Motion for Leave in Rodney Abbott, et al vs. Ronald Paul Britschgi, et al| Trellis.Law

On September 24, 2007 a Motion-Secondary was filed involving a dispute between and for (Breach of Contract/Warranty) in the District Court of Sacramento County.

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1 Todd A. Jones (Bar No. 198024)
Gregory K. Federico (Bar No. 242184)
2 ARCHER NORRIS
A Professional Law Corporation
3 655 University Avenue, Suite 225
Sacramento, California 95825-6747
4 Telephone: 916.646.2480
Facsimile: 916.646.5696
5
Attorneys for Defendants and Cross-Defendants
6 RICHARD KIRK RUYBALID, individually, and
dba CA CONSTRUCTION
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10
11 RODNEY ABBOTT and FLORENTINE Case No. 07AS04450
ABBOTT,
12 DECLARATION OF GREGORY K.
Plaintiffs, FEDERICO IN SUPPORT OF CA
13 CONSTRUCTION'S OPPOSITION TO
v. PLAINTIFFS' MOTION FOR LEAVE TO
14 RE-OPEN DISCOVERY
RONALD PAUL BRITSCHGI, et al.,
15 Date: August 7,2009
Defendants. Time: 9:00 a.m.
16 Dept: 54
17
18 AND ALL RELATED CROSS-ACTIONS.
BY FAX
19
20
I, Gregory K. Federico, declare as follows:
21
1. I am an attorney duly licensed to practice before all the Courts in the State of
»
22
California and I am an associate with Archer Norris, attorneys of record for Defendant and Cross-
23
Complainant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION
24
(hereinafter "CA CONSTRUCTION"). I have personal knowledge of the matters set forth herein
25
except where stated on information and belief. If called upon as a witness in this matter, I could
26
and would competently testify thereto.
27
28
N1C341/820252-1 1
DECLARATION OF GREGORY K. FEDERICO IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO
PLAINTIFFS' MOTION FOR LEAVE TO RE-OPEN DISCOVERY
1 2. This case involves allegations of construction defects at a custom single-family
2 home located at 8601 Rolling Green Way in Fair Oaks, California. The PLAINTIFFS are the
3 owners of the subject home. Florence Abbott acted as the owner/builder for all phases of
4 construction of the subject home. PLAINTIFFS hired Defendant Ronald Paul Britschgi
5 ("BRITSCHGI") as the general contractor for the construction of the home through the framing
6 stage. PLAINTIFFS hired CA CONSTRUCTION to supply and install the concrete foundation
7 and garage slab per plans and specifications. Cross-Defendant CADRE DESIGN GROUP, INC.
8 ("CADRE") designed the home with substantial input from PLAINTIFFS.
9 3. On or about July 24,2009, PLAINTIFFS filed a Motion for Leave to File a First
10 Amended Complaint. PLAINTIFFS' Motion seeks to add personal injury claims due to alleged
11 mold exposure, new factual allegations against existing defendants, new causes of action against
12 existing defendants, and two new parties to the case. The new parties are Defendant Mark Smith,
13 an individual doing business as Groundbreakers ("SMITH") and CONSTRUCTION TESTING &
14 ENGINEERING, INC. ("CTE"). SMITH was hired by PLAINTIFFS and provided grading and
15 earth movement for the subject property. CTE is the entity that PLAINTIFFS * hired and paid to
16 perform the soil/compaction tests on the subject property.
17 4. The hearing on PLAINTIFFS' Motion for Leave to File a First Amended
18 Complaint was scheduled for July 20,2009. Prior to the hearing, the Court issued a tentative
19 ruling. The Court granted PLAINTIFFS' Motion. In its ruling, the Court indicated that leave to
20 amend is liberally granted. Also, the Court granted CA CONSTRUCTION'S request to limit any
21 further discovery to the new claims asserted against CA CONSTRUCTION and reopened
22 discovery for the limited purpose of allowing C A CONSTRUCTION an opportunity to conduct
23 discovery on the new claims against it. The Court reaffirmed its earlier ruling that discovery
24 remains closed as to other parties, and specifically, it ordered that PLAINTIFFS may not take the
25 depositions of CA CONSTRUCTION'S experts without first obtaining leave of Court to reopen
26 discovery for that purpose. Based on the Court's order, PLAINTIFFS must file and serve the first
27 amended complaint ho later than July 30,2009. See Exhibit "A" attached hereto
28
NIC341/820252-1 2

DECLARATION OF GREGORY K. FEDER1CO IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO
PLAINTIFFS' MOTION FOR LEAVE TO RE-OPEN DISCOVERY
1 5. CTE conducted an inspection of PLAINTIFFS'property on or about January 28,
2 2006 and issued its soils/compaction testing report thereafter. See Exhibit "B" attached hereto.
3 6. Mrs. Abbott was intimately involved with all phases of construction and was on
4 site approximately every other day during construction. .
5 7. Mrs. Abbott testified that she was concerned about the compaction and soils
6 beneath her house during her deposition, which was completed in December 2008 and January
7 2009. See Exhibit "C" attached hereto.
8 8. Discovery closed on April 13,2009 and expert discovery closed on April 27,2009.
9 The PLAINTIFFS conducted written and oral discovery, and deposed various parties and
10 percipient witnesses. PLAINTIFFS failed to timely notice and take the depositions of any
11 defense experts.
12 9. PLAINTIFFS' experts, Robert Weahunt, James Lee, and James Dillingham, were
13 deposed on April 24 and 27,2009. All of PLAINTIFFS' experts testified that it was their belief
14 that the fill beneath the garage slab, and potentially the house foundation, was improperly
15 compacted or not compacted at all. They also testified that it was their intention to opine on the
16 compaction issues at the time of trial. However, they could not offer any evidentiary or factual
17 basis to support their opinions, they indicated they had not independently investigated these
18 issues, and they testified that PLAINTIFFS had not authorized them to further investigate the
19 compaction issues.
20 10. On or about May 6,2009, PLAINTIFFS filed an ex-parte application to continue
21 . the first trial date of May 11,2009. The basis for PLAINTIFFS' ex-parte application was to
22 obtain more time for their experts to conduct investigation and testing related to the compaction
23 beneath the home and garage foundations. The Court denied PLAINTIFFS' application. See
24 Exhibit "D" attached hereto.
25 11. The case proceeded to trial on May 11,2009. Upon reporting to the Court, the
26 parties were advised that no courtrooms were available. On May 13,2009, the parties met with
27 the Honorable Brian Van Camp and were given a new trial date of June 7,2010.
28
NIC341/820252-1 3

DECLARATION OF GREGORY K. FEDERICO IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO
PLAINTIFFS' MOTION FOR LEAVE TO RE-OPEN DISCOVERY
1 12. Prior to receiving a new trial date, PLAINTIFFS excavated the property without
2 providing notice to the defense. The exact date of the excavation is unknown, and none of the
3 defendants, their counsel, or experts were present to view the excavation or methods used.
4 13. On May 12,2009, PLAINTIFFS' counsel informed the defense of the excavation,
5 that PLAINTIFFS were in the process of conducting destructive testing related to compaction '
6 issues, and advised the defense that it would have only one opportunity to inspect the already
7 excavated property. See Exhibit "E" attached hereto.
8 14. Over objection, CA CONSTRUCTION'S experts and several other defense experts
9 inspected the excavated areas. See Exhibit "F" attached hereto.
10 15. Until the filing of the present motion, PLAINTIFFS did not seek leave from the
11 Court to re-open discovery proceedings at any point in time.
-
12 16. On May 28,2009, there was an ex-parte hearing in which the parties sought
13 clarification on various discovery issues. During the hearing, the Court reiterated its previous
14 statement that discovery was closed. The Court further ordered that PLAINTIFFS are required to
15 file a noticed motion in which they request the Court to reopen discovery. The Court ordered
16 PLAINTIFFS to allow all defendants an opportunity to observe any testing performed at the
17 subject property, and ordered PLAINTIFFS to provide all defendants with at least 15 days notice
18 of any testing, along with a detailed description of any proposed testing. °
19 17. PLAINTIFFS filed a claim under their homeowner's insurance policy. During her
20 deposition, Mrs. Abbott testified under oath that they had not filed any claims under the couple's
21 homeowner's policy. See Exhibit "G" attached hereto.
22 18. The details surrounding the insurance claim are not known. The insurer conducted
23 an investigation prior to discovery closing. The report was prepared and issued to PLAINTIFFS
24 after discovery closed.
25 19. On July 8,2009, counsel for CA CONSTRUCTION requested that PLAINTIFFS
26 continue the hearing date on the present motion until such time as the Motion for Leave to File a
27 First Amended Complaint is heard and the parties are afforded an opportunity to file their
28 respective demurrers, motions to strike, or other responsive pleadings. PLAINTIFFS' would not
NIC341/820252-1 4

DECLARATION OF GREGORY K. FEDERICO IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO
PLAINTIFFS' MOTION FOR LEAVE TO RE-OPEN DISCOVERY
continue the hearing date. See Exhibit "H" attached hereto.
20. At the time of filing this Opposition, CA CONSTRUCTION has not been served
with the First Amended Complaint.
4 21. The insurance inspector performed no independent testing or investigation into the
5 compaction issues.
6 22. No destructive testing has taken place.
7 23. PLAINTIFFS filed the complaint on September 24,2007. CA CONSTRUCTION
filed an answer on November 13,2007. The defendants and cross-defendants then filed answers
and cross-complaints. The last pleading was filed on approximately October 2,2008.
10 24. CA CONSTRUCTION does not oppose the request by PLAINTIFFS to conduct
11 discovery against SMITH and CTE.
12 25. Potential mold exposure has never been discussed or claimed by PLAINTIFFS
13 until the filing of the First Amended Complaint.
14 I declare under penalty of perjury under the laws of the State of California that the foregoing
15 is true and correct. Executed this 27th day of July, 2009, at Sacramento. California.
16

17 | ^___^
lg GREGORY K. FEDERICO

19
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21
22
23
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27
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NIC341/820252-1 5

DECLARATION OF GREGORY K. FEDERICO IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO
PLAINTIFFS' MOTION FOR LEAVE TO RE-OPEN DISCOVERY
complaint that TRD breached the agreement "by failing to furnish a suitable employee,
failing to train ... and negligently referring said employee" to Oak Harbor. This
alleged wrongful conduct is separate from the tort allegedly committed by Coates.
Therefore, Coates' status as a special employee of Oak Harbor does not shield TRD
as a matter of law from a breach of contract cause of action.

Oak Harbor having demonstrated the existence of a triable issue of material
fact, TRD's motion for summary adjudication of the 4th cause of action is denied.

TRD having failed to obtain a favorable ruling as to each cause of action in the
cross-complaint, its motion for summary judgment must be denied.

Oak Harbor and TRD's duplicate requests for judicial notice of the complaint
and cross-complaint are granted. TRD's request for judicial notice of Whatley's
declaration is granted. The declaration is in the court file. The court, of course, does
not take judicial notice of the truth of the matters in the declaration.

Oak Harbor's evidentiary objections are overruled. The court notes that the
objections do not comply with CRC rule 3.1354(b). TRD's opening memorandum of
points and authorities does not comply with CRC rule 3.1113(f).

TRD's counsel shall prepare an order pursuant to CCP section 437c(g) and
CRC rule 3.1312.

Item 6 07AS04450
RODNEY ABBOTT, ET AL VS. RONALD PAUL BRITSCHGI, ET AL
Nature of Proceeding: Motion for Leave to File Amended Complaint
Filed By: Finelli, Stephanie J.

Plaintiffs' motion for leave to file first amended complaint is granted. Leave to amend
is liberally granted, and defendant has not shown undue delay and prejudice sufficient
to warrant denial of the motion. Defendant Ruybalid's request to limit any further
discovery to the new claims asserted in the amended complaint is granted. Discovery
is hereby reopened only to allow defendant Ruybalid an opportunity to conduct
discovery as to new claims asserted against him. As discovery remains closed
otherwise, plaintiff may not take the depositions of defendant's experts without
obtaining leave of court to reopen discovery for that purpose. The Court declines to
require plaintiff to pay defendants cost to depose plaintiffs experts as a condition for
granting leave to amend.

Plaintiff shall file and serve the first amended complaint on the current defendants no
later than July 30, 2009.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.

Exhibit
CONSTRUCTION lESTING&ENGI BERING, INC.
ESCONDIDO.TaUCV.CORONA»OXNABD• lANCAST$a •SACRAMENTO

INSPECTION REPORT
CTB
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PROJECT NAME;
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ABB-0555
Exhibit
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CONSTRUCTION TESTING & ENGINEERING; INC.
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ENGINEERING, INC

\ CT«rrRCHwcAfc»»nTJw»»*E»rt>u.«co^^ .SUKV8YINC
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Condensed Transcript

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SACRAMENTO

RODNEY ABBOTT and FLORENTINE
ABBOTT,

Plaintiffs,
CASBNa
vs. 07AS04450

RONALD PAUL BRTTSCHGI, individually
and dba BRTTSCHGICONSTRCTUION,
RICHARD KIRK RUYBAUD, individually
and dba CA CONSTRUCTION, SURETY
COMPANY OF THE PACIFIC, WESTERN
SURETY COMPANY, and DOBS 1 through
20, inclusive,

Defendants.

DEPOSITION OF

FLORENTINE ABBOTT

December 15,2008
ll:10a.ra.

2151 River Plaza Drive, Suite 300
Sacramento, California
j
Teni Tavfta, CSR No. 11962

ToB F«e: 800.300.1214
Facsimile: 91&44&2777
ESQUIRE " so
D E P O S I T I O N SBBVICBS*
ncpoimM • imcjtitoN siimcix uc Suite 300
2151 River Pteza Drive
Sacramento, CA 95833

\-
Exhibrt:
Florentine December 15, 2008
1 3
IB TUB SOPSBIOH COOKr OP TOB STMB OT CALLKJKHla
IB NH> roa THB oxarei OF susuxano
1 APPEARANCES OF COUNSEL (Confintred)
2
BCCBB* ABBOTT and
noamxBt ABBOTT, 3 For Cadre Design, Defendant
Plaintiff*. 4
•n. ost at. ows««450 5 MALONEY WHEATLEY SOPP & BROOKS. LLP
6 RICHARD D.SOPP, ESQ.
ROB*LD wira, sarrscBci.
IndivlAaUy and dfa> 7 1004 River Rock Drive, Suite 241
BBXTSCm COt&UtCRUfitf,
a Fbteom,Calffomk 95630
iadiilduUr «»* dba ' 9 (916)988-3857
OMENR wins eacmc. 10
WOTHKB SOROTT COdWUW.
and DOBS 1 Omugb 20. 11 Also present
InolaalT*, 12
DoxcadmtB.
13 ALBERTO. SANCHEZ
DBPOSXtXGtf O? 14
nosamMB WBOTT
15
Doeeoter 15, 20*9 • _u
Utia ».». ^
17
J»J1 lUver Wa» Drtva. Sultn JOB
18
Terxi Tartt., C3B BO. 11>«3 19
20
21
22
23
.-"• 24
35

2 4

C: 1
2
APPEARANCES OF COUNSEL 1
2
INDEX OF EXAMINATION
3 For Plaintiffs: 3 WITNESS: FLORENTINE ABBOTT
4 4
5 LAW OFFICE OF STEPHANIE J. FINELU & EXAMINATION PAGE
6 STEPHANIE J. FINELU, ESQ. 6
7 1007 7th Street, Suite 500 7 BY MR LUNDGREN 5
S Sacramento. Cafitomla 96814 a
9 (916)443-2144 9
10 D INDEX TO EXHIBITS
11 For CA Construction. Defendant 1 EXHIBITS MARKED
12 2
13 ARCHER MORRIS 3 1 Blueprints, 11-8OS 62
14 GREGORY K. FEDERICO, ESQ. 4 2 Blueprints 67
15 655 University Avenue, Suite 225 5 3 Six cotor photographs 76
16 Sacramento, California 95825 6 4 Three cotor photographs 83
17 (916)646-2480 7 5 Cadre Design Roing Green Way 116
18 8 improvement agreement
19 For Rortdal Britschgi, Defendant: 9
20 0
21 THE UW OFFICES OF CRAIG N. LUNDGREN 1
22 CRAIG N. LUNDGREN, ESa 2
23 424 2nd Street, Suite A 3
24 Davis. CaBforofa 95618 4
25 (530)792-8800 5

Ton ftee: 800.300.1214
Facsimile: 916.446.2777
Suits 300
"BJ5 QUIRE •scoanxe » UTIBMTIM »»s»ioi«. u£ 2151 River Plaza Drive
OIP091TIO1* SBBV1CB6* Sacramento, CA 95833
wvm.paulsonreportlng.cpni
Florentine Abbott December 15, 2008
45 47
AOkay. 1 A IdonlbeBeveso.
(Recess) 2 MS. RNELtt- Object to the extent ft cafe for
BYMR.LUNDGREN: 3 an expert opinion.
Q Mrs.~Abboti, you are still under the same 4 MR tUNDGREN: She is a contractor.
5 oalh as you were this morning? 5 Q You can go ahead and answer.
6 A Yes. 6 A No. It was not toBowed. He did not
7 Q Can you ten me what exactly are fhe 7 follow the plans.
8 Issues you want to resolve in this lawsuit? 8 Q What aspect of the foundation is
9 Ma FIICUJ: Object First of aD.ifs 9 inconsistent with the plans?
10 vague, and potentially calls for a legal concfusfon. 10 MS.FINELU: Same objection.
11 If you want to ask her specific questions thafs 11 THE WITNESS: Where it sits compared to the
12 vaBd To ask what issues she wants to resolve, I 12 street the plan showed a house that was supposed to
13 dorrt think Is appropriate. 13 go up from the street, not down. There was supposed
14 BYMR.LUNDQREN: 14 to be stairs fn tf-« bark that go up to the garage, not
is * Q What defects do you see with this home? is down.
16 MS.FINELU- I'll object It calls for expert 16 BYMR.LUNDGREN:
17 opinion. You can answer to the extent you have an 17 Q So the stairs dorft go up to the garage
18 answer to the question. from the outside?
19 THE WITNESS: The driveway. 19 A Correct Like It was supposed to be.
20 BYMRLUNDGREN: 20 O Doyouhaveanyundersteraftxiastobow
21 Q Are there any other problems? 21 tan the foundation is tor the garage?
22 A The drainage, the soil compaction, the 23 A Currently?
way the house looks, the stairs. That's about it 23 Q Yeah.
Q What Is the problem with the driveway? 24 A No.
— A You nave to have a four-wheel drive to 25 Q What was constructed?
46 48

get In and out, a vehicle thafs like a four-wheel A No.
2 drive. A regular car could not get hand out O Do you believe the foundation should have
3 Q So ire too sleep? been taller?
4 A Yes. A Yes.
5 Q And do you have an understanding of why Q And the Iwkjht of the foundation, how
6 the driveway is too sleep? 6 ta> do you understand the foundation to be?
7 MS.HNELU: Object It calls for an expert 7 A I don't know what you mean.
8 opinion. 8 O Do you know what I mean when I say
V THE WITNESS: I believe they set the foundation 9 foundation?
0 too low. 0 A Yeah.
1 BYMRLUNDGREN: 1 Q What Is your understanding of the term
2 Q When you say they set thefoundationtoo 12 foundation?
3 low, what do you mean? 3 A What the entire structure ste on.
4 A The foundation b set way betow the 4 Q And it's constructed of what material?
5 street levet They being CA Construction and Ron 5 A All depending on what he used, (don't
6 Britschgf. 6 know how he gets to the foundation or how he was to
Q Are you talking about the ground tfmt the 7 construct ft. ABltaciw.it doesn't match the
8 foundation sits on is too low or the top of the blueprints of what I wanted or what he said ft was
9 foundafionistootow? 9 going to be.
A The foundation itself b set too low to Q And you said ildtdnt match what he satt
where it should have been set compared to the street itwasgotagtobeandthepbns. What else? It
2 Q Do you have an understandiig there was a 2 doesnt match the Wuaprints?
3 design for the foundation of Ihe house? 23 A Correct
4 A Yes. 4 Q Is there any blueprint that fndicates tie
s Q Was that designed followed? 5 retatrVe elevafion of the house to the street?
; •

Toll Free: 800.300.1214
Facsimile: 916/446.2777
1PAULS ON Suite 300
ESQUIRE
DEPOSITION 9BEVICBS'
BI roorine * unMTio* anmei&uC 2151 River Maza Drive
Sacramento, CA 95833
ww.paubonreportfno^om
Florentine Abbott December 15, 2008

93 95
1 with drainage was with your house? i Iniquez?
2 A Rain comes hreaBy dose on a heavy 2 A He was referred to me by Mr. Santiago.
3 shower. If Ihe rain is reaDy heavy, ft puddles. 3 Q Who is Mr. Santiago?
4 Even with the addBkmal drains, everything drans 4 A A county engineer.
s right directly into the garage even wfth the channels B Q Why was he referred to you by
6 that WB put in, the extra drains. itsttflgoesln 6 Mr. Santiago?
7 there, and gets real soppy for mosquftos. 7 MS.RNELU: Calls for speculation.
a Q You have standing water to your garage? . 8 THE WITNESS: He was referred to me to talk to
9 A If the rain is really heavy. a him about the situation about my house.
10 Q Has ft caused any damage to your house? 10 BYMR.UJNDGREN:
11 A To the inside of the house? 11 Q Now. why were you in contact with
12 Q Tell me where the water when the water 12 Mr. Santiago? Did you call him up?
13 gets Into your garage, where does it go? 13 A Yes. I did.
14 A To the left-hand comer, front left-hand 14 Q And when dW you call him up?
is comer. .. IS A About three months ago.
16 Q The western watt of your garage? 16 Q When you called up Mr. Santiago, this Is
17 A Correct 17 at a time when you were not represented; b that
Q Sits up against the wafl? 18 correct?
19 A I dont go out every time. It certainly 19 A Yes.
20 goes that direction. 20 Q You called Mr. Santiago and what did you
21 MR. FEDERICO: I want to clarify. Is that the 21 teS.hlm?
22 wafl thafs closest to the house? 22 A I didnt tell him anything. I wanted to
23 THE WITNESS: Yes. 23 talk to him.
24 BYMRLUNDGREN: 24 Q Okay. Did you get a chance to speak to
35 r Q Do you have any other Issues with 25

94 96
drainage other than what you just described? 1 A Yes.
A Nope. 2 Q What did you describe to him as your
Q What about soil compaction? You 3 situation?
Indicated one of the defects you found was soil 4 A I just had some questions on the
compaction. Can you tefl me what you mean by that? s cufdesac.
A fm not sure. That was a conversation 6 Q What were your questions?
with the county. 7 A How R was relative with the tot
Q I don't know what you're taMng about e Q You wanted to know why Ihe cukfesac was
Did you have a conversation with someone 9 so much higher than your lot?
from the county about colls compaction? 0 A I wanted to know why my house was so much
A They befleve the laws were violated by 1 lower.
the contractor that set the foundation. 2 Q That was one question you asked
Q Who did you speak to from the county? 3 Mr. Santiago. You asked him why your house was so
A Chuck Mquez. 4 much tower than the cuWesac you bufft?
. Q How do you speB the last name? s A Yeah.
A 1-rH-q-u-e-z, I believe. 6 Q And what did he ten you?
Q l-n-i- ? A That I hadtospeak to Chuck, that (he -
A — q-u-e-z. 8 cuktesac was bum and constructed accortfing to plans
Q When did you speak wfth Chuck Nquez? 9 so a wasrrt anyfesuewith the cuktesac, and that it
A It's been about two months ago. 0 was obviously a structure problem.
Q Did you seek him out? ' 1 Q What was obviously a structure problem?
MS.RNELU: Vague. 2 A If my house ooesnt match the blueprints
THE WITNESS: No. 3 and Mr. Santiago is in charge of Ow cuktesac, and the
BYMRLUNDGREN: 4 cuktesac was bufflaccordrtg to plans and kfenfffied
' Q How did you come to speak to Chuck and passed, If I have a bidding issue, Fd navetogo

ToH Free: 800.300.1214
Facsimile: 916.446.2777

ESQUIRE PAULS ON Suite 300
aEpoimna «imeATioi stjmoti. u£ 2151 River Plaza Drive
DEPOSITION 9BBVIC1S* Sacramento, CA 95833
www.pauteonreportm9.cpnj
Florentine Abbott December 15, 2008
109 111

what the probtem was wBhltie softs compaction, and i house. He said it would go out of their hands and on
you indicated that you were sfiB investigating JhaL 3 to the Contractors Board which Is Eke bra or three •
You had learned of the problem with the sols 3
compaction from your discussion from Mr. tnkjuez. and 4 Q It's gone to the Contractors Boaid to
then we found out that Mr. takjusz had not inspected 5 your understanding?
your homo, but that he had sent a feDow named, 'Jim' 6 A Yes, it has.
to go out and Inspect your plans? 7 Q Do you have any documents that discuss
A Thaftcorred. 8 that or in your possession related to that issue?
Q Youtestifiedas to what Jim's comments 9 A Yeah. I do, not with me. I Just got the
to you were, and he said that he befieved the house 10 letter.
was not constructed per «he plans because someone had 11 MR. LUNDGREN: Counsel, can we get that at the
Installed state that ware not reflected on the ptens. 12 next deposition?
Is that basteaify correct? 13 MS. RNBJU: I think so. I dont know what
MS.F1NELU: I think it misstates. It lhalls. I need to took at ft. I cant imagine there
THE WITNESS: Rdoes. What I said Is from the IS would be a problem. Let me take a took at It
house to th« garage Ihere wera twice as many stairs 16, BY MR. LUNDGREN:
that show on the plans, meaning they sunk the garage 17 Q And next you said that you aWI-one
tower than It should have been, and the stalls from IS of the defects that you had or observed the way ttre
the cuktesao to my house Is an indication that was not IS house looks, what was that issue?
on the btueprtrts mean ing th» house to them is tower 20 A Just looks like a house sunk In the
than where it was supposed to be. 21 ground You cant see the yard, ft has no curb
BY MR. LUNDGREN: 22 appeal You can't go up the driveway without being
O I dldnt hear anything from your 23 afraid that you're going to run somebody over because
testimony about Jim that had to do with soils 24 you cant see.
compaction. 25 Q And then the stairs issue. I guess we
110 112
A That's correct 1 discussed that That was having to do with the number
MS. RNELU: There is no question. 2 of stairs going from the cuWesac down to the sidewalk
THE WITNESS: That's right 3 In front of your front door. You found that to be a
BY MR. LUNDGREN: 4 defect?
Q Did Mr. InlquezoplneastosoSs s A It was not something I wanted. My mom is
compaction Issues saparate and apart from what Jim had s handicap.
observed? 7 Q I wanted to understand a little bit about
A No. s the retaining wan.
Q Who is it (hat Informed you that there 9 At what Devoid you determine you
was an Issue with soils compaction on your home? 0 needed to have a retaining wan around your house or
A If nn remembering correctly it was 1 on the west side of your house?
Mr. Santiago Informed Mr. Inlquez that he believes a A It wasn't up tome. It was on my final
there was compaction laws violated by contractors, and 13 Inspection.
they would contact me Contractors Board to open an 4 Q Okay. How deep cut into the earth was-
investigation against them. the retaining wad was necessary because trie
Q What was the compaction issues that 6 contractors had to cut Into the earth on the west side
Mr. Santiago toM you about? ? of the house; is that correct?
A He says-this Is what I beBeve, he a MS. RNELU: Assumes facts not in evidence.
said that - rm trying to remember. 9 THE WITNESS: Yes.
The foundation contractors should no) 0 BYMR.LUNDGREN:
move more than 350 cubic yards of sol wBhout 1 Q Did you hire a prime contractor to do
cWaWr^ a permit, and trwysr»uW know that H 2 Bat work?
8iey old, to their understandhg, there was more than 3 A Which work?
4 350 cubic yaids moved and 1hat violates the compaction 4 Q Cutting irrto trie sWe oi the M) on me
laws, and could cause structural problems to the 5 west side of your house?

v.
ToD Free: 800.300.l2l4
Facsimile: 916.446.Z777

ESQUIRE
DEPOSITION SIXVICB5*
R1PORTINS • LtTlSATIO* 3EBVIOI* Ut
Suite 300
2151 River Piaza Drive
Sacramento, CA 95833
wvny.paulsonreDortlng.axn
TO

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO
ORDER DETERMINING DISPOSITION OF EX PARTE APPLICATION

The Court, having considered the above entitled ex parte application Qwithout a hearing D after hearing
with appearance as noted above, rules as follows:

D The application Is granted.
0%

O The application is denied on the merits of (he papers presented to the Court.

D The application is denied without prejudice to its resubmission for the following reason(s):

Q The moving party may not proceed except by noticed motion.

Dottier

Counsel for the. . Is ordered to prepare form
-6

DATE

CM50 (10/2008) ORIGINAL-CASE FILE YELLOW-SUBMITTING PARTY PINK-OFFICE COPY
05/12/2009 14:22 91644315" LAW OFFICES PAGE 01/01

Law Office of Stephanie J. Finelli
1007 Seventh Street, Suite 500
Sacramento, California 95814
Tel (916) 445-2144
Fax (93'.6) 443-1511
May 12,2009
Craig Lundgren
424 2nd Street, Suite A
Davis, CA 95616
via fax only 530-297-5077
Gregory Federico
Archer Norris
655 University Ave., Suite 225
Sacramento, CA 95825
via fax ottfy 926-646-5696

Richard Sopp
Maloney, Wheatjey, Sopp & Brooks
1004 Moon River Rock Drive, Suite 245
Folsom,CA 95630
viafax onfy 916-988-5296

Re: Abbott v. Britschgj et. al., Sacramento County case no. 07AS04450
Dear Gentlemen:
I write to inform you that the Abbotts have excavated the land to the right of the
garage in order to expose ihe footings. The property is available and open to inspection
by you and your experts. Please let me know when you would like to inspect the
property.
Additionally, the Abbotts intend to perform some destructive testing to determine
the compaction under the slab. I will let you know the results of that testing once 1 obtain
them.

Stephani

Exhibit.
ARCHERNORRIS
A PROFESSIONAL LAW CORPORATION

655 University Avenue, Suite 225 GREGORY K. FEDERICO
Sacramento, CA 95825-6747 gfederico@archemorrls.oom
916.646.2480 916.646.2480
916.646.5696 (Fax)
www.archemorris.com

May 13,2009

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. 07AS04450
My Client: CA Construction
Our File No.: NIC-341 _

Dear Ms. Finelli:

We are in receipt of your letter dated May 12, 2009 wherein you inform the parties that
Plaintiffs have excavated the land to the right of the garage and are in the process of performing
destructive testing to determine the compaction under the slab. The purpose of this letter is to
advise you of CA Construction's objection to Plaintiffs' proposed testing.

As you know, the initial trial date was set for May 1 1 , 2009. You informed the defense
one day after the initial trial date that testing was underway. Discovery closed in this matter on
April 13, 2009. Under Code of Civil Procedure §2024.020, a postponement of the trial date does
not re-open discovery proceedings. Further, expert discovery closed on April 27, 2009. You
already offered the opinions of your experts and they are now foreclosed from conducting new
investigations to support the opinions they offered.

During the May 13, 2009 conference with Judge Brian R. Van Camp, the defense advised
the Judge that discovery was closed and that Plaintiffs were conducting testing beyond the
discovery cutoff. You agreed with the Judge that discovery was closed. Judge Van Camp's
order was clear - Plaintiffs are required to bring a formal motion to determine whether they are
permitted to conduct this testing. After the conference, you indicated to me that Plaintiffs will
proceed with the testing.

WALNUT CREEK SACRAMENTO . NEWPORT B E A C H
Exhibit
LOS ANGELES" f ^
Stephanie Finelli

Case Info

Judge

Kevin J. McCormick Track Judge’s New Case

Case No.

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Document Filed Date

July 27, 2009

Case Filing Date

September 24, 2007

County

Parties

Stephanie Finelli Attorneys for Plaintiffs
Todd Jones Attorneys for Defendants
Gregory Federico Attorneys for Defendants
Harold Wright Attorneys for Plaintiffs
Craig Lundgren Attorney
Rachel Anderson Attorneys for Defendants
Nicholas Banko Attorney
James Tenero Attorneys for Plaintiffs
Linda Moin Attorney
Robert DeLong Attorney
Albert Sanchez Attorney
John Britton Attorney
Richard Freeman Attorneys for Defendants
Carmenella Roussos Attorneys for Plaintiffs
Stephanie Jenks Attorneys for Plaintiffs
Razi Shah Attorney
Richard Sopp Attorney
Scott Brooks Attorneys for Defendants
Jasun Molinelli Attorneys for Defendants
Sean Schwerdtfeger Attorneys for Defendants
Richard Dear Attorney
Steven Nimoy Attorney
Randal Barnum Attorneys for Plaintiffs
Elizabeth Boca Attorneys for Plaintiffs
Michael Loewen Attorneys for Plaintiffs
Bradley Larson Attorneys for Defendants
George Rudloff Attorney
Jennifer Wahlgren Attorney
Stephanie Fleming Attorney
John Arguelles Attorney
Alexander Cho Attorney

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Motion-Secondary: Rodney Abbott, et al vs. Ronald Paul Britschgi, et al

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Case Info

Parties