERIFICATION REPORT
TIME 81/04/2011 16:02
NAME ARCHERNCRRIS
FAX 9156455596
TEL 91&6462480
SER.# BR0M4J172845
DATE,TIME 01/84 16:01
FAX NO./NAME 191S4431511
DURATION 00:01:09
PA6E(S) 04
RESULT OK
MODE STANDARD
ECM
a
ARCHERNORRIS
A PROFESSIONAL LAW CORPORATION
301 Univafsiiy Avenue, Suite 110
Saoramento, CA 96a2B.SS37
918 646 2480
916.64e.6a9& (Fax)
www archernorris.com
FACSIMILE TRANSMISSION
DATE: January 4,2011
TO:
NAME: FAX NO.: PHONE NO.:
Stephanie Finelli 916.443.1511 916.443.2144
Law Offices of Stephanie Finelli
FRQIW: Gregory K. Federico PHONE: 916.646.2480
RE: Rodney Abbot v. Ronald Paul Britschgi, et al.
Sacramento County Superior Court Case No. 07AS04450
FILENUMBER' NIC-341
NUMBER OF PAGES WITH COVER PAGE 4 ORIGINALS WILL NOT FOLLOW
MESSAGE:
See attached correspondence.
ARCHERNORRIS
A PROFESSIONAL LAW CORPORATION
301 University Avenue, Suite 110
Sacramento, CA 95825-5537
916 646 2480
916 646 5696 (FaK)
WWW archemoms com
FACSIMILE TRANSMISSION
DATE: January 4,2011
TO:
NAME: FAX NO.: PHONE NO.:
Stephanie Finelli 916.443.1511 916.443.2144
Law Offices of Stephanie Finelli
FROM: Gregory K. Federico PHONE: 916.646.2480
RE: Rodney Abbot v. Ronald Paul Britschgi, et al.
Sacramento County Supenor Court Case No. 07AS04450
FILE NUMBER NIC-341
NUMBER OF PAGES WITH COVER PAGE 4 ORIGINALS WILL NOT FOLLOW
MESSAGE:
See attached correspondence.
CAUTION - CONFIDENTIAL
THE INFORMATION CONTAINED IN THIS FACSIMILE IS CONFIDENTIAL AND MAY ALSO CONTAIN PRIVILEGED ATTORNEY-CUENT
INFORMATION OR WORK PRODUCT THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS
ADDRESSED IF YOU ARE NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE TO DELIVER IT TO THE
INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY USE, DISSEMINATION, DISTRlBimON OR COPYING OF THIS
COMMUNICATION IS STRICTLY PROHIBITED IF YOU HAVE RECEIVED THE FACSIMILE IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY
TELEPHONE, AND RETURN THE ORIGINAL MESSAGE TO US AT THE ADDRESS ABOVE VIA THE U S POSTAL SERVICE THANK YOU
IF YOU DO NOT RECEIVE ALL OF THE PAGES, PLEASE CALL
OUR OFFICE SERVICES IVIANAGER AT 916.646.2480 AS SOON AS POSSIBLE.
Nia41/777677-l
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1 Todd A. Jones (Bar No. 198024) Gregory K. Federico (Bar No. 242184) 2 ARCHERNORRIS 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 CALIFOflNIA 9 COUNTY OF SACRAMENTO 10 11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 ABBOTT, 12 CA CONSTRUCTION'S OPPOSITION TO Plaintiffs, PLAINTIFFS' SUPPLEMENTAL MOTION 13 IN LIMINE TO EXCLUDE EXPERT TESTIMONY FROM CA 14 CONSTRUCTION'S SUPPLEMENTAL RONALD PAUL BRITSCHGI, et al.^ RETAINED EXPERT JASON NEWLIN 15 Defendants. Action Filed: September 24,2007 16 Hearing Date: January 7,2011 17 Trial Date: January 18,2011 Time: 8:30 a.m. 18 Location: Depeutment 43 19 AND ALL RELATED CROSS-ACTIONS. 20 21 I. INTRODUCTION 22 Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 23 (hereinafter "CA CONSTRUCTION") was served with Plaintiffs' Supplemental Motion in 24 Limine to Exclude Expert Testimony from Expert Jason Newlin (hereinafter "Supplemental 25 Newlin Motion") by mail on January 4, 2011 CA CONSTRUCTION hereby files this Opposition 26 to Plaintiffs' Supplemental Newlin Motion for the purposes ofthe hearing on all motions in 27 limine scheduled for January 7,2011 28 NIC549/1072441-I DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE RE JASON NEWLIN 1 A. PLAINTIFFS' MOTION SIGNIFICANTLY DISTORTS THE FACTUAL RECORD WITH RESPECT TO EXPERT DISCLOSURES ISSUED BY CA 2 CONSTRUCTION IN THIS MATTER 3 Plaintiffs state to this Court that Mr. Heryet and Mr. Newlin are the same type of expert. 4 At two (2) separate locations in Plaintiffs' Supplemental Motion, Plaintiffs indicate that Dave 5 Heryet is a "licensed professional civil engineer" (See Plaintiffs' Motion 1:27-28; 3:27-28). As 6 the initial disclosure and declaration clearly indicate, which are attached to Plaintiffs' moving ' papers, Mr Heryet is a licensed general contractor. He is clearly not an engineer and clearly not ° identified as the exact same type of expert as Jason Newlin. 9 B. DAVE HERYET AND JASON NEWLIN HAVE BEEN DISCLOSED ON DIFFERENT TOPICS 10 Although there is minor overlap on the topics they will testify to, Mr. Heryet and Mr. 11 Newlin have been retained to opine on separate subject matter. One is a general contractor and 12 will testify on his designated subject matter from that perspective. The other is a licensed civil 13 engineer and will testify on his designated subject matter from that perspective. The distinction 14 in their respective spheres of testimony is also made clear in the initial expert disclosure and the 15 supplemental disclosure, the pertinent portions ofwhich I have included below. 16 ._ Dave Heryet: .„ This expert is expected to give testimony regarding all liability, causation, standard of care, and damage aspects of this case, .Q including but not limited to' (1) the work performed by CA ^^ CONSTRUCTION; (2) the work and design of all other trades _„ and contractors, including the Owner/Builder, who worked on ^^ Plaintiff FLORENTINE and RODNEY ABBOTT's home „. located at 8601 Rolling Green Way in Fair Oaks, California ^' (hereinafter "SUBJECT PROJECT"); (3) the design of the r.^ SUBJECT PROJECT; and (4) the appropriate scope and cost ^^ of repairing the SUBJECT PROJECT, which are at issue in this -., case The general description of Mr Heryet's testimony is not intended to limit such testimony, but is merely an indication ofthe _. broad area in which he may render an opinion if called to testify at ^^ trial. 25 Ill 26 III 27 NIC549/1072441-1 28 DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE RE JASON NEWLIN 1 With respect to Mr. Newlin, his disclosure/declaration states: 2 This expert is expected to give testimony regarding all liability, causation, standard of care, design, and damage aspects ofthis case, 3 including but not limited to. (1) the work perfomied by CA CONSTRUCTION; (2) the design of Plaintiff FLORENTINE and 4 RODNEY ABBOTT's home located at 8601 Rolling Green Way in Fair Oaks, Califomia (hereinafter "SUBJECT PROJECT"); (3) all 5 engineering aspects associated with the structure, foundation and underlying soil systems ofthe house and garage at the 6 SUBJECT PROPERTY; (4) the ability of the SUBJECT PROPERTY, both the house and garage, to withstand wind and 7 seismic loads; and (5) the appropriate scope and cost of repairing the SUBJECT PROJECT, which are at issue in this case. The 8 general description of Mr. Newlin's testimony is not intended to limit such testimony, but is merely an indication ofthe broad areas 9 in which he may render an opinion if called to testify at trial. 10 Plaintiffs indicate that the designations are exactly the same. As seen in items 4 and 5 in 11 Mr. Newlin's disclosure, they are substantially different, Based on the arguments above and the 12 actual language ofthe disclosures. Plaintiffs' motion is improper. 13 C. CA CONSTRUCTION WAS NOT REQUIRED TO SEEK LEAVE OF 14 COURT TO AUGMENT AND/OR AMEND ITS EXPERT DISCLOSURES 15 Since CA CONSTRUCTION timely served its supplemental expert disclosure identifying 16 Mr. Newlin on separate subject matter than Mr. Heryet, it was not required to seek leave of 17 Court to augment and/or amend its expert list. Again, Plaintiffs' argument hinges on the 18 misrepresentation that the experts were disclosed on identical topics Plaintiffs' argument related 19 to Code ofCivil Procedure § 2034.280(a) simply does not apply. 20 Plaintiffs' own failure to seek leave of Court to depose CA CONSTRUCTION'S experts 21 (as suggested by the Court), Plaintiffs' failure to seek leave of Court to augment and/or amend 22 their expert list, and the issue of trial subpoenas to CA CONSTRUCTION'S experts has 23 previously been addressed in other motions in limine/oppositions on file in this case. CA 24 CONSTRUCTION maintains its arguments on these issues and it incorporates them herein. 25 D. PLAINTIFFS HAVE REFUSED TO WITHDRAW THIS MOTION AND/OR CORRECT THE MISREPRESENTATIONS 26 On January 4, 2011, upon receipt of Plaintiffs' Supplemental Newlin Motion, CA 27 NIC549/107244 l-l 3 28 DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE RE JASON NEWLIN 1 CONSTRUCTION sent Plaintiffs' counsel a meet and confer letter outlining its position and 2 'requesting that Plaintiffs' withdraw the present motion. To date, Plaintiffs have not responded to 3 this letter and/or withdrawn the motion. A copy of the meet and confer letter is attached hereto as 4 Exhibit "A". 5 Dated: January 6,2011 ARCHERNORRIS 6 7 Gregory K. Federico 8 Attomeys for Defendants RICHARD KIRK 9 RUYBALID, individually and dba CA CONSTRUCTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 N1C549/1072441-1 28 DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE RE JASON NEWLIN 1 PROOF OF SERVICE 2 Nameof Action: Rodney Abbott, et aL v. Ronald Paul Britschgi, et al. Court and Action No: Sacramento County Superior No. 07AS04450 3 I, Cindy A. Ingland, declare that I am over the age of 18 years and not a party to this 4 action or proceeding. My business address is 301 University Avenue, Suite 110, Sacramento, Califomia 95825. On January 6,2011,1 caused the following document(s) to be served: 5 CA CONSTRUCTION'S OPPOSITION TO PLAINTIFFS' SUPPLEMENTAL 6 MOTION IN LIMINE TO EXCLUDE EXPERT TESTIMONY FROM CA CONSTRUCTION'S SUPPLEMENTAL RETAINED EXPERT JASON NEWLIN 7 I I By placing a tme copy ofthe documents listed above, enclosed in a sealed envelope, 8 addressed as set forth below, for collection and mailing on the date and at the business Q address shown above following our ordinary business practices. I am readily familiar with this business' practice for collection and processing of correspondence for IQ mailing with the United States Postal Service. On the same day that a sealed envelope is placed for coliection and mailing, it is deposited in the ordinary course ofbusiness 11 with the United States Postal Service with postage fully prepaid. 12 ra By having a tme copy ofthe document(s) listed above transmitted by facsimile to the person(s) at the facsimile number(s) set forth below before 5:00 p.m The transmission 13 was reported as complete without error by a report issued by the transmitting facsimile machine. 14 15 I I By placing a tme copy ofthe document(s) listed above, in a box or other facility regularly maintained by UPS, an express service carrier, or delivered to a courier or 16 driver authorized by the express service carrier to receive documents, in an envelope designated by the express service carrier, with delivery fees paid or provided for, ^' addressed as set forth below ^^ rn bv having personal deliverv bv FIRST LEGAL SUPPORT SERVICES a tme copv of 19 the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the address(es) set forth below. 20 21 [SEE ATTACHED SERVICE LIST] 22 I declare under penalty of perjury that the foregoing is tme and correct. Executed on January 6, 2011, at Sacramento, Califomia. 23 24 mC^ 25 (, CJNDY A. INGLAND 26 27 28 NIO41/608293-1 PROOF OF SERVICE 1 Service List 2 Stephanie Fmelli , PLAINTIFFS 3 Law Offices of Stephanie J Fmelli 1007 Seventh Street, Suite 500 Tel. (916)443-2144 4 Sacramento, GA 95814 Fax:(916)443-1511 E-mail: sfinelli700@yahoo com 5 Richard D. Sopp Counsel for CADRE DESIGN GROUP, INC. 6 Wheatley Sopp LLP 1004 River Rock Dnve, Suite 245 Tei (916)988-3857 7 Folsom, GA 95630 Fax; (916) 988-5296 Email. rds@mwsbiaw com 8 Mark Smith In Pro Per 9 8549 Willow Valley Ptace Granite Bay, CA 95746 10 markdarlenesmith@gmail.com 11 Richard W. Freeman Counsel for R4C0RP Scott S. Brooks 12 WOOD SMITH HENNING & BERMAN LLP Tel' (925) 356-8200 1401 Willow Pass Road, Suite 700 Fax: (925) 356-8250 13 Concord, CA 94520-7982 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NIC341/608293-1 2 SERVICE LIST ^^HIBIT-A,, ARCHERNORRIS A PROFESSIONAL LAW CORPORATION 301 University Avenue, Suite 110 GREGORY K FEDERICO Sacramento, CA 95825-5537 gfedericoQarchernoms com 916 646 2480 916 678 5309 916 646 5696 (Fax) www a r c h e r n o r r i s com January 4, 2011 VIA FACSIMILE ONLY Stephanie Finelli, Esq. Law Offices of Stephanie J. Finelli 1007 Seventh Street, Suite 500 Sacramento, CA 95814 Re: Rodney and Florentine Abbott v. Ronald Paul Britschgi, et al. Sacramento County Superior Court Case No. 07AS04456 My Client: Richard Ruybalid, individually and dba CA Constmction Our File No.: NIC-341 Dear Stephanie, I am in receipt of your Supplemental Motion in Limine to Exclude Expert Testimony By CA Constmction's Retained Supplemental Expert Jason Newlin ("Supplemental Motion") in the above referenced matter. We write this letter as a meet and confer attempt and request that you withdraw this motion. First, you misrepresent facts to the Court. You represent to the Court that Mr, Heryet and Mr. Newlin are the sarae type of expert. At two (2) separate locations in your Supplemental Motion, you indicate that Dave Heryet is a "licensed professional civil engineer" (See 1:27-28; 3:27-28). As the initial disclosure and declaration clearly indicate, Mr. Heryet is a licensed general contractor. He is clearly not an engineer and clearly not identified as the exact same type of expert as Jason Newlin. You make this same misrepresentation at several locations in your other Supplemental Motion in Limine related to Bryan Hill, which is equally improper. Second, although there is some overlap on the topics they will testify to, they have been retained to opine on entirely separate subject matter. One is a general contractor and will testify on his designated subject matter from that perspective. The other is a licensed civil engineer and will testify on his designated subject matter from that perspective. The distinction in their respective spheres of testimony is also made clear in the initial expert disclosure and the supplemental disclosure, the pertinent portions of which I have included below: WALNUT CREEK SACRAMENTO NEWPORT BEACH LOS ANGELES NIC341/107I378-1 Stephanie Finelli, Esq. Law Offices of Stephanie J. Finelli January 4, 2011 Page 2 This expert is expected to give testimony regarding all liability, causation, standard of care, and damage aspects ofthis case, including but not limited to: (1) the work performed by CA CONSTRUCTION; (2) the work and design ofall other trades and contractors, including the Owner/Builder, who worked on Plaintiff FLORENTINE and RODNEY ABBOTT's home located at 8601 Rolling Green Way in Fair Oaks, California (hereinafter "SUBJECT PROJECT"); (3) the design ofthe SUBJECT PROJECT; and (4) the appropriate scope and cost of repairing the SUBJECT PROJECT, which are at issue in this case. The general description of Mr. Heryet's testimony is not intended to limit such testimony, but is merely an indication ofthe broad area in which he may render an opinion if called to testify at trial. With respect to Mr Newlin, his disclosure/declaration states: This expert is expected to give testimony regarding all liability, causation, standard of care, design, and damage aspects ofthis case, including but not limited to: (1) the work performed by CA CONSTRUCTION; (2) the design of Plamtiff FLORENTINE and RODNEY ABBOTT'S home located at 8601 Rolling Green Way in Fair Oaks, Califomia (hereinafter "SUBJECT PROJECT"); (3) all engineering aspects associated with the structure, foundation and underlying soil systems ofthe house and garage at the SUBJECT PROPERTY; (4) the abUity of the SUBJECT PROPERTY, both the house and garage, to withstand wind and seismic loads; and (5) the appropriate scope and cost of repairing the SUBJECT PROJECT, which are at issue in this case. The general description of Mr. Newlin's testimony is not intended to limit such testimony, but is merely an indication of the broad areas in which he may render an opinion if called to testify at trial. You represent to the Court that their designations are exactly the same. Please see items 4 and 5 in Mr. Newlin's disclosure. They are different. Based on the arguments above and the actual language ofthe disclosures, you have misrepresented facts. Thus, your motion is improper and if not withdrawn, we will oppose accordingly. Third, since CA CONSTRUCTION timely served its supplemental expert disclosure identifymg Mr. Newlin on separate subject matter than Mr. Heryet, there was no need for CA CONSTRUCTION to seek leave of Court to augment and/or amend its expert list. Again, your argument hinges on your misrepresentation that the experts were disclosed on identical topics. NIC341/1071378-1 Stephanie Finelli, Esq. Law Offices of Stephanie J Finelli January 4, 2011 Page 3 which we know is not tme. Your argument related to Code of Civil Procedure § 2034.280(a) simply does not apply. Finally, your failure to seek leave of Court to depose CA CONSTRUCTION'S experts, your failure to seek leave of Court to augment and/or amend your expert list, and the issue of trial subpoenas to CA CONSTRUCTION'S experts has abeady been addressed in the other motions in limine on file in this case. We maintain our position on those issues. Please withdraw your motion immediately. Very tmly yours, ARCHER NORRIS-—^ Gregory K. Federico GKF/ci NIC341/I071378-I TRANSMISSION VERIFICATION REPORT TIME 81/04/2011 16:02 NAME ARCHERNCRRIS FAX 9156455596 TEL 91&6462480 SER.# BR0M4J172845 DATE,TIME 01/84 16:01 FAX NO./NAME 191S4431511 DURATION 00:01:09 PA6E(S) 04 RESULT OK MODE STANDARD ECM a ARCHERNORRIS A PROFESSIONAL LAW CORPORATION 301 Univafsiiy Avenue, Suite 110 Saoramento, CA 96a2B.SS37 918 646 2480 916.64e.6a9& (Fax) www archernorris.com FACSIMILE TRANSMISSION DATE: January 4,2011 TO: NAME: FAX NO.: PHONE NO.: Stephanie Finelli 916.443.1511 916.443.2144 Law Offices of Stephanie Finelli FRQIW: Gregory K. Federico PHONE: 916.646.2480 RE: Rodney Abbot v. Ronald Paul Britschgi, et al. Sacramento County Superior Court Case No. 07AS04450 FILENUMBER' NIC-341 NUMBER OF PAGES WITH COVER PAGE 4 ORIGINALS WILL NOT FOLLOW MESSAGE: See attached correspondence. ARCHERNORRIS A PROFESSIONAL LAW CORPORATION 301 University Avenue, Suite 110 Sacramento, CA 95825-5537 916 646 2480 916 646 5696 (FaK) WWW archemoms com FACSIMILE TRANSMISSION DATE: January 4,2011 TO: NAME: FAX NO.: PHONE NO.: Stephanie Finelli 916.443.1511 916.443.2144 Law Offices of Stephanie Finelli FROM: Gregory K. Federico PHONE: 916.646.2480 RE: Rodney Abbot v. Ronald Paul Britschgi, et al. Sacramento County Supenor Court Case No. 07AS04450 FILE NUMBER NIC-341 NUMBER OF PAGES WITH COVER PAGE 4 ORIGINALS WILL NOT FOLLOW MESSAGE: See attached correspondence. CAUTION - CONFIDENTIAL THE INFORMATION CONTAINED IN THIS FACSIMILE IS CONFIDENTIAL AND MAY ALSO CONTAIN PRIVILEGED ATTORNEY-CUENT INFORMATION OR WORK PRODUCT THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED IF YOU ARE NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE TO DELIVER IT TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY USE, DISSEMINATION, DISTRlBimON OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED IF YOU HAVE RECEIVED THE FACSIMILE IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE, AND RETURN THE ORIGINAL MESSAGE TO US AT THE ADDRESS ABOVE VIA THE U S POSTAL SERVICE THANK YOU IF YOU DO NOT RECEIVE ALL OF THE PAGES, PLEASE CALL OUR OFFICE SERVICES IVIANAGER AT 916.646.2480 AS SOON AS POSSIBLE. Nia41/777677-l