Preview
] Todd A. Jones (Bar No. 198024)
Gregory K. Federico (Bar No. 242184)
2 ARCHERNORRIS
A Professional Law Corporation
3 301 University Avenue, Suite 110
Sacramento, Califomia 95825
4 Telephone: 916.646.2480
Facsimile: 916.646.5696
5
Attomeys for Defendants
6 RICHARD KIRK RUYBALID, individually and
dba CA CONSTRUCTION
7
8 SUPERIOR COURT OF CALIFO:
9 COUNTY OF SACRAMENTO
10
11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
ABBOTT,
12 MOTION IN LIMINE NO. 16 TO
Plaintiffs, EXCLUDE EXPERT OPINION
13 TESTIMONY AND REPORT FROM
BRYAN C. HILL
14
RONALD PAUL BRITSCHGI, et al., Action Filed: September 24,2007
15
Defendants. Hearing Date: January 7, 2011
16 Trial Date: January 18,2011
Time: 8:30 a.m.
17 Location: Department 43
18 AND ALL RELATED CROSS-ACTIONS.
19
20 I.
INTRODUCTION
21
Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION
22
(hereinafter "CA CONSTRUCTION") hereby files this Motion in Limine No. 16 to exclude
23
expert opinion testimony and the report from witness Bryan C. Hill.
24
As indicated in CA CONSTRUCTION'S Index of Motions in Limine, it reserved its rights
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to file additional motions in limine based on the outcome of depositions that had not yet been
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completed at the time CA CONSTRUCTION filed its Motions in Limine No 's 1 through 15. On
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December 9,2010, CA CONSTRUCTION'S counsel further deposed Plaintiffs RODNEY and
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NIC549/1069382-1
DEFENDANT'S MOTION IN LIMINE NO 16 RE BRYAN HILL
1 FLORENTINE ABBOTT ("Plaintiffs"). On December 21, 2010, CA CONSTRUCTION took
2 the deposition of EFI Global, Inc, employee Bryan C. Hill. The necessity of filing this additional
3 motion became known after Mr. Hill's deposition and Plaintiffs' counsel's recent submission of
4 an improper and late supplemental expert disclosure that lists Mr. Hill as a non-retained expert.
5 CA CONSTRUCTION further hereby incorporates by reference herein the "Introduction"
6 section set forth in its Motion in Limine No. 1 previously filed with this Court.
'' MOTION IN LIMINE NO. 16 TO EXCLUDE
g EXPERT TESTIMONY AND REPORT FROM BRYAN C. HILL
Q On December 21, 2010, CA CONSTRUCTION took the deposition of EFI Global, Inc.
.^ employee Bryan C. Hill as a percipient witness. During the deposition, counsel examined Mr.
-.. Hill on his percipient observations and opinions in cormection with an April 18, 2009 report he
.. J issued concerning a homeowner's property insurance claim at Plaintiffs' home that was unrelated
.» to this lawsuit. (A true and correct copy ofthe face page of Mr. Hill's report is attached hereto as
j^ Exhibit "A").
.c After Mr. Hill's deposition, Plaintiffs served al! parties with a Supplemental Expert
I, Witness Disclosure and Expert Witness Declaration (hereinafter "Supplemental Disclosure") on
.„ December 22,2010. (A tme and conect copy of Plaintiffs' Supplemental Expert Disclosure is
,o attached hereto as Exhibit "B"). The Supplemental Disclosure lists Bryan C Hill of EFI Global,
.Q Inc. as a non-retained expert for Plaintiffs.
2Q On or about December 23,2010, counsel for CA CONSTRUCTION wrote Plaintiffs'
r.. counsel with their objection to Plaintiffs' late and improper Supplemental Disclosure. (A true and
22 correct copy of counsel's December 23,2010 letter is attached hereto as Exhibit "C") On or
23 about December 28,2010, CA CONSTRUCTION filed with this Court a formal objection to
„. Plaintiffs' late and improper Supplemental Disclosure. (A tme and correct copy of CA
25 CONSTRUCTION'S Objection is attached hereto as Exhibit "D")
^^ By way of background, the trial of this matter was originally set for May 11,2009. The
2-7 trial was eventually continued until January 18,2011. Since the trial was continued in mid-2009,
NIC549/I069382-1 2
28 — —
DEFENDANT'S MOTION IN LIMINE NO. 16 RE BRYAN HILL
1 Plaintiffs have failed to file a motion to augment and/or amend their expert disclosure. On July
2 20, 2009, the Court issued an order that re-opened discovery for CA CONSTRUCTION only,
3 based on limited issues, (A tme and correct copy ofthe Court's July 20, 2009 order is attached
4 hereto as Exhibit "E"). The order requires Plaintiffs to seek leave ofcourt to conduct additional
5 discoverv on expert issues, including the depositions ofthe defense experts. Since this date.
6 Plaintiffs have not sought leave of Court to re-open discovery on expert issues, including the
7 designation of supplemental experts or the augmentation of expert disclosures served prior to the
8 May 11, 2009 trial date.
9 Plaintiffs did not meet and confer with counsel for CA CONSTRUCTION as to their need
10 or desire to augment and/or amend their expert designation. Plaintiffs also have not sought leave
11 ofcourt to re-open discovery, which would be required to supplement their original expert
12 disclosures in this matter.
13 II.
14 ARGUMENT
15 A. PLAINTIFFS' DISCLOSURE OF MR. HILL AS A NON-RETAINED
EXPERT IS IMPROPER AND UNTIMELY
16 Plaintiffs' Supplemental Disclosure is late and improper for various reasons outlined in
17 the Code of Civil Procedure. The deadline to designate experts pursuant to Code of Civil
18 Procedure §2034.260 in this case was March 23,2009. Mr. Hill was not designated as an expert
19 witness by Plaintiffs inti:ieirinitial disclosure. The deadline to supplement Plaintiffs' expert
20 disclosure pursuant to Code of Civil Procedure §2034 280 was April 10, 2009. Mr. Hill was not
21 designated as a supplemental expert witness by Plaintiffs before this deadline. On December 22,
22 2010, over 21 months beyond the deadline to supplement expert disclosures, Plaintiffs served
23 their Supplemental Disclosure listing Mr Hill. Needless to say, the disclosure is untimely.
24 Notwithstanding the clear lateness of Plaintiffs' Supplemental Disclosure as discussed
25 above, it is still untimely based on a January 18,2011 trial date since the Supplemental
26 Disclosure was served less then 30 days before trial.
27 NIC549/1069382-1 3
28
DEFENDANT'S MOTION IN LIMINE NO 16 RE BRYAN HILL
1 As such, Plaintiffs' attempt to "back-door" Mr. Hill in as one of their experts in this case
2 is improper and his testimony should be limited as such.
^ B. PLAINTIFFS' COUNSEL HAD KNOWLEDGE OF MR. HILL'S
4 INVESTIGATION AND REPORT AS EARLY AS APRIL 2009, IF NOT
BEFORE, AND DID NOTHING
Plaintiffs' had knowledge of Mr. Hill's investigation as early as April 2009, if not before.
Also, Plaintiffs' had knowledge that Mr, Hill had a report prior to the May 11, 2009 trial date. In
fact, Plaintiffs attempted to continue the mitial trial date on the grounds that they needed, but had
not yet obtained a copy of Mr. Hill's report. The Court denied Plaintiffs' request for a trial
continuance for more time to obtain the report and the Court was prepared to hear the case
without consideration of Mr. Hill's investigation and report. Likewise, this Court should now
prevent Plaintiffs from relying on the expert opinions contained in Mr, Hill's report simply
because the parties' initial trial date was continued.
Plaintiffs' counsel had knowledge of this report and their lack of diligence is clear. They
failed to seek leave ofcourt to re-open discovery as suggested by the Court, they failed to seek
leave ofcourt to augment or supplement their expert disclosure. Also, Plaintiffs have failed to
meet and confer with counsel as to the necessity or even desire to augment and/or amend their
expert designation per Code of Civil Procedure §2034.610. Serving a Supplemental Disclosure
over 21 months beyond the deadline does not qualify as a meet and confer attempt if Plaintiffs
desire to add Mr. Hill as an expert. What Plaintiffs have done is add Mr. Hill as an expert witness
after his deposition was taken by CA CONSTRUCTION. This is not a case of inadvertence or
excusable neglect by Plaintiffs' counsel. It is gamesmanship. Plaintiffs knew the subject matter
of Mr. Hill's investigation and contents of his report, and did nothing for over 20 months.
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NIC549/1069382-1
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DEFENDANT'S MOTION IN LIMINE NO 16 RE BRYAN HILL
1 However, this should be the extent of his testimony and expert opinion testimony should not be
2 allowed. Any opinion testimony from Mr. Hill is improper because (1) he was not disclosed as an
3 expert; and (2) he was not deposed in his capacity as one of Plaintiffs' experts since they
4 supplemented their expert list after his deposition was completed. Thus, expert opinion testimony
5 from Mr. Hill is not relevant to issues in this case and would simply confuse the issues, mislead
6 the jury and waste time The Court should exclude Mr. Hill's expert opinions, including but not
7 limited to any and all reports created by Mr. Hill.
8 HI.
CONCLUSION
9
Based on tiie foregoing, the Court should grant CA CONSTRUCTION'S Motion in
10
Limine No. 16 to exclude expert opinion testimony and reports from witness Bryan C. Hill and
11
should limit Mr. Hill to his percipient observations gleaned from his inspections and observations.
12
13 Dated: December '^0 , 2010 ARCHER NORRI
14
15
Gregory K. Federico
16 Attomeys for Defendants RICHARD KIRK
RUYBALID, individually and dba CA
17 CONSTRUCTION
18
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IT IS SO ORDERED.
20
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DATED:
22
23
24 JUDGE OF THE SUPERIOR COURT
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NIC549/1069382-1
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DEFENDANT'S MOTION IN LIMINE NO 16 RE BRYAN HILL
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 proceeding My business address is 301 University Avenue, Suite 110, Sacramento,
California 95825. On January 3,2011,1 caused the following document(s) to be served:
5
MOTION IN LIMINE NO. 16 TO EXCLUDE EXPERT OPINION TESTIMONY AND
6 REPORT FROM BRYAN C. HILL
7 I—I By placing a tme copy ofthe documents listed above, enclosed in a sealed envelope,
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
Q with this business' practice for collection and processing of correspondence for
mailing with the United States Postal Service On the same day that a sealed envelope
10 I is placed for collection and mailing, it is deposited in the ordinary course of business
with the United States Postal Service with postage fiilly prepaid.
11
I—I By having a tme copy of the document(s) listed above transmitted by facsimile to the
12 person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission
- was reported as complete without error by a report issued by the transmitting facsimile
machine.
14
By placing a tme copy ofthe document(s) listed above, in a box or other facility
15 ' ' regularly maintained by UPS, an express service carrier, or delivered to a courier or
driver authorized by the express service carrier to receive documents, in an envelope
16 designated by the express service carrier, with delivery fees paid or provided for,
addressed as set forth below.
18 n bv having personal deliverv bv FIRST LEGAL SUPPORT SERVICES a tme copv of
the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the
19 address(es) set forth below.
20
[SEE ATTACHED SERVICE LIST]
21
I declare under penalty ofperjury that the foregoing is tme and correct. Executed on
22 January 3, 2011, at Sacramento, Califomia.
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^d/^
DY A. INGLAND
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NIC341/608293-1
PROOF OF SERVICE
1 Service List
2
Stephanie Finelli 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@mwsblaw.com
8
Mark Smith In Pro Per
9 8549 Willow Valley Place
Granite Bay, CA 95746
10
Richard W. Freeman Counsel for R4C0RP
11 Scott S Brooks
WOOD SMITH HENNING & BERMAN LLP Tel (925) 356-8200
12 1401 Willow Pass Road, Suite 700 Fax:(925)356-8250
Concord, CA 94520-7982
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NIC341/608293-1 2
SERVICE LIST
EXHIBIT "A"
EFI . . . a ' : , i • •.•• ••
Global (,K •l|.,.7.J ., j l (
.- H W v l , '• '1 h 1.1.1 1
Privileged and Confidential
INSURED: Florentine AbbotC
LOSS LOCAUON; 860! Holiing Green Way
Fair Oaks, CA 95628
DATF OF LOSS' September 29. 2007
CLAIM NUMBFR: PP8498752
CFI FILE NO- 94605-12200
Report Date; April 18.200')
Prepared For: The Hartford Insurance Company
P.O. Box 14266
Lexington. KY 40512
Atrentioir Linda Worrell
(800) 811-4832 Ext. 40512
Knaineer: BrvanC Hill. P !:.
THIS REP(yRTFi'Rj\'rSHi:DAS PRIVILEGED AND CONFIDEMTIAL TO -IDDRI'SSEE
RELEASE TO ANY OTHER COMP-Am'. (VNCBRh' OR INDlVIDfJAL ISSOLhl.)
THE RESPONSIBILITY OV .ADDRESSEE
EXHIBIT "B"
1 STEPHANIE J. FINELLI, SBN 173462
LawOfficeof Stephanie J Finelli
2 1007-7th Street, Suite 500
Sacramento, CA 95814
3 tel 916-443-2144
fax 916-443-1511
4
Attomey for Plaintiffs,
5 FLO AND RODNEY ABBOTT
6
7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 IN AND FOR THE COUNTY OF SACRAMENTO
9
10 RODNEY AND FLORENTINE ABBOTT. CaseNo.: 07AS04450
11 Plaintiflf, PLAINTIFFS' SUPPLEMENTAL EXPERT
WITNESS DISCLOSURE AND EXPERT
12 vs. WITNESS DECLARATION
13 RONALD BRITSCHGI, et, al.,
14 Defendants
15
16 and related cross-actions
17
18 TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD:
19 I, Stephanie J. Finelli, hereby declare as follows
20 1. I am an attomey, duly licensed and practicing in the State of California. 1
21 represent plaintiffs, Rodney and Florentine Abbott in this action.
22 2. In compliance with the provisions of section 2034.280, I make the following
23 declaration regarding a s'upplemental witness, the testimony of which plaintiffs intend to offei
24 into evidence at the trial of this action,
25
26 NON-RETAINED EXPERTS
27 1. Bryan C. Hill, EFI Global, 4205 Cincinnati Ave, Suite 100, Rocklin, CA 95765,
28
Expert Witness Disclosure - I
1 Mr. Hill is a licensed professional civil engineer. Plaintiffs provided his report of his
2 inspection of plaintiffs' house to defense counsel in May 2009. Defendants deposed Mr. Hill foi
3 over three hours on December 21, 2010, asking him questions ofan expert nature and paying
4 him an expert fee for his deposition. Although defendants have been aware of the existence oi
5 Mr. Hill as a percipient expert and have had his report since May 2009, Plaintiffs provide this
6 supplemental disclosure in an abundance of caution. Mr. Hill is expected to testify as to the
7 conclusions he reached in his 2009 report, including but not limited to the lack of compaction oi
8 the soil under the slab ofthe garage and the house and the damages it has caused.
9
I declare under penalty of perjury under the laws of the State of Califomia that the
10
foregoing is true and correct.
U
12
Dated: December 21,2010
13 Stepha
Attomey for Plaintiffs,
14 Rodney and Florentine Abbott
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Expert Witness Disclosure - 2
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 Comity of Sacramento. I am,
and at all times mentioned herein was, an active member of the State Bar of California and
not a party to the above-entitled cause. My business address is 1007 Seventh Street, Suite
500, Sacramento, California 95814.
On December 22,2010, pursuant to CCP § 1013A(2), I served the following:
PLAINTIFFS' SUPPLEMENTAL EXPERT WITNESS DISCLOSURE AND EXPERT
WITNESS DECLARATION
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 WiUow 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 of perjury under the l a ^ of the State of Califomia the
foregoing is true and correct.
Dated: December 22,2010
EXHIBIT "C"
• ' y
ARCHERNORRIS
A PROFESSIONAL LAW CORPORATION
301 University Avenue, Suite 110 GREGORY K. FEDERICO
Sacrannento, CA 96825-5537 gfedenco@archernonfis com
916 646 2480 916 878 5309
916 646 5696 (Fax)
wvKw a r c h e m o m s com
December 23,2010
VIA FACSIMILE ONLY
Stephanie Finelli, Esq.
Law Offices of Stephanie J. Finelli
1007 Seventh Street, Suite 500
Sacramento, CA 95814
Re: Rodney and Florentine Abbott v. Ronald Paul Britschgi, et al.
Sacramento Countv Superior Court Case No. 07AS04456
My Client: Richard Ruybalid, individually and dba CA Construction
Our File No.: NIC-341
Dear Stephanie,
I am in receipt of "Plaintiffs' Supplemental Expert Witness Disclosure and Expert
Witness Declaration" dated December 22,2010 wherein Plaintiffs designate Bryan Hill as a non-
retained expert. Your supplemental expert designation is late and improper imder the Code of
Civil Procedure. As such, CA Construction hereby objects to the same.
The deadline to designate experts pursuant to Code of Civil Procedure §2034.260 was
March 23,2009. The deadline to supplement Plaintiffs' expert disclosure pursuant to Code of
Civil Procedure §2034.280 was April 10,2009. Your supplemental designation was served on
December 22,2010, over 21 months beyond the deadline, despite having knowledge of Mr. Hill,
his investigation, and his report as early as May of 2009. Needless to say, the supplemental
designation is late.
Moreover, in order to supplement, a motion is required. Plaintiffs have failed to meet and
confer as required for a motion to augment their expert designation per Code of Civil Procedure
§2034.610. Simply serving a supplemental designation hardly qualifies as a meet and confer
attempt. Also, as you know, discovery is closed as to Plaintiffs. Plaintiffs have failed to seek
leave ofcourt to re-open discovery, which would include the designation of supplemental
experts. Based on the above, we object to the designation and reserve all rights to do the same at
the trial of this matter.
WALNUT CREEK SACRAMENTO NEWPORT BEACH. LOS ANGELES
NIC341/10673i!2-I
Stephanie Finelli, Esq.
Law Offices of Stephanie J. Finelli
December 23,2010
Page 2
Thank you for your attention to this matter.
Very truly yours,
ARCHERNORRIS
Gregory K. Federico
GKF/ci
NIC34V1067382-1
TRANSMISSION VERIFICATION REPORT
TIME 12/23/2010 15:12
NAME ARCHERNORRIS
FAX 91SS465S96
TEL 91B64624B0
SER.tt BR0M4J172846
DATE,TIME 12/23 15:11
FAX NO./NAME 19164431511
DILATION • 00:00:32
PAGE(S) 03
RESULT OK
MODE STANDARD
ECM
a
ARCHERNORRIS
A PROFESSl0^fAL LAW CORPORATION
301 UnlvarsKy Avunue, Sulta 110
SscramBntO. CA 93825-3537
eie 64S.24S0
91^648 9696 (Fax)
www.are:hemorris.«im
FACSIMILE TRANSMISSION
DATE: December 23,2010
TO:
1 NAME: FAX NO.: PHONE NO.: 1
Lstephanie Finelli 916.443.1511 916.443.2144
Law Offices of Stephanie Finelli
FROM: Gregory K. Federico PHONE: 916.646.2480
Rc: Rodney Abbot v. Ronald Paul Britschgi, et al.
Sacramento County Superior Court Case No. 07AS04450
FILE NUMBER. NIC.341
NUMBER OF PAGES WITH COVER PAGE- 3 ORIGINALS WILL NOT FOLLOW
MESSAGE:
See attached correspot^dence,
•
ARCHERNORRIS
A PROFESSIONAL LAW CORPORATION
301 University Avenue. Suite 110
Sacramento, CA 95825-5537
915 6462480
816 646 5696 (Fax)
vKww a r c h e r n o r r i s com
FACSIMILE TRANSMISSION
DATE: December 23,2010
TO:
NAME: FAX NO.: PHONE NO.:
Stephanie Finelli 916.443.1511 916.443.2144
Law Offices of Stephanie Finelli
FROM: Gregory K. Federico PHONE: 916.646.2480
RE: Rodney Abbot v. Ronald Paul Britschgi, et al.
Sacramento Coimty Superior Court Case No. 07AS04450
FILE NUMBER: NlC-341
NUMBER OF PAGES WITH COVER PAGE 3 ORIGINALS WILL NOT FOLLOW
MESSAGE:
See attached correspondence.
CAUTION - CONFIDENTIAL
THE INFORMATION CONTAINED IN THIS FACSIMILE IS CONFIDENTIAL AND "MAY ALSO CONTAIN PRIVILEGED ATTORNEY-CLIENT
INFORMATION OR WORK PRODUCT THE INFORMATION IS INTENDED ONLY FOR THE USE OP THE INDIVIDUAL OR ENTITY TO WHOM IT IS
ADDRESSED IF YOU ARE NOT THE INTENDED RECIPIENT. OR THE EMPLOYEE OR AGENT RESPONSIBLE TO DELIVER IT TO THE
INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY USE, DISSEMINATION, DISTRIBUTION OR COPYING OF THIS
COMMUNICATION IS STRICTLY PROHIBITED IF YOU HAVE RECEIVED THE FACSIMILE IN ERROR, PLEASE IMMEDIATELY NOTTFY VS BY
TELEPHONE, AND RETURN THE ORIGINAL MESSAGE TO US AT THE ADDRESS ABOVE VIA THE U S POSTAL SERVICE THANK YOU.
IF YOU DO NOT RECEIVE ALL OF THE PAGES, PLEASE CALL
OUR OFFICE SERVICES MANAGER AT 916.646.2480 AS SOON AS POSSIBLE.
NIC341i777677-l -^ -
EXHIBIT "D"
^^tM
1 Todd A. Jones (Bar No. 198024)
FiLED
2
Cjxegory K. Federico (Bar No. 242184)
ARCflER NORRIS ENDORSED'
A Professional Law Corporation
3 '301 University Avenue, Suite 110 10 OEC 2 9 AH 10:1*3*
Sacramento, California 95825
4 Telephone; 916.646.2480 LEGAL PROCESS-^?"
Facsimile: 916.646.5696 '
5
Attomeys for Defendants
6 RICHARD KIRK RUYBALID, mdividually and
dba CA CONSTRUCTION
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10
11 RODNEY ABBOTT and FLORJENIINE CaseNo. 07AS04450
ABBOTT.
12 DEFENDANT CA CONSTRUCTION'S
Plaintiffs. ' OBJECTION TO PLAINTIFFS' LATE
13 SUPPLEMENTAL EXPERT WITNESS
DISCLOSURE AND EXPERT WITNESS
14 DECLARATION
RONALD PAUL BRITSCHGI, et al..
15 Actioa Filed: September 24,2007
Defendants.
16 Trial Date: January 18,2011
Time: 8:30 a.m.
17 Location: Department 43
18 AND ALL RELATED CROSS-ACTIONS.
19
20 Defendant RICHARD KIRK RUYBALID, mdividually and dba CA CONSTRUCTION
21 (hereinafter "CA CONSTRUCTION") hereby files this objection to Plaintiffs RODNEY and
22 FLORENTINE ABBOTT'S (hereinafter "Plaintiflis") Supplemental Expert Witoess Disclosure
23 and Expert Witness Declaration (hereinafter "Supplemental Disclosure") served on all parties on
24 December 22,2010. (A true and correct copy of Plaintifis' Siqjplemental Expert Disclosure is
25 attached hereto as Exhihit "A"). The Supplemental Disclosure names Bryan C. HiU of EFI
26 Global, Inc. as a non-retained expert for Plaintiffs, The Supplemental Disclosure is late and
27 improper under Code of Civil Procedure §2034.610.
28 The trial of this matter was originally set for May 11,2009. The trial was eventually
N04I/1W7422-)
OBJECTION TO PLAINTIFFS' SUPPLEMENTAL EXPERT DISCLOSURE
1 continued until January 18,2011 Since the trial was continued, Plaintiffs have notfileda raotion
2 to augment and/or amend their expert disclosure. On July 20,2009, the Court issued an order that
3 re-opened discovery for CA CONSTRUCTION only, based on limited issues. (A true and correct
4 copy ofthe Court's July 20,2009 order is attached hereto as Exhibit "B"). The order required
5 Plaintiffs to seek leave ofcourt to conduct additional discovery on expert issues, includmg the
6 depositions of the defense experts Since this date, Plaintiifs have not sought leave of Court to re-
7 open discoveiy on expert related issues, including the designation of additional experts.
8 The deadline to designate experts pursuant to Code of Civil Procedure §2034.260 was
9 March 23,2009. The deadline to supplement Plaintiffs' expert disclosure pursuant to Code of
10 Civil Procedure §2034.280 was April 10,2009 Plaintiffs' Supplemental Disclosure was served
II on December 22,2010, over 21 months beyond the deadline to supplement expert disclosures.
12 Plaintiils' counse] had knowledge of Mr. Hill, his investigation, and his report as eaxJy as May of
13 2009. Needless to say, the Supplemental Disclosure is late.
14 Notwithstanding the clear lateness of Plaintiffs' Supplemental Disclosure as discussed
15 above, it is still untimely based on the January 18,2011 trial date because the Supplemental
16 Disclosure was served less then 30 days before trial.
17 Also, Plaintiffs have f^led to meet and confer with counsel as to the necessity or even
18 desire to augment and/or amend their expert designation per Code of Civil Procedure §2034.610
19 The service ofa Supplemental Disclosure over 21 mondis beyond the deadline does not qualify as
20 a meet and confer attempt if Plaintiffs desire to add Mr. Hill as an expert witness. Further,
21 Plaintiffs havefoiledto seek leave ofcourt to re-opai discovery, which would be required to
22 supplement their original expert disclosures in this matter.
23 Based on the above, CA CONSTRUCTION objects to the Supplemental Designation and
24 it hereby reserves any and allrightsto object to and/or move to strike the Supplemental
25 Designation at the trial of this matter
26 ///
27 NtC341/1067422-1 2
28.
OBJECTION TO PLAINTIFFS' SUPPLEMENTAL EXPERT DISCLOSURE
1 Dated. December28,2010 ARCHERNORRIS
2
3 * ^ ^
Gregory K. "Federico
4 Attorneys for Defendants RICHARD KIRK
RUYBALID, individually and dba CA
5 CONSTRUCTION
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OBJECTION TO PLAINTIFFS' SUPPLHVENTAL EXPERT DISCLOSURE
1 PROOEOT SERVICE
2 Name of Action: Rodney Abbott, et al. v. Ronald Pa«l Britschgi, et al.
Court and Actioa No; Sacramento County Superior No. 07ASO44SO
3
I, Cindy A Ingland, declare that I am over the age ,of 18 years and not a party to this
4 action or proceeding. My business address is 301 University Avenue, Suite 110, Sacramento,
Califonua 95825. On December 28,2010,1 caused the following document(s) to be served:
5
DEFENDANT CA CONSTRUCTION'S OBJECTION TO PLAINTIFFS'
6 SUPPLEMENTAL EXPERT WITNESS DISCLOSURE AND EXPERT WITNESS
DECLARATION
7 t
pH By placing a true copy ofthe documents listed above, enclosed in a sealed envelope,
8 addressed as set forth below, fox collection and mailmg on the date and at the business
address shown above followmg our ordinary business practices. I am readily familiar
9 with this business' practice for collection and processing of correspondence for
10 mailing with the United States Postal Service. On, the same dayfliata sealed envelope
is placed for collection and mailing, it is deposited in the ordinary course of business
11 with the United States Postal Service with postageftillyprepaid.
12 ri By having a true copy of the document(s) listed above transmitted by facsimile to the
person(s) at the facsimile number(s) set forth below before 5 00 p m. The transmission
13 was reported as complete without error by a report issued by the transmitting facsimile
machine.
14
15 r~l By placing a true copy of the document(s) listed above, in a box or other facility
regularly maintained by UPS, an express service canier, or dehvered 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,
17 addressed as set forth below.
18 r n by laving personal delivery by FIRST LEGAL SUPPORT SERVICES a tme copy of
19 the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the
address(es) set forth below.
20
21 [SEE ATTACHED SERVICE LIST}
22 I declare under penalty of periury that the foregoing is true and correct. Executed on
Etecember 28,2010, at Sacramento, California
23
24 {iM^
25 INDY A. INGLAND
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mC341/608293-l
PROOF OF SERVICE
1 Service List
2
Stephanie Finelli PLAINTIFFS
3 Law Offices of Stephanie J Rnelli
1007 Seventh Street, Suite 500 Tel (916)443-2144
4 Sacramento, CA 95814 Fax: (916)443-1511
E-mad ' 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@mwsbiaw com
8
Mark Smith In Pro Per
9 8549 Willow Valley Place
Granrte Bay, CA 95746
10
Richard W. Freeman Counsel for R4C0RP
11 Scott S. Brooks
WOOD SMITH HENNING & BERMAN LLP Tel' (925) 356-8200
12 1401 Willow Pass Road, Suite 700 Fax: (925) 356-8250
Concord, CA 94520-7982
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15
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18
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25
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27
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NlC34l/60«293-l
SERVICE LIST
EXHIBIT "A"
STEPHANIE J. FINELLI, SBN 173462
Law OfSce of Stepbame J. Finelli
2 1007 - 7tb Street, Suite 500
Saciamento, CA 95814
3 tel 916-443-2144
fex 916-443-1511
4
Attorney for Plahrtifife,
5
FLO AND RODNEY ABBOTT
6
7
IN THE SUPERIOR COURT OF THE STATE OF CAnPORNKA
$
IN AND FOR THE COUNTY OF SACRAMENTO
9
10
RODNEY AND FLORENTINE ABBOTT, CaseNo.: 07AS04450
11
Plaintiff, PLAINTIFFS' SUPPLEMENTAL EXPERT
12 WITNESS DISGLOSURE AND EXPERT
vs. WITNESS DECLARATION
13
RONALD BRITSCHGr, et, a l ,
14
Defendants
15
16
and related cross-actions
17
IS
TO DEFENDANTS AND TOEIR ATTORNEYS OP RECORD:
J?
I, Stephanie J, Finelli, hereby declare as follows
30
1, I am an attorney, duly licensed and practjcing in the State of California. I
2J
represent plamtiffs, Rodaey and Floorentice Abbott ia this actioa.
22
2. Iil compliance with the provisions of section 2034.280, I make the foUowing
23
declaratioa regarding a supplemental wimess, &e xestimbn-y of which pjaintif& intend to offei
24
into evidence at the trial of this action.
25
26
NON-RETAINEI) EXPERTS
27
I. Biyaa C. Hill, EFI Global, 4205 Cinciimati Ave,,Suite 100, Rocklin, CA 95765.
2S
Eipert Wita«M Wsclosure - 1
I Mr. Hill is a licensed professional civil engineer. PlaintifS provided his report of his
2 inspection of plaintiffs' house to defense counsel in May 2009 Defendants deposed Mr. Hill foi
3 over three hours on December 21, 2010, asking him questions of an expert natare aad paying
4 hhn an expert fee for his deposition. Although defendants have been aware of the existence oi
5 Mr. Hill as a percipient expert and have had his rqiort smce May 2009, PlaintifFs pn?v{de'tbij
6
supplemental disclosure in an abtiodance of caution Mr. Hill is expected to testify as to Ihe
7
conclusions he reached in his 2009 report, includiag but not Irmited to the Jack of compaction oi
S »
9 tfte soil under the slab ofthe garage and the house and the damages it has caused.
1 declare under penalty of peijury under the laws of tlie State of Califomia that thc
10
foregoing is true and cociect
(1
12 Dated December21,2010 --• ^^.
SlqihanieJ,
13
Attorney for Plaintiffe,
14 Rodney and Florentine Abbott
JJ
16
17
18
19
20
21
22
23
U
25
2£
27
28
Expert Witoess Disclosuw - 2
PROOF O J SERVICE BY MAIL
CASE NAME: Abbott v. Bntsdip
CASENUMBHl; Sacramento County Si:?«rior Court 07AS04450
I declare that-
lain a citizen ofthe Umted States and aresident ofthe Clouaty of Sacramento. I am,
and at all times mentioned herein was, an active member of the State Bar of Califorma and
not a party to the above-entitled cause. My business address i's 1007 Seventh Street, Suite
500, Sacramento, Califomia 95814.
On December 22,2010, pursuant to CCP § ] 013 A(2), I served the following:
PLAINTIFFS' SUPPLEMENTAL EXPERT WITNESS DISCLOSURE AND EXPERT
WITNESS DECLARATION ;
BY MAIL: by depositing a copy of said document in the United States mad in Sacramento,
California, in a sealed envelope, witii postage &lly 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
Folscan, CA 95$30
Mark Smith
8549 Willow Valley Place
Granite Bay, CA 95746
Richard W. Freeman, Jr.
Wood, Smith, Heoning & Berman
1401 Willow Pass Road, Suite 700
Concord, CA 94520-7982
I dedare uader penalty of peajury imder the Ia\^ of the State of Califomia the
foregoing is true and correct
Dated; December 22,2010
Preview
] Todd A. Jones (Bar No. 198024) Gregory K. Federico (Bar No. 242184) 2 ARCHERNORRIS A Professional Law Corporation 3 301 University Avenue, Suite 110 Sacramento, Califomia 95825 4 Telephone: 916.646.2480 Facsimile: 916.646.5696 5 Attomeys for Defendants 6 RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 7 8 SUPERIOR COURT OF CALIFO: 9 COUNTY OF SACRAMENTO 10 11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 ABBOTT, 12 MOTION IN LIMINE NO. 16 TO Plaintiffs, EXCLUDE EXPERT OPINION 13 TESTIMONY AND REPORT FROM BRYAN C. HILL 14 RONALD PAUL BRITSCHGI, et al., Action Filed: September 24,2007 15 Defendants. Hearing Date: January 7, 2011 16 Trial Date: January 18,2011 Time: 8:30 a.m. 17 Location: Department 43 18 AND ALL RELATED CROSS-ACTIONS. 19 20 I. INTRODUCTION 21 Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 22 (hereinafter "CA CONSTRUCTION") hereby files this Motion in Limine No. 16 to exclude 23 expert opinion testimony and the report from witness Bryan C. Hill. 24 As indicated in CA CONSTRUCTION'S Index of Motions in Limine, it reserved its rights 25 to file additional motions in limine based on the outcome of depositions that had not yet been 26 completed at the time CA CONSTRUCTION filed its Motions in Limine No 's 1 through 15. On 27 December 9,2010, CA CONSTRUCTION'S counsel further deposed Plaintiffs RODNEY and 28 NIC549/1069382-1 DEFENDANT'S MOTION IN LIMINE NO 16 RE BRYAN HILL 1 FLORENTINE ABBOTT ("Plaintiffs"). On December 21, 2010, CA CONSTRUCTION took 2 the deposition of EFI Global, Inc, employee Bryan C. Hill. The necessity of filing this additional 3 motion became known after Mr. Hill's deposition and Plaintiffs' counsel's recent submission of 4 an improper and late supplemental expert disclosure that lists Mr. Hill as a non-retained expert. 5 CA CONSTRUCTION further hereby incorporates by reference herein the "Introduction" 6 section set forth in its Motion in Limine No. 1 previously filed with this Court. '' MOTION IN LIMINE NO. 16 TO EXCLUDE g EXPERT TESTIMONY AND REPORT FROM BRYAN C. HILL Q On December 21, 2010, CA CONSTRUCTION took the deposition of EFI Global, Inc. .^ employee Bryan C. Hill as a percipient witness. During the deposition, counsel examined Mr. -.. Hill on his percipient observations and opinions in cormection with an April 18, 2009 report he .. J issued concerning a homeowner's property insurance claim at Plaintiffs' home that was unrelated .» to this lawsuit. (A true and correct copy ofthe face page of Mr. Hill's report is attached hereto as j^ Exhibit "A"). .c After Mr. Hill's deposition, Plaintiffs served al! parties with a Supplemental Expert I, Witness Disclosure and Expert Witness Declaration (hereinafter "Supplemental Disclosure") on .„ December 22,2010. (A tme and conect copy of Plaintiffs' Supplemental Expert Disclosure is ,o attached hereto as Exhibit "B"). The Supplemental Disclosure lists Bryan C Hill of EFI Global, .Q Inc. as a non-retained expert for Plaintiffs. 2Q On or about December 23,2010, counsel for CA CONSTRUCTION wrote Plaintiffs' r.. counsel with their objection to Plaintiffs' late and improper Supplemental Disclosure. (A true and 22 correct copy of counsel's December 23,2010 letter is attached hereto as Exhibit "C") On or 23 about December 28,2010, CA CONSTRUCTION filed with this Court a formal objection to „. Plaintiffs' late and improper Supplemental Disclosure. (A tme and correct copy of CA 25 CONSTRUCTION'S Objection is attached hereto as Exhibit "D") ^^ By way of background, the trial of this matter was originally set for May 11,2009. The 2-7 trial was eventually continued until January 18,2011. Since the trial was continued in mid-2009, NIC549/I069382-1 2 28 — — DEFENDANT'S MOTION IN LIMINE NO. 16 RE BRYAN HILL 1 Plaintiffs have failed to file a motion to augment and/or amend their expert disclosure. On July 2 20, 2009, the Court issued an order that re-opened discovery for CA CONSTRUCTION only, 3 based on limited issues, (A tme and correct copy ofthe Court's July 20, 2009 order is attached 4 hereto as Exhibit "E"). The order requires Plaintiffs to seek leave ofcourt to conduct additional 5 discoverv on expert issues, including the depositions ofthe defense experts. Since this date. 6 Plaintiffs have not sought leave of Court to re-open discovery on expert issues, including the 7 designation of supplemental experts or the augmentation of expert disclosures served prior to the 8 May 11, 2009 trial date. 9 Plaintiffs did not meet and confer with counsel for CA CONSTRUCTION as to their need 10 or desire to augment and/or amend their expert designation. Plaintiffs also have not sought leave 11 ofcourt to re-open discovery, which would be required to supplement their original expert 12 disclosures in this matter. 13 II. 14 ARGUMENT 15 A. PLAINTIFFS' DISCLOSURE OF MR. HILL AS A NON-RETAINED EXPERT IS IMPROPER AND UNTIMELY 16 Plaintiffs' Supplemental Disclosure is late and improper for various reasons outlined in 17 the Code of Civil Procedure. The deadline to designate experts pursuant to Code of Civil 18 Procedure §2034.260 in this case was March 23,2009. Mr. Hill was not designated as an expert 19 witness by Plaintiffs inti:ieirinitial disclosure. The deadline to supplement Plaintiffs' expert 20 disclosure pursuant to Code of Civil Procedure §2034 280 was April 10, 2009. Mr. Hill was not 21 designated as a supplemental expert witness by Plaintiffs before this deadline. On December 22, 22 2010, over 21 months beyond the deadline to supplement expert disclosures, Plaintiffs served 23 their Supplemental Disclosure listing Mr Hill. Needless to say, the disclosure is untimely. 24 Notwithstanding the clear lateness of Plaintiffs' Supplemental Disclosure as discussed 25 above, it is still untimely based on a January 18,2011 trial date since the Supplemental 26 Disclosure was served less then 30 days before trial. 27 NIC549/1069382-1 3 28 DEFENDANT'S MOTION IN LIMINE NO 16 RE BRYAN HILL 1 As such, Plaintiffs' attempt to "back-door" Mr. Hill in as one of their experts in this case 2 is improper and his testimony should be limited as such. ^ B. PLAINTIFFS' COUNSEL HAD KNOWLEDGE OF MR. HILL'S 4 INVESTIGATION AND REPORT AS EARLY AS APRIL 2009, IF NOT BEFORE, AND DID NOTHING Plaintiffs' had knowledge of Mr. Hill's investigation as early as April 2009, if not before. Also, Plaintiffs' had knowledge that Mr, Hill had a report prior to the May 11, 2009 trial date. In fact, Plaintiffs attempted to continue the mitial trial date on the grounds that they needed, but had not yet obtained a copy of Mr. Hill's report. The Court denied Plaintiffs' request for a trial continuance for more time to obtain the report and the Court was prepared to hear the case without consideration of Mr. Hill's investigation and report. Likewise, this Court should now prevent Plaintiffs from relying on the expert opinions contained in Mr, Hill's report simply because the parties' initial trial date was continued. Plaintiffs' counsel had knowledge of this report and their lack of diligence is clear. They failed to seek leave ofcourt to re-open discovery as suggested by the Court, they failed to seek leave ofcourt to augment or supplement their expert disclosure. Also, Plaintiffs have failed to meet and confer with counsel as to the necessity or even desire to augment and/or amend their expert designation per Code of Civil Procedure §2034.610. Serving a Supplemental Disclosure over 21 months beyond the deadline does not qualify as a meet and confer attempt if Plaintiffs desire to add Mr. Hill as an expert. What Plaintiffs have done is add Mr. Hill as an expert witness after his deposition was taken by CA CONSTRUCTION. This is not a case of inadvertence or excusable neglect by Plaintiffs' counsel. It is gamesmanship. Plaintiffs knew the subject matter of Mr. Hill's investigation and contents of his report, and did nothing for over 20 months. 27 NIC549/1069382-1 28 DEFENDANT'S MOTION IN LIMINE NO 16 RE BRYAN HILL 1 However, this should be the extent of his testimony and expert opinion testimony should not be 2 allowed. Any opinion testimony from Mr. Hill is improper because (1) he was not disclosed as an 3 expert; and (2) he was not deposed in his capacity as one of Plaintiffs' experts since they 4 supplemented their expert list after his deposition was completed. Thus, expert opinion testimony 5 from Mr. Hill is not relevant to issues in this case and would simply confuse the issues, mislead 6 the jury and waste time The Court should exclude Mr. Hill's expert opinions, including but not 7 limited to any and all reports created by Mr. Hill. 8 HI. CONCLUSION 9 Based on tiie foregoing, the Court should grant CA CONSTRUCTION'S Motion in 10 Limine No. 16 to exclude expert opinion testimony and reports from witness Bryan C. Hill and 11 should limit Mr. Hill to his percipient observations gleaned from his inspections and observations. 12 13 Dated: December '^0 , 2010 ARCHER NORRI 14 15 Gregory K. Federico 16 Attomeys for Defendants RICHARD KIRK RUYBALID, individually and dba CA 17 CONSTRUCTION 18 19 IT IS SO ORDERED. 20 21 DATED: 22 23 24 JUDGE OF THE SUPERIOR COURT 25 26 27 NIC549/1069382-1 28 DEFENDANT'S MOTION IN LIMINE NO 16 RE BRYAN HILL 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 proceeding My business address is 301 University Avenue, Suite 110, Sacramento, California 95825. On January 3,2011,1 caused the following document(s) to be served: 5 MOTION IN LIMINE NO. 16 TO EXCLUDE EXPERT OPINION TESTIMONY AND 6 REPORT FROM BRYAN C. HILL 7 I—I By placing a tme copy ofthe documents listed above, enclosed in a sealed envelope, 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 Q with this business' practice for collection and processing of correspondence for mailing with the United States Postal Service On the same day that a sealed envelope 10 I is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service with postage fiilly prepaid. 11 I—I By having a tme copy of the document(s) listed above transmitted by facsimile to the 12 person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission - was reported as complete without error by a report issued by the transmitting facsimile machine. 14 By placing a tme copy ofthe document(s) listed above, in a box or other facility 15 ' ' regularly maintained by UPS, an express service carrier, or delivered to a courier or driver authorized by the express service carrier to receive documents, in an envelope 16 designated by the express service carrier, with delivery fees paid or provided for, addressed as set forth below. 18 n bv having personal deliverv bv FIRST LEGAL SUPPORT SERVICES a tme copv of the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the 19 address(es) set forth below. 20 [SEE ATTACHED SERVICE LIST] 21 I declare under penalty ofperjury that the foregoing is tme and correct. Executed on 22 January 3, 2011, at Sacramento, Califomia. 23 24 ^d/^ DY A. INGLAND 25 26 27 28 NIC341/608293-1 PROOF OF SERVICE 1 Service List 2 Stephanie Finelli 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@mwsblaw.com 8 Mark Smith In Pro Per 9 8549 Willow Valley Place Granite Bay, CA 95746 10 Richard W. Freeman Counsel for R4C0RP 11 Scott S Brooks WOOD SMITH HENNING & BERMAN LLP Tel (925) 356-8200 12 1401 Willow Pass Road, Suite 700 Fax:(925)356-8250 Concord, CA 94520-7982 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NIC341/608293-1 2 SERVICE LIST EXHIBIT "A" EFI . . . a ' : , i • •.•• •• Global (,K •l|.,.7.J ., j l ( .- H W v l , '• '1 h 1.1.1 1 Privileged and Confidential INSURED: Florentine AbbotC LOSS LOCAUON; 860! Holiing Green Way Fair Oaks, CA 95628 DATF OF LOSS' September 29. 2007 CLAIM NUMBFR: PP8498752 CFI FILE NO- 94605-12200 Report Date; April 18.200') Prepared For: The Hartford Insurance Company P.O. Box 14266 Lexington. KY 40512 Atrentioir Linda Worrell (800) 811-4832 Ext. 40512 Knaineer: BrvanC Hill. P !:. THIS REP(yRTFi'Rj\'rSHi:DAS PRIVILEGED AND CONFIDEMTIAL TO -IDDRI'SSEE RELEASE TO ANY OTHER COMP-Am'. (VNCBRh' OR INDlVIDfJAL ISSOLhl.) THE RESPONSIBILITY OV .ADDRESSEE EXHIBIT "B" 1 STEPHANIE J. FINELLI, SBN 173462 LawOfficeof Stephanie J Finelli 2 1007-7th Street, Suite 500 Sacramento, CA 95814 3 tel 916-443-2144 fax 916-443-1511 4 Attomey for Plaintiffs, 5 FLO AND RODNEY ABBOTT 6 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SACRAMENTO 9 10 RODNEY AND FLORENTINE ABBOTT. CaseNo.: 07AS04450 11 Plaintiflf, PLAINTIFFS' SUPPLEMENTAL EXPERT WITNESS DISCLOSURE AND EXPERT 12 vs. WITNESS DECLARATION 13 RONALD BRITSCHGI, et, al., 14 Defendants 15 16 and related cross-actions 17 18 TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD: 19 I, Stephanie J. Finelli, hereby declare as follows 20 1. I am an attomey, duly licensed and practicing in the State of California. 1 21 represent plaintiffs, Rodney and Florentine Abbott in this action. 22 2. In compliance with the provisions of section 2034.280, I make the following 23 declaration regarding a s'upplemental witness, the testimony of which plaintiffs intend to offei 24 into evidence at the trial of this action, 25 26 NON-RETAINED EXPERTS 27 1. Bryan C. Hill, EFI Global, 4205 Cincinnati Ave, Suite 100, Rocklin, CA 95765, 28 Expert Witness Disclosure - I 1 Mr. Hill is a licensed professional civil engineer. Plaintiffs provided his report of his 2 inspection of plaintiffs' house to defense counsel in May 2009. Defendants deposed Mr. Hill foi 3 over three hours on December 21, 2010, asking him questions ofan expert nature and paying 4 him an expert fee for his deposition. Although defendants have been aware of the existence oi 5 Mr. Hill as a percipient expert and have had his report since May 2009, Plaintiffs provide this 6 supplemental disclosure in an abundance of caution. Mr. Hill is expected to testify as to the 7 conclusions he reached in his 2009 report, including but not limited to the lack of compaction oi 8 the soil under the slab ofthe garage and the house and the damages it has caused. 9 I declare under penalty of perjury under the laws of the State of Califomia that the 10 foregoing is true and correct. U 12 Dated: December 21,2010 13 Stepha Attomey for Plaintiffs, 14 Rodney and Florentine Abbott 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Expert Witness Disclosure - 2 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 Comity of Sacramento. I am, and at all times mentioned herein was, an active member of the State Bar of California and not a party to the above-entitled cause. My business address is 1007 Seventh Street, Suite 500, Sacramento, California 95814. On December 22,2010, pursuant to CCP § 1013A(2), I served the following: PLAINTIFFS' SUPPLEMENTAL EXPERT WITNESS DISCLOSURE AND EXPERT WITNESS DECLARATION 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 WiUow 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 of perjury under the l a ^ of the State of Califomia the foregoing is true and correct. Dated: December 22,2010 EXHIBIT "C" • ' y ARCHERNORRIS A PROFESSIONAL LAW CORPORATION 301 University Avenue, Suite 110 GREGORY K. FEDERICO Sacrannento, CA 96825-5537 gfedenco@archernonfis com 916 646 2480 916 878 5309 916 646 5696 (Fax) wvKw a r c h e m o m s com December 23,2010 VIA FACSIMILE ONLY Stephanie Finelli, Esq. Law Offices of Stephanie J. Finelli 1007 Seventh Street, Suite 500 Sacramento, CA 95814 Re: Rodney and Florentine Abbott v. Ronald Paul Britschgi, et al. Sacramento Countv Superior Court Case No. 07AS04456 My Client: Richard Ruybalid, individually and dba CA Construction Our File No.: NIC-341 Dear Stephanie, I am in receipt of "Plaintiffs' Supplemental Expert Witness Disclosure and Expert Witness Declaration" dated December 22,2010 wherein Plaintiffs designate Bryan Hill as a non- retained expert. Your supplemental expert designation is late and improper imder the Code of Civil Procedure. As such, CA Construction hereby objects to the same. The deadline to designate experts pursuant to Code of Civil Procedure §2034.260 was March 23,2009. The deadline to supplement Plaintiffs' expert disclosure pursuant to Code of Civil Procedure §2034.280 was April 10,2009. Your supplemental designation was served on December 22,2010, over 21 months beyond the deadline, despite having knowledge of Mr. Hill, his investigation, and his report as early as May of 2009. Needless to say, the supplemental designation is late. Moreover, in order to supplement, a motion is required. Plaintiffs have failed to meet and confer as required for a motion to augment their expert designation per Code of Civil Procedure §2034.610. Simply serving a supplemental designation hardly qualifies as a meet and confer attempt. Also, as you know, discovery is closed as to Plaintiffs. Plaintiffs have failed to seek leave ofcourt to re-open discovery, which would include the designation of supplemental experts. Based on the above, we object to the designation and reserve all rights to do the same at the trial of this matter. WALNUT CREEK SACRAMENTO NEWPORT BEACH. LOS ANGELES NIC341/10673i!2-I Stephanie Finelli, Esq. Law Offices of Stephanie J. Finelli December 23,2010 Page 2 Thank you for your attention to this matter. Very truly yours, ARCHERNORRIS Gregory K. Federico GKF/ci NIC34V1067382-1 TRANSMISSION VERIFICATION REPORT TIME 12/23/2010 15:12 NAME ARCHERNORRIS FAX 91SS465S96 TEL 91B64624B0 SER.tt BR0M4J172846 DATE,TIME 12/23 15:11 FAX NO./NAME 19164431511 DILATION • 00:00:32 PAGE(S) 03 RESULT OK MODE STANDARD ECM a ARCHERNORRIS A PROFESSl0^fAL LAW CORPORATION 301 UnlvarsKy Avunue, Sulta 110 SscramBntO. CA 93825-3537 eie 64S.24S0 91^648 9696 (Fax) www.are:hemorris.«im FACSIMILE TRANSMISSION DATE: December 23,2010 TO: 1 NAME: FAX NO.: PHONE NO.: 1 Lstephanie Finelli 916.443.1511 916.443.2144 Law Offices of Stephanie Finelli FROM: Gregory K. Federico PHONE: 916.646.2480 Rc: Rodney Abbot v. Ronald Paul Britschgi, et al. Sacramento County Superior Court Case No. 07AS04450 FILE NUMBER. NIC.341 NUMBER OF PAGES WITH COVER PAGE- 3 ORIGINALS WILL NOT FOLLOW MESSAGE: See attached correspot^dence, • ARCHERNORRIS A PROFESSIONAL LAW CORPORATION 301 University Avenue. Suite 110 Sacramento, CA 95825-5537 915 6462480 816 646 5696 (Fax) vKww a r c h e r n o r r i s com FACSIMILE TRANSMISSION DATE: December 23,2010 TO: NAME: FAX NO.: PHONE NO.: Stephanie Finelli 916.443.1511 916.443.2144 Law Offices of Stephanie Finelli FROM: Gregory K. Federico PHONE: 916.646.2480 RE: Rodney Abbot v. Ronald Paul Britschgi, et al. Sacramento Coimty Superior Court Case No. 07AS04450 FILE NUMBER: NlC-341 NUMBER OF PAGES WITH COVER PAGE 3 ORIGINALS WILL NOT FOLLOW MESSAGE: See attached correspondence. CAUTION - CONFIDENTIAL THE INFORMATION CONTAINED IN THIS FACSIMILE IS CONFIDENTIAL AND "MAY ALSO CONTAIN PRIVILEGED ATTORNEY-CLIENT INFORMATION OR WORK PRODUCT THE INFORMATION IS INTENDED ONLY FOR THE USE OP THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED IF YOU ARE NOT THE INTENDED RECIPIENT. OR THE EMPLOYEE OR AGENT RESPONSIBLE TO DELIVER IT TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY USE, DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED IF YOU HAVE RECEIVED THE FACSIMILE IN ERROR, PLEASE IMMEDIATELY NOTTFY VS BY TELEPHONE, AND RETURN THE ORIGINAL MESSAGE TO US AT THE ADDRESS ABOVE VIA THE U S POSTAL SERVICE THANK YOU. IF YOU DO NOT RECEIVE ALL OF THE PAGES, PLEASE CALL OUR OFFICE SERVICES MANAGER AT 916.646.2480 AS SOON AS POSSIBLE. NIC341i777677-l -^ - EXHIBIT "D" ^^tM 1 Todd A. Jones (Bar No. 198024) FiLED 2 Cjxegory K. Federico (Bar No. 242184) ARCflER NORRIS ENDORSED' A Professional Law Corporation 3 '301 University Avenue, Suite 110 10 OEC 2 9 AH 10:1*3* Sacramento, California 95825 4 Telephone; 916.646.2480 LEGAL PROCESS-^?" Facsimile: 916.646.5696 ' 5 Attomeys for Defendants 6 RICHARD KIRK RUYBALID, mdividually and dba CA CONSTRUCTION 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 RODNEY ABBOTT and FLORJENIINE CaseNo. 07AS04450 ABBOTT. 12 DEFENDANT CA CONSTRUCTION'S Plaintiffs. ' OBJECTION TO PLAINTIFFS' LATE 13 SUPPLEMENTAL EXPERT WITNESS DISCLOSURE AND EXPERT WITNESS 14 DECLARATION RONALD PAUL BRITSCHGI, et al.. 15 Actioa Filed: September 24,2007 Defendants. 16 Trial Date: January 18,2011 Time: 8:30 a.m. 17 Location: Department 43 18 AND ALL RELATED CROSS-ACTIONS. 19 20 Defendant RICHARD KIRK RUYBALID, mdividually and dba CA CONSTRUCTION 21 (hereinafter "CA CONSTRUCTION") hereby files this objection to Plaintiffs RODNEY and 22 FLORENTINE ABBOTT'S (hereinafter "Plaintiflis") Supplemental Expert Witoess Disclosure 23 and Expert Witness Declaration (hereinafter "Supplemental Disclosure") served on all parties on 24 December 22,2010. (A true and correct copy of Plaintifis' Siqjplemental Expert Disclosure is 25 attached hereto as Exhihit "A"). The Supplemental Disclosure names Bryan C. HiU of EFI 26 Global, Inc. as a non-retained expert for Plaintiffs, The Supplemental Disclosure is late and 27 improper under Code of Civil Procedure §2034.610. 28 The trial of this matter was originally set for May 11,2009. The trial was eventually N04I/1W7422-) OBJECTION TO PLAINTIFFS' SUPPLEMENTAL EXPERT DISCLOSURE 1 continued until January 18,2011 Since the trial was continued, Plaintiffs have notfileda raotion 2 to augment and/or amend their expert disclosure. On July 20,2009, the Court issued an order that 3 re-opened discovery for CA CONSTRUCTION only, based on limited issues. (A true and correct 4 copy ofthe Court's July 20,2009 order is attached hereto as Exhibit "B"). The order required 5 Plaintiffs to seek leave ofcourt to conduct additional discovery on expert issues, includmg the 6 depositions of the defense experts Since this date, Plaintiifs have not sought leave of Court to re- 7 open discoveiy on expert related issues, including the designation of additional experts. 8 The deadline to designate experts pursuant to Code of Civil Procedure §2034.260 was 9 March 23,2009. The deadline to supplement Plaintiffs' expert disclosure pursuant to Code of 10 Civil Procedure §2034.280 was April 10,2009 Plaintiffs' Supplemental Disclosure was served II on December 22,2010, over 21 months beyond the deadline to supplement expert disclosures. 12 Plaintiils' counse] had knowledge of Mr. Hill, his investigation, and his report as eaxJy as May of 13 2009. Needless to say, the Supplemental Disclosure is late. 14 Notwithstanding the clear lateness of Plaintiffs' Supplemental Disclosure as discussed 15 above, it is still untimely based on the January 18,2011 trial date because the Supplemental 16 Disclosure was served less then 30 days before trial. 17 Also, Plaintiffs have f^led to meet and confer with counsel as to the necessity or even 18 desire to augment and/or amend their expert designation per Code of Civil Procedure §2034.610 19 The service ofa Supplemental Disclosure over 21 mondis beyond the deadline does not qualify as 20 a meet and confer attempt if Plaintiffs desire to add Mr. Hill as an expert witness. Further, 21 Plaintiffs havefoiledto seek leave ofcourt to re-opai discovery, which would be required to 22 supplement their original expert disclosures in this matter. 23 Based on the above, CA CONSTRUCTION objects to the Supplemental Designation and 24 it hereby reserves any and allrightsto object to and/or move to strike the Supplemental 25 Designation at the trial of this matter 26 /// 27 NtC341/1067422-1 2 28. OBJECTION TO PLAINTIFFS' SUPPLEMENTAL EXPERT DISCLOSURE 1 Dated. December28,2010 ARCHERNORRIS 2 3 * ^ ^ Gregory K. "Federico 4 Attorneys for Defendants RICHARD KIRK RUYBALID, individually and dba CA 5 CONSTRUCTION 6 7 8 9 10 11 12 13 14 15 16 17 18 19 1 20 21 22 23 • 24 25 26 27 Nra4in067422.I 3 28 1 ) OBJECTION TO PLAINTIFFS' SUPPLHVENTAL EXPERT DISCLOSURE 1 PROOEOT SERVICE 2 Name of Action: Rodney Abbott, et al. v. Ronald Pa«l Britschgi, et al. Court and Actioa No; Sacramento County Superior No. 07ASO44SO 3 I, Cindy A Ingland, declare that I am over the age ,of 18 years and not a party to this 4 action or proceeding. My business address is 301 University Avenue, Suite 110, Sacramento, Califonua 95825. On December 28,2010,1 caused the following document(s) to be served: 5 DEFENDANT CA CONSTRUCTION'S OBJECTION TO PLAINTIFFS' 6 SUPPLEMENTAL EXPERT WITNESS DISCLOSURE AND EXPERT WITNESS DECLARATION 7 t pH By placing a true copy ofthe documents listed above, enclosed in a sealed envelope, 8 addressed as set forth below, fox collection and mailmg on the date and at the business address shown above followmg our ordinary business practices. I am readily familiar 9 with this business' practice for collection and processing of correspondence for 10 mailing with the United States Postal Service. On, the same dayfliata sealed envelope is placed for collection and mailing, it is deposited in the ordinary course of business 11 with the United States Postal Service with postageftillyprepaid. 12 ri By having a true copy of the document(s) listed above transmitted by facsimile to the person(s) at the facsimile number(s) set forth below before 5 00 p m. The transmission 13 was reported as complete without error by a report issued by the transmitting facsimile machine. 14 15 r~l By placing a true copy of the document(s) listed above, in a box or other facility regularly maintained by UPS, an express service canier, or dehvered 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, 17 addressed as set forth below. 18 r n by laving personal delivery by FIRST LEGAL SUPPORT SERVICES a tme copy of 19 the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the address(es) set forth below. 20 21 [SEE ATTACHED SERVICE LIST} 22 I declare under penalty of periury that the foregoing is true and correct. Executed on Etecember 28,2010, at Sacramento, California 23 24 {iM^ 25 INDY A. INGLAND 26 27 28 mC341/608293-l PROOF OF SERVICE 1 Service List 2 Stephanie Finelli PLAINTIFFS 3 Law Offices of Stephanie J Rnelli 1007 Seventh Street, Suite 500 Tel (916)443-2144 4 Sacramento, CA 95814 Fax: (916)443-1511 E-mad ' 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@mwsbiaw com 8 Mark Smith In Pro Per 9 8549 Willow Valley Place Granrte Bay, CA 95746 10 Richard W. Freeman Counsel for R4C0RP 11 Scott S. Brooks WOOD SMITH HENNING & BERMAN LLP Tel' (925) 356-8200 12 1401 Willow Pass Road, Suite 700 Fax: (925) 356-8250 Concord, CA 94520-7982 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NlC34l/60«293-l SERVICE LIST EXHIBIT "A" STEPHANIE J. FINELLI, SBN 173462 Law OfSce of Stepbame J. Finelli 2 1007 - 7tb Street, Suite 500 Saciamento, CA 95814 3 tel 916-443-2144 fex 916-443-1511 4 Attorney for Plahrtifife, 5 FLO AND RODNEY ABBOTT 6 7 IN THE SUPERIOR COURT OF THE STATE OF CAnPORNKA $ IN AND FOR THE COUNTY OF SACRAMENTO 9 10 RODNEY AND FLORENTINE ABBOTT, CaseNo.: 07AS04450 11 Plaintiff, PLAINTIFFS' SUPPLEMENTAL EXPERT 12 WITNESS DISGLOSURE AND EXPERT vs. WITNESS DECLARATION 13 RONALD BRITSCHGr, et, a l , 14 Defendants 15 16 and related cross-actions 17 IS TO DEFENDANTS AND TOEIR ATTORNEYS OP RECORD: J? I, Stephanie J, Finelli, hereby declare as follows 30 1, I am an attorney, duly licensed and practjcing in the State of California. I 2J represent plamtiffs, Rodaey and Floorentice Abbott ia this actioa. 22 2. Iil compliance with the provisions of section 2034.280, I make the foUowing 23 declaratioa regarding a supplemental wimess, &e xestimbn-y of which pjaintif& intend to offei 24 into evidence at the trial of this action. 25 26 NON-RETAINEI) EXPERTS 27 I. Biyaa C. Hill, EFI Global, 4205 Cinciimati Ave,,Suite 100, Rocklin, CA 95765. 2S Eipert Wita«M Wsclosure - 1 I Mr. Hill is a licensed professional civil engineer. PlaintifS provided his report of his 2 inspection of plaintiffs' house to defense counsel in May 2009 Defendants deposed Mr. Hill foi 3 over three hours on December 21, 2010, asking him questions of an expert natare aad paying 4 hhn an expert fee for his deposition. Although defendants have been aware of the existence oi 5 Mr. Hill as a percipient expert and have had his rqiort smce May 2009, PlaintifFs pn?v{de'tbij 6 supplemental disclosure in an abtiodance of caution Mr. Hill is expected to testify as to Ihe 7 conclusions he reached in his 2009 report, includiag but not Irmited to the Jack of compaction oi S » 9 tfte soil under the slab ofthe garage and the house and the damages it has caused. 1 declare under penalty of peijury under the laws of tlie State of Califomia that thc 10 foregoing is true and cociect (1 12 Dated December21,2010 --• ^^. SlqihanieJ, 13 Attorney for Plaintiffe, 14 Rodney and Florentine Abbott JJ 16 17 18 19 20 21 22 23 U 25 2£ 27 28 Expert Witoess Disclosuw - 2 PROOF O J SERVICE BY MAIL CASE NAME: Abbott v. Bntsdip CASENUMBHl; Sacramento County Si:?«rior Court 07AS04450 I declare that- lain a citizen ofthe Umted States and aresident ofthe Clouaty of Sacramento. I am, and at all times mentioned herein was, an active member of the State Bar of Califorma and not a party to the above-entitled cause. My business address i's 1007 Seventh Street, Suite 500, Sacramento, Califomia 95814. On December 22,2010, pursuant to CCP § ] 013 A(2), I served the following: PLAINTIFFS' SUPPLEMENTAL EXPERT WITNESS DISCLOSURE AND EXPERT WITNESS DECLARATION ; BY MAIL: by depositing a copy of said document in the United States mad in Sacramento, California, in a sealed envelope, witii postage &lly 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 Folscan, CA 95$30 Mark Smith 8549 Willow Valley Place Granite Bay, CA 95746 Richard W. Freeman, Jr. Wood, Smith, Heoning & Berman 1401 Willow Pass Road, Suite 700 Concord, CA 94520-7982 I dedare uader penalty of peajury imder the Ia\^ of the State of Califomia the foregoing is true and correct Dated; December 22,2010