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1 STEPHANIE J. FINELLI, SBN 173462 , , , J. . , j„. I p. » ^ ,.^ ,o p Q J-, p ,
Law Office of Stephanie J. Fineili
2 1007-7th Street, Suite 500
Sacramento, CA 95814
3 tel 916-443-2144 DEC 1 7 2010
fax 916-443-1511
4
Attomey for Plaintiffs, By I. Whittielr!
CtpLty Clerk
5
FLORENTINE and RODNEY ABBOTT
6
7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 IN AND FOR THE COUNTY OF SACRAMENTO
9
10 FLORENTINE AND RODNEY ABBOTT, CaseNo.: 07AS04450
11 Plainfiffs, PLAINTIFFS' MOTION IN LIMINE 1 TO
EXCLUDE EXPERT TESTIMONY
12
vs.
Hearing on Motion: January 7, 2011 iQ C]^ I'-l
13 RONALD BRITSCHGI, et. al., TrialDate: January 18, 2011
Judge: Brian Van Camp
14 Defendants
15
16 A. Facts
17 On March 23, 2009, Plainfiffs timely disclosed experts. On or before that date, all ofthe
18 defendants did the same.
19 With the exception of William Poulton, an expert disclosed by Ronald Britschgi, none of
20 the other experts had done any inspection of plaintiffs' house. Mr. Poulton had done what Mr
21 Lundgren termed an "informal" inspection much earlier in the case. Thus, the defendants
22 demanded a site inspection ofthe house.
23 On March 2, 2009, Britschgi had served a Request to Inspect Land and Property, and set
24 the inspection for April 8, 2009. All ofthe defendants experts were not available on April 8, so
25 plaintiffs agreed to allow the experts to inspect the property on April 15, 2009—which was
26 beyond the discovery cutoff date. Thus, until April 15, 2009—just 11 days before the last day to
27 depose experts—defendants' experts had not inspected the plaintiffs' house.
28
Motion in Limine - 1
1 On April 15, 2009, cross-defendant Cadre served a notice of deposition for Ronald
2 Britschgi's experts Jerry Aplass and William Poulton, and for CA Construction's expert, Jason
3 Newlin. These depositions were set for April 27, 2009. Neither Britschgi nor CA Construction
4 objected to this notice as untimely, or asserted that the depositions needed to be completed by
5 April 26, 2009 (which was a Sunday). In fact, in email correspondence of April 17, 2009, Mr
6 Federico, CA Construction's attomey, states "I have received available dates for my experts for
7 the last week of April and the first and second weeks ofMay " He also proposed a stipulation to
8 extend the deadline to complete the expert depositions, as none of plaintiffs' experts had yet been
9 deposed.
10 Because none of plaintiffs' experts had been deposed as of April 17, 2009, it was
11 premature to depose any of the defendants' experts. Craig Lundgren had made it clear that his
12 experts had no opinions of note, and were waiting to see what plaintiffs' experts would say.
13 Because Richard Sopp, attomey for Cadre Design, had noticed three of defendants'
14 experts for deposition on April 27, 2009, plaintiffs' attomey did not notice them, assuming she
15 would question these individuals at the depositions set by Mr Sopp.
16 On Saturday, April 18, 2009, Mr. Sopp sent an email withdrawing his notices of
17 depositions of defendants' experts. (Exh A attached hereto.) Plaintiffs' coimsel did not receive
18 the email until April 20, 2009, at which point she responded that she would be serving notices oi
19 her own. (Exh B attached hereto.)
20 On April 21, 2009, plaintiff served notices of deposition for William Poulton, Jerry
21 Aplass, and Dave Heryet (Mr. Heryet was an expert disclosed by CA Construction and is with
22 the same firm as Jason Newlin, another of CA Constmction's experts). These depositions were
23 set for April 28, 2009 and were served by fax on all counsel. They also included a request to
24 produce certain documents, including reports, back-up documents, correspondence, etc.
25 As of April 23, 2009, neither Mr. Lundgren nor Mr Federico had stated whether they
26 would make their experts available. But the depositions of plaintiffs' experts were being set foi
27 April 24 and April 27, and the continued deposition of plaintiff Rodney Abbott was set for April
28 29. On April 23, 2009, plaintiffs' counsel sent an email to all counsel confirming these
Motion in Limine - 2
1 deposition dates and requesting confirmation as to whether defendants would make their experts
2 available. (Exh C attached hereto.) In response, Mr. Lundgren indicated that he does not have
3 any reports from any of his experts, and that the civil engineer was working on a survey, which
4 was not complete.
5 On April 23, 2009, CA Construction and Ronald Britschgi served objections to the expert
6 deposition notices. They objected to the notices as untimely, as having been served fewer than
7 10 days before the date ofthe deposition, and having been set for one day after the April 27,
8 2009 cut-off for taking depositions. They also objected to service by fax, despite the fact that
9 defendants had been routinely serving documents by fax (including deposition notices) since
10 plaintiffs' coimsel substituted into the case. Defendants also objected to producing documents
11 on a myriad of grounds. Defendants did not produce any such reports or other documents.
12 Plaintiffs' expert Skip Weahunt was deposed for the entire day on April 24, 2009 (from
13 9.00 am. until after 5:00 p.m.). Plaintiffs' experts James Dillingham and Robin Lee were
14 deposed on April 27, 2009. Rodney Abbott was deposed April 29, 2009. Plaintiffs' expert
15 Linda Molinari was deposed on May 8, 2009.
16 As of May 5, 2009, defendants' experts (William Poulton, Dave Heryet, Jason Newlin
17 and Fan Barzegar) were served with subpoenas to produce documents, including their reports,
18 correspondence with counsel who retained them, and working papers CA Construction objected
19 to their experts producing these documents pursuant to the subpoena; stated the experts would
20 reports and documents on which they relied when they testify at trial. Thus have defendants
21 again posted another roadblock to plaintiffs determining what their experts will have to say at
22 trial.
23
24 B. This Court Should Exclude Those Experts Defendants Refused to Produce for
Deposition
25
26
Code of Civil Procedure section 2034.300 provides that a court shall exclude expert
27
opinion testimony by a party who has unreasonably failed to comply with the exchange
28
requirements. Failing to make an expert available for deposition and failing to produce
Motion in Limine - 3
1 discoverable reports and writings are each grounds for exclusion, provided the actions were
2 unreasonable (Code Civ Proc. §2034.300.) This Court has considerable discretion to exclude
3 experts where a party has unreasonably failed to comply with disclosure requirements. (Bonds v
4 Roy (1999) 20 Cal.4th 140, 149.)
5 Defendants' failure to produce their experts for deposition was unreasonable. So was
6 their refusal to produce documents requested via the trial subpoena. As the email
7 correspondence between the parties demonstrates, plaintiffs were being very flexible with the
8 scheduling and setting of depositions in order to ensure that defendants were able to depose all of
9 their experts—which defendants did. When plaintiff requested the same courtesy, it was denied.
10 Moreover, defendants' experts did not even inspect the property until April 15, 2009
11 This was 26 days before trial—one day before plaintiff would need to serve notices on the
12 experts in order to ensure that they were deposed at least 15 days before trial On this very day,
13 Cadre Design noticed the depositions of Jerry Aplass, William Poulton, and Jason Newlin. This
14 obviated the need for plaintiffs to serve their ovm deposition notices. But on April 20—too late
15 to serve a deposition notice 25 days before trial—plaintiffs discovered that these depositions
16 were off The notices served the next day were objected to as "too late" and defendants refused
17 to produce their experts for deposition. This was a sandbag technique if ever there was one.
18 This was also contrary to the tenor of the communications regarding expert depositions.
19 On April 17, 2009, Gregory Federico stated, "I have received available dates for my experts for
20 the last week in April and the first and second weeks of May . . . we need to talk about a
21 Stipulation to extend the deadline." (Exh A.) He further stated, "we need to discuss a deposition
22 schedule begirming with Plaintiffs' 4 experts, and then followed by each party's respective
23 experts." (Exh A.) Thus it was presumed that defendants' experts would be deposed In his
24 April 18 email (in which he suddenly withdrew his deposition notice), Richard Sopp states, 1
25 would also stipulate to keeping expert discovery open for the week of April 27-May 1. I am
26 available all day on the 28 and 30 and the moming of the 29th " (Exh A ) On April 20, Mr.
27 Lundgren and Mr. Federico each stated their availability for the week of April 27—which was
28 after the discovery cutoff for expert witnesses. (Exh B.)
Motion in Limine - 4
1 After lulling plaintiff into a belief that any deposition prior to April 15, 2009 would be
2 completely unproductive, and that defendants would produce experts after the discovery cutoff,
3 once plaintiffs' experts were deposed, defendants decided not to produce any experts or any
4 experts reports. They even objected to the faxed deposition notice on the basis that it had been
5 faxed—despite the fact that CA Constmction's attomeys had been regularly faxing documents
6 such as deposition notices. This was unreasonable. Defendants should be precluded from
7 offering the testimony or the reports of William Poulton, Jerry Aplass, and Dave Heryet. They
8 should also be precluded from offering the reports of any of their witnesses. This preclusion
9 should particularly apply if defendants' experts refuse to produce the documents pursuant to the
10 trial subpoenas.
11
12 C. Defendants' Experts' Testimony Should Be Limited to the Opinions They Had as of
April 20,2009—Which Were None
13
14 One of the reasons plaintiffs did not depose defendants' experts sooner is that they
15 apparently had no opinions. As noted in Craig Lundgren's April 23, 2009 email, "I do not have
16 any reports from experts. None are complete at this time. Bill Poulton never wrote one. The
17 civil engineer is working on a survey but that is not complete." (Exh C.) Prior to April 15, 2009
18 Mr. Lundgren had assured plaintiffs' counsel that his experts had nothing to report, as they were
19 waiting to see what plaintiffs' experts were going to say. But defendants did not depose the first
20 of plaintiffs' experts until April 20, 2009, when Skip Weahunt was deposed. Thus, their experts
21 had no opinions until at least that date.
22 Certainly defendants experts had no opinions regarding the Abbotts' house until April 15
23 2009, when they inspected it. Thus, it would have been a waste of time for plaintiffs to have
24 deposed the experts before then. And once they finally had opinions (presuming they ever
25 formed opinions), defendants refused to produce them for deposition. Defendants should thus be
26 precluded from introducing expert testimony at trial.
27
Dated: Decembei^ , 2010
28 jhanie J. Fmelli,
Attorney for Plaintiffs
Motion in Limine - 5
Re schedule fiar depositions - Yahoo' Mail http //us mc828 mail yahoo com/mc/showletter7&fid=%2540S%2540S
i i r ^ I IMM
Clasilc
Re: schedule for depositions. Saturday, April 18, 2009 12 00 PM
From: "Richard Sopp"
To: "Federico, Gregory K." , "Craig Lundgren" , sfinelli700@yahoo com
Dear Counsel
I am withdrawing my notices of deposition for Mr Poulton, Mr Aplass and Mr Newlin, all of which were
scheduled for April 27
I am available for the depositions of plaintiffs experts and Mr Abbott on the following days the morning of
April 23, all day April 24 and 27 I would also stipulate to keeping expert discovery open for the week of April
27-May 1 I am available all day on the 28 and 30 and the morning of the 29th Please let me know what
days are selected
Richard D Sopp
— Original Message —
From: Federico, Gregory K
To: Craig Lundgren , sfinelli700(S)yahoo com
Cc: Richard Sopp
Sent: Friday, Apnl 17, 2009 2 54 PM
Subject: RE schedule for depositions
Dear Counsel,
I am open to having a brief conference call this afternoon if Richard and Stephanie are available I have
received available dates for my experts for the last week in April and the first and second weeks of May
One issue that we will face is that we are running out of time to complete expert depositions I believe the
deadline to complete these depositions is April 27th Thus, we need to talk about a stipulation to extend the
deadline
Second, I had noticed the depositions of Ms Abbott's experts to take place on April 16 and 20 Due to
Richard's trial conflict and conflicts with Stephanie, I took those depositions off calendar with the belief that
we would reschedule when all counsel were available Thus, we need to discuss a deposition schedule
beginning with Plaintiffs' 4 experts, and then followed by each party's respective experts
Craig has indicated that he is available this afternoon for a call I am in the office until about 5 Richard and
Stephanie, please let us know if you are free to discuss these matters
Regards,
Greg Fedenco
Archer Norris
From: Craig Lundgren [mailto:CLundgren@lr-law.net]
Sent: Fnday, Apnl 17, 2009 10:50 AM
To: sfinelli700@yahoo.com
Cc: Richard Sopp; Fedenco, Gregory K.
Subject: schedule for depositions.
€^fl
of2 5/8/2009 7 25 AM
Re schedule for depositions - Yahoo' Mail http.//us mc828 mail yahoo.com/mc/showletter'?&fid=%2540S%2540S
We need to schedule depositions as soon as possible Shall we do it via a conference call todays As I
understand it, Richard is in trial the first three days of next week He has agreed to allow us to proceed with
Rodney Abbott in his absence We should finalize the document issues at that time
Next we need to depose the plaintiff experts Please advise as to your experts availability
Craig N Lundgren
Lundgren & Reynolds, LLP
424 2nd Street, Suite A
Davis, Ca 95616
(530) 297-5030
(530) 297-5077
The information and any attachments contained in t h i s email
message may be privileged, confidential, and protected from
disclosure. If you are not the intended r e c i p i e n t , any
dissemination or copying i s s t r i c t l y prohibited. If you
think that you may have received t h i s email message m
error, please notify the sender at the email address above.
If you have received t h i s email m e r r o r , you are instructed
to delete a l l copies and discard any printouts without
reading the information contained within.
2 of 2 5/8/2009 7 25 AM
RE schedule for depositions - Yahoo' Mail hop //us mc828 maii.yahoo com/mc/showMessage?fid=Sent&sort=dat
IMAIL
Classic
RE: schedule for depositions. Monday, April 20, 2009 12.21 PM
From: "Stephanie Finelli"
To: "Federico, Gregory K " , "Richard Sopp"
, "Craig Lundgren"
I am available on 4/23 after 9 30, all day 4/24, 4/27, 4/28, 4/30, 5/1
In light of Mr Sopp's decision to withdraw the depo notices, I will be serving some of my own
Stephanie J Finelli
Attorney at Law
1007 Seventh Street, Suite 500
Sacramento, CA 95814
(916)443-2144
THIS IS A LEGALLY PRIVILEGED AND CONFIDENTIAL COMMUNICATION THAT IS INTENDED TO BE
VIEWED ONLY BY THE INTENDED RECIPIENT IF YOU HAVE RECEIVED THIS MESSAGE IN ERROR,
PLEASE DELETE IT AND NOTIFY THE SENDER IMMEDIATELY ANY DISSEMINATION, DISTRIBUTION,
OR COPYING OF THIS TRANSMISSION IS STRICTLY PROHIBITED
— On Mon, 4/20/09, Craig Lundgren wrote
From Craig Lundgren
Subject RE schedule for depositions
To "Federico, Gregory K " , "Richard Sopp" ,
sfinelli700(gyahoo com
Date Monday, April 20, 2009, 10 46 AM
My schedule is the same as Greg's
It would be nice to hear from you Stephanie
Craig N Lundgren
Lundgren & Reynolds, LLP
424 2nd Street, Suite A
Davis, Ca 95616
(530) 297-5030
(530) 297-5077
From: Fedenco, Gregory K. [mailto:gfederico@archernorris.com]
Sent: Monday, April 20, 2009 10:26 AM
To: Richard Sopp; Craig Lundgren; sflnelli700@yahoo.com
Subject: RE: schedule for depositions.
Dear Counsel,
I am also available on all days referenced in Richard's email, with the exception of the 30th Please
let me know what days are selected for Plaintiffs' experts
^vhg
of3 5/8/2009 7 40 AM
RE schedule for depositions - Yahoo' Mail http //us mc828 mail yahoo com/mc/showMessage''fid=Sent&sort=dat
Greg Federico
From: Richard Sopp [mailto:rds@mwsblaw.com]
Sent: Saturday, April 18, 2009 12:01 PM
To: Fedenco, Gregory K.; Craig Lundgren; sfinelli700@yahoo.com
Subject: Re: schedule for depositions.
Dear Counsel
I am withdrawing my notices of deposition for Mr Poulton, Mr Aplass and Mr Newlin, all of which
were scheduled for April 27
I am available for the depositions of plaintiffs experts and Mr Abbott on the following days the
morning of April 23, ali day April 24 and 27 I would also stipulate to keeping expert discovery open
for the week of April 27-May 1 I am available all day on the 28 and 30 and the morning of the
29th Please let me know what days are selected
Richard D Sopp
Ongmal Message
From: Federico. Gregory K
To: Craig Lundgren , sfinelli700(^vahoo com
Cc: Richard Sopp
Sent: Friday, April 17, 2009 2 54 PM
Subject: RE schedule for depositions
Dear Counsel,
I am open to having a brief conference call this afternoon if Richard and Stephanie are available I
have received available dates for my experts for the last week in April and the first and second
weeks of May One issue that we will face is that we are running out of time to complete expert
depositions I believe the deadline to complete these depositions is April 27th Thus, we need to
talk about a stipulation to extend the deadline
Second, I had noticed the depositions of Ms Abbott's experts to take place on April 16 and 20
Due to Richard's trial conflict and conflicts with Stephanie, i took those depositions off calendar with
the belief that we would reschedule when all counsel were available Thus, we need to discuss a
deposition schedule beginning with Plaintiffs' 4 experts, and then followed by each party's
respective experts
Craig has indicated that he is available this afternoon for a call I am in the office until about 5
Richard and Stephanie, please let us know if you are free to discuss these matters
Regards,
Greg Federico
Archer Norris
From: Craig Lundgren [mailto:CLundgren@lr-law.net]
Sent: Fnday, Apnl 17, 2009 10:50 AM
To: sfinelli700@yahoo.com
Cc: Richard Sopp; Federico, Gregory K.
Subject: schedule for depositions.
2 of 3 5/8/2009 7 40 AM
R E schedule for depositions - Yahoo' Mail http //us mc828 mail yahoo com/mc/showMessage'7fid=Sent&sort=dat.
W e need to schedule depositions as soon as possible Shall w e do it via a conference call today"?
A s I understand it, Richard is in trial the first three days of next w e e k H e has agreed to allow us to
proceed with Rodney Abbott in his absence W e should finalize the document issues at that time
Next w e need to depose the plaintiff experts Please advise as to your experts availability
Craig N Lundgren
Lundgren & Reynolds, L L P
424 2nd Street, Suite A
Davis, C a 95616
(530) 297-5030
(530) 297-5077
The information and any attachments contained m this email
message may be privileged, confidential, and protected from
disclosure. If you are not the intended recipient, any
dissemination or copying is strictly prohibited. If you
think that you may have received this email message m
error, please notify the sender at the email address above.
If you have received this email in error, you are instructed
to delete all copies and discard any printouts without
reading the information contained within
The information and any attachments contained in this email
message may be privileged, confidential, and protected from
disclosure. If you are not the intended recipient, any
dissemination or copying is strictly prohibited. If you
thmk that you may have received this email message m
error, please notify the sender at the email address above.
If you
have received this email in error, you are instructed
to delete all copies and discard any printouts without
reading the information contained within.
3 of 3 5/8/2009 7 40 AM
RE Abbott v Britschgi - Depos - Yahoo' Mail http.//us mc828.niail yahoo com/mc/showletter'?&fid=%2540S%2540S
iMAIL
^ Classic
RE: Abbott v. Britschgi - Depos Thursday, April 23, 2009 11 41 AM
From: "Craig Lundgren"
To: sfinelli700@yahoo.com, "Shaula Patchett" , rds@mwsblaw com,
"Fedenco, Gregory K "
Craig Lundgren vcf (398b)
These dates and times are all acceptable
I do not have any reports from experts None are complete at this time Bill Poulton never wrote one The
civil engineer is working on a survey but that is not complete
I note that I have not received any reports from any of your experts
Craig N Lundgren
Lundgren & Reynolds, LLP
424 2nd Street, Suite A
Davis, Ca 95616
(530) 297-5030
(530) 297-5077
From: Stephanie Finelli [mailto:sfinelli700@yahoo.com]
Sent: Thursday, Apnl 23, 2009 10:14 AM
To: Shaula Patchett; rds@mwsblaw.com; Fedenco, Gregory K.
Cc: Craig Lundgren
Subject: RE: Abbott v. Bntschgi - Depos
Re the depos
Linda Molinari is not available on 4/27. She has not yet finished her report and will not have finished it by
Monday She could likely be done by 4/30 I will know more this afternoon Also, I will make the appraisal
available once it is concluded if you would prefer that to taking her depo
As I understand, the depos are as follows
Weahunt and Lee will be tomorrow, 4/24 at 9 00 and 1 30 respectively
Dillingham is at 10 00 on Monday 4/27
Rod Abbott IS at 2 00 on Wednesday, 4/29
I still have not heard back from anyone re whether they will make their experts available on 4/29 as I had
noticed Such would be appreciated If i need to make a motion to compel, I would like to know soon
At any rate, please provide me with all expert reports, as required by the request for expert disclosure
Stephanie J Finelli
Attorney at Law
1007 Seventh Street, Suite 500
Sacramento, CA 95814
&UC
1 of 3 5/8/2009 7 52 AM
RE Abbott V. Britschgi - Depos - Yahoo' Mail http-//us mc828 mail yahoo com/mc/showletter''&fid=%2540S%2540S
(916) 443-2144
THIS IS A LEGALLY PRIVILEGED AND CONFIDENTIAL COMMUNICATION THAT IS INTENDED TO BE
VIEWED ONLY BY THE INTENDED RECIPIENT IF YOU HAVE RECEIVED THIS MESSAGE IN ERROR,
PLEASE DELETE IT AND NOTIFY THE SENDER IMMEDIATELY ANY DISSEMINATION, DISTRIBUTION,
OR COPYING OF THIS TRANSMISSION IS STRICTLY PROHIBITED
- On Wed, 4/22/09, Federico, Gregory K. wrote
From Federico, Gregory K
Subject RE Abbott v Britschgi - Depos
To "Shaula Patchett" , rds@mwsblaw com, sfinelli700(gyahoo com
Cc "Craig Lundgren"
Date Wednesday, April 22, 2009, 2 40 PM
Dear Counsel,
Our address and phone numbers are as follows
ARCHERNORRIS
655 University Ave , Ste 225 | Sacramento, CA 95825
direct 916 646 2489 | main 916 646 2480 | fax 916 646 5696
Thanks,
Greg
From: Shaula Patchett [mailto:SPatchett@lr-law.net]
Sent: Wednesday, Apnl 22, 2009 2:23 PM
To: Fedenco, Gregory K.; rcls@mwsblaw.com; sfinelli700@yahoo.com
Cc: Craig Lundgren
Subject: Abbott v. Britschgi - Depos
Counsel
The deposition of Rodney Abbott will be held on April 23, 2009, at 1 30 p m at Archer Norris, not
Paulson's, pending confirmation from Ms Finelli
Shaula Patchett
Assistant to Craig N Lundgren
LUNDGREN & REYNOLDS, LLP
424 2nd Street, Suite A
Davis, C A 95616
(530) 792-8800
(530) 297-5077 FAX
The information and any attachments contained in this email
message may be privileged, confidential, and protected from
disclosure. If you are not the intended recipient, any
dissemination or copying is strictly prohibited. If you
think that you may have received this email message in
error, please notify the sender at the email address above
If you have received this email m error, you are instructed
2 of 3 5/8/2009 7 52 AM
RE Abbott V Britschgi - Depos - Yahoo' Mail http //us mc828 mail yahoo coni/mc/showletter'?&fid=%2540S%2540S
to delete all copies and discard any printouts without
reading the information contained within.
3 of 3 5/8/2009 7 52 AM
PROOF OF SERVICE BY MAIL
CASE NAME: Abbott v. Britschgi
CASE NUMBER: Sacramento County Superior Court 07AS04450
I declare that:
I am a citizen ofthe United States and a resident ofthe County of Sacramento. I am,
and at all times mentioned herein was, an active member of the State Bar of Califomia and
not a party to the above-entitied cause. My business address is 1007 Seventh Street, Suite
500, Sacramento, Califomia 95814.
On December 8,2010, pursuant to CCP §1013A(2), I served the following:
PLAINTIFFS' MOTION IN LIMINE 1 TO EXCLUDE EXPERT TESTIMONY
BY MAIL: by depositing a copy of said document in the United States mail in Sacramento,
Califomia, in a sealed envelope, with postage fully prepaid, addressed as follows:
Gregory Federico
Archer Norris
301 University Ave., Suite 110
Sacramento, CA 95825
Richard Sopp
Maloney, Wheatley, Sopp & Brooks
1004 Moon River Rock Drive, Suite 245
Folsom, CA 95630
Mark Smith
8549 Willow Valley Place
Granite Bay, CA 95746
Richard W. Freeman, Jr.
Wood, Smith, Henning & Berman
1401 Willow Pass Road, Suite 700
Concord, CA 94520-7982
I declare under penalty ofperjury under the laws of theState I ofl Califomia the
foregoing is tme and correct. \ 1/ | i
Dated: Decembers, 2010 r / V , y v ^ ^ ^ ^
^~~Stephanie J. Finelli
Preview
1 STEPHANIE J. FINELLI, SBN 173462 , , , J. . , j„. I p. » ^ ,.^ ,o p Q J-, p , Law Office of Stephanie J. Fineili 2 1007-7th Street, Suite 500 Sacramento, CA 95814 3 tel 916-443-2144 DEC 1 7 2010 fax 916-443-1511 4 Attomey for Plaintiffs, By I. Whittielr! CtpLty Clerk 5 FLORENTINE and RODNEY ABBOTT 6 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SACRAMENTO 9 10 FLORENTINE AND RODNEY ABBOTT, CaseNo.: 07AS04450 11 Plainfiffs, PLAINTIFFS' MOTION IN LIMINE 1 TO EXCLUDE EXPERT TESTIMONY 12 vs. Hearing on Motion: January 7, 2011 iQ C]^ I'-l 13 RONALD BRITSCHGI, et. al., TrialDate: January 18, 2011 Judge: Brian Van Camp 14 Defendants 15 16 A. Facts 17 On March 23, 2009, Plainfiffs timely disclosed experts. On or before that date, all ofthe 18 defendants did the same. 19 With the exception of William Poulton, an expert disclosed by Ronald Britschgi, none of 20 the other experts had done any inspection of plaintiffs' house. Mr. Poulton had done what Mr 21 Lundgren termed an "informal" inspection much earlier in the case. Thus, the defendants 22 demanded a site inspection ofthe house. 23 On March 2, 2009, Britschgi had served a Request to Inspect Land and Property, and set 24 the inspection for April 8, 2009. All ofthe defendants experts were not available on April 8, so 25 plaintiffs agreed to allow the experts to inspect the property on April 15, 2009—which was 26 beyond the discovery cutoff date. Thus, until April 15, 2009—just 11 days before the last day to 27 depose experts—defendants' experts had not inspected the plaintiffs' house. 28 Motion in Limine - 1 1 On April 15, 2009, cross-defendant Cadre served a notice of deposition for Ronald 2 Britschgi's experts Jerry Aplass and William Poulton, and for CA Construction's expert, Jason 3 Newlin. These depositions were set for April 27, 2009. Neither Britschgi nor CA Construction 4 objected to this notice as untimely, or asserted that the depositions needed to be completed by 5 April 26, 2009 (which was a Sunday). In fact, in email correspondence of April 17, 2009, Mr 6 Federico, CA Construction's attomey, states "I have received available dates for my experts for 7 the last week of April and the first and second weeks ofMay " He also proposed a stipulation to 8 extend the deadline to complete the expert depositions, as none of plaintiffs' experts had yet been 9 deposed. 10 Because none of plaintiffs' experts had been deposed as of April 17, 2009, it was 11 premature to depose any of the defendants' experts. Craig Lundgren had made it clear that his 12 experts had no opinions of note, and were waiting to see what plaintiffs' experts would say. 13 Because Richard Sopp, attomey for Cadre Design, had noticed three of defendants' 14 experts for deposition on April 27, 2009, plaintiffs' attomey did not notice them, assuming she 15 would question these individuals at the depositions set by Mr Sopp. 16 On Saturday, April 18, 2009, Mr. Sopp sent an email withdrawing his notices of 17 depositions of defendants' experts. (Exh A attached hereto.) Plaintiffs' coimsel did not receive 18 the email until April 20, 2009, at which point she responded that she would be serving notices oi 19 her own. (Exh B attached hereto.) 20 On April 21, 2009, plaintiff served notices of deposition for William Poulton, Jerry 21 Aplass, and Dave Heryet (Mr. Heryet was an expert disclosed by CA Construction and is with 22 the same firm as Jason Newlin, another of CA Constmction's experts). These depositions were 23 set for April 28, 2009 and were served by fax on all counsel. They also included a request to 24 produce certain documents, including reports, back-up documents, correspondence, etc. 25 As of April 23, 2009, neither Mr. Lundgren nor Mr Federico had stated whether they 26 would make their experts available. But the depositions of plaintiffs' experts were being set foi 27 April 24 and April 27, and the continued deposition of plaintiff Rodney Abbott was set for April 28 29. On April 23, 2009, plaintiffs' counsel sent an email to all counsel confirming these Motion in Limine - 2 1 deposition dates and requesting confirmation as to whether defendants would make their experts 2 available. (Exh C attached hereto.) In response, Mr. Lundgren indicated that he does not have 3 any reports from any of his experts, and that the civil engineer was working on a survey, which 4 was not complete. 5 On April 23, 2009, CA Construction and Ronald Britschgi served objections to the expert 6 deposition notices. They objected to the notices as untimely, as having been served fewer than 7 10 days before the date ofthe deposition, and having been set for one day after the April 27, 8 2009 cut-off for taking depositions. They also objected to service by fax, despite the fact that 9 defendants had been routinely serving documents by fax (including deposition notices) since 10 plaintiffs' coimsel substituted into the case. Defendants also objected to producing documents 11 on a myriad of grounds. Defendants did not produce any such reports or other documents. 12 Plaintiffs' expert Skip Weahunt was deposed for the entire day on April 24, 2009 (from 13 9.00 am. until after 5:00 p.m.). Plaintiffs' experts James Dillingham and Robin Lee were 14 deposed on April 27, 2009. Rodney Abbott was deposed April 29, 2009. Plaintiffs' expert 15 Linda Molinari was deposed on May 8, 2009. 16 As of May 5, 2009, defendants' experts (William Poulton, Dave Heryet, Jason Newlin 17 and Fan Barzegar) were served with subpoenas to produce documents, including their reports, 18 correspondence with counsel who retained them, and working papers CA Construction objected 19 to their experts producing these documents pursuant to the subpoena; stated the experts would 20 reports and documents on which they relied when they testify at trial. Thus have defendants 21 again posted another roadblock to plaintiffs determining what their experts will have to say at 22 trial. 23 24 B. This Court Should Exclude Those Experts Defendants Refused to Produce for Deposition 25 26 Code of Civil Procedure section 2034.300 provides that a court shall exclude expert 27 opinion testimony by a party who has unreasonably failed to comply with the exchange 28 requirements. Failing to make an expert available for deposition and failing to produce Motion in Limine - 3 1 discoverable reports and writings are each grounds for exclusion, provided the actions were 2 unreasonable (Code Civ Proc. §2034.300.) This Court has considerable discretion to exclude 3 experts where a party has unreasonably failed to comply with disclosure requirements. (Bonds v 4 Roy (1999) 20 Cal.4th 140, 149.) 5 Defendants' failure to produce their experts for deposition was unreasonable. So was 6 their refusal to produce documents requested via the trial subpoena. As the email 7 correspondence between the parties demonstrates, plaintiffs were being very flexible with the 8 scheduling and setting of depositions in order to ensure that defendants were able to depose all of 9 their experts—which defendants did. When plaintiff requested the same courtesy, it was denied. 10 Moreover, defendants' experts did not even inspect the property until April 15, 2009 11 This was 26 days before trial—one day before plaintiff would need to serve notices on the 12 experts in order to ensure that they were deposed at least 15 days before trial On this very day, 13 Cadre Design noticed the depositions of Jerry Aplass, William Poulton, and Jason Newlin. This 14 obviated the need for plaintiffs to serve their ovm deposition notices. But on April 20—too late 15 to serve a deposition notice 25 days before trial—plaintiffs discovered that these depositions 16 were off The notices served the next day were objected to as "too late" and defendants refused 17 to produce their experts for deposition. This was a sandbag technique if ever there was one. 18 This was also contrary to the tenor of the communications regarding expert depositions. 19 On April 17, 2009, Gregory Federico stated, "I have received available dates for my experts for 20 the last week in April and the first and second weeks of May . . . we need to talk about a 21 Stipulation to extend the deadline." (Exh A.) He further stated, "we need to discuss a deposition 22 schedule begirming with Plaintiffs' 4 experts, and then followed by each party's respective 23 experts." (Exh A.) Thus it was presumed that defendants' experts would be deposed In his 24 April 18 email (in which he suddenly withdrew his deposition notice), Richard Sopp states, 1 25 would also stipulate to keeping expert discovery open for the week of April 27-May 1. I am 26 available all day on the 28 and 30 and the moming of the 29th " (Exh A ) On April 20, Mr. 27 Lundgren and Mr. Federico each stated their availability for the week of April 27—which was 28 after the discovery cutoff for expert witnesses. (Exh B.) Motion in Limine - 4 1 After lulling plaintiff into a belief that any deposition prior to April 15, 2009 would be 2 completely unproductive, and that defendants would produce experts after the discovery cutoff, 3 once plaintiffs' experts were deposed, defendants decided not to produce any experts or any 4 experts reports. They even objected to the faxed deposition notice on the basis that it had been 5 faxed—despite the fact that CA Constmction's attomeys had been regularly faxing documents 6 such as deposition notices. This was unreasonable. Defendants should be precluded from 7 offering the testimony or the reports of William Poulton, Jerry Aplass, and Dave Heryet. They 8 should also be precluded from offering the reports of any of their witnesses. This preclusion 9 should particularly apply if defendants' experts refuse to produce the documents pursuant to the 10 trial subpoenas. 11 12 C. Defendants' Experts' Testimony Should Be Limited to the Opinions They Had as of April 20,2009—Which Were None 13 14 One of the reasons plaintiffs did not depose defendants' experts sooner is that they 15 apparently had no opinions. As noted in Craig Lundgren's April 23, 2009 email, "I do not have 16 any reports from experts. None are complete at this time. Bill Poulton never wrote one. The 17 civil engineer is working on a survey but that is not complete." (Exh C.) Prior to April 15, 2009 18 Mr. Lundgren had assured plaintiffs' counsel that his experts had nothing to report, as they were 19 waiting to see what plaintiffs' experts were going to say. But defendants did not depose the first 20 of plaintiffs' experts until April 20, 2009, when Skip Weahunt was deposed. Thus, their experts 21 had no opinions until at least that date. 22 Certainly defendants experts had no opinions regarding the Abbotts' house until April 15 23 2009, when they inspected it. Thus, it would have been a waste of time for plaintiffs to have 24 deposed the experts before then. And once they finally had opinions (presuming they ever 25 formed opinions), defendants refused to produce them for deposition. Defendants should thus be 26 precluded from introducing expert testimony at trial. 27 Dated: Decembei^ , 2010 28 jhanie J. Fmelli, Attorney for Plaintiffs Motion in Limine - 5 Re schedule fiar depositions - Yahoo' Mail http //us mc828 mail yahoo com/mc/showletter7&fid=%2540S%2540S i i r ^ I IMM Clasilc Re: schedule for depositions. Saturday, April 18, 2009 12 00 PM From: "Richard Sopp" To: "Federico, Gregory K." , "Craig Lundgren" , sfinelli700@yahoo com Dear Counsel I am withdrawing my notices of deposition for Mr Poulton, Mr Aplass and Mr Newlin, all of which were scheduled for April 27 I am available for the depositions of plaintiffs experts and Mr Abbott on the following days the morning of April 23, all day April 24 and 27 I would also stipulate to keeping expert discovery open for the week of April 27-May 1 I am available all day on the 28 and 30 and the morning of the 29th Please let me know what days are selected Richard D Sopp — Original Message — From: Federico, Gregory K To: Craig Lundgren , sfinelli700(S)yahoo com Cc: Richard Sopp Sent: Friday, Apnl 17, 2009 2 54 PM Subject: RE schedule for depositions Dear Counsel, I am open to having a brief conference call this afternoon if Richard and Stephanie are available I have received available dates for my experts for the last week in April and the first and second weeks of May One issue that we will face is that we are running out of time to complete expert depositions I believe the deadline to complete these depositions is April 27th Thus, we need to talk about a stipulation to extend the deadline Second, I had noticed the depositions of Ms Abbott's experts to take place on April 16 and 20 Due to Richard's trial conflict and conflicts with Stephanie, I took those depositions off calendar with the belief that we would reschedule when all counsel were available Thus, we need to discuss a deposition schedule beginning with Plaintiffs' 4 experts, and then followed by each party's respective experts Craig has indicated that he is available this afternoon for a call I am in the office until about 5 Richard and Stephanie, please let us know if you are free to discuss these matters Regards, Greg Fedenco Archer Norris From: Craig Lundgren [mailto:CLundgren@lr-law.net] Sent: Fnday, Apnl 17, 2009 10:50 AM To: sfinelli700@yahoo.com Cc: Richard Sopp; Fedenco, Gregory K. Subject: schedule for depositions. €^fl of2 5/8/2009 7 25 AM Re schedule for depositions - Yahoo' Mail http.//us mc828 mail yahoo.com/mc/showletter'?&fid=%2540S%2540S We need to schedule depositions as soon as possible Shall we do it via a conference call todays As I understand it, Richard is in trial the first three days of next week He has agreed to allow us to proceed with Rodney Abbott in his absence We should finalize the document issues at that time Next we need to depose the plaintiff experts Please advise as to your experts availability Craig N Lundgren Lundgren & Reynolds, LLP 424 2nd Street, Suite A Davis, Ca 95616 (530) 297-5030 (530) 297-5077 The information and any attachments contained in t h i s email message may be privileged, confidential, and protected from disclosure. If you are not the intended r e c i p i e n t , any dissemination or copying i s s t r i c t l y prohibited. If you think that you may have received t h i s email message m error, please notify the sender at the email address above. If you have received t h i s email m e r r o r , you are instructed to delete a l l copies and discard any printouts without reading the information contained within. 2 of 2 5/8/2009 7 25 AM RE schedule for depositions - Yahoo' Mail hop //us mc828 maii.yahoo com/mc/showMessage?fid=Sent&sort=dat IMAIL Classic RE: schedule for depositions. Monday, April 20, 2009 12.21 PM From: "Stephanie Finelli" To: "Federico, Gregory K " , "Richard Sopp" , "Craig Lundgren" I am available on 4/23 after 9 30, all day 4/24, 4/27, 4/28, 4/30, 5/1 In light of Mr Sopp's decision to withdraw the depo notices, I will be serving some of my own Stephanie J Finelli Attorney at Law 1007 Seventh Street, Suite 500 Sacramento, CA 95814 (916)443-2144 THIS IS A LEGALLY PRIVILEGED AND CONFIDENTIAL COMMUNICATION THAT IS INTENDED TO BE VIEWED ONLY BY THE INTENDED RECIPIENT IF YOU HAVE RECEIVED THIS MESSAGE IN ERROR, PLEASE DELETE IT AND NOTIFY THE SENDER IMMEDIATELY ANY DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS TRANSMISSION IS STRICTLY PROHIBITED — On Mon, 4/20/09, Craig Lundgren wrote From Craig Lundgren Subject RE schedule for depositions To "Federico, Gregory K " , "Richard Sopp" , sfinelli700(gyahoo com Date Monday, April 20, 2009, 10 46 AM My schedule is the same as Greg's It would be nice to hear from you Stephanie Craig N Lundgren Lundgren & Reynolds, LLP 424 2nd Street, Suite A Davis, Ca 95616 (530) 297-5030 (530) 297-5077 From: Fedenco, Gregory K. [mailto:gfederico@archernorris.com] Sent: Monday, April 20, 2009 10:26 AM To: Richard Sopp; Craig Lundgren; sflnelli700@yahoo.com Subject: RE: schedule for depositions. Dear Counsel, I am also available on all days referenced in Richard's email, with the exception of the 30th Please let me know what days are selected for Plaintiffs' experts ^vhg of3 5/8/2009 7 40 AM RE schedule for depositions - Yahoo' Mail http //us mc828 mail yahoo com/mc/showMessage''fid=Sent&sort=dat Greg Federico From: Richard Sopp [mailto:rds@mwsblaw.com] Sent: Saturday, April 18, 2009 12:01 PM To: Fedenco, Gregory K.; Craig Lundgren; sfinelli700@yahoo.com Subject: Re: schedule for depositions. Dear Counsel I am withdrawing my notices of deposition for Mr Poulton, Mr Aplass and Mr Newlin, all of which were scheduled for April 27 I am available for the depositions of plaintiffs experts and Mr Abbott on the following days the morning of April 23, ali day April 24 and 27 I would also stipulate to keeping expert discovery open for the week of April 27-May 1 I am available all day on the 28 and 30 and the morning of the 29th Please let me know what days are selected Richard D Sopp Ongmal Message From: Federico. Gregory K To: Craig Lundgren , sfinelli700(^vahoo com Cc: Richard Sopp Sent: Friday, April 17, 2009 2 54 PM Subject: RE schedule for depositions Dear Counsel, I am open to having a brief conference call this afternoon if Richard and Stephanie are available I have received available dates for my experts for the last week in April and the first and second weeks of May One issue that we will face is that we are running out of time to complete expert depositions I believe the deadline to complete these depositions is April 27th Thus, we need to talk about a stipulation to extend the deadline Second, I had noticed the depositions of Ms Abbott's experts to take place on April 16 and 20 Due to Richard's trial conflict and conflicts with Stephanie, i took those depositions off calendar with the belief that we would reschedule when all counsel were available Thus, we need to discuss a deposition schedule beginning with Plaintiffs' 4 experts, and then followed by each party's respective experts Craig has indicated that he is available this afternoon for a call I am in the office until about 5 Richard and Stephanie, please let us know if you are free to discuss these matters Regards, Greg Federico Archer Norris From: Craig Lundgren [mailto:CLundgren@lr-law.net] Sent: Fnday, Apnl 17, 2009 10:50 AM To: sfinelli700@yahoo.com Cc: Richard Sopp; Federico, Gregory K. Subject: schedule for depositions. 2 of 3 5/8/2009 7 40 AM R E schedule for depositions - Yahoo' Mail http //us mc828 mail yahoo com/mc/showMessage'7fid=Sent&sort=dat. W e need to schedule depositions as soon as possible Shall w e do it via a conference call today"? A s I understand it, Richard is in trial the first three days of next w e e k H e has agreed to allow us to proceed with Rodney Abbott in his absence W e should finalize the document issues at that time Next w e need to depose the plaintiff experts Please advise as to your experts availability Craig N Lundgren Lundgren & Reynolds, L L P 424 2nd Street, Suite A Davis, C a 95616 (530) 297-5030 (530) 297-5077 The information and any attachments contained m this email message may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any dissemination or copying is strictly prohibited. If you think that you may have received this email message m error, please notify the sender at the email address above. If you have received this email in error, you are instructed to delete all copies and discard any printouts without reading the information contained within The information and any attachments contained in this email message may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any dissemination or copying is strictly prohibited. If you thmk that you may have received this email message m error, please notify the sender at the email address above. If you have received this email in error, you are instructed to delete all copies and discard any printouts without reading the information contained within. 3 of 3 5/8/2009 7 40 AM RE Abbott v Britschgi - Depos - Yahoo' Mail http.//us mc828.niail yahoo com/mc/showletter'?&fid=%2540S%2540S iMAIL ^ Classic RE: Abbott v. Britschgi - Depos Thursday, April 23, 2009 11 41 AM From: "Craig Lundgren" To: sfinelli700@yahoo.com, "Shaula Patchett" , rds@mwsblaw com, "Fedenco, Gregory K " Craig Lundgren vcf (398b) These dates and times are all acceptable I do not have any reports from experts None are complete at this time Bill Poulton never wrote one The civil engineer is working on a survey but that is not complete I note that I have not received any reports from any of your experts Craig N Lundgren Lundgren & Reynolds, LLP 424 2nd Street, Suite A Davis, Ca 95616 (530) 297-5030 (530) 297-5077 From: Stephanie Finelli [mailto:sfinelli700@yahoo.com] Sent: Thursday, Apnl 23, 2009 10:14 AM To: Shaula Patchett; rds@mwsblaw.com; Fedenco, Gregory K. Cc: Craig Lundgren Subject: RE: Abbott v. Bntschgi - Depos Re the depos Linda Molinari is not available on 4/27. She has not yet finished her report and will not have finished it by Monday She could likely be done by 4/30 I will know more this afternoon Also, I will make the appraisal available once it is concluded if you would prefer that to taking her depo As I understand, the depos are as follows Weahunt and Lee will be tomorrow, 4/24 at 9 00 and 1 30 respectively Dillingham is at 10 00 on Monday 4/27 Rod Abbott IS at 2 00 on Wednesday, 4/29 I still have not heard back from anyone re whether they will make their experts available on 4/29 as I had noticed Such would be appreciated If i need to make a motion to compel, I would like to know soon At any rate, please provide me with all expert reports, as required by the request for expert disclosure Stephanie J Finelli Attorney at Law 1007 Seventh Street, Suite 500 Sacramento, CA 95814 &UC 1 of 3 5/8/2009 7 52 AM RE Abbott V. Britschgi - Depos - Yahoo' Mail http-//us mc828 mail yahoo com/mc/showletter''&fid=%2540S%2540S (916) 443-2144 THIS IS A LEGALLY PRIVILEGED AND CONFIDENTIAL COMMUNICATION THAT IS INTENDED TO BE VIEWED ONLY BY THE INTENDED RECIPIENT IF YOU HAVE RECEIVED THIS MESSAGE IN ERROR, PLEASE DELETE IT AND NOTIFY THE SENDER IMMEDIATELY ANY DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS TRANSMISSION IS STRICTLY PROHIBITED - On Wed, 4/22/09, Federico, Gregory K. wrote From Federico, Gregory K Subject RE Abbott v Britschgi - Depos To "Shaula Patchett" , rds@mwsblaw com, sfinelli700(gyahoo com Cc "Craig Lundgren" Date Wednesday, April 22, 2009, 2 40 PM Dear Counsel, Our address and phone numbers are as follows ARCHERNORRIS 655 University Ave , Ste 225 | Sacramento, CA 95825 direct 916 646 2489 | main 916 646 2480 | fax 916 646 5696 Thanks, Greg From: Shaula Patchett [mailto:SPatchett@lr-law.net] Sent: Wednesday, Apnl 22, 2009 2:23 PM To: Fedenco, Gregory K.; rcls@mwsblaw.com; sfinelli700@yahoo.com Cc: Craig Lundgren Subject: Abbott v. Britschgi - Depos Counsel The deposition of Rodney Abbott will be held on April 23, 2009, at 1 30 p m at Archer Norris, not Paulson's, pending confirmation from Ms Finelli Shaula Patchett Assistant to Craig N Lundgren LUNDGREN & REYNOLDS, LLP 424 2nd Street, Suite A Davis, C A 95616 (530) 792-8800 (530) 297-5077 FAX The information and any attachments contained in this email message may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any dissemination or copying is strictly prohibited. If you think that you may have received this email message in error, please notify the sender at the email address above If you have received this email m error, you are instructed 2 of 3 5/8/2009 7 52 AM RE Abbott V Britschgi - Depos - Yahoo' Mail http //us mc828 mail yahoo coni/mc/showletter'?&fid=%2540S%2540S to delete all copies and discard any printouts without reading the information contained within. 3 of 3 5/8/2009 7 52 AM PROOF OF SERVICE BY MAIL CASE NAME: Abbott v. Britschgi CASE NUMBER: Sacramento County Superior Court 07AS04450 I declare that: I am a citizen ofthe United States and a resident ofthe County of Sacramento. I am, and at all times mentioned herein was, an active member of the State Bar of Califomia and not a party to the above-entitied cause. My business address is 1007 Seventh Street, Suite 500, Sacramento, Califomia 95814. On December 8,2010, pursuant to CCP §1013A(2), I served the following: PLAINTIFFS' MOTION IN LIMINE 1 TO EXCLUDE EXPERT TESTIMONY BY MAIL: by depositing a copy of said document in the United States mail in Sacramento, Califomia, in a sealed envelope, with postage fully prepaid, addressed as follows: Gregory Federico Archer Norris 301 University Ave., Suite 110 Sacramento, CA 95825 Richard Sopp Maloney, Wheatley, Sopp & Brooks 1004 Moon River Rock Drive, Suite 245 Folsom, CA 95630 Mark Smith 8549 Willow Valley Place Granite Bay, CA 95746 Richard W. Freeman, Jr. Wood, Smith, Henning & Berman 1401 Willow Pass Road, Suite 700 Concord, CA 94520-7982 I declare under penalty ofperjury under the laws of theState I ofl Califomia the foregoing is tme and correct. \ 1/ | i Dated: Decembers, 2010 r / V , y v ^ ^ ^ ^ ^~~Stephanie J. Finelli