Preview
1 Todd A. Jones (Bar No. 198024)
Gregory K. Federico (Bar No. 242184)
2 ARCHER NORRIS rFilSO/EfaO! «S»£
A Professional Law Corporation
3 301 University Avenue, Suite 110
Sacramento, California 95825 JAN 1 3 2011
4 Telephone: 916.646.2480
Facsimile: 916.646.5696
By L Whiipelcl
5 Depcity Clerk
Attomeys for 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 CaseNo. 07AS04450
ABBOTT,
12 CA CONSTRUCTION'S OPPOSITION TO
Plaintiffs, PLAINTIFFS' SUPPLEMENTAL MOTION
13 IN LIMINE TO EXCLUDE EVIDENCE
REGARDING FLO ABBOTT'S LATER-
14 ACQUIRED CONTRACTOR'S LICENSE
RONALD PAUL BRITSCHGI, et aL,
15 Actioa Filed: September 24,2007
Defendants.
16 Hearing Date: January 14,2011
Trial Date: January 18,2011
17 Time: 8:30 a.m.
Location: Department 43
18
AND ALL RELATED CROSS-ACTIONS.
19
20
I.
21 INTRODUCTION
22 Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION
23 ("CA CONSTRUCTION") hereby submits this Opposition to Plaintiffs FLORENTINE and
24 RODNEY ABBOTT'S ("Plaintiffs") Supplemental Motion in Limine to Exclude Evidence
25 Regarding Flo Abbott's Later-Acquired Contractor's License.
26 ///
27 ///
28 ///
N1CS49/1073994-1
DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTJON IN LIMINE TO EXCLUDE EVIDENCE
REGARDING FLO ABBOTT'S LATER-ACQUIRED CONTRACTOR'S LICENSE
1 IL
FACTUAL BACKGROUND
2
The crux ofthis motion centers on statements made by Mrs. Abbott under oath, in both
3
her deposition and in official documents she filed with the Califomia State Licensing Board
4
("CSLB") with regard to the constmction ofher home at 8601 Rolling Green Way in Fair Oalcs,
5
Califomia, which is the subject ofthis action. Mrs. Abbott has made conflicting statements in
6
both forums with regard to her role in supervising, coordinating, managing, and decision making
7
as it pertains to the constmction ofher home.
8
In statements made under oath, Mrs. Abbott filed declarations with the Sacramento
9
County Building Department in which she agreed to act as the owner/builder for all phases of
10
constmction for this project. (See Owner/Builder Declarations attached hereto as Exhibit "A"). In
11
these documents, Mrs. Abbott affirms with the County of Sacramento that she is the responsible
12
party for all aspects of constmction ofher home.
13
During deposition, Mrs. Abbott testified to the opposite - that she was not responsible for
14
supervising this project. Duruig deposition, she testified that she was on site during constmction
15
every other day. Despite her presence on site, Mrs. Abbott has washed her hands of responsibility
16
for ensuring the project was completed timely, that the subcontractors received all documents
17
necessary to execute their scope of work, and that the subcontractors properly executed their
18
scope of work. Mrs. Abbott testified that she did not supervise or coordinate the project, and that
19
she had no responsibility to do so. Mrs. Abbott provided this testimony despite declaring to the
20
county that she was in charge ofthe project as owner builder and as the person who pulled the
21
permits. (See excerpts of Mrs. Abbott's deposition attached hereto as Exhibit "B").
22
The cul-de-sac was also constmcted at the direction and xmder the supervision of Mrs.
23
Abbott, who was the registered owner-builder with Sacramento County. Under the direction of
24
Mrs. Abbott, the cul-de-sac project was completed after CA Constmction poured the foundation
25
for the home.
26
Thereafter, Mrs. Abbott initiated a complaint against CA CONSTRUCTION with the
27 NIC549/1073994-1 2
28
DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE RE FLO ABBOTT'S GC LICENSE
1 CSLB after constmction was complete. Independent investigator Donn Marinovich inspected the
2 home, discussed the matter with Mrs. Abhott, and issued a report. The CSLB expert confirmed
3 that there were no defects associated with the constmction ofthe foundation. The report also
4 concluded that the owner-builder failed to coordinate the respective elevations on the house plans
5 and cul-de-sac plans, and such coordination was her responsibility.
6 With the approval of Mrs. Abbott, she changed the design ofthe home to 1/2 slab and 1/2
7 raised floor during constmction. She consented to the change on or about October 10,2005 as
8 reflected in documents filed with the Coimty of Sacramento.
9 In 2007, Mrs. Abbott applied for a general contractor's license. In her application, Mrs.
10 Abbott declared, underpenalty ofperjury, that she had the required work experience for a general
11 contractor's license. In her application, Mrs. Abbott lists her position on this project as
12 "supervisor." Mrs. Abbott lists the cul-de-sac project and the constmction of 8601 Rolling Green
13 Way as her relevant work experience, including the supervision of numerous trades on the
14 proiect, including the foundation contractor. Specifically, in her application, Mrs. Abbott lists
15 the trades she perfonned as "framing, supervisor." Mrs. Abbott describes her duties and work
16 . performed as follows: "Obtained permits, framing, supervisor, helped with plans, tilework,
17 and sheetrock insulation." Finally, on page 2 ofthe certification of work experience, Mrs. Abbott
18 lists the "foundation" as a trade she has either performed or supervised. (See Mrs. Abbott's
19 general contractor's application attached hereto as Exhibit "C").
20 This statement directly conflicts with her deposition testimony that she played no role in
21 decision making and supervising contractors dining constmction. It also conflicts with the claim
22 m the Third Amended Complaint that CA CONSTRUCTION altered the plans without her
23 knowledge. In one fomm she states under oath that she helped with plans, but the complaint and
24 her testimony advance the position that the plan changes were done without her knowledge.
25 Based on the content ofher application, the Califomia Attomey General filed a complaint
26 against Mrs. Abbott for misrepresenting facts on her general contractor's application. The claims
27
NIC549/1073994-1
28
DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE RE FLO ABBOTT'S GC LICENSE
1 against Mrs. Abbott include, but are not limited to, the extent ofher work experience in the trades
2 and the timing of when fhe permits were pulled for the project at issue in this case. (See Attomey
3 General's Complaint against Mrs. Abbott attached hereto as Exhibit "D"). The complaint is
4 currently pending.
5 Plaintiffs' now move this Court to exclude evidence that Mrs. Abbott provided under oath
6 to a govemment agency which is highly relevant to several issues in this case, including but not
7 limited to: (1) her role in supervising the project and (2) her credibility as the key plaintiff witness
8 in the case.
9 m.
ARGUMENT
10
THE EVIDENCE IS RELEVANT TO ISSUES IN THE CASE, MRS.
11 ABBOTT'S CREDIBILITY, AND IT WILL NOT MISLEAD THE JURY,
I WASTE TIME, OR CONFUSE THE ISSUES FOR THE JURY.
,^ 1. The Evidence Is Fundamental To Establishing CA Construction's
Affirmative Defenses
14 A court should not grant a motion in limine that has the effect of eliminating the
15 opportunity for a party to prove their causes of action. See generally R&B Auto Center, Inc. v.
16 Farmers Group, Inc. (2006) 140 Cal.App. 4th 327, 359. The same reasoning should apply to a
17 party establishing its affirmative defenses. With respect to CA CONSTRUCTION, it has a
18 number of affirmative defenses it must establish at trial, including but not Hmited to the
following: Contributory Negligence, Negligence of Others, Assumption ofthe Risk, Plaintiffs'
20 Voluntary Conduct, Plaintiffs' Failure to use Reasonable Diligence, Laches, Comparative Fault,
21 Allocation of Fault, and Adequacy of Plans and Specifications. The basis ofthese affinnative
22 defenses is the contributory fault of Plaintiffs in causing their own damages. In fact, Plaintiffs'
23 counsel would be hard pressed to argue that CA CONSTRUCTION should not be pemiitted to
24 establish its affirmative defenses since Plaintiffs vehemently fought CA CONSTRUCTION'S
25
separate cross-complaint against Plaintiffs based on contributory negligence/comparative fault
principles. Additionally, in granting Plaintiffs' Motion for Judgment on the Pleadings as to CA
27 NIC549/i073994-l 4
28
DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE RE FLO ABBOTT'S GC LICENSE
1 CONSTRUCTION'S indemnity cross-complaint, the Court indicated that CA CONSTRUCTION
2 was adequately protected by the affirmative defenses it could assert at trial. (See the Court's
3 Minute Order on Plaintiffs' Motion for Judgment on the Pleadings attached hereto as Exhibit
4 "E"). It would be an abuse of discretion for the Court to deny CA CONSTRUCTION the
5 opportunity to establish its affirmative defenses with evidence that has substantial probative value
6 with respect to the sole negligence and/or contributory fault of Plaintiffs.
7 2. The Evidence Will Not Confuse Or Mislead The Jury On Issues In The
8 Case And It WiU Not Consume Undue Time
Plaintiffs' argument that evidence related to Mrs. Abbott's license application and the
9
Attomey General action against her license would be misleading and confiasing to thejury is a red
10
herring. Plaintiffs wiU fight hard to keep this evidence out because it is the proverbial "smoking
11
gun." This evidence is damaging to Plaintiffs' claims she did not supervise the project, Mrs.
12
Abbott's credibility, and there is a strong possibility that such evidence will expose Mrs. Abbott
13
to perjury claims. Further, based on the content ofthe application and the representations made
14
therein. Plaintiffs' counsel should have ethical concems about presenting Mrs. Abbott as a witness
15
based on her deposition testimony and the statements contained in these documents.
16
Plaintiffs must establish that the probative value ofthis highly relevant evidence is
17
substantially outweighed by the probability that its admission will waste time, create undue
18
prejudice, confuse issues, or mislead thejury. Evidence Code § 352. This evidence will only
19
serve to clarify issues in the case related to Mrs. Abbott's uivolvement in the project and her
20
decision making role on the project. As will be demonstrated by numerous witnesses, Mrs.
21
Abbott was highly involved in this project on almost a daily basis, whether it be supervising the
22
trades, constmction decisions, plan changes, the purchase of materials, how the house was
23
designed and how it would ultimately look on her lot. In fact, she played the same role on the
24
completion ofthe cul-de-sac project that was completed after her home was constmcted. She has
25
denied these facts and her role on the project throughout this case and under oath in her
26
deposition. Her general contractor's license application is highly probative and tests the veracity
27 NICS49/1073994-1 5
28
DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE RE FLO ABBOTT'S GC LICENSE
1 of statements made during deposition and in this case in general. The Court cannot exclude
2 highly probative evidence that goes straight to the heart of issues in this case and Mrs. Abbott's
3 credibility. If excluded, it would rob CA CONSTRUCTION of its rights to present its defenses
4 and to test the veracity ofthe evidence and witnesses advanced by Plaintiffs.
5 Further, this evidence will not consume undue time because it is needed to fully develop
6 issues at play in the case. The evidence would be discussed during the cross-examination of Mrs.
7 Abbott and involves specific and liraited questioning. It can only serve to clarify, and not confuse
8 issues for the jury. Other than making generalized statements of the evidence's prejudicial value,
9 Plaintiffs cite no specific prejudice they will suffer as a result ofthis evidence.
10 "Prejudice," as contemplated by Evidence Code §352, is not so sweeping as to include any
11 evidence that the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in
12 a § 352 context, merely because it undermines the opponent's position or shores up that ofthe
13 proponent. The ability to do so is what makes evidence relevant. The Evidence Code speaks in
14 terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption
15 substantially outweigh the probative value of relevant evidence, a § 352 objection should fail. The
16 "prejudice" referred to in § 352 applies to evidence that uniquely tends to evoke an emotional bias
17 against a party as an individual and that has very little effect on the issues. In applying § 3 52,
18 "prejudicial" is not synonymous with "damaging." Vorse v. Stxrasy (1997) 53 Cal.App 4th 998.
19 This is what Plaintiffs want to do - exclude evidence because it is damaging to their case.
20 Plaintiffs have not made the necessary showing under Evidence Code § 352.
21 3. The Evidence Is Not Improper Character Evidence
22 Plaintiffs argue at length that such evidence is improper character evidence. CA
23 CONSTRUCTION directs the Court to the following Evidence Code provisions:
24 Evidence Code § 350:
25 No evidence is admissible except relevant evidence.
26
27
NrC549/1073994-l 6
28
DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE RE FLO ABBOTT'S GC LICENSE
1 . . Evidence Code § 351:
2 Except as otherwise provided by statute, all relevant evidence is
admissible.
3
Evidence Code § 352:
4
The court in its discretion may exclude evidence if its probative
5 value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b)
6 create substantial danger of undue prejudice, of confusing the
issues, or of misleading thejury.
7
Evidence Code § 1101(b) «fe (c):
8
9
(b) Nothing in this section prohibits the admission of evidence
10 that a person committed a crime, civil wrong, or other act when
relevant to prove some fact (such as motive, opportunity, intent,
11 preparation, plan, knowledge, identity, absence of mistake or
accident,.. .other than his or her disposition to commit such an act.
12
(c) Nothing in this section affects the admissibility of evidence
13 offered to support or attack the credibility of a witness.
14
Evidence Code §780
15
Except as otherwise provided by statute, the court or jury may
16 I consider in determining the credibility of a witness any matter that
has any tendency in reason to prove or disprove the tmthfulness of
17 his testimony at the hearing, including but not lunited to any of the
following:
18
19
(e) His character for honesty or veracity or their opposites.
20
21
(h) A statement made by him that is inconsistent with any part of
22 his testimony at the hearing.
23 Plaintiffs do not cite to Evidence Code §1101 (b) or (c) for good reason. Pursuant to
24 Evidence Code §1101 (b), Mrs. Abbott's general contractor's license apphcation is relevant
25 because it is probative of some other fact at issue in the case. CA CONSTRUCTION will
26 establish that the evidence is relevant to prove other facts at issue in the case, including, but not
27 limited to, whether Mrs. Abbott approved various constmction decisions, that she was the
NIC549/1073994-1 7
28
DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE RE FLO ABBOTT'S GC LICENSE
1. responsible party for the project to the County of Sacramento, and most importantiy, that she
2 stated under penalty ofperjury in her application that she supervised the foundation work that is
3 at issue in this case. She denied this in her deposition.
4 Furthermore, Evidence Code §1101(c) states that character evidence is admissible to
5 support or attack a witness' credibility. Again, Mrs. Abbott's credibility is one ofthe most
6 important issues in this case. What Plaintiffs' characterize as improper character evidence is
7 nothing more than evidence related to the credibility of Mrs. Abbott as a witness. Impeachment
8 evidence is relevant when a person's credibility is called into question. CA CONSTRUCTION is
9 entitled to challenge Plaintiffs' claims and Plaintiffs' testimony provided in deposition and at tirial
10 through the use of impeachment-based evidence.
11 B. THE EVIDENCE IS RELEVANT TO THE FACT THAT PLAINTIFF WAS
THE RESPONSIBLE PARTY TO THE COUNTY OF SACRAMENTO FOR
12 ALL ASPECTS OF CONSTRUCTION OF THE SUBJECT HOME
13 The owner builder declarations signed by Mrs. Abbott indicate that she is the responsible
14 party with the County of Sacramento. She pulled the permits. The statements contained in the
15 application, especially the provisions that indicate she pulled the permits corroborate her level of
16 responsibility on the project. Also, the statements in the application that she helped with the
17 plans, tends to prove or disprove facts at issue in the case. Namely, Mrs. Abbott alleges that CA
18 CONSTRUCTION altered the plans without her knowledge. CA CONSTRUCTION must be
19 entitied to disprove Plaintiffs' claims through the introduction of relevant documentary evidence.
20 IV.
CONCLUSION
21
The supplemental motion should be denied because Mrs. Abbott's apphcation and the
22
action against her Hcense is highly probative of issues in the case and Mrs. Abbott's credibility.
23 I Dated: January 10,2011 ARCHER N O ^ ^ S ,
24
25
Gregory K. Federico
26 Attomeys for Defendants RICHARD K.
RUYBALID dba CA CONSTRUCTION
27 NIC549/1073994-1 8
28
DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE RE FLO ABBOTT'S GC LICENSE
1 PROOF OF SERVICE
2 Name of 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 proceedmg. My business address is 301 University Avenue, Suite 110, Sacramento,
Califomia 95825. On January 13,2011,1 caused the following document(s) to be served:
5
CA CONSTRUCTION'S OPPOSITION TO PLAINTIFFS' SUPPLEMENTAL
6 MOTION IN LIMINE TO EXCLUDE EVIDENCE REGARDING FLO ABBOTT'S
LATER ACQUIRED CONTRACTOR'S LICENSE
7
|3(| 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
address shown above following our ordinary business practices. I am readily familiar
9 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 collection and mailing, it is deposited in the ordinary course ofbusiness
11 with the United States Postal Service with postage fully prepaid.
^^ |3cl ^y having a tme copy ofthe document(s) listed above tiansmitted by facsimile to the
person(s) at the facsimile number(s) set forth below before 5:00 p.m. The tiansmission
was reported as complete without error by a report issued by the transmiti;ing facsimile
14 machine.
15 I I By plachig 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 ati^iecopy of
J9 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 ofperjury that the foregoing is tme and correct. Executed on
January 13, 2011, at Sacramento, California.
23
24 4/K.
25 V CINDY A. INGLAND
26
27
28
NIC341/608293-1
PROOF OF SERVICE
1 Service List
2
Stephanie Fmelli PLAINTIFFS
3 Law Offices of Stephanie J Finelli
1007 Seventh Street, Suite 500 Tel-(916) 443-2144
4 Sacramento, CA 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 Drive, Suite 245 Tel: (916) 988-3857
7 Folsom, CA 95630 Fax:(916)988-5296
Email rds(@mwsb!aw.com
8
Mark Smith In Pro Per
9 8549 Willow Valley Place
Granite Bay, CA 95746
10 markdarlenesmith(ggmail 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
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NlC34)/60&293-l
SERVICE LIST
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County of Sacramento Branch Center (916) 875-529$
Building Inspecbon Division 4101 Branch Center Rd.. Sacramef*) 95827
www.bldginspection.org Downtown (916)874.6433
827 7th SL, Rm. 102, Sacramento 95814
RESIDENTIAL P L A N REVIEW
2001 Adopted Codes
Effective November 1 , 2002
PROJECT
DESCR]PTK»< 5A DATE llal^^^ Ho.rM9m~-^7fs-
These sheets, wiien attached to a set oS plans, become part of those plans and must remain attached thereto. Tlie
approval of this plan and tite specifications shali not be held to permit or approve the viotation of ariy Counfy
ordinance or State er Federal iaw.
I have read and wiH compiy with the items in fltts document and as marlced on the plans. I am aware that
the UaA and cq)^9^ectk9is referenced in this form may t>e appealed as per SCC105.
Date ^17/0^
Signature of: JB Owner D Authorized Agent O Contractor D ArchltecvEngineer
BUILDING CODE REQUIREMENTS
B-1 Smoke alann location witfiin dwelUng units, in dwe&ing units, a smolce atamn shall h& instadsd in each
s l e ^ n g room and at a point centrally tocated in the comdor or area givir^ access to each separaie
sieepmg area When the dvv^ng unit has more than one stoiy and in d w e l l s with tiasements, a smoice
alarm shall tse Insfalled on each sioiy and In the basement in dwdling units where a story or basement is
split into two or more levels, Hie snole
Installed in Vn& haOway and in the adjacent room. Smoke sterms shall sound an alarm audible in all
s l e e f ^ areas of the dwelling unit in which they are tocated. in new construction, reqisred smoke alarms
shall receive their primary (Xiwer from a commen:ial source and have a tiattery t>ack up as per 2001 CBC
Section 3t0.9.1.
B-2 When the valuation of an addition, alteration or repaa" to a Gn^up R Occupancy exceeds $1000 and a
permit is required, or M^ien one or more sleeping rooms are added or created 'vn existing Group R
Occupancies, smoke alanms shall be installed ni accordance with CBC Sections 310.9.2.
ExcepHon: Repairs to the exterior surfaces of a Group R-3 Occupancy axe exempt from the requirements
of fills section.
o-o oas&n&hs tn owsiisig unis ana «vcty sieepittg room ct6:w»v u>e voufin stoty sa^ait iia^a a icssi one
operable window or door approved for emergency escape or rescue that shall open directly into a ~
public stieet, public way, yanf, or exit court as defined tiy 2001 CBC Chapter 2. Escape or rescue
windows shall have a minimum net dear openatKe area of 5.7 square feet The minimum net clear
openable height dimension sliail be 24 inc:hes. The minimum net dear openable width dimension shall be
20 inches. Emergency escape or rescue windows shali have a fmished sill height not mora than 44 inches
atjove the floor as per 2001 CBC Section 310^4. Emergency egress windows fbr basements shaH open
to a window well constructed &i accordancewith the provbtons of 2001 CBC Section 310A
ABB-0607
B-4 All Group U Occupancies attached to Group R, Dhrtsion 3 Occupancies shall tra separated by
materials approved for one-hourfire-resis&veconstruction. The separation may be limited to the garage
side only and requires a s^f-dosbq, tight fittrig sofid wood door 1 3/8 inches in thickness or a self-closing,
tight fitting do<»' having a tested fire protection rating of not less than 20 minutes. 2001 CBC Section
302A Exception 3.
Note: All meniiers supporting such separation st^ll be of equivalent firewissistive construction as per
2001 CBC Sectior) 302 Under no drcumstsaice shall a pnvate garage have any opening into a room
i
used Ibr sleeping purposes as per 2001 CBC Section 312A Afl electrical boxes on c^sposite sides of the
wall shall be separated by a horizontal distance of not less then 24 Inches as per 2001 CBC Section
7DS.7.
B-5 FDre danpets need not be instafiedto-airducts passing through the waU, ftoor, or ceiling separating a
Group R-3 Occupancy from a Group U Occupawy provided such ducts with^ the Group U OcctJpancy
are constructed of steel havo^ a thickness not less than M6 galvanized sheet gauge as per 2001 CBC
Section 302^ Exception 3.
B-6 Provide adequate natural i^ht and ventilation for tiabitable rooms within a dv^lling unit as per 2001
CBC Secfion 1203.
B-7 Bathrocmts, water closet compariments, Sundry rooms, and similar rooms shall be provided with naturai
or mechanical ventilation as per 2001 CBC Section 1203.3.
B-8 Prowde safety glazing fbr all glazing located in hazardous locations as specified in 2001 CBC Section
2406A
B-9 Showers In an occupancies st^U be finished with a snraoth. hard, nonab^rbent surface to a height of 70
Hiches above the drain inlet as per 2001 CBC Section 807.1.3.
B-10 Provide an approved attic access 22" x 30" with 30 indies minimum vertical headroom as per 2001 CBC
Section 1505.1.
Note: Attics with a maximum ver&cal height of less than 30 inches ne«i not be provkled with access
openings.
B-11 Enclosed usaUe space under interior stairways shall have the walls and soffits protected on the
endosed side as required (or one-hourfire-resistiveconstruction as per 2001 CBC Sections 1003.3.3.9.
B-12 Private stairways and steps serving an occupant load of tess than 10 may be constructed with an 8-
inch maximumrise,a 94nch mkilmum run. and a 36wnch minimum vindth. The largest tread run and the
greatest riser height within any &glM of stairs shall not exceed the smaltest by more than 3/8 inch. The top
of handr^s shaU be placed not less than 34 inches or mone than 38 inches above the noslr^ of the
treads. Maintain 6 feet 8 indies of headroom dearance. Two or more risers constrtute a stairway as per
2001 CBC Section 1003.3 J .
B-13 Guardrails in Groups R-3 and U-1 shall be a minimum of 36 inches high. Open guardrails shan have
intermediate rails r in all habitable
rooms. 2001 CBC Section 310.11.
B-16 Factory built chimneys and factory built fir^laces shall be listed and installed in accordance with the
terms of their listing and the manufacturer'sfrwiructfonsas per 2001 CBC Section 3102.5.
BID0322 (Rfiv. 12/02) 2
ABB-0607.01
6-17 BAasonry chimneys, unless a specrfied design is provided, shall t>e constmcted, rsinforoed and andiored
as per 2001 CBC Sectton 3102.4.
B-18A Braced wail lines shall consist of braced wan panels that meet the requirements for tocatlon, type, and
amwjnt of bracing spedfied in Table 23-IV-C-1 and are in line or offeet from each other by not more than
4 feet Braced waS panels shal start ai not more than 8, feet from each end of a traced wall line All
braced wall panels shall be clearty kienti^ed on the plans as to their type, length and location as per 2001
CBC Section 2320.11.3.
NxOv: 1" X 4 ' let-h braces are not allowed to meet sectton 2001 CBC Section 2321111,3 bnadng
retirements In Selsmto ZOK 3.
B-1 SB Any braced waB panel required by the 2001 CBC Secfion 2320.11.3 may be replaced by an attentate
tiraeed wall panel construded in accordance with 2001 CBC Section 2320.11.4 item 1 for one-story
buikJings and 2001 CBC 2320.11.4 item 2 for thefirststory of two-story bu3dings. See BIO Fonn %89 for
addittonal informattoii.
B-18C ConventioiKil wood foundation cripple walls shall be framed and braced as per 2001 CBC Section
2320.11.5. Foundatton cripple walls having a stud height exceeding 14 inches shall be braced in
accordarx^e vi/ith Table 23-IV-C-2. Solkl btoddng or wood structural panel sheathing may be used to
brace cripple waUs havir^ a ^ud height (Tf 14 Inches or less.
fi-19 Wood framed studs shall be sized as per 2M1 CBC Table 23-1V-B for height, length, and spacing.
B-20 Buildings of unusual shape, or porttons there of, shaH be deigned as per 2001 CBC Section 2320.5 A
B-21 Provkle under floor access and ctearances as per 2001 Section 2300.3. A minimum opening size of
18" x 24" is requned. A trinimum of 12* dearance to underfkwr girders and 18* clearance to ROOT joists Is
required unless treated wood or wood of natural re^tancs to decay is utTized.
B-22 Provkle a minimum of one square fOot of under floor ventilation for each 150 square feet of under
floor a r ^ a s per 2001 CBC Section 2308.7.
B-23 Ali foundation sills, plates, sleepers, poste, and columns that rest on concrete or masoirry must be
foundation grade redwood or treated and marked material branded by an approved agency as per
2001 CBC Sections 2306,4 and .5. Where not subjedto water splash or exterior moisture, wood may be
untreated M^en in compTrance with 2001 CBC Section 2306.8.
6-24 Foundation plates or silte shall be bolted to the foundation or foundation wall with a minimum of
two %" X 10° bolts with a minimum embedment depth of T. Anchor bolts shall have 2" x 2° x 3/16" plate
washers on each anchor bolt Anchor bolts shall not be placed more than 6 fe^ on center or more ihan
12" ftom each end piece of tte siH plate. /\nchor bolts shall not be placed within seven bolt diameters
from each plats end piece es per 2001 CBC 1806 and 1806.1.
B-25 Cutting and notching of extertor walls and bearing partitions shall not be greater than 25 percent of the
shid v^th. Cutting or notching of studs to a depth not greater ttian 40 percent of the width of the stud is
permitted in nonbearing partittons supporting no loads other than the weight of the partitton. 2001 CBC
Section 2320.11.9.
6-26 A hole not greater in diameter than 40 percent of the stud width may be t>ored In any wood stud.
Bored htrfes not greater than 60 percent or xne wiaui oT u«s atuJ c e p^musisJ;.. .~cr.ic^rr:g p:ri!t"::r.3 zr
in any waO where each bonaJ stud is doubled, provided not more than two sudi successive doubted studs
are so bored. 2001 CBC Section 2320.11.10.
B-27 All bearing walls shall be supported on masonry, concrete, toundattons, pries, or other approved
foundation systems that will be of suffident size to support ^1 loads. Where a design is not provkled, the
minsnum foundatton lequirements tor stud bearing walls shall be as set fortii ir^ Table 18-I-C unless
i expansive soils are known to exist as per 2001 CBC Section 1806.3.
BID0322(Rev. 12A12) 3
ABB-0603
B-28 Where post and beam or girder construction is used, a posifive connectton shall be provided to ensure
against upfift and latere displacement 2001 CBC Section 2314.
B-29 Where rafters are not panaSel withttieceiling joists, rafters shall be tied to 1" x 4" minimum size crossties.
Rafter ties shall be spaced not mons than 4 fe^ on center. Where rafters are parallel they sfiall be nailed ,^
to the adjacent ceiling jdsts as per 20O1 CBC Section 2320.12.6. ||
B-30 Provide attic ventilation as per 2001 CBC Section 1505 and the Cafifornia Energy Standards
Commission.
B-31 Fire and draft stof^ung shall be installed acconcfingto2001 CBC Section 708.
B-32 Ail giypsum t)oard, stucco, piaster, and lath ^all be installed as per 2001 CBC Chapter 25.
Nato: When lath is appilied over wood base sheathing, include two layers of grade D paper as per 2001
CBC 2506.4.
B-33 Exterior wall coverings shaD be appUed as per 2001 CBC Chapter 14 and Section 2310.
MECHANICAL CODE REQUIREMENTS
M-1 Domestic clothes dryer moisfaire exhaust ducts shall tenninate on the outside of the buDdlng and shaA
be equipped with a b^k draft damper. Sheet m ^ l screws or other fasteners that vM obstruct the ftow
shaB not be used. Unless othenvise permitted or required by the dryer manufacturer^ installation
instructions and by fiie buiUoig ofttotal, domestto dryer moisture exhaust duds shall not exceed a total
combined horizontal ^td vertical length of 14 feet induding two 90 d^ree eit}ows. Two feet shall be
deductedtoreach 90 degree elbow in excess of two as per 2001 CMC Section 504.3.
M-2 When a closet is designed fbr the Installation of a d o t h ^ dryer, a minimum opening of 100 square
Ind^s fbr make up air ^11 be provided in ttie door or by ottier approved means as per 2001 CMC
Section 504.3.2.
Wi The Instaliation of a listed cooking applbnce or microwave oven over a isted cooking appliance shall
conform to the M>ndittons of the upper appliance's listing and the manufacturers' InstaUatton Instructtons
i
as per 2001 CMC Sectian 917.3.
M-4 DtKts for domestic kKchen downdraft gn1l-range ventilation shall be Installed as per 2001 CMC
Sectiim 504.2.
M-5 Fuel buming equipment shall be assured a sufitoient supply of combustion air as per 2001 CMC
Ci»pter7.
M-6 Warm air ftimaces shatl not be Invaded in a room used or designedtotse used as a bedroom, bathroom,
or doset or to any enctosed space with access only through suc:h room or space as per 2001 CMC
Section 904. See exceptions to 904.5 fbr other altematives.
M-7 The distance from the passf^eway access to ttie furnace shall not exceed 20 feet measured along
the centeriine of the passageway. The passageway shaS t>e unobstruded and shall have continuous solid
floorrig not l e ^ thai 24 inches wide firom tte entrance opening to the furnace. A level worldng platform
not less than 30 indies bi depth and wkflh shall be provkied in front of tte entire fire box side of tte warm
air furnace. If tte furnace temperature Irmtt control, airfilter,fuel control valve, vent Collar, or air fondling
unit is not servtoeablefromthefrrebox side of tte fiimace, a continuous ftoor not less ttan 24 Inches in
wtdtt shall be provkled from tte plattonm infrontof tte fire tx^x skle of tte frimace to and in front of ttis
e q u ^ e n t A pemianent elecfric ouflet and lighting foixire
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1 Todd A. Jones (Bar No. 198024) Gregory K. Federico (Bar No. 242184) 2 ARCHER NORRIS rFilSO/EfaO! «S»£ A Professional Law Corporation 3 301 University Avenue, Suite 110 Sacramento, California 95825 JAN 1 3 2011 4 Telephone: 916.646.2480 Facsimile: 916.646.5696 By L Whiipelcl 5 Depcity Clerk Attomeys for 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 CaseNo. 07AS04450 ABBOTT, 12 CA CONSTRUCTION'S OPPOSITION TO Plaintiffs, PLAINTIFFS' SUPPLEMENTAL MOTION 13 IN LIMINE TO EXCLUDE EVIDENCE REGARDING FLO ABBOTT'S LATER- 14 ACQUIRED CONTRACTOR'S LICENSE RONALD PAUL BRITSCHGI, et aL, 15 Actioa Filed: September 24,2007 Defendants. 16 Hearing Date: January 14,2011 Trial Date: January 18,2011 17 Time: 8:30 a.m. Location: Department 43 18 AND ALL RELATED CROSS-ACTIONS. 19 20 I. 21 INTRODUCTION 22 Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 23 ("CA CONSTRUCTION") hereby submits this Opposition to Plaintiffs FLORENTINE and 24 RODNEY ABBOTT'S ("Plaintiffs") Supplemental Motion in Limine to Exclude Evidence 25 Regarding Flo Abbott's Later-Acquired Contractor's License. 26 /// 27 /// 28 /// N1CS49/1073994-1 DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTJON IN LIMINE TO EXCLUDE EVIDENCE REGARDING FLO ABBOTT'S LATER-ACQUIRED CONTRACTOR'S LICENSE 1 IL FACTUAL BACKGROUND 2 The crux ofthis motion centers on statements made by Mrs. Abbott under oath, in both 3 her deposition and in official documents she filed with the Califomia State Licensing Board 4 ("CSLB") with regard to the constmction ofher home at 8601 Rolling Green Way in Fair Oalcs, 5 Califomia, which is the subject ofthis action. Mrs. Abbott has made conflicting statements in 6 both forums with regard to her role in supervising, coordinating, managing, and decision making 7 as it pertains to the constmction ofher home. 8 In statements made under oath, Mrs. Abbott filed declarations with the Sacramento 9 County Building Department in which she agreed to act as the owner/builder for all phases of 10 constmction for this project. (See Owner/Builder Declarations attached hereto as Exhibit "A"). In 11 these documents, Mrs. Abbott affirms with the County of Sacramento that she is the responsible 12 party for all aspects of constmction ofher home. 13 During deposition, Mrs. Abbott testified to the opposite - that she was not responsible for 14 supervising this project. Duruig deposition, she testified that she was on site during constmction 15 every other day. Despite her presence on site, Mrs. Abbott has washed her hands of responsibility 16 for ensuring the project was completed timely, that the subcontractors received all documents 17 necessary to execute their scope of work, and that the subcontractors properly executed their 18 scope of work. Mrs. Abbott testified that she did not supervise or coordinate the project, and that 19 she had no responsibility to do so. Mrs. Abbott provided this testimony despite declaring to the 20 county that she was in charge ofthe project as owner builder and as the person who pulled the 21 permits. (See excerpts of Mrs. Abbott's deposition attached hereto as Exhibit "B"). 22 The cul-de-sac was also constmcted at the direction and xmder the supervision of Mrs. 23 Abbott, who was the registered owner-builder with Sacramento County. Under the direction of 24 Mrs. Abbott, the cul-de-sac project was completed after CA Constmction poured the foundation 25 for the home. 26 Thereafter, Mrs. Abbott initiated a complaint against CA CONSTRUCTION with the 27 NIC549/1073994-1 2 28 DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE RE FLO ABBOTT'S GC LICENSE 1 CSLB after constmction was complete. Independent investigator Donn Marinovich inspected the 2 home, discussed the matter with Mrs. Abhott, and issued a report. The CSLB expert confirmed 3 that there were no defects associated with the constmction ofthe foundation. The report also 4 concluded that the owner-builder failed to coordinate the respective elevations on the house plans 5 and cul-de-sac plans, and such coordination was her responsibility. 6 With the approval of Mrs. Abbott, she changed the design ofthe home to 1/2 slab and 1/2 7 raised floor during constmction. She consented to the change on or about October 10,2005 as 8 reflected in documents filed with the Coimty of Sacramento. 9 In 2007, Mrs. Abbott applied for a general contractor's license. In her application, Mrs. 10 Abbott declared, underpenalty ofperjury, that she had the required work experience for a general 11 contractor's license. In her application, Mrs. Abbott lists her position on this project as 12 "supervisor." Mrs. Abbott lists the cul-de-sac project and the constmction of 8601 Rolling Green 13 Way as her relevant work experience, including the supervision of numerous trades on the 14 proiect, including the foundation contractor. Specifically, in her application, Mrs. Abbott lists 15 the trades she perfonned as "framing, supervisor." Mrs. Abbott describes her duties and work 16 . performed as follows: "Obtained permits, framing, supervisor, helped with plans, tilework, 17 and sheetrock insulation." Finally, on page 2 ofthe certification of work experience, Mrs. Abbott 18 lists the "foundation" as a trade she has either performed or supervised. (See Mrs. Abbott's 19 general contractor's application attached hereto as Exhibit "C"). 20 This statement directly conflicts with her deposition testimony that she played no role in 21 decision making and supervising contractors dining constmction. It also conflicts with the claim 22 m the Third Amended Complaint that CA CONSTRUCTION altered the plans without her 23 knowledge. In one fomm she states under oath that she helped with plans, but the complaint and 24 her testimony advance the position that the plan changes were done without her knowledge. 25 Based on the content ofher application, the Califomia Attomey General filed a complaint 26 against Mrs. Abbott for misrepresenting facts on her general contractor's application. The claims 27 NIC549/1073994-1 28 DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE RE FLO ABBOTT'S GC LICENSE 1 against Mrs. Abbott include, but are not limited to, the extent ofher work experience in the trades 2 and the timing of when fhe permits were pulled for the project at issue in this case. (See Attomey 3 General's Complaint against Mrs. Abbott attached hereto as Exhibit "D"). The complaint is 4 currently pending. 5 Plaintiffs' now move this Court to exclude evidence that Mrs. Abbott provided under oath 6 to a govemment agency which is highly relevant to several issues in this case, including but not 7 limited to: (1) her role in supervising the project and (2) her credibility as the key plaintiff witness 8 in the case. 9 m. ARGUMENT 10 THE EVIDENCE IS RELEVANT TO ISSUES IN THE CASE, MRS. 11 ABBOTT'S CREDIBILITY, AND IT WILL NOT MISLEAD THE JURY, I WASTE TIME, OR CONFUSE THE ISSUES FOR THE JURY. ,^ 1. The Evidence Is Fundamental To Establishing CA Construction's Affirmative Defenses 14 A court should not grant a motion in limine that has the effect of eliminating the 15 opportunity for a party to prove their causes of action. See generally R&B Auto Center, Inc. v. 16 Farmers Group, Inc. (2006) 140 Cal.App. 4th 327, 359. The same reasoning should apply to a 17 party establishing its affirmative defenses. With respect to CA CONSTRUCTION, it has a 18 number of affirmative defenses it must establish at trial, including but not Hmited to the following: Contributory Negligence, Negligence of Others, Assumption ofthe Risk, Plaintiffs' 20 Voluntary Conduct, Plaintiffs' Failure to use Reasonable Diligence, Laches, Comparative Fault, 21 Allocation of Fault, and Adequacy of Plans and Specifications. The basis ofthese affinnative 22 defenses is the contributory fault of Plaintiffs in causing their own damages. In fact, Plaintiffs' 23 counsel would be hard pressed to argue that CA CONSTRUCTION should not be pemiitted to 24 establish its affirmative defenses since Plaintiffs vehemently fought CA CONSTRUCTION'S 25 separate cross-complaint against Plaintiffs based on contributory negligence/comparative fault principles. Additionally, in granting Plaintiffs' Motion for Judgment on the Pleadings as to CA 27 NIC549/i073994-l 4 28 DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE RE FLO ABBOTT'S GC LICENSE 1 CONSTRUCTION'S indemnity cross-complaint, the Court indicated that CA CONSTRUCTION 2 was adequately protected by the affirmative defenses it could assert at trial. (See the Court's 3 Minute Order on Plaintiffs' Motion for Judgment on the Pleadings attached hereto as Exhibit 4 "E"). It would be an abuse of discretion for the Court to deny CA CONSTRUCTION the 5 opportunity to establish its affirmative defenses with evidence that has substantial probative value 6 with respect to the sole negligence and/or contributory fault of Plaintiffs. 7 2. The Evidence Will Not Confuse Or Mislead The Jury On Issues In The 8 Case And It WiU Not Consume Undue Time Plaintiffs' argument that evidence related to Mrs. Abbott's license application and the 9 Attomey General action against her license would be misleading and confiasing to thejury is a red 10 herring. Plaintiffs wiU fight hard to keep this evidence out because it is the proverbial "smoking 11 gun." This evidence is damaging to Plaintiffs' claims she did not supervise the project, Mrs. 12 Abbott's credibility, and there is a strong possibility that such evidence will expose Mrs. Abbott 13 to perjury claims. Further, based on the content ofthe application and the representations made 14 therein. Plaintiffs' counsel should have ethical concems about presenting Mrs. Abbott as a witness 15 based on her deposition testimony and the statements contained in these documents. 16 Plaintiffs must establish that the probative value ofthis highly relevant evidence is 17 substantially outweighed by the probability that its admission will waste time, create undue 18 prejudice, confuse issues, or mislead thejury. Evidence Code § 352. This evidence will only 19 serve to clarify issues in the case related to Mrs. Abbott's uivolvement in the project and her 20 decision making role on the project. As will be demonstrated by numerous witnesses, Mrs. 21 Abbott was highly involved in this project on almost a daily basis, whether it be supervising the 22 trades, constmction decisions, plan changes, the purchase of materials, how the house was 23 designed and how it would ultimately look on her lot. In fact, she played the same role on the 24 completion ofthe cul-de-sac project that was completed after her home was constmcted. She has 25 denied these facts and her role on the project throughout this case and under oath in her 26 deposition. Her general contractor's license application is highly probative and tests the veracity 27 NICS49/1073994-1 5 28 DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE RE FLO ABBOTT'S GC LICENSE 1 of statements made during deposition and in this case in general. The Court cannot exclude 2 highly probative evidence that goes straight to the heart of issues in this case and Mrs. Abbott's 3 credibility. If excluded, it would rob CA CONSTRUCTION of its rights to present its defenses 4 and to test the veracity ofthe evidence and witnesses advanced by Plaintiffs. 5 Further, this evidence will not consume undue time because it is needed to fully develop 6 issues at play in the case. The evidence would be discussed during the cross-examination of Mrs. 7 Abbott and involves specific and liraited questioning. It can only serve to clarify, and not confuse 8 issues for the jury. Other than making generalized statements of the evidence's prejudicial value, 9 Plaintiffs cite no specific prejudice they will suffer as a result ofthis evidence. 10 "Prejudice," as contemplated by Evidence Code §352, is not so sweeping as to include any 11 evidence that the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in 12 a § 352 context, merely because it undermines the opponent's position or shores up that ofthe 13 proponent. The ability to do so is what makes evidence relevant. The Evidence Code speaks in 14 terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption 15 substantially outweigh the probative value of relevant evidence, a § 352 objection should fail. The 16 "prejudice" referred to in § 352 applies to evidence that uniquely tends to evoke an emotional bias 17 against a party as an individual and that has very little effect on the issues. In applying § 3 52, 18 "prejudicial" is not synonymous with "damaging." Vorse v. Stxrasy (1997) 53 Cal.App 4th 998. 19 This is what Plaintiffs want to do - exclude evidence because it is damaging to their case. 20 Plaintiffs have not made the necessary showing under Evidence Code § 352. 21 3. The Evidence Is Not Improper Character Evidence 22 Plaintiffs argue at length that such evidence is improper character evidence. CA 23 CONSTRUCTION directs the Court to the following Evidence Code provisions: 24 Evidence Code § 350: 25 No evidence is admissible except relevant evidence. 26 27 NrC549/1073994-l 6 28 DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE RE FLO ABBOTT'S GC LICENSE 1 . . Evidence Code § 351: 2 Except as otherwise provided by statute, all relevant evidence is admissible. 3 Evidence Code § 352: 4 The court in its discretion may exclude evidence if its probative 5 value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) 6 create substantial danger of undue prejudice, of confusing the issues, or of misleading thejury. 7 Evidence Code § 1101(b) «fe (c): 8 9 (b) Nothing in this section prohibits the admission of evidence 10 that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, 11 preparation, plan, knowledge, identity, absence of mistake or accident,.. .other than his or her disposition to commit such an act. 12 (c) Nothing in this section affects the admissibility of evidence 13 offered to support or attack the credibility of a witness. 14 Evidence Code §780 15 Except as otherwise provided by statute, the court or jury may 16 I consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the tmthfulness of 17 his testimony at the hearing, including but not lunited to any of the following: 18 19 (e) His character for honesty or veracity or their opposites. 20 21 (h) A statement made by him that is inconsistent with any part of 22 his testimony at the hearing. 23 Plaintiffs do not cite to Evidence Code §1101 (b) or (c) for good reason. Pursuant to 24 Evidence Code §1101 (b), Mrs. Abbott's general contractor's license apphcation is relevant 25 because it is probative of some other fact at issue in the case. CA CONSTRUCTION will 26 establish that the evidence is relevant to prove other facts at issue in the case, including, but not 27 limited to, whether Mrs. Abbott approved various constmction decisions, that she was the NIC549/1073994-1 7 28 DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE RE FLO ABBOTT'S GC LICENSE 1. responsible party for the project to the County of Sacramento, and most importantiy, that she 2 stated under penalty ofperjury in her application that she supervised the foundation work that is 3 at issue in this case. She denied this in her deposition. 4 Furthermore, Evidence Code §1101(c) states that character evidence is admissible to 5 support or attack a witness' credibility. Again, Mrs. Abbott's credibility is one ofthe most 6 important issues in this case. What Plaintiffs' characterize as improper character evidence is 7 nothing more than evidence related to the credibility of Mrs. Abbott as a witness. Impeachment 8 evidence is relevant when a person's credibility is called into question. CA CONSTRUCTION is 9 entitled to challenge Plaintiffs' claims and Plaintiffs' testimony provided in deposition and at tirial 10 through the use of impeachment-based evidence. 11 B. THE EVIDENCE IS RELEVANT TO THE FACT THAT PLAINTIFF WAS THE RESPONSIBLE PARTY TO THE COUNTY OF SACRAMENTO FOR 12 ALL ASPECTS OF CONSTRUCTION OF THE SUBJECT HOME 13 The owner builder declarations signed by Mrs. Abbott indicate that she is the responsible 14 party with the County of Sacramento. She pulled the permits. The statements contained in the 15 application, especially the provisions that indicate she pulled the permits corroborate her level of 16 responsibility on the project. Also, the statements in the application that she helped with the 17 plans, tends to prove or disprove facts at issue in the case. Namely, Mrs. Abbott alleges that CA 18 CONSTRUCTION altered the plans without her knowledge. CA CONSTRUCTION must be 19 entitied to disprove Plaintiffs' claims through the introduction of relevant documentary evidence. 20 IV. CONCLUSION 21 The supplemental motion should be denied because Mrs. Abbott's apphcation and the 22 action against her Hcense is highly probative of issues in the case and Mrs. Abbott's credibility. 23 I Dated: January 10,2011 ARCHER N O ^ ^ S , 24 25 Gregory K. Federico 26 Attomeys for Defendants RICHARD K. RUYBALID dba CA CONSTRUCTION 27 NIC549/1073994-1 8 28 DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE RE FLO ABBOTT'S GC LICENSE 1 PROOF OF SERVICE 2 Name of 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 proceedmg. My business address is 301 University Avenue, Suite 110, Sacramento, Califomia 95825. On January 13,2011,1 caused the following document(s) to be served: 5 CA CONSTRUCTION'S OPPOSITION TO PLAINTIFFS' SUPPLEMENTAL 6 MOTION IN LIMINE TO EXCLUDE EVIDENCE REGARDING FLO ABBOTT'S LATER ACQUIRED CONTRACTOR'S LICENSE 7 |3(| 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 address shown above following our ordinary business practices. I am readily familiar 9 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 collection and mailing, it is deposited in the ordinary course ofbusiness 11 with the United States Postal Service with postage fully prepaid. ^^ |3cl ^y having a tme copy ofthe document(s) listed above tiansmitted by facsimile to the person(s) at the facsimile number(s) set forth below before 5:00 p.m. The tiansmission was reported as complete without error by a report issued by the transmiti;ing facsimile 14 machine. 15 I I By plachig 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 ati^iecopy of J9 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 ofperjury that the foregoing is tme and correct. Executed on January 13, 2011, at Sacramento, California. 23 24 4/K. 25 V CINDY A. INGLAND 26 27 28 NIC341/608293-1 PROOF OF SERVICE 1 Service List 2 Stephanie Fmelli PLAINTIFFS 3 Law Offices of Stephanie J Finelli 1007 Seventh Street, Suite 500 Tel-(916) 443-2144 4 Sacramento, CA 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 Drive, Suite 245 Tel: (916) 988-3857 7 Folsom, CA 95630 Fax:(916)988-5296 Email rds(@mwsb!aw.com 8 Mark Smith In Pro Per 9 8549 Willow Valley Place Granite Bay, CA 95746 10 markdarlenesmith(ggmail 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 NlC34)/60&293-l SERVICE LIST EXHIBIT "A" WEBSITE.- h m - J > K ^ M t r „ a , a i m j , n Cooaty of Sacruaento Building Eospet^n Division » 7 70 S t m t ROOM H a 4141 BnachCcBterBd. S400L^iiB*P>Ia»Wiy Sacramesta, C c 9S>14 SsczsoeoRv Ca. 95&27 E\kGttm,0L9ST.ii TcIqrfi«ie(9i«87<-6433 Tdqihc»ie(916)S7J-OT3 TeMn°f(9l6)47»'2235 Applicatioii for Pennit - Part I. ^ f ^ ^ (Nctt: Part a a a a be I s a t d a a d a t i c d u i f a r a roBd^ IntaJce Person Caie Nmnber: AppBamuFletttef^biAlirouehJiaappBe^Jt For hspectioas-fSK) r7S-53gl A. BoOdlBsfra, iebMOasx. f ^ / Z / ^ tfa m BntdNtt. / " 2 - 4 6_- /?< ''^<*f , ^£>- 0 ^ 0 s^a^Jt ^^A^a^ic^ . .UtNa z MDutaCnsStvel: LottEWAiti: ^at. Owner niOM C«ioicieic_S5i4l i >/i,~?SH7cf7 C o o m d D r f'^cctf^ ,Uinac_ t:iielncarU{giscWo.: — X. 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Otrricr: _ _ ^ PaBqrNa \-^ jnEiacc(i«aac«daotbe pafinsaca of b r m A Sir nkSdi d u pomt i>riSMl,I tb>B cot onpk^ aqr penoa ia » v Bamer to at IB tectcie ndjot to iH>.maftiii LavsafCilifttaii,iada9ie Aata'I ttiauld fnaaraesalKct (adKMrtoacan^cialnapzmtieBiafScoiMjTM.ordvljbarC^litan'-datliAlfa i(ijyMoai.laoot«c»iyly»ifcdiea^ii^g^ • Vftr«iBt;/lPadlyfcl»«eb«^»»^l^tca^o^^1prBtln^alco»cqfflfalB^ia^rfdM^shtU^ala(tt«aco^^ cytofcolapaBa«»^^llaMteat^p^^)lddedfaaSeailM37W8ftfgI3tofQ>d^iwe^eg^lldaltoo4gt/ LUt)k i^ome: / ^ f w ^ UadcrH • Mtus. 'W^Z^^E^ .St«« Addnse. 2SopCodaZ5^^a ^ Mi!24A Pt«,Na= ^ / ^ ' ^ S / - 9 - ^ 7 ' H ^ j o t fiw Cootaeter ^Qsolfi''*™* Y County of Sacramento Branch Center (916) 875-529$ Building Inspecbon Division 4101 Branch Center Rd.. Sacramef*) 95827 www.bldginspection.org Downtown (916)874.6433 827 7th SL, Rm. 102, Sacramento 95814 RESIDENTIAL P L A N REVIEW 2001 Adopted Codes Effective November 1 , 2002 PROJECT DESCR]PTK»< 5A DATE llal^^^ Ho.rM9m~-^7fs- These sheets, wiien attached to a set oS plans, become part of those plans and must remain attached thereto. Tlie approval of this plan and tite specifications shali not be held to permit or approve the viotation of ariy Counfy ordinance or State er Federal iaw. I have read and wiH compiy with the items in fltts document and as marlced on the plans. I am aware that the UaA and cq)^9^ectk9is referenced in this form may t>e appealed as per SCC105. Date ^17/0^ Signature of: JB Owner D Authorized Agent O Contractor D ArchltecvEngineer BUILDING CODE REQUIREMENTS B-1 Smoke alann location witfiin dwelUng units, in dwe&ing units, a smolce atamn shall h& instadsd in each s l e ^ n g room and at a point centrally tocated in the comdor or area givir^ access to each separaie sieepmg area When the dvv^ng unit has more than one stoiy and in d w e l l s with tiasements, a smoice alarm shall tse Insfalled on each sioiy and In the basement in dwdling units where a story or basement is split into two or more levels, Hie snole Installed in Vn& haOway and in the adjacent room. Smoke sterms shall sound an alarm audible in all s l e e f ^ areas of the dwelling unit in which they are tocated. in new construction, reqisred smoke alarms shall receive their primary (Xiwer from a commen:ial source and have a tiattery t>ack up as per 2001 CBC Section 3t0.9.1. B-2 When the valuation of an addition, alteration or repaa" to a Gn^up R Occupancy exceeds $1000 and a permit is required, or M^ien one or more sleeping rooms are added or created 'vn existing Group R Occupancies, smoke alanms shall be installed ni accordance with CBC Sections 310.9.2. ExcepHon: Repairs to the exterior surfaces of a Group R-3 Occupancy axe exempt from the requirements of fills section. o-o oas&n&hs tn owsiisig unis ana «vcty sieepittg room ct6:w»v u>e voufin stoty sa^ait iia^a a icssi one operable window or door approved for emergency escape or rescue that shall open directly into a ~ public stieet, public way, yanf, or exit court as defined tiy 2001 CBC Chapter 2. Escape or rescue windows shall have a minimum net dear openatKe area of 5.7 square feet The minimum net clear openable height dimension sliail be 24 inc:hes. The minimum net dear openable width dimension shall be 20 inches. Emergency escape or rescue windows shali have a fmished sill height not mora than 44 inches atjove the floor as per 2001 CBC Section 310^4. Emergency egress windows fbr basements shaH open to a window well constructed &i accordancewith the provbtons of 2001 CBC Section 310A ABB-0607 B-4 All Group U Occupancies attached to Group R, Dhrtsion 3 Occupancies shall tra separated by materials approved for one-hourfire-resis&veconstruction. The separation may be limited to the garage side only and requires a s^f-dosbq, tight fittrig sofid wood door 1 3/8 inches in thickness or a self-closing, tight fitting do<»' having a tested fire protection rating of not less than 20 minutes. 2001 CBC Section 302A Exception 3. Note: All meniiers supporting such separation st^ll be of equivalent firewissistive construction as per 2001 CBC Sectior) 302 Under no drcumstsaice shall a pnvate garage have any opening into a room i used Ibr sleeping purposes as per 2001 CBC Section 312A Afl electrical boxes on c^sposite sides of the wall shall be separated by a horizontal distance of not less then 24 Inches as per 2001 CBC Section 7DS.7. B-5 FDre danpets need not be instafiedto-airducts passing through the waU, ftoor, or ceiling separating a Group R-3 Occupancy from a Group U Occupawy provided such ducts with^ the Group U OcctJpancy are constructed of steel havo^ a thickness not less than M6 galvanized sheet gauge as per 2001 CBC Section 302^ Exception 3. B-6 Provide adequate natural i^ht and ventilation for tiabitable rooms within a dv^lling unit as per 2001 CBC Secfion 1203. B-7 Bathrocmts, water closet compariments, Sundry rooms, and similar rooms shall be provided with naturai or mechanical ventilation as per 2001 CBC Section 1203.3. B-8 Prowde safety glazing fbr all glazing located in hazardous locations as specified in 2001 CBC Section 2406A B-9 Showers In an occupancies st^U be finished with a snraoth. hard, nonab^rbent surface to a height of 70 Hiches above the drain inlet as per 2001 CBC Section 807.1.3. B-10 Provide an approved attic access 22" x 30" with 30 indies minimum vertical headroom as per 2001 CBC Section 1505.1. Note: Attics with a maximum ver&cal height of less than 30 inches ne«i not be provkled with access openings. B-11 Enclosed usaUe space under interior stairways shall have the walls and soffits protected on the endosed side as required (or one-hourfire-resistiveconstruction as per 2001 CBC Sections 1003.3.3.9. B-12 Private stairways and steps serving an occupant load of tess than 10 may be constructed with an 8- inch maximumrise,a 94nch mkilmum run. and a 36wnch minimum vindth. The largest tread run and the greatest riser height within any &glM of stairs shall not exceed the smaltest by more than 3/8 inch. The top of handr^s shaU be placed not less than 34 inches or mone than 38 inches above the noslr^ of the treads. Maintain 6 feet 8 indies of headroom dearance. Two or more risers constrtute a stairway as per 2001 CBC Section 1003.3 J . B-13 Guardrails in Groups R-3 and U-1 shall be a minimum of 36 inches high. Open guardrails shan have intermediate rails r in all habitable rooms. 2001 CBC Section 310.11. B-16 Factory built chimneys and factory built fir^laces shall be listed and installed in accordance with the terms of their listing and the manufacturer'sfrwiructfonsas per 2001 CBC Section 3102.5. BID0322 (Rfiv. 12/02) 2 ABB-0607.01 6-17 BAasonry chimneys, unless a specrfied design is provided, shall t>e constmcted, rsinforoed and andiored as per 2001 CBC Sectton 3102.4. B-18A Braced wail lines shall consist of braced wan panels that meet the requirements for tocatlon, type, and amwjnt of bracing spedfied in Table 23-IV-C-1 and are in line or offeet from each other by not more than 4 feet Braced waS panels shal start ai not more than 8, feet from each end of a traced wall line All braced wall panels shall be clearty kienti^ed on the plans as to their type, length and location as per 2001 CBC Section 2320.11.3. NxOv: 1" X 4 ' let-h braces are not allowed to meet sectton 2001 CBC Section 2321111,3 bnadng retirements In Selsmto ZOK 3. B-1 SB Any braced waB panel required by the 2001 CBC Secfion 2320.11.3 may be replaced by an attentate tiraeed wall panel construded in accordance with 2001 CBC Section 2320.11.4 item 1 for one-story buikJings and 2001 CBC 2320.11.4 item 2 for thefirststory of two-story bu3dings. See BIO Fonn %89 for addittonal informattoii. B-18C ConventioiKil wood foundation cripple walls shall be framed and braced as per 2001 CBC Section 2320.11.5. Foundatton cripple walls having a stud height exceeding 14 inches shall be braced in accordarx^e vi/ith Table 23-IV-C-2. Solkl btoddng or wood structural panel sheathing may be used to brace cripple waUs havir^ a ^ud height (Tf 14 Inches or less. fi-19 Wood framed studs shall be sized as per 2M1 CBC Table 23-1V-B for height, length, and spacing. B-20 Buildings of unusual shape, or porttons there of, shaH be deigned as per 2001 CBC Section 2320.5 A B-21 Provkle under floor access and ctearances as per 2001 Section 2300.3. A minimum opening size of 18" x 24" is requned. A trinimum of 12* dearance to underfkwr girders and 18* clearance to ROOT joists Is required unless treated wood or wood of natural re^tancs to decay is utTized. B-22 Provkle a minimum of one square fOot of under floor ventilation for each 150 square feet of under floor a r ^ a s per 2001 CBC Section 2308.7. B-23 Ali foundation sills, plates, sleepers, poste, and columns that rest on concrete or masoirry must be foundation grade redwood or treated and marked material branded by an approved agency as per 2001 CBC Sections 2306,4 and .5. Where not subjedto water splash or exterior moisture, wood may be untreated M^en in compTrance with 2001 CBC Section 2306.8. 6-24 Foundation plates or silte shall be bolted to the foundation or foundation wall with a minimum of two %" X 10° bolts with a minimum embedment depth of T. Anchor bolts shall have 2" x 2° x 3/16" plate washers on each anchor bolt Anchor bolts shall not be placed more than 6 fe^ on center or more ihan 12" ftom each end piece of tte siH plate. /\nchor bolts shall not be placed within seven bolt diameters from each plats end piece es per 2001 CBC 1806 and 1806.1. B-25 Cutting and notching of extertor walls and bearing partitions shall not be greater than 25 percent of the shid v^th. Cutting or notching of studs to a depth not greater ttian 40 percent of the width of the stud is permitted in nonbearing partittons supporting no loads other than the weight of the partitton. 2001 CBC Section 2320.11.9. 6-26 A hole not greater in diameter than 40 percent of the stud width may be t>ored In any wood stud. Bored htrfes not greater than 60 percent or xne wiaui oT u«s atuJ c e p^musisJ;.. .~cr.ic^rr:g p:ri!t"::r.3 zr in any waO where each bonaJ stud is doubled, provided not more than two sudi successive doubted studs are so bored. 2001 CBC Section 2320.11.10. B-27 All bearing walls shall be supported on masonry, concrete, toundattons, pries, or other approved foundation systems that will be of suffident size to support ^1 loads. Where a design is not provkled, the minsnum foundatton lequirements tor stud bearing walls shall be as set fortii ir^ Table 18-I-C unless i expansive soils are known to exist as per 2001 CBC Section 1806.3. BID0322(Rev. 12A12) 3 ABB-0603 B-28 Where post and beam or girder construction is used, a posifive connectton shall be provided to ensure against upfift and latere displacement 2001 CBC Section 2314. B-29 Where rafters are not panaSel withttieceiling joists, rafters shall be tied to 1" x 4" minimum size crossties. Rafter ties shall be spaced not mons than 4 fe^ on center. Where rafters are parallel they sfiall be nailed ,^ to the adjacent ceiling jdsts as per 20O1 CBC Section 2320.12.6. || B-30 Provide attic ventilation as per 2001 CBC Section 1505 and the Cafifornia Energy Standards Commission. B-31 Fire and draft stof^ung shall be installed acconcfingto2001 CBC Section 708. B-32 Ail giypsum t)oard, stucco, piaster, and lath ^all be installed as per 2001 CBC Chapter 25. Nato: When lath is appilied over wood base sheathing, include two layers of grade D paper as per 2001 CBC 2506.4. B-33 Exterior wall coverings shaD be appUed as per 2001 CBC Chapter 14 and Section 2310. MECHANICAL CODE REQUIREMENTS M-1 Domestic clothes dryer moisfaire exhaust ducts shall tenninate on the outside of the buDdlng and shaA be equipped with a b^k draft damper. Sheet m ^ l screws or other fasteners that vM obstruct the ftow shaB not be used. Unless othenvise permitted or required by the dryer manufacturer^ installation instructions and by fiie buiUoig ofttotal, domestto dryer moisture exhaust duds shall not exceed a total combined horizontal ^td vertical length of 14 feet induding two 90 d^ree eit}ows. Two feet shall be deductedtoreach 90 degree elbow in excess of two as per 2001 CMC Section 504.3. M-2 When a closet is designed fbr the Installation of a d o t h ^ dryer, a minimum opening of 100 square Ind^s fbr make up air ^11 be provided in ttie door or by ottier approved means as per 2001 CMC Section 504.3.2. Wi The Instaliation of a listed cooking applbnce or microwave oven over a isted cooking appliance shall conform to the M>ndittons of the upper appliance's listing and the manufacturers' InstaUatton Instructtons i as per 2001 CMC Sectian 917.3. M-4 DtKts for domestic kKchen downdraft gn1l-range ventilation shall be Installed as per 2001 CMC Sectiim 504.2. M-5 Fuel buming equipment shall be assured a sufitoient supply of combustion air as per 2001 CMC Ci»pter7. M-6 Warm air ftimaces shatl not be Invaded in a room used or designedtotse used as a bedroom, bathroom, or doset or to any enctosed space with access only through suc:h room or space as per 2001 CMC Section 904. See exceptions to 904.5 fbr other altematives. M-7 The distance from the passf^eway access to ttie furnace shall not exceed 20 feet measured along the centeriine of the passageway. The passageway shaS t>e unobstruded and shall have continuous solid floorrig not l e ^ thai 24 inches wide firom tte entrance opening to the furnace. A level worldng platform not less than 30 indies bi depth and wkflh shall be provkied in front of tte entire fire box side of tte warm air furnace. If tte furnace temperature Irmtt control, airfilter,fuel control valve, vent Collar, or air fondling unit is not servtoeablefromthefrrebox side of tte fiimace, a continuous ftoor not less ttan 24 Inches in wtdtt shall be provkled from tte plattonm infrontof tte fire tx^x skle of tte frimace to and in front of ttis e q u ^ e n t A pemianent elecfric ouflet and lighting foixire