Preview
FromiLUNDGREN/REYNOLDS 5302975077 . 07/?~"?009 18:17 W62/P.002/026
IHAI
l CRAIG N. LUNDGREN, State Bar 148842
LUNDGREN & REYNOLDS, LLP
2 424 2nd Street, Suite A
Davis, CA 95616
3 530.792.8800 L KENNEDY
530.297.5077 (fax) DEPUTi CLERK
4
5 Attorneys for Defendant
RONALD PAUL BRITSCHGI
6 Individually and dba BRITSCHGI CONSTRUCTION
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
t
9 COUNTY OF SACRAMENTO
10 RODNEY ABBOTT and FLORENTINE CASE NO. 07AS04450
ABBOTT,
11 DEFENDANT BRITSCHGI'S
Plaintiffs, MEMORANDUM OF POINTS AND
12 AUTHORITIES IN OPPOSITION
v. TO PLAINTIFFS' MOTION FOR
13 LEAVE TO REOPEN DISCOVERY
RONALD PAUL BRITSCHGI, individually
14 and doing business as BRITSCHGI DATE: 8/7/09
CONSTRUCTION, RICHARD KIRK TIME: 9:00 A.M.
15 RUYBALID, individually and doing business DEPT: 54 BY FAX
as CA CONSTRUCTION, SURETY TRIAL DATE: 6/7/10
16 COMPANY OF THE PACIFIC, WESTERN
SURETY COMPANY and DOES 1 through 20,
17 inclusive,
18 Defendants.
19
AND RELATED CROSS-ACTIONS.
20
21
22
INTRODUCTION
23
Plaintiffs motion to reopen fails in several critical respects: It does not mention
24
essential aspects of the procedural history to this motion; it is not supported by admissible
25
evidence; and it neither provides good cause of a blanket reopening of discovery, nor does it
26
specify exactly what relief is sought.
27
Ill . • . -•
28
DEFENDANT BRITSCHGI'S OPPOSITION TO
From'.LUNDGREN/REYNOLDS 5302975077 07/?"7/2009 18:18 #362 P.003/026
II
THE DISCOVERY TO DATE SHOWS THAT THERE WAS EXTENSIVE
DISCOVERY AS TO THE ISSUES RAISED IN THE AMENDED COMPLAINT
This is a case in which extensive discovery has already taken place. Discovery began
years ago with the exchange of documents between all parties and informal meetings between
counsel. (Declaration of Craig N. Lundgren (Lundgren Dec., Para 2.) Plaintiffs have been
represented by three different attorneys in this case, as well as time in pro per, so it is not
j surprising that the most recent counsel is unfamiliar with the informal discovery went on
9 before she entered the case.
10 Nevertheless, since Stephanie Finelli counsel for plaintiffs entered the case, plaintiffs
11 have engaged in a systematic and complete discovery program into all aspects of the case
12 (Lundgren Dec., Para. 3). Counsel for plaintiffs has deposed percipient witnesses associated
13 with each of the defendants (Id). In particular, Ms. Finelli deposed, Mr. Britschgi and Pete
14 Atchisen, who worked for Kirk Ruybalid. (Id.) Defendants have deposed other percipient
15 witnesses involved in the case including Mr. Albert Sanchez of Cadre Design Group, Inc.,
16 Dennis Youngdahl of Youngdahl and Associates, Luis Moreno, P.E., and Don Marinovich of
17 the Contractors State Licensing Board. Plaintiffs were each deposed for two days. (Id). All
18 percipient witness depositions were completed. (Id.) In total, eightjaercipient witnesses have
19 been deposed, some for multiple days (Id).
20 Expert discovery occurred, and all of plaintiffs' experts have been deposed.
21 (Lundgren Dec., Para 4.) Plaintiffs elected not to depose any of the experts identified by any
22 of the defendants. (Id.)
23 While defendants have amended the complaint, there have been very few changes to
24 the claims made. Both plaintiffs and their experts testified that they had concerns about
25 compaction. Plaintiffs' expert contractor, Slap Weahunt testified as to existence of cracks in
26 the house. (Lundgren Dec., Para 6.) He also testified that the felt there were cracks in the
27 foundation of the'house due to inadequate compaction. (Id) Plaintiffs' expert landscape
28 architect, James Robert Lee testified that there were problems due to compaction as well.
DEFENDANT BRTTSCHGrS OPPOSITION TO
From'.LUNDGREN/REYNOLDS 5302975077 07/?"7/2Q09 18:18 #062 P.004/026
(Lundgren Dec., Para 6.) Plaintiffs' expert appraiser Linda Molinari based her valuations in
part on the existence of these deficiencies in plaintiffs' home. (Lundgren Dec., Para 7.)
Plaintiff Rodney Abbott testified that he knew his experts were concerned about the cracking
they saw in the garage. Lundgren Dec., Para 8.) He also testified that he knew that his
experts were concerned about compaction. (Id.)
In addition to formal and informal discovery between the parties, Plaintiffs actively
sought the assistance of various state and county agencies. Through these efforts, plaintiffs
8 became aware of the allegedly new compaction issues. For example, in her deposition taken
9 on December 15,2008, plaintiff Florentine Abbott testified that she had been concerned about
10 soil compaction during a discussion she had with a county employee two months prior.
11 Plaintiffs were thus put on notice in at least October 2008, nearly 6 months prior to then-
12 designation of expert witnesses, that there was potentially a concern with the soil under their
13 house.
14 3 Q What about soil compaction? You
4 indicated one of the defects you found was soil
15 5 compaction. Can you tell me what you mean by that?
6 A I'm not sure. That was a conversation
16 7 with the county.
8 Q I don't know what you're talking about.
17 9 Did you have a conversation with someone
10 from the county about soils compaction?
18 11 A_ They believe the laws were violated.by:
12 "the" contractor that set the foundation.
19 13 Q Who did you speak to from the county?
14 A Chuck Iniquez.
20 15 Q How do you spell the last name?
16 A I-n-i-q-u-e-z, I believe.
21 17 Q I-n-i-
18 A — q-u-e-z.
22 19 Q When did you speak with Chuck Iniquez?
20 A It's been about two months ago.
23
(Lundgren Decl,, Para 9, Exhibit A, Deposition of Florentine Abbott, December 15, 2008,
24 94:3-20.)
25 9 Q Who is k that informed you that there
10 was an issue with soils compaction on your home?
26 11 A If I'm remembering correctly it was •
12 Mr. Santiago informed Mr. Iniquez that he believes
27 13 there was compaction laws violated by contractors, and
14 'they would contact the Contractors Board to open an '
28 15 investigation against them.
L6 Q What was the compaction issues that :
DEFENDANT BRrrscHcrs OPPOSITION TO
FromlLUNDGREN/REYNOLDS 5302975077 '07/?~"2009 18:18 #062 P.005/026
17 Mr. Santiago told you about?
i 18 A He says ~ this is what I believe, he
19 said that — I'm trying to remember.
2 20 The foundation contractors should not
21 move more than 350 cubic yards of soil without
3 22 obtaining a permit, and they should know that. If
23 they did, to their understanding, there was more than
4 24 350 cubic yards moved and that violates the compaction
25 laws, and could cause, structural problems to the
5 00111
1 house. He said it would go out of their hands and on
6 2 to the Contractors Board which is like two or three
3 weeks ago.
1
(Id, 110:9-111:3.)
8
9 The point, of course, is that while plaintiffs have amended their complaint to conform
10 to their current understanding of the issues in this case, that understanding was present in
11 2008 and the issue has been addressed in plaintiffs' case to date. Lack of soils compaction is
12 not a new issue, as implied by plaintiffs' papers.
13 Plaintiffs' counsel had no problem pursuing this thread during her depositions of
14 defendants. For example, during the deposition of Mr. Britschgi, plaintiffs' counsel
15 repeatedly asked about what cut and fill operations occurred on the job. (Declaration of Craig
16 N. Lundgren, Para 10.) During the deposition of Pete Atchisen, counsel for plaintiff
17 specifically questioned him about compaction issues beneath the garage:
IS
21 Q Was there a problem with how the slab of
19 22 the garage was being constructed that you needed
23 additional gravel to be brought in?
20 24 A There was going to be a problem with me
25 placing a slab in that garage with the dirt material
21
00110
22 1 that was on the job that was brought to — all I know,
2 when I said I need the grading done for that garage, I
23 3 suggested, I believe that I suggested I wouldn't put
4 that dirt in there, because I'm going to want that
24 5 dirt engineered or tested. I'm not going to put a
6 slab and guarantee it.
25 7 Q Because it would not be correctly
8 compacted?
26 9 A That is correct.
10 Q You needed gravel brought in to be used
27 11 as fill, essentially, in the area underneath where the
• 12 garage slab was going to go, correct?
28 13 A Somebody needed gravel brought hi.
14 . ...Q Gravel needed to be brought in, correct?
DEFENDANT BRITSCHGI'S OPPOSITION TO
FromiLUNDGREN/REYNOLDS 5302975077 07/?"7/2009 18:18 #062 P.006/026
15- A Correct.
(Lundgren Dec., Para. 11, Exhibit B, Atchisen Depo, February 6, 2009,109:2-110:15.)
Counsel for plaintiff states in her declaration that plaintiffs hired experts in March of
2009 and that they allegedly soon concluded that there could be compaction issues on the site.
Even if this were true, it does not mean that the compactions issues were newly discovered at
that time. They were not new. They had been the subject of speculation and/or discovery by
plaintiffs since 2008.
The fact that plaintiff has now made these compaction issues explicit in the pleadings
by filing an amended complaint does not justify plaintiffs reopening discovery hi a blanket
10 fashion as to these deponents.
11 m
12 PLAINTIFFS' MOTION IS NOT SUPPORTED BY ADMISSIBLE EVIDENCE
13 An essential element of a motion such as the instant motion brought by plaintiffs, is
14 the points and authorities which "must contain a statement of facts, a concise statement of the
15 law, evidence and arguments relied on, and a discussion of the statutes, cases and textbooks
16 cited in support of the position advanced. (CRC 3.1 1 13(b). Additionally, each fact stated
17 should be based on evidence attached to the motion and followed by a precise reference to
18 such evidence. (Smith, Smith & Kring v. Sup. Ct. (1997) 60 CA4th 573). In order to be
19 admissible, the evidence submitted to the court must meet all statutory requirements for
20 admissibility of evidence at trial. Additionally, the evidence must be from competent
21 witnesses having personal knowledge of the facts stated therein, rather than hearsay or
22 conclusions. Pajaro Valley Water Mgmt Agency v. McGrath (2005) 128 Cal.App.4111 1093.
23 Plaintiffs have failed in this regard. Plaintiffs "legal argument" consists of nothing
24 more than their opinion that reopening of discovery is "imperative". The few facts offered by
25 plaintiffs are either irrelevant or inadmissible.
26
27
28 III
DEFENDANT BRITSCHGI'S OPPOSITION TO
FromlLUNDGREN/REYNOLDS 5302975077 07/?7/2009 18:19 #062 P'.007/026
IV
PLAINTIFFS HAVE NOT JUSTIFIED REOPENING ALL DISCOVERY IN THIS
MATTER AND HAVE NOT SET OUT WHAT DISCOVERY IS NECESSARY TO
REOPEN
Under CCP 2024.050, m exercising its discretion to grant or deny a motion to reopen
discovery, the court is to take info consideration the necessity and reasons for the discovery as
well as the diligence or lack thereof of the plaintiff in completing discovery in the first place.
As set forth above, plaintiffs were well aware of the potential issue regarding compaction of
soil long before the discovery cut-off, and long before the designation of experts in this
10 matter.
11 Discovery has already been completed in this case. This was an expensive process.
12 The question then is what discovery is necessary at this point and what reasonable limitations
13 can be placed on further discovery. Plaintiffs have not justified reopening all discovery, nor
14 have they requested any specific limited relief either. Do they want to reopen completed
15 depositions? Do they want to depose people who have never been deposed before? Do they
16 want to reopen expert witness discovery? If so, under what limitations?
17 Each of these questions raises a fact-specific inquiry which has not been addressed by
18 plaintiffs. There is no real justification to reopen depositions that have been completed. The
19 question is never really addressed.
20 As to the deposition of new individuals who have not previously been deposed,
21 plaintiffs have not identified what individuals they would like to depose, let alone provide a
22 coherent justification for reopening discovery to perform these depositions.
23 Nor has there been any justification for reopening of written discovery.
24 Plaintiffs have not explicitly called for the reopening of expert witness discovery. Nor
'25 does their notice even mention CCP section 2034.610 et seq., which addresses motions to
26 augment or amend expert witness declarations: In any event, defendants have already
27 expended substantial sums of money in connection with the depositions of expert witnesses
28 and should not be subjected to incurring additional costs in redeposing experts because of
DEFENDANT BRITSCHGI'S OPPOSITION TO
FromlLUNDGREN/REYNOLDS 5302975077 07/?7/2009 18:19 #062 P.008/026
i plaintiffs' lack of diligence in exploring the issue of soil compaction when it was first raised
2 in October 2008. Moreover, plaintiffs should not be give a free opportunity to depose
3 defendants' experts when they waived that right by not doing those depositions prior to the
4 first trial.
5 The bottom line is that the motion is overbroad and does not provide the court with the
6 information necessary to reopen discovery in any particular.
7 V
8 CONCLUSION
9 With the addition of new parties to this case, it is possible that some discovery will
10 need to be reopened for some purposes. Nevertheless, this motion does not support such
11 relief at this time. For this reason, defendant BRITSCHGI requests that this court deny the
12 motion in its entirety.
13 Dated: July 27, 2009 LUNDGREN & REYNOLDS, LLP
14
By_
15 CRAIG"N. LUNI
Attorneys for defendant, cross-complainant
16 and cross-defendant
RONALD PAUL BRITSCHGI,
17 Individually and dba
BRITSCHGI CONSTRUCTION
18
19
20
21
22
23
24
25
26
27
28
DEFENDANT BRTTSCHGPS OPPOSITION TO
FromiLUNDGREN/REYNOLDS 5302975077 07/?7/2009 18:19 #062 P.009/026
1 Rodney Abbott, etaL K Ronald Paul Britschgi, etaL
Sacramento County Superior Court No. 07AS04450
2
DECLARATION OF SERVICE
3
I am a citizen of the United States, over the age of 1 8 years, and not a party to or
4 interested in this action. I am an employee of Lundgren and Reynolds, LLP and my business
address is 424 2nd Street, Suite A, Davis, California. On this day I caused to be served .the
5 following document(s):
6 DEFENDANT BRITSCHGFS MEMORANDUM OF POINTS AND.
AUTHORITIES IN OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE
7 TO REOPEN DISCOVERY
8 By placing a true copy, in a sealed envelope, with postage fully prepaid, in the United
States Post Office mail at Davis, California, addressed as set forth below. I am
9 familiar with this firm's practice whereby the mail, after being placed in a designated
area, is given the appropriate postage and is deposited in a U.S. mail box after the
10 close of the day's business.
11 D By personal delivery of a true copy to the person indicated and at the address set forth
below.
12
D By Federal Express Mail to the person and at the address set forth below.
13
By transmitting a true copy by facsimile to the person and at the facsimile number set
14 forth below.
15 Stephanie J. Finelli Attorney for Plaintiffs
Law Office of Stephanie J. Finelli Rodney Abbott, Florentine Abbott
16 1007 Seventh Street, Suite 500
Sacramento, CA 95814
17 FAX (916) 443-1511
18 Gregory K. Federico Attorney for defendant, cross-
Archer Morris Defendant and cross-complainant
19 655 University Avenue, #225 Richard Kirk Ruybalid, individually
Sacramento, CA 95825 and dba CA Construction
20 FAX (916) 646-5695
21 Richard D. Sopp Attorney for cross-defendant and
Wheatley Sopp, LLP cross-complainant
22 1004 River Rock Drive, Suite 245 Cadre Design Group, Inc.
Folsom,CA 95630
23 FAX (916) 988-5296
24 I declare under penalty of perjury under the laws of the State of California that the
25 foregoing is true and correct.
26 Executed on July 27, 2009, at Davis, California.
27
SHAULA PATCHETT
28
1
I \craig's clientfiJes\britschgi(abbott v)\pleaduigs\pser doc
Preview
FromiLUNDGREN/REYNOLDS 5302975077 . 07/?~"?009 18:17 W62/P.002/026 IHAI l CRAIG N. LUNDGREN, State Bar 148842 LUNDGREN & REYNOLDS, LLP 2 424 2nd Street, Suite A Davis, CA 95616 3 530.792.8800 L KENNEDY 530.297.5077 (fax) DEPUTi CLERK 4 5 Attorneys for Defendant RONALD PAUL BRITSCHGI 6 Individually and dba BRITSCHGI CONSTRUCTION 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA t 9 COUNTY OF SACRAMENTO 10 RODNEY ABBOTT and FLORENTINE CASE NO. 07AS04450 ABBOTT, 11 DEFENDANT BRITSCHGI'S Plaintiffs, MEMORANDUM OF POINTS AND 12 AUTHORITIES IN OPPOSITION v. TO PLAINTIFFS' MOTION FOR 13 LEAVE TO REOPEN DISCOVERY RONALD PAUL BRITSCHGI, individually 14 and doing business as BRITSCHGI DATE: 8/7/09 CONSTRUCTION, RICHARD KIRK TIME: 9:00 A.M. 15 RUYBALID, individually and doing business DEPT: 54 BY FAX as CA CONSTRUCTION, SURETY TRIAL DATE: 6/7/10 16 COMPANY OF THE PACIFIC, WESTERN SURETY COMPANY and DOES 1 through 20, 17 inclusive, 18 Defendants. 19 AND RELATED CROSS-ACTIONS. 20 21 22 INTRODUCTION 23 Plaintiffs motion to reopen fails in several critical respects: It does not mention 24 essential aspects of the procedural history to this motion; it is not supported by admissible 25 evidence; and it neither provides good cause of a blanket reopening of discovery, nor does it 26 specify exactly what relief is sought. 27 Ill . • . -• 28 DEFENDANT BRITSCHGI'S OPPOSITION TO From'.LUNDGREN/REYNOLDS 5302975077 07/?"7/2009 18:18 #362 P.003/026 II THE DISCOVERY TO DATE SHOWS THAT THERE WAS EXTENSIVE DISCOVERY AS TO THE ISSUES RAISED IN THE AMENDED COMPLAINT This is a case in which extensive discovery has already taken place. Discovery began years ago with the exchange of documents between all parties and informal meetings between counsel. (Declaration of Craig N. Lundgren (Lundgren Dec., Para 2.) Plaintiffs have been represented by three different attorneys in this case, as well as time in pro per, so it is not j surprising that the most recent counsel is unfamiliar with the informal discovery went on 9 before she entered the case. 10 Nevertheless, since Stephanie Finelli counsel for plaintiffs entered the case, plaintiffs 11 have engaged in a systematic and complete discovery program into all aspects of the case 12 (Lundgren Dec., Para. 3). Counsel for plaintiffs has deposed percipient witnesses associated 13 with each of the defendants (Id). In particular, Ms. Finelli deposed, Mr. Britschgi and Pete 14 Atchisen, who worked for Kirk Ruybalid. (Id.) Defendants have deposed other percipient 15 witnesses involved in the case including Mr. Albert Sanchez of Cadre Design Group, Inc., 16 Dennis Youngdahl of Youngdahl and Associates, Luis Moreno, P.E., and Don Marinovich of 17 the Contractors State Licensing Board. Plaintiffs were each deposed for two days. (Id). All 18 percipient witness depositions were completed. (Id.) In total, eightjaercipient witnesses have 19 been deposed, some for multiple days (Id). 20 Expert discovery occurred, and all of plaintiffs' experts have been deposed. 21 (Lundgren Dec., Para 4.) Plaintiffs elected not to depose any of the experts identified by any 22 of the defendants. (Id.) 23 While defendants have amended the complaint, there have been very few changes to 24 the claims made. Both plaintiffs and their experts testified that they had concerns about 25 compaction. Plaintiffs' expert contractor, Slap Weahunt testified as to existence of cracks in 26 the house. (Lundgren Dec., Para 6.) He also testified that the felt there were cracks in the 27 foundation of the'house due to inadequate compaction. (Id) Plaintiffs' expert landscape 28 architect, James Robert Lee testified that there were problems due to compaction as well. DEFENDANT BRTTSCHGrS OPPOSITION TO From'.LUNDGREN/REYNOLDS 5302975077 07/?"7/2Q09 18:18 #062 P.004/026 (Lundgren Dec., Para 6.) Plaintiffs' expert appraiser Linda Molinari based her valuations in part on the existence of these deficiencies in plaintiffs' home. (Lundgren Dec., Para 7.) Plaintiff Rodney Abbott testified that he knew his experts were concerned about the cracking they saw in the garage. Lundgren Dec., Para 8.) He also testified that he knew that his experts were concerned about compaction. (Id.) In addition to formal and informal discovery between the parties, Plaintiffs actively sought the assistance of various state and county agencies. Through these efforts, plaintiffs 8 became aware of the allegedly new compaction issues. For example, in her deposition taken 9 on December 15,2008, plaintiff Florentine Abbott testified that she had been concerned about 10 soil compaction during a discussion she had with a county employee two months prior. 11 Plaintiffs were thus put on notice in at least October 2008, nearly 6 months prior to then- 12 designation of expert witnesses, that there was potentially a concern with the soil under their 13 house. 14 3 Q What about soil compaction? You 4 indicated one of the defects you found was soil 15 5 compaction. Can you tell me what you mean by that? 6 A I'm not sure. That was a conversation 16 7 with the county. 8 Q I don't know what you're talking about. 17 9 Did you have a conversation with someone 10 from the county about soils compaction? 18 11 A_ They believe the laws were violated.by: 12 "the" contractor that set the foundation. 19 13 Q Who did you speak to from the county? 14 A Chuck Iniquez. 20 15 Q How do you spell the last name? 16 A I-n-i-q-u-e-z, I believe. 21 17 Q I-n-i- 18 A — q-u-e-z. 22 19 Q When did you speak with Chuck Iniquez? 20 A It's been about two months ago. 23 (Lundgren Decl,, Para 9, Exhibit A, Deposition of Florentine Abbott, December 15, 2008, 24 94:3-20.) 25 9 Q Who is k that informed you that there 10 was an issue with soils compaction on your home? 26 11 A If I'm remembering correctly it was • 12 Mr. Santiago informed Mr. Iniquez that he believes 27 13 there was compaction laws violated by contractors, and 14 'they would contact the Contractors Board to open an ' 28 15 investigation against them. L6 Q What was the compaction issues that : DEFENDANT BRrrscHcrs OPPOSITION TO FromlLUNDGREN/REYNOLDS 5302975077 '07/?~"2009 18:18 #062 P.005/026 17 Mr. Santiago told you about? i 18 A He says ~ this is what I believe, he 19 said that — I'm trying to remember. 2 20 The foundation contractors should not 21 move more than 350 cubic yards of soil without 3 22 obtaining a permit, and they should know that. If 23 they did, to their understanding, there was more than 4 24 350 cubic yards moved and that violates the compaction 25 laws, and could cause, structural problems to the 5 00111 1 house. He said it would go out of their hands and on 6 2 to the Contractors Board which is like two or three 3 weeks ago. 1 (Id, 110:9-111:3.) 8 9 The point, of course, is that while plaintiffs have amended their complaint to conform 10 to their current understanding of the issues in this case, that understanding was present in 11 2008 and the issue has been addressed in plaintiffs' case to date. Lack of soils compaction is 12 not a new issue, as implied by plaintiffs' papers. 13 Plaintiffs' counsel had no problem pursuing this thread during her depositions of 14 defendants. For example, during the deposition of Mr. Britschgi, plaintiffs' counsel 15 repeatedly asked about what cut and fill operations occurred on the job. (Declaration of Craig 16 N. Lundgren, Para 10.) During the deposition of Pete Atchisen, counsel for plaintiff 17 specifically questioned him about compaction issues beneath the garage: IS 21 Q Was there a problem with how the slab of 19 22 the garage was being constructed that you needed 23 additional gravel to be brought in? 20 24 A There was going to be a problem with me 25 placing a slab in that garage with the dirt material 21 00110 22 1 that was on the job that was brought to — all I know, 2 when I said I need the grading done for that garage, I 23 3 suggested, I believe that I suggested I wouldn't put 4 that dirt in there, because I'm going to want that 24 5 dirt engineered or tested. I'm not going to put a 6 slab and guarantee it. 25 7 Q Because it would not be correctly 8 compacted? 26 9 A That is correct. 10 Q You needed gravel brought in to be used 27 11 as fill, essentially, in the area underneath where the • 12 garage slab was going to go, correct? 28 13 A Somebody needed gravel brought hi. 14 . ...Q Gravel needed to be brought in, correct? DEFENDANT BRITSCHGI'S OPPOSITION TO FromiLUNDGREN/REYNOLDS 5302975077 07/?"7/2009 18:18 #062 P.006/026 15- A Correct. (Lundgren Dec., Para. 11, Exhibit B, Atchisen Depo, February 6, 2009,109:2-110:15.) Counsel for plaintiff states in her declaration that plaintiffs hired experts in March of 2009 and that they allegedly soon concluded that there could be compaction issues on the site. Even if this were true, it does not mean that the compactions issues were newly discovered at that time. They were not new. They had been the subject of speculation and/or discovery by plaintiffs since 2008. The fact that plaintiff has now made these compaction issues explicit in the pleadings by filing an amended complaint does not justify plaintiffs reopening discovery hi a blanket 10 fashion as to these deponents. 11 m 12 PLAINTIFFS' MOTION IS NOT SUPPORTED BY ADMISSIBLE EVIDENCE 13 An essential element of a motion such as the instant motion brought by plaintiffs, is 14 the points and authorities which "must contain a statement of facts, a concise statement of the 15 law, evidence and arguments relied on, and a discussion of the statutes, cases and textbooks 16 cited in support of the position advanced. (CRC 3.1 1 13(b). Additionally, each fact stated 17 should be based on evidence attached to the motion and followed by a precise reference to 18 such evidence. (Smith, Smith & Kring v. Sup. Ct. (1997) 60 CA4th 573). In order to be 19 admissible, the evidence submitted to the court must meet all statutory requirements for 20 admissibility of evidence at trial. Additionally, the evidence must be from competent 21 witnesses having personal knowledge of the facts stated therein, rather than hearsay or 22 conclusions. Pajaro Valley Water Mgmt Agency v. McGrath (2005) 128 Cal.App.4111 1093. 23 Plaintiffs have failed in this regard. Plaintiffs "legal argument" consists of nothing 24 more than their opinion that reopening of discovery is "imperative". The few facts offered by 25 plaintiffs are either irrelevant or inadmissible. 26 27 28 III DEFENDANT BRITSCHGI'S OPPOSITION TO FromlLUNDGREN/REYNOLDS 5302975077 07/?7/2009 18:19 #062 P'.007/026 IV PLAINTIFFS HAVE NOT JUSTIFIED REOPENING ALL DISCOVERY IN THIS MATTER AND HAVE NOT SET OUT WHAT DISCOVERY IS NECESSARY TO REOPEN Under CCP 2024.050, m exercising its discretion to grant or deny a motion to reopen discovery, the court is to take info consideration the necessity and reasons for the discovery as well as the diligence or lack thereof of the plaintiff in completing discovery in the first place. As set forth above, plaintiffs were well aware of the potential issue regarding compaction of soil long before the discovery cut-off, and long before the designation of experts in this 10 matter. 11 Discovery has already been completed in this case. This was an expensive process. 12 The question then is what discovery is necessary at this point and what reasonable limitations 13 can be placed on further discovery. Plaintiffs have not justified reopening all discovery, nor 14 have they requested any specific limited relief either. Do they want to reopen completed 15 depositions? Do they want to depose people who have never been deposed before? Do they 16 want to reopen expert witness discovery? If so, under what limitations? 17 Each of these questions raises a fact-specific inquiry which has not been addressed by 18 plaintiffs. There is no real justification to reopen depositions that have been completed. The 19 question is never really addressed. 20 As to the deposition of new individuals who have not previously been deposed, 21 plaintiffs have not identified what individuals they would like to depose, let alone provide a 22 coherent justification for reopening discovery to perform these depositions. 23 Nor has there been any justification for reopening of written discovery. 24 Plaintiffs have not explicitly called for the reopening of expert witness discovery. Nor '25 does their notice even mention CCP section 2034.610 et seq., which addresses motions to 26 augment or amend expert witness declarations: In any event, defendants have already 27 expended substantial sums of money in connection with the depositions of expert witnesses 28 and should not be subjected to incurring additional costs in redeposing experts because of DEFENDANT BRITSCHGI'S OPPOSITION TO FromlLUNDGREN/REYNOLDS 5302975077 07/?7/2009 18:19 #062 P.008/026 i plaintiffs' lack of diligence in exploring the issue of soil compaction when it was first raised 2 in October 2008. Moreover, plaintiffs should not be give a free opportunity to depose 3 defendants' experts when they waived that right by not doing those depositions prior to the 4 first trial. 5 The bottom line is that the motion is overbroad and does not provide the court with the 6 information necessary to reopen discovery in any particular. 7 V 8 CONCLUSION 9 With the addition of new parties to this case, it is possible that some discovery will 10 need to be reopened for some purposes. Nevertheless, this motion does not support such 11 relief at this time. For this reason, defendant BRITSCHGI requests that this court deny the 12 motion in its entirety. 13 Dated: July 27, 2009 LUNDGREN & REYNOLDS, LLP 14 By_ 15 CRAIG"N. LUNI Attorneys for defendant, cross-complainant 16 and cross-defendant RONALD PAUL BRITSCHGI, 17 Individually and dba BRITSCHGI CONSTRUCTION 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT BRTTSCHGPS OPPOSITION TO FromiLUNDGREN/REYNOLDS 5302975077 07/?7/2009 18:19 #062 P.009/026 1 Rodney Abbott, etaL K Ronald Paul Britschgi, etaL Sacramento County Superior Court No. 07AS04450 2 DECLARATION OF SERVICE 3 I am a citizen of the United States, over the age of 1 8 years, and not a party to or 4 interested in this action. I am an employee of Lundgren and Reynolds, LLP and my business address is 424 2nd Street, Suite A, Davis, California. On this day I caused to be served .the 5 following document(s): 6 DEFENDANT BRITSCHGFS MEMORANDUM OF POINTS AND. AUTHORITIES IN OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE 7 TO REOPEN DISCOVERY 8 By placing a true copy, in a sealed envelope, with postage fully prepaid, in the United States Post Office mail at Davis, California, addressed as set forth below. I am 9 familiar with this firm's practice whereby the mail, after being placed in a designated area, is given the appropriate postage and is deposited in a U.S. mail box after the 10 close of the day's business. 11 D By personal delivery of a true copy to the person indicated and at the address set forth below. 12 D By Federal Express Mail to the person and at the address set forth below. 13 By transmitting a true copy by facsimile to the person and at the facsimile number set 14 forth below. 15 Stephanie J. Finelli Attorney for Plaintiffs Law Office of Stephanie J. Finelli Rodney Abbott, Florentine Abbott 16 1007 Seventh Street, Suite 500 Sacramento, CA 95814 17 FAX (916) 443-1511 18 Gregory K. Federico Attorney for defendant, cross- Archer Morris Defendant and cross-complainant 19 655 University Avenue, #225 Richard Kirk Ruybalid, individually Sacramento, CA 95825 and dba CA Construction 20 FAX (916) 646-5695 21 Richard D. Sopp Attorney for cross-defendant and Wheatley Sopp, LLP cross-complainant 22 1004 River Rock Drive, Suite 245 Cadre Design Group, Inc. Folsom,CA 95630 23 FAX (916) 988-5296 24 I declare under penalty of perjury under the laws of the State of California that the 25 foregoing is true and correct. 26 Executed on July 27, 2009, at Davis, California. 27 SHAULA PATCHETT 28 1 I \craig's clientfiJes\britschgi(abbott v)\pleaduigs\pser doc