Preview
U-CA
Todd A. Jones (BarNo. 198024)
Gregory K. Federico (BarNo. 242184)
2 ARCHERNORRIS
A Professional Law Corporation
301 University Avenue, Suite 110
ENDORSED
3
Sacramento, Califomia 95825 IODEC-7 AHI0:l»9
4 Telephone: 916 646.2480
Facsimile: 916.646.5696 LEGAL PROCESS U 7
5
Attorneys for Defendants
6 RICHARD KIRK RUYBALID, individually and
dba CA CONSTRUCTION; and R4C0RP., INC.
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10
11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
ABBOTT,
12 MOTION IN LIMINE NO. 2 TO EXCLUDE
Plaintiffs, TESTIMONY OF PLAINTIFFS' EXPERT
13 ROBERT WEAHUNT RELATING TO THE
EXISTENCE OF DEFECTS NOT
14 PERSONALLY OBSERVED OR TESTED
RONALD PAUL BRITSCHGI, et al.,
15 Action Filed: September 24, 2007
Defendants.
16 Trial Date: January 17, 2011
Time: 8:30 a.m.
17 Location: Department 43
18 AND ALL RELATED CROSS-ACTIONS.
19
20 I.
INTRODUCTION
21
22 Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION
23 (hereinafter "CA CONSTRUCTION") and Defendant R4C0RP., INC. (hereinafter "R4C0RP")
24 (hereinafter collectively "Defendants") hereby incorporate by reference herein the "Introduction"
25 section set forth in its Motion in Limine No. 1.
26 ///
27 ///
28 ///
N1C549/1058526-1
MOTION IN LIMINE NO 2 TO EXCLUDE TESTIMONY RELATmC TO THE EXISTENCE OF DEFECTS
NOT PERSONALLY OBSERVED OR TESTED - WEAHUNT
1 M O T I O N IN LIMINE NO. 2 T O EXCLUDE TESTIMONY O F PLAINTIFFS' E X P E R T
R O B E R T WEAHUNT RELATING T O T H E EXISTENCE O F DEFECTS NOT
2 PERSONALLY OBSERVED OR TESTED
3
It is well settled in California that an expert's opinion that is based on erroneous
4
assumptions is not substantial evidence and cannot support a verdict (See BAJI 2.40). In
5
Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, the Court held:
6
The value of opinion evidence rests not in the conclusion reached
7 but in the factors considered in the reasoning employed. (Citations
omitted). When an expert bases his conclusions upon
8
assumptions which are not supported by the record, upon matters
g which are not reasonably relied upon by other experts,
whereupon factors which are speculative, remote or conjectural,
IQ then his conclusion has no evidentiary value. (Citations omitted).
In those circumstances, the expert's opinion cannot rise to the
1J dignity of substantial evidence. (Citations omitted). Where the
trial court has accepted an experts ultimate conclusion without
12 critical consideration of his reasoning, and it appears the
conclusion was based upon improper or unwarranted matters,
j2 then the judgment must be reversed for lack of substantial evidence.
(See Zuckerman at 1135 through 1136).
14
Evidence Code § 801(b) limits the opinions of an expert to such opinion as is:
15
(b) Based on the matter (including his special knowledge, skill,
16 experience, training and education) perceived by or personally
known to the witness or made known to him at or before the
17 hearing, whether or not admissible, that is of a type that reasonably
may be relied upon by an expert in forming an opinion upon the
18 subject to which his testimony relates, unless an expert is precluded
by law from using such matter as a basis for his opinion.
19
20 The evidence produced by Plaintiffs' experts is conclusive ofthe very important fact that
21 none ofthe three (3) disclosed experts (Lee, Weahunt or Dillingham) inspected, documented or
22 tested, any aspect ofthe Plaintiffs' home or observed any alleged defects within or without the
23 Plaintiffs' home. Furthermore, the basis of their testimony is predicated on pure hearsay as they
24 have taken no steps to verify the authenticity of what they have been told. Therefore, they all lack
25 the personal knowledge required under California Evidence Code § 801(b) and any testimony as
26 to the existence of actual defects is pure speculation, will be time-consuming, will clearly mislead
27 the jury and cause prejudice to the Defendants. Therefore, any such "opinion" testimony" should
28 be prohibited pursuant to the requirements ofCalifornia Evidence Code § 352.
NiC549/i058526-l 2
MOTION IN LIMINE NO 2 TO EXCLUDE TESTIMONY RELATING TO THE EXISTENCE OF DEFECTS
NOT PERSONALLY OBSERVED OR TESTED - WEAHUNT
1 This Court has the authority to exclude evidence of which the probative value is
2 substantially outweighed by the probability that its admission will create a substantial danger of
3 undue prejudice, confusion ofthe issues and misleading thejury. Evidence Code § 352. To allow
4 expert witnesses to testify about matters, such as the compaction of fill beneath the garage slab
5 and house foundations, which thev themselves have not inspected, documented, and/or tested,
6 invites the witnesses to speculate on matters that lack foundation and are based on pure
7 conjecture. Although Defendants may be able to show to the jury that the expert witnesses'
8 methods are flawed and erroneous, the damage to Defendants will have been done, as "the bell
9 cannot be un-mng."
10 Evidence in support ofthis motion in limine is attached hereto. All three (3) of Plaintiffs'
11 "construction" experts are a case study in speculation and reinforce the legislative intent behind
12 the adoption of California Evidence Code § 801(b). If Plaintiffs' experts seek to offer the
13 opinions at trial that they offered in their expert depositions. Plaintiffs and their counsel should be
14 sanctioned pursuant to Code of Civd Procedure § 128.7.
15 B. ROBERT WEAHUNT
16 Weahunt's deposition was taken on April 24, 2009. (See true and correct copy of excerpts
17 of said deposition testimony attached as Exhibit "A" to the Declaration of Gregory Federico, and
18 referenced below as "Weahunt, pg._"). It is clear from his testimony under oath that Weahunt has
19 no personal knowledge ofany defects at the Plaintiffs' residence; that his opinions are pure
20 speculation as he provides contradictory testimony repeatedly throughout his deposition:
21 1 opines there is no standard of care for an owner/builder (Weahunt, pg. 20:4-6)
22
2. admits he is not an expert on grading lots or preparing sloping lots for
23 construction (Weahunt, pg. 38:10-16); admits that he is not an architect (Weahunt,
pg. 252:24-25; that he has performed no testing at the residence (Weahunt, pg.
24 253:1-6).
25 3. admits that he is not an expert in this area fgrading] and does not know what
would have been necessary to make the level ofthe home foundation equal to the
26 level ofthe street/cul-de-sac and that to do so would be speculation on his part
27 (Weahunt, pg. 46:4-15);
28
N1C549/1058526-1
MOTION IN LIMINE NO. 2 TO EXCLUDE TESTIMONY RELATING TO THE EXISTENCE OF DEFECTS
NOT PERSONALLY OBSERVED OR TESTED - WEAHUNT
1 4. he purports to "define " what the responsibilities are ofthe owner and the project
manager-he sets the standard of care(Weahunt, pg.55:6-1 Oj; then opines that
^ Plaintiff could have done "more " as owner builder to insure that home was built
3 correctly (Weahunt, pg. 57:21 -25;58:1 -8)
4 5. opines that California Construction (CA Construction) built foundation on
uncompacted soils but admits that he has no evidence to support this
5 opinion (Weahunt, pg. 58:14-24)
6. opines that foundation contractor did an "end run " around building inspector's
7 requestfor compaction report and then admits that his source of information is
hearsay from a non-expert (Weahunt, pg. 60:1-4,6-15)
8
7. bases his opinion of lack of compaction on Lee's opinion (Weahunt, pg.63:12-
9 25;64); then changes his testimony and states that because he has not seen any
compaction reports the fill material inside the stem wall was uncompacted
10
(Weahunt, pg. 98:1-17); admits that he is not a geotechnical engineer (Weahunt,
I] pg. 64:14-18); not aware ofany compaction tests ever being performed during or
after construction (Weahunt, pg.72:2-12); opines that the garage slab was placed
12 on footings but does not know if the footings were placed on uncompacted fill dirt
as he did not observe the placement of the footings (Weahunt, pg. 73:17-25; 74:1-
13 21; 76-18-19)
14
" opines that CA Construction violated standard of care for foundation contractor
15 by (a) not obtainmg required finished fioor elevation, (b) not placing (he
foundation at an elevation that would allow for a legal and useful driveway, (c) on
16 uncompacted fill, yet he admits that he has not measured the site boundaries and
was not personally present when CA Construction did its work (Weahunt, pg.
^' 66; 17-25; 67:1 -7); then contradicts his testimony by stating that Sacramento
.„ County does not require that a comprehensive site plan show finish fioor
elevations, finish slab elevations, driveway contour (Weahunt, pg. 68:15-25).
19
opines that entire garage slab must be raised four (4) feet at a cost of more than
20 $204,000 and admits that he bases this opinion on speculation and has not spoken
personally with a structural engineer to confirm this position (Weahunt, pg. 201:5-
21 25; 202:19-21; 203:20-22)
22
10. opines that stem wall was not constructed in accordance with the plans by CA
23 Construction then changes his testimony claiming he has no evidence either wav,
then admits that the stem wall was built in accordance with the Sacramento
24 Countv approved set ofplans submitted bv Plaintiff for approval (Weahunt, pgs.
219:9-11; 222:4-7,12; 223:6-10; 226, 227:1-2; 229:4-6)
26 Plaintiffis not entitled or permitted to seek damages for defects unless there is reliable
2/ proof that such damages or defects exist at Plaintiffs' home. It is not permissible for Plaintiffs'
28
N1C549/1058526-1
MOTION IN LIMINE NO. 2 TO EXCLUDE TESTIMONY RELATING TO THE EXISTENCE OF DEFECTS
NOT PERSONALLY OBSERVED OR TESTED - WEAHUNT
1 experts to make conclusions that are based upon unverifiable assumptions or speculation. As
2 such. Defendants respectfully request that the Court grant its motion in limine to not allow
3 testimony regarding alleged defects unless the expert directly observed or tested that particular
4 defect at Plaintiffs' home.
5 H.
CONCLUSION
6
Defendants respectfully request that the Court grant this motion in limine and preclude
7
Plaintiffs' experts' from introducing opinion evidence relating to the existence of defects he did
8
not personally observe or test.
9
Dated: December 6, 2010 ARCHER NORRIS
10
11
12 Gregory K. Federico
Attomeys for Defendants RICHARD KIRK
13 RUYBALID, individually and dba CA
CONSTRUCTION; and R4C0RP., INC.
14
15
IT IS SO ORDERED.
16
17
DATED:
18
19
20 JUDGE OF THE SUPERIOR COURT
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N1C549/1058526-1
MOTION IN LIMINE NO. 2 TO EXCLUDE TESTIMONY RELATING TO THE EXISTENCE OF DEFECTS
NOT PERSONALLY OBSERVED OR TESTED - WEAHUNT
1 P R O O F O F 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 December 6, 2010,1 caused the following document(s) to be served:
5
M O T I O N IN LIMINE NO. 2 T O EXCLUDE TESTIMONY O F PLAINTIFFS'
6 E X P E R T ROBERT WEAHUNT RELATING T O T H E EXISTENCE OF DEFECTS
NOT PERSONALLY OBSERVED OR TESTED
7
8
By placing a tme copy ofthe documents listed above, enclosed in a sealed envelope,
9 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
10
with this business' practice for collection and processing of correspondence for
jj mailing with the United States Postal Service. On the same day that a sealed envelope
is placed for collection and mailing, it is deposited in the ordinary course ofbusiness
12 with the United States Postal Service with postage fully prepaid.
13 I I By having a tme copy ofthe 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
was reported as complete without error by a report issued by the transmitting facsimile
1c machine.
16 I I By placing a tme copy of the document(s) listed above, in a box or other facility
regularly maintained by UPS, an express service carrier, or delivered to a courier or
17 driver authorized by the express service carrier to receive documents, in an envelope
designated by the express service carrier, with delivery fees paid or provided for,
'° addressed as set forth below.
'^ r-j bv having personal delivery by FIRST LEGAL SUPPORT SERVICES a true copy of
2Q the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the
address(es) set forth below.
21
22 [SEE ATTACHED SERVICE LIST]
23 I declare under penalty ofperjury that the foregoing is true and correct. Executed on
D e c e m b e r ^ r ^ l 0, at Sacramento, Califomia.
24 ^^TL-
25
26 OmSiY A. INGLAND
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 sflnelli700(gyahoo 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(gmwsblaw com
8
Mark Smith In Pro Per
9 8549 Willow Valley Place
Granite Bay, CA 95746
10
Richard W Freeman Counsel for R4C0RP
11 Scotts 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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23
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N1C341/608293-1 2
SERVICE LIST
Preview
U-CA Todd A. Jones (BarNo. 198024) Gregory K. Federico (BarNo. 242184) 2 ARCHERNORRIS A Professional Law Corporation 301 University Avenue, Suite 110 ENDORSED 3 Sacramento, Califomia 95825 IODEC-7 AHI0:l»9 4 Telephone: 916 646.2480 Facsimile: 916.646.5696 LEGAL PROCESS U 7 5 Attorneys for Defendants 6 RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION; and R4C0RP., INC. 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 ABBOTT, 12 MOTION IN LIMINE NO. 2 TO EXCLUDE Plaintiffs, TESTIMONY OF PLAINTIFFS' EXPERT 13 ROBERT WEAHUNT RELATING TO THE EXISTENCE OF DEFECTS NOT 14 PERSONALLY OBSERVED OR TESTED RONALD PAUL BRITSCHGI, et al., 15 Action Filed: September 24, 2007 Defendants. 16 Trial Date: January 17, 2011 Time: 8:30 a.m. 17 Location: Department 43 18 AND ALL RELATED CROSS-ACTIONS. 19 20 I. INTRODUCTION 21 22 Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 23 (hereinafter "CA CONSTRUCTION") and Defendant R4C0RP., INC. (hereinafter "R4C0RP") 24 (hereinafter collectively "Defendants") hereby incorporate by reference herein the "Introduction" 25 section set forth in its Motion in Limine No. 1. 26 /// 27 /// 28 /// N1C549/1058526-1 MOTION IN LIMINE NO 2 TO EXCLUDE TESTIMONY RELATmC TO THE EXISTENCE OF DEFECTS NOT PERSONALLY OBSERVED OR TESTED - WEAHUNT 1 M O T I O N IN LIMINE NO. 2 T O EXCLUDE TESTIMONY O F PLAINTIFFS' E X P E R T R O B E R T WEAHUNT RELATING T O T H E EXISTENCE O F DEFECTS NOT 2 PERSONALLY OBSERVED OR TESTED 3 It is well settled in California that an expert's opinion that is based on erroneous 4 assumptions is not substantial evidence and cannot support a verdict (See BAJI 2.40). In 5 Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, the Court held: 6 The value of opinion evidence rests not in the conclusion reached 7 but in the factors considered in the reasoning employed. (Citations omitted). When an expert bases his conclusions upon 8 assumptions which are not supported by the record, upon matters g which are not reasonably relied upon by other experts, whereupon factors which are speculative, remote or conjectural, IQ then his conclusion has no evidentiary value. (Citations omitted). In those circumstances, the expert's opinion cannot rise to the 1J dignity of substantial evidence. (Citations omitted). Where the trial court has accepted an experts ultimate conclusion without 12 critical consideration of his reasoning, and it appears the conclusion was based upon improper or unwarranted matters, j2 then the judgment must be reversed for lack of substantial evidence. (See Zuckerman at 1135 through 1136). 14 Evidence Code § 801(b) limits the opinions of an expert to such opinion as is: 15 (b) Based on the matter (including his special knowledge, skill, 16 experience, training and education) perceived by or personally known to the witness or made known to him at or before the 17 hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the 18 subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion. 19 20 The evidence produced by Plaintiffs' experts is conclusive ofthe very important fact that 21 none ofthe three (3) disclosed experts (Lee, Weahunt or Dillingham) inspected, documented or 22 tested, any aspect ofthe Plaintiffs' home or observed any alleged defects within or without the 23 Plaintiffs' home. Furthermore, the basis of their testimony is predicated on pure hearsay as they 24 have taken no steps to verify the authenticity of what they have been told. Therefore, they all lack 25 the personal knowledge required under California Evidence Code § 801(b) and any testimony as 26 to the existence of actual defects is pure speculation, will be time-consuming, will clearly mislead 27 the jury and cause prejudice to the Defendants. Therefore, any such "opinion" testimony" should 28 be prohibited pursuant to the requirements ofCalifornia Evidence Code § 352. NiC549/i058526-l 2 MOTION IN LIMINE NO 2 TO EXCLUDE TESTIMONY RELATING TO THE EXISTENCE OF DEFECTS NOT PERSONALLY OBSERVED OR TESTED - WEAHUNT 1 This Court has the authority to exclude evidence of which the probative value is 2 substantially outweighed by the probability that its admission will create a substantial danger of 3 undue prejudice, confusion ofthe issues and misleading thejury. Evidence Code § 352. To allow 4 expert witnesses to testify about matters, such as the compaction of fill beneath the garage slab 5 and house foundations, which thev themselves have not inspected, documented, and/or tested, 6 invites the witnesses to speculate on matters that lack foundation and are based on pure 7 conjecture. Although Defendants may be able to show to the jury that the expert witnesses' 8 methods are flawed and erroneous, the damage to Defendants will have been done, as "the bell 9 cannot be un-mng." 10 Evidence in support ofthis motion in limine is attached hereto. All three (3) of Plaintiffs' 11 "construction" experts are a case study in speculation and reinforce the legislative intent behind 12 the adoption of California Evidence Code § 801(b). If Plaintiffs' experts seek to offer the 13 opinions at trial that they offered in their expert depositions. Plaintiffs and their counsel should be 14 sanctioned pursuant to Code of Civd Procedure § 128.7. 15 B. ROBERT WEAHUNT 16 Weahunt's deposition was taken on April 24, 2009. (See true and correct copy of excerpts 17 of said deposition testimony attached as Exhibit "A" to the Declaration of Gregory Federico, and 18 referenced below as "Weahunt, pg._"). It is clear from his testimony under oath that Weahunt has 19 no personal knowledge ofany defects at the Plaintiffs' residence; that his opinions are pure 20 speculation as he provides contradictory testimony repeatedly throughout his deposition: 21 1 opines there is no standard of care for an owner/builder (Weahunt, pg. 20:4-6) 22 2. admits he is not an expert on grading lots or preparing sloping lots for 23 construction (Weahunt, pg. 38:10-16); admits that he is not an architect (Weahunt, pg. 252:24-25; that he has performed no testing at the residence (Weahunt, pg. 24 253:1-6). 25 3. admits that he is not an expert in this area fgrading] and does not know what would have been necessary to make the level ofthe home foundation equal to the 26 level ofthe street/cul-de-sac and that to do so would be speculation on his part 27 (Weahunt, pg. 46:4-15); 28 N1C549/1058526-1 MOTION IN LIMINE NO. 2 TO EXCLUDE TESTIMONY RELATING TO THE EXISTENCE OF DEFECTS NOT PERSONALLY OBSERVED OR TESTED - WEAHUNT 1 4. he purports to "define " what the responsibilities are ofthe owner and the project manager-he sets the standard of care(Weahunt, pg.55:6-1 Oj; then opines that ^ Plaintiff could have done "more " as owner builder to insure that home was built 3 correctly (Weahunt, pg. 57:21 -25;58:1 -8) 4 5. opines that California Construction (CA Construction) built foundation on uncompacted soils but admits that he has no evidence to support this 5 opinion (Weahunt, pg. 58:14-24) 6. opines that foundation contractor did an "end run " around building inspector's 7 requestfor compaction report and then admits that his source of information is hearsay from a non-expert (Weahunt, pg. 60:1-4,6-15) 8 7. bases his opinion of lack of compaction on Lee's opinion (Weahunt, pg.63:12- 9 25;64); then changes his testimony and states that because he has not seen any compaction reports the fill material inside the stem wall was uncompacted 10 (Weahunt, pg. 98:1-17); admits that he is not a geotechnical engineer (Weahunt, I] pg. 64:14-18); not aware ofany compaction tests ever being performed during or after construction (Weahunt, pg.72:2-12); opines that the garage slab was placed 12 on footings but does not know if the footings were placed on uncompacted fill dirt as he did not observe the placement of the footings (Weahunt, pg. 73:17-25; 74:1- 13 21; 76-18-19) 14 " opines that CA Construction violated standard of care for foundation contractor 15 by (a) not obtainmg required finished fioor elevation, (b) not placing (he foundation at an elevation that would allow for a legal and useful driveway, (c) on 16 uncompacted fill, yet he admits that he has not measured the site boundaries and was not personally present when CA Construction did its work (Weahunt, pg. ^' 66; 17-25; 67:1 -7); then contradicts his testimony by stating that Sacramento .„ County does not require that a comprehensive site plan show finish fioor elevations, finish slab elevations, driveway contour (Weahunt, pg. 68:15-25). 19 opines that entire garage slab must be raised four (4) feet at a cost of more than 20 $204,000 and admits that he bases this opinion on speculation and has not spoken personally with a structural engineer to confirm this position (Weahunt, pg. 201:5- 21 25; 202:19-21; 203:20-22) 22 10. opines that stem wall was not constructed in accordance with the plans by CA 23 Construction then changes his testimony claiming he has no evidence either wav, then admits that the stem wall was built in accordance with the Sacramento 24 Countv approved set ofplans submitted bv Plaintiff for approval (Weahunt, pgs. 219:9-11; 222:4-7,12; 223:6-10; 226, 227:1-2; 229:4-6) 26 Plaintiffis not entitled or permitted to seek damages for defects unless there is reliable 2/ proof that such damages or defects exist at Plaintiffs' home. It is not permissible for Plaintiffs' 28 N1C549/1058526-1 MOTION IN LIMINE NO. 2 TO EXCLUDE TESTIMONY RELATING TO THE EXISTENCE OF DEFECTS NOT PERSONALLY OBSERVED OR TESTED - WEAHUNT 1 experts to make conclusions that are based upon unverifiable assumptions or speculation. As 2 such. Defendants respectfully request that the Court grant its motion in limine to not allow 3 testimony regarding alleged defects unless the expert directly observed or tested that particular 4 defect at Plaintiffs' home. 5 H. CONCLUSION 6 Defendants respectfully request that the Court grant this motion in limine and preclude 7 Plaintiffs' experts' from introducing opinion evidence relating to the existence of defects he did 8 not personally observe or test. 9 Dated: December 6, 2010 ARCHER NORRIS 10 11 12 Gregory K. Federico Attomeys for Defendants RICHARD KIRK 13 RUYBALID, individually and dba CA CONSTRUCTION; and R4C0RP., INC. 14 15 IT IS SO ORDERED. 16 17 DATED: 18 19 20 JUDGE OF THE SUPERIOR COURT 21 22 23 24 25 26 27 28 N1C549/1058526-1 MOTION IN LIMINE NO. 2 TO EXCLUDE TESTIMONY RELATING TO THE EXISTENCE OF DEFECTS NOT PERSONALLY OBSERVED OR TESTED - WEAHUNT 1 P R O O F O F 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 December 6, 2010,1 caused the following document(s) to be served: 5 M O T I O N IN LIMINE NO. 2 T O EXCLUDE TESTIMONY O F PLAINTIFFS' 6 E X P E R T ROBERT WEAHUNT RELATING T O T H E EXISTENCE OF DEFECTS NOT PERSONALLY OBSERVED OR TESTED 7 8 By placing a tme copy ofthe documents listed above, enclosed in a sealed envelope, 9 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 10 with this business' practice for collection and processing of correspondence for jj mailing with the United States Postal Service. On the same day that a sealed envelope is placed for collection and mailing, it is deposited in the ordinary course ofbusiness 12 with the United States Postal Service with postage fully prepaid. 13 I I By having a tme copy ofthe 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 was reported as complete without error by a report issued by the transmitting facsimile 1c machine. 16 I I By placing a tme copy of the document(s) listed above, in a box or other facility regularly maintained by UPS, an express service carrier, or delivered to a courier or 17 driver authorized by the express service carrier to receive documents, in an envelope designated by the express service carrier, with delivery fees paid or provided for, '° addressed as set forth below. '^ r-j bv having personal delivery by FIRST LEGAL SUPPORT SERVICES a true copy of 2Q the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the address(es) set forth below. 21 22 [SEE ATTACHED SERVICE LIST] 23 I declare under penalty ofperjury that the foregoing is true and correct. Executed on D e c e m b e r ^ r ^ l 0, at Sacramento, Califomia. 24 ^^TL- 25 26 OmSiY A. INGLAND 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 sflnelli700(gyahoo 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(gmwsblaw com 8 Mark Smith In Pro Per 9 8549 Willow Valley Place Granite Bay, CA 95746 10 Richard W Freeman Counsel for R4C0RP 11 Scotts 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 N1C341/608293-1 2 SERVICE LIST