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1 Todd A Jones (Bar No. 198024)
Gregory K. Federico (Bar No. 242184) ^FILED
2 ARCHERNORRIS ->-
A Professional Law Corporation
3 301 University Avenue, Suite 110
Sacramento, Califomia 95825 DEC 3 0 2010
4 •Telephone: 916646.2480
Facsimile: 916.646 5696
By_ ° PuESr_L
5 O e ^ . - v •_ •:••
Attomeys for Defendants
6 RICHARD KIRK RUYBALID, individually and
dba CA CONSTRUCTION
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8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SACRAMENTO
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11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
ABBOTT,
12 CA CONSTRUCTION'S REPLY BRIEF IN
Plaintiffs, SUPPORT OF MOTION IN LIMINE NO. 5
13 TO EXCLUDE EVIDENCE OF
V. EMOTIONAL DISTRESS
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RONALD PAUL BRITSCHGI, et al., Action Filed: September 24,2007
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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
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Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION
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(hereinafter "CA CONSTRUCTION") hereby submits this reply brief in support of its Motion in
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Limine No. 5.
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CA CONSTRUCTION'S motion was specifically aimed at preventtng Plainttffs from
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introducing evidence pertaining to emotional damages at trial, which is an allegation that remains
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in the pleadings despite Plaintiffs discovery responses indicating that no such damages have been
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sustained. In their opposition. Plaintiffs concede that they will not present evidence pertainmg to
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alleged emotional distress damages. As such, CA CONSTRUCTION'S motion should be granted.
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In ±eir opposition, however. Plaintiffs discuss emotional damages in the context of die
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NICS49/1068656-1
DEFENDANTS' REPLY IN SUPPORT OF MOTION IN LIMINE NO 5
1 special purpose exception to the general rule of damages. The general rule entitles Piaintiffs to
2 the lesser ofthe diminution in value or cost of repair. Prior to this opposition. Plaintiffs have
3 maintained that they are entitied to and will seek both diminution in value and cost of repair
4 damages'af ttial. The law does not entitie them to both. Plaintiffs must choose a remedy.
5 If plaintiff chooses to seek to inttoduce diminution in value damages, then they are
6 precluded from introducing cost of repair damages, including expert testimony as to cost of repair
7 damages. If plaintiffs seek instead to pursue cost of repair damages, then they are precluded from
8 inttoducing diminution in value damages, including expert testimony as to diminution in value
9 damages As plaintiffs must "choose their remedy", plaintiffs are barred from inttoducing
10 evidence of both categories of damages at trial. Additionally, the inttoduction of such dual
11 evidence would be a waste of judicial resources and could only serve to confiise the jury.
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Dated: December 30,2010 ARCHERNORRIS
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Udi-
Gregory K. Federico
Attorneys for Defendants RICHARD KIRK
16 RUYBALID, individually and dba CA
CONSTRUCTION
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N1C549/I068656-:
DEFENDANTS' REPLY IN SUPPORT OF MOTION IN LIMINE NO 5
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,
Califomia 95825 On December 30, 2010,1 caused the following document(s) to be served:
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CA CONSTRUCTION'S REPLY BRIEF IN SUPPORT OF MOTION IN LIMINE NO.
6 5 TO EXCLUDE EVIDENCE OF EMOTIONAL DISTRESS
7 I—I By placing a tiaie 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. 1 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
IQ is placed for collection and mailing, it is deposited in tiie ordinary course of business
with the United States Postal Service with postage fully prepaid.
11
I—I By having a true copy ofthe document(s) listed above ttansmitted by facsimile to the
12 person(s) at the facsimile number(s) set forth below before 5:00 p.m. The ttansmission
was reported as complete vsnthout error by a report issued by tiie transmitting facsimile
machine.
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By placing a ttue 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
dnver 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 ^y having personal delivery bv FIRST LEGAL SUPPORT SERVICES a true copy of
the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the
19 address(es) set fortii below.
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[SEE ATTACHED SERVICE LIST]
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I declare under penalty of perjury that the foregoing is true and correct Executed on
22 December 30,2010, at Sacramento, CaUforma.
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NIC341/608293-1
PROOF OF SERVICE
1 Service List
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Stephanie Fineili 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
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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
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Mark Smith In Pro Per
9 8549 Willow Valley Place
Granite Bay, CA 95746
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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
SERVICE LIST
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1 Todd A Jones (Bar No. 198024) Gregory K. Federico (Bar No. 242184) ^FILED 2 ARCHERNORRIS ->- A Professional Law Corporation 3 301 University Avenue, Suite 110 Sacramento, Califomia 95825 DEC 3 0 2010 4 •Telephone: 916646.2480 Facsimile: 916.646 5696 By_ ° PuESr_L 5 O e ^ . - v •_ •:•• Attomeys for Defendants 6 RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 ABBOTT, 12 CA CONSTRUCTION'S REPLY BRIEF IN Plaintiffs, SUPPORT OF MOTION IN LIMINE NO. 5 13 TO EXCLUDE EVIDENCE OF V. EMOTIONAL DISTRESS 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 Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 20 (hereinafter "CA CONSTRUCTION") hereby submits this reply brief in support of its Motion in 21 Limine No. 5. 22 CA CONSTRUCTION'S motion was specifically aimed at preventtng Plainttffs from 23 introducing evidence pertaining to emotional damages at trial, which is an allegation that remains 24 in the pleadings despite Plaintiffs discovery responses indicating that no such damages have been 25 sustained. In their opposition. Plaintiffs concede that they will not present evidence pertainmg to 26 alleged emotional distress damages. As such, CA CONSTRUCTION'S motion should be granted. 27 In ±eir opposition, however. Plaintiffs discuss emotional damages in the context of die 28 NICS49/1068656-1 DEFENDANTS' REPLY IN SUPPORT OF MOTION IN LIMINE NO 5 1 special purpose exception to the general rule of damages. The general rule entitles Piaintiffs to 2 the lesser ofthe diminution in value or cost of repair. Prior to this opposition. Plaintiffs have 3 maintained that they are entitied to and will seek both diminution in value and cost of repair 4 damages'af ttial. The law does not entitie them to both. Plaintiffs must choose a remedy. 5 If plaintiff chooses to seek to inttoduce diminution in value damages, then they are 6 precluded from introducing cost of repair damages, including expert testimony as to cost of repair 7 damages. If plaintiffs seek instead to pursue cost of repair damages, then they are precluded from 8 inttoducing diminution in value damages, including expert testimony as to diminution in value 9 damages As plaintiffs must "choose their remedy", plaintiffs are barred from inttoducing 10 evidence of both categories of damages at trial. Additionally, the inttoduction of such dual 11 evidence would be a waste of judicial resources and could only serve to confiise the jury. 12 Dated: December 30,2010 ARCHERNORRIS 13 14 15 Udi- Gregory K. Federico Attorneys for Defendants RICHARD KIRK 16 RUYBALID, individually and dba CA CONSTRUCTION 17 18 19 20 21 22 23 24 25 26 27 28 N1C549/I068656-: DEFENDANTS' REPLY IN SUPPORT OF MOTION IN LIMINE NO 5 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, Califomia 95825 On December 30, 2010,1 caused the following document(s) to be served: 5 CA CONSTRUCTION'S REPLY BRIEF IN SUPPORT OF MOTION IN LIMINE NO. 6 5 TO EXCLUDE EVIDENCE OF EMOTIONAL DISTRESS 7 I—I By placing a tiaie 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. 1 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 IQ is placed for collection and mailing, it is deposited in tiie ordinary course of business with the United States Postal Service with postage fully prepaid. 11 I—I By having a true copy ofthe document(s) listed above ttansmitted by facsimile to the 12 person(s) at the facsimile number(s) set forth below before 5:00 p.m. The ttansmission was reported as complete vsnthout error by a report issued by tiie transmitting facsimile machine. 14 By placing a ttue 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 dnver 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 ^y having personal delivery bv FIRST LEGAL SUPPORT SERVICES a true copy of the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the 19 address(es) set fortii below. 20 [SEE ATTACHED SERVICE LIST] 21 I declare under penalty of perjury that the foregoing is true and correct Executed on 22 December 30,2010, at Sacramento, CaUforma. 23 24 25 26 27 28 NIC341/608293-1 PROOF OF SERVICE 1 Service List 2 Stephanie Fineili 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 SERVICE LIST