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1 Todd A. Jones (BarNo. 198024)
tjones(^archemorris.com F^' Pn/E.\^DORSEC
2 Gregory K. Federico (BarNo. 242184)
gfederico(^archemorris.com
3 ARCHERNORRIS FEB 2 8 2011
A Professional Law Corporation
4 301 University Avenue, Suite 110
Sacramento, Califomia 95825-5537 By L_'3U"IFnRFZ_
5 Telephone: 916.646.2480 Oeouty Clerk
Facsimile: 916.646.5696
6
Attomeys for Defendants and Cross-Defendants
7 RICHARD KIRK RUYBALID, individually, and
dba CA CONSTRUCTION i
8
9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OFISACRAMENTO
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12 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
ABBOTT,
13 DECLARATION OF TODD A. JONES IN
Plaintiffs, SUPPORT OF OPPOSITION TO
14 PLAINTIFFS' MOTION FOR NEW TRIAL
V.
15 Hearing Date: March 18,2011
RONALD PAUL BRITSCHGI, et al., I Time: 10:30 a.m.
16 I Dept.: 43
Defendants. J Judge: Hon. Brian Van Camp
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I Action Filed: September 24, 2007
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20 AND ALL RELATED CROSS-ACTIONS.
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22 I, Todd A. Jones, declare as follows: i
23 1. I am an attomey duly licensed to practice before all the Courts in tiie State of
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24 Califomia and I am a shareholder with Archer Norris, attomeys ofrecord for Defendants
25 RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION (hereinafter "CA
j
26 CONSTRUCTION"). I have personal knowledge ofthe matters set forth herein except where
27 stated on information and belief. If called upon as a witness in this matter, I could and would
28 competently testify thereto, as follows; I
NIC341/1098391-1 1
DECLARATION OF TODD A. JONES IN OPPOSITION TO PLAINTIFFS' MOTION FOR A NEW TRIAL
I
1 2. I acted as lead frial counsel for niy client, RICHARD KIRK RUYBALID,
i
2 individually and dba CA CONSTRUCTION, wherein trial was conducted before the Honorable
3 Brian Van Camp ofthe Sacramento County Superior Court from January 18, 2011 until thejury
4 I verdict was entered on Febmary 3,2011.
5 3, During the course ofsubmitting and arguing Motions m Limine before the Court,
6 Plaintiffs brought a Motion in Limine to exclude CA CONSTRUCTION'S experts from testifying
7 as they had not been previously deposed. The Court mled that CA CONSTRUCTION had a
8 reasonable basis for not producing its experts for deposition, but that the Court would favorably
9 view a motion by Plaintiffs to take the depositions of CA CONSTRUCTION'S experts prior to
10 the start of trial. Following the hearing on the niotion, Plaintiffs failed to seek leave ofthe Court
11 to depose CA CONSTRUCTION'S experts prior to trial.
12 4. On the first day of tiial, on January 18,2011, as required by Plaintiffs' trial
i
13 subpoena for documents issued to CA CONSTRUCTION'S experts Dave Heryet and Jason
I
14 Newlin, I personally provided Plaintiffs' counsel, Stephanie Finelli, with a complete and accurate
15 copy of Mr. Heryet and Mr. Newlin's entfre expert file in this case.
16 5. During the course ofthe trial, the Court never raised the issue of a mistrial, much
17 less a mistrial arising from the parties not completing the frial within the allotted nine days.
18 Furthermore, the Court advised the parties that if the frial was not completed on Friday, January
19 28, 2011, the parties should be prepared to continue thetirialthe next day, on Saturday, January
20 29,2011.
21 6. At the time ofthe preparation ofthis declaration on Monday, Febmary 28, 2011,
22 other than filing PlaintifFs Notice of Intention to Move for New Trial with an attached
23 Memorandum and Declaration of Attomey Finelli, Plaintiffs have failed to submit any evidence
24 or affidavits in support of Plaintiffs' motion for a new frial. Furthermore, Plaintiffs have failed to
25 submit any excerpts ofthe Court Reporter's trial transcript in support of Plaintiffs' Motion.
26 7. Attached hereto as Exhibit "A," is a tme and correct copy ofthe Special Verdict
27 Form, initially submitted to the jury in this matter. At the time the Special Verdict form was
28 prepared among and between counsel and the Court, Plaintiffs' counsel signed a copy ofthe
NIC34I/109839I-I 2
DECLARATION OF TODD A JONES IN OPPOSITION TO PLAINTIFFS' MOTION FOR A NEW TRIAL
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1 Special Verdict Form, indicating Plaintiffs' acceptance ofthe form ofthe Special Verdict.
2 I declare under penalty ofperjury under tiie laws oftiie State ofCalifomia that tiie
3 foregoing is tme and correct Executed tiiis l^o day ofFebmary, 2011, at Sacramento,
4 Califomia.
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NIC34I/109839I-1 3
DECLARATION OF TODD A JONES IN OPPOSITI ON TO PLAINTIFFS' MOTION FOR A NEW TRJAL
EXHIBIT "A"
mmk
S U P E R I O R C O U R T OF C A L I F O R N I A
COUNTY OF SACRAMENTO
RODNEY AND FLORENTINE ABBOTT, Case Number: 07AS04450
Plaintiffs,
Departnient: 43
vs.
SPECIAL VERDICT
RICHARD RUYBALID DBA CA
CONSTRUCTION AND MARK SMITH,
Defendants.
We, the jury in the above-indicated matter, answer the questions asked of us as follows-
BREACH OF CONTRACT
CA Construction
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1. Did the Abbotts and CA Constmction enter jinto a contract"?
Yes No i
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If your answer to Question 1 is "Yes", thenjanswer Question 2. If you answered °No"
answer Question 7. ;
2. Did Plaintiffe ABBOTT do all, or substantially all, of the significant things that
the contract required them to do?
Yes No
If your answer to Question 2 Is "Yes", then skip Question 3 and answer Question
4. If you answered "No", answer Question
Were the Plaintiffe ABBOTT excused from having to do all, or substantially ail,
of the significant things that the contract required them to do?
Yes No
If your answer to Question 3 is "Yes", then answer Question 4 If you answered
"No", then skip Questions 4, 5, and 6, and answer Question 7.
4. Did Defendant CA CONSTRUCTION fail to do something that the contract required
them to do?
Yes No
If your answer to Question 4 is "Yes", then skip Questions 5 and 6, and answer
Question 7. If you answered no, then answer Question 5.
5. Was Defendant CA CONSTRUCTION excused from having to do all, or
substanttally all, of the significant things that the contract required him to do?
Yes No
If your answer to Question 5 is "Yes", then skip Question 6, and answer Question
7. If you answered "No", then answer Question 6.
6. Were the Plaintiffs ABBOTT harmed by the failure of CA CONSTRUCTION to
perform under the contract?
Yes No
Please proceed to question No. 7.
NEGLIGENCE
CA CONSTRUCTION AND MARK SMITH
7. a. Was CA Construction negligent in perfonning its work at the Abbott
home?
Yes No
b. Was Mark Snnith dba Groundbreakers negligent in perfomning its
work at the Abbott home?
Yes No
If you answered "yes" in any part of Question 7, then answer question 8. If you
answered "no" to all parts of question 7, stop here, and proceed to question
No. 15.
8. For each party that received a "yes" answer in question 7, answer the following:
Was CA Construction's negligence a substantial factor in causing harm
to the Abbott home?
Yes No
Was Mark Smith dba Groundbreakers' negligence a substantial factor
in causing hamn to the Abbott home?
Yes No
If you answered "yes" in any part of question 8, then answer question 9. If you
answered "no" to all parts of question 8, proceed to question 15.
9. What are the Plaintiffs Abbott's total damages? Do not reduce the damages
based on the fault, if any, of the Plaintiffs Abbott or others.
TOTAL
Ifthe Plaintiffs Abbott have proved any damages, then answer question 10. If the
Plaintiffs Abbott have not proved any damages, then stop here, and proceed to
question No. 15.
PLAINTIFFS' CONTRIBUTORY NEGLIGENCE
10. Were the ABBOTTS negligent?
Yes No
If your answer to question 10 is" yes," then answer question 11. If you answered
"no," then answer question 12.
11. Were the Abbott's negligence a substantial factor In causing their hamn?
Yes No
If your answer to question 11 is" yes," then answer question 12 If you answered
"no", then insert the number zero next to Plaintiffs Abbott's name in question
14 and answer question 12.
THE NEGLIGENCE OF OTHERS
12. Was RONALD BRITSCHGI negligent?
Yes No
Was CADRE DESIGN GROUP, INC. negligent?
Yes No
If you answered yes to any part of 12, then answer question 13. If you answered
] no to all parts of question 12, answer question 14.
13. For each person who received a "yes" answer in question 12, answer the
following:
I Was RONALD BRITSCHGI'S negligence a substantial factor in causing the harm
to Plaintiffs ABBOTT?
I
Yes No
Was CADRE DESIGN GROUP, INC.'s negligence a substantial factor in causing
the harm to Plaintiffs ABBOTT?
Yes No
If you answered yes to any part of 13, then answer question 14. If you answered
no regarding all persons in question 13, then insert the number zero next to their
names in question 14 and answer question 15
14. What percentage of responsibility for Plaintiffs Abbott's harm do you assign to
the following? Insert a percentage for only those who received "yes" answers in
questions 8,11, or 13-
CA CONSTRUCTION; - _%
MARK SMITH. _ _%
PLAINTIFFS ABBOI 1. _ _%
RONALD BRITSCHGI: _ _%
CADRE DESIGN GROUP, INC; _%
TOTAL - 100 _ %
VIOLATION OF THE BUSINESS AND PROFESSIONS CODES
CA CONSTRUCTION
Please answer questions; 15,16, and 17.
15. Did Defendant RICHARD KIRK RUYBALID dba CA CONSTRUCTION
willfully depart from accepted trade standards for good and workmanlike construction?
YES NO
16. Did Defendant RICHARD KIRK RUYBALID dba CA CONSTRUCTION
perform work as a concrete contractor without a valid C-8 license?
YES NO
17. Did Defendant RICHARD KIRK RUYBALID dba CA CONSTRUCTION knowingly make
false or fraudulent representations to Plaintiffe about his ability to properly perform the
sen/ices he was required to perfonn underthe contract with the Plaintiffs?
YES NO
If you answered Question 15, 16 or 17 "Yes", then answer Question 18 and sign the
form. If you answered "No", then sign the form.
18. Were the Plaintiffs banned by this violation?
YES NO
Dated; Signed;.
Foreperson
After you have completed this form, please inform the Court Attendant.
Preview
1 Todd A. Jones (BarNo. 198024) tjones(^archemorris.com F^' Pn/E.\^DORSEC 2 Gregory K. Federico (BarNo. 242184) gfederico(^archemorris.com 3 ARCHERNORRIS FEB 2 8 2011 A Professional Law Corporation 4 301 University Avenue, Suite 110 Sacramento, Califomia 95825-5537 By L_'3U"IFnRFZ_ 5 Telephone: 916.646.2480 Oeouty Clerk Facsimile: 916.646.5696 6 Attomeys for Defendants and Cross-Defendants 7 RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION i 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OFISACRAMENTO 11 12 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 ABBOTT, 13 DECLARATION OF TODD A. JONES IN Plaintiffs, SUPPORT OF OPPOSITION TO 14 PLAINTIFFS' MOTION FOR NEW TRIAL V. 15 Hearing Date: March 18,2011 RONALD PAUL BRITSCHGI, et al., I Time: 10:30 a.m. 16 I Dept.: 43 Defendants. J Judge: Hon. Brian Van Camp 17 I Action Filed: September 24, 2007 18 19 20 AND ALL RELATED CROSS-ACTIONS. 21 22 I, Todd A. Jones, declare as follows: i 23 1. I am an attomey duly licensed to practice before all the Courts in tiie State of I 24 Califomia and I am a shareholder with Archer Norris, attomeys ofrecord for Defendants 25 RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION (hereinafter "CA j 26 CONSTRUCTION"). I have personal knowledge ofthe matters set forth herein except where 27 stated on information and belief. If called upon as a witness in this matter, I could and would 28 competently testify thereto, as follows; I NIC341/1098391-1 1 DECLARATION OF TODD A. JONES IN OPPOSITION TO PLAINTIFFS' MOTION FOR A NEW TRIAL I 1 2. I acted as lead frial counsel for niy client, RICHARD KIRK RUYBALID, i 2 individually and dba CA CONSTRUCTION, wherein trial was conducted before the Honorable 3 Brian Van Camp ofthe Sacramento County Superior Court from January 18, 2011 until thejury 4 I verdict was entered on Febmary 3,2011. 5 3, During the course ofsubmitting and arguing Motions m Limine before the Court, 6 Plaintiffs brought a Motion in Limine to exclude CA CONSTRUCTION'S experts from testifying 7 as they had not been previously deposed. The Court mled that CA CONSTRUCTION had a 8 reasonable basis for not producing its experts for deposition, but that the Court would favorably 9 view a motion by Plaintiffs to take the depositions of CA CONSTRUCTION'S experts prior to 10 the start of trial. Following the hearing on the niotion, Plaintiffs failed to seek leave ofthe Court 11 to depose CA CONSTRUCTION'S experts prior to trial. 12 4. On the first day of tiial, on January 18,2011, as required by Plaintiffs' trial i 13 subpoena for documents issued to CA CONSTRUCTION'S experts Dave Heryet and Jason I 14 Newlin, I personally provided Plaintiffs' counsel, Stephanie Finelli, with a complete and accurate 15 copy of Mr. Heryet and Mr. Newlin's entfre expert file in this case. 16 5. During the course ofthe trial, the Court never raised the issue of a mistrial, much 17 less a mistrial arising from the parties not completing the frial within the allotted nine days. 18 Furthermore, the Court advised the parties that if the frial was not completed on Friday, January 19 28, 2011, the parties should be prepared to continue thetirialthe next day, on Saturday, January 20 29,2011. 21 6. At the time ofthe preparation ofthis declaration on Monday, Febmary 28, 2011, 22 other than filing PlaintifFs Notice of Intention to Move for New Trial with an attached 23 Memorandum and Declaration of Attomey Finelli, Plaintiffs have failed to submit any evidence 24 or affidavits in support of Plaintiffs' motion for a new frial. Furthermore, Plaintiffs have failed to 25 submit any excerpts ofthe Court Reporter's trial transcript in support of Plaintiffs' Motion. 26 7. Attached hereto as Exhibit "A," is a tme and correct copy ofthe Special Verdict 27 Form, initially submitted to the jury in this matter. At the time the Special Verdict form was 28 prepared among and between counsel and the Court, Plaintiffs' counsel signed a copy ofthe NIC34I/109839I-I 2 DECLARATION OF TODD A JONES IN OPPOSITION TO PLAINTIFFS' MOTION FOR A NEW TRIAL I 1 1 1 Special Verdict Form, indicating Plaintiffs' acceptance ofthe form ofthe Special Verdict. 2 I declare under penalty ofperjury under tiie laws oftiie State ofCalifomia that tiie 3 foregoing is tme and correct Executed tiiis l^o day ofFebmary, 2011, at Sacramento, 4 Califomia. 5 6 1 Todd A.Jones / 7 i 8 1 !i 9 1 10 1 11 12 1 13 1 1 14 I 1 15 1 16 17 18 19 i 20 21 22 23 1 1 24 25 26 27 28 1 NIC34I/109839I-1 3 DECLARATION OF TODD A JONES IN OPPOSITI ON TO PLAINTIFFS' MOTION FOR A NEW TRJAL EXHIBIT "A" mmk S U P E R I O R C O U R T OF C A L I F O R N I A COUNTY OF SACRAMENTO RODNEY AND FLORENTINE ABBOTT, Case Number: 07AS04450 Plaintiffs, Departnient: 43 vs. SPECIAL VERDICT RICHARD RUYBALID DBA CA CONSTRUCTION AND MARK SMITH, Defendants. We, the jury in the above-indicated matter, answer the questions asked of us as follows- BREACH OF CONTRACT CA Construction I 1. Did the Abbotts and CA Constmction enter jinto a contract"? Yes No i 1 I If your answer to Question 1 is "Yes", thenjanswer Question 2. If you answered °No" answer Question 7. ; 2. Did Plaintiffe ABBOTT do all, or substantially all, of the significant things that the contract required them to do? Yes No If your answer to Question 2 Is "Yes", then skip Question 3 and answer Question 4. If you answered "No", answer Question Were the Plaintiffe ABBOTT excused from having to do all, or substantially ail, of the significant things that the contract required them to do? Yes No If your answer to Question 3 is "Yes", then answer Question 4 If you answered "No", then skip Questions 4, 5, and 6, and answer Question 7. 4. Did Defendant CA CONSTRUCTION fail to do something that the contract required them to do? Yes No If your answer to Question 4 is "Yes", then skip Questions 5 and 6, and answer Question 7. If you answered no, then answer Question 5. 5. Was Defendant CA CONSTRUCTION excused from having to do all, or substanttally all, of the significant things that the contract required him to do? Yes No If your answer to Question 5 is "Yes", then skip Question 6, and answer Question 7. If you answered "No", then answer Question 6. 6. Were the Plaintiffs ABBOTT harmed by the failure of CA CONSTRUCTION to perform under the contract? Yes No Please proceed to question No. 7. NEGLIGENCE CA CONSTRUCTION AND MARK SMITH 7. a. Was CA Construction negligent in perfonning its work at the Abbott home? Yes No b. Was Mark Snnith dba Groundbreakers negligent in perfomning its work at the Abbott home? Yes No If you answered "yes" in any part of Question 7, then answer question 8. If you answered "no" to all parts of question 7, stop here, and proceed to question No. 15. 8. For each party that received a "yes" answer in question 7, answer the following: Was CA Construction's negligence a substantial factor in causing harm to the Abbott home? Yes No Was Mark Smith dba Groundbreakers' negligence a substantial factor in causing hamn to the Abbott home? Yes No If you answered "yes" in any part of question 8, then answer question 9. If you answered "no" to all parts of question 8, proceed to question 15. 9. What are the Plaintiffs Abbott's total damages? Do not reduce the damages based on the fault, if any, of the Plaintiffs Abbott or others. TOTAL Ifthe Plaintiffs Abbott have proved any damages, then answer question 10. If the Plaintiffs Abbott have not proved any damages, then stop here, and proceed to question No. 15. PLAINTIFFS' CONTRIBUTORY NEGLIGENCE 10. Were the ABBOTTS negligent? Yes No If your answer to question 10 is" yes," then answer question 11. If you answered "no," then answer question 12. 11. Were the Abbott's negligence a substantial factor In causing their hamn? Yes No If your answer to question 11 is" yes," then answer question 12 If you answered "no", then insert the number zero next to Plaintiffs Abbott's name in question 14 and answer question 12. THE NEGLIGENCE OF OTHERS 12. Was RONALD BRITSCHGI negligent? Yes No Was CADRE DESIGN GROUP, INC. negligent? Yes No If you answered yes to any part of 12, then answer question 13. If you answered ] no to all parts of question 12, answer question 14. 13. For each person who received a "yes" answer in question 12, answer the following: I Was RONALD BRITSCHGI'S negligence a substantial factor in causing the harm to Plaintiffs ABBOTT? I Yes No Was CADRE DESIGN GROUP, INC.'s negligence a substantial factor in causing the harm to Plaintiffs ABBOTT? Yes No If you answered yes to any part of 13, then answer question 14. If you answered no regarding all persons in question 13, then insert the number zero next to their names in question 14 and answer question 15 14. What percentage of responsibility for Plaintiffs Abbott's harm do you assign to the following? Insert a percentage for only those who received "yes" answers in questions 8,11, or 13- CA CONSTRUCTION; - _% MARK SMITH. _ _% PLAINTIFFS ABBOI 1. _ _% RONALD BRITSCHGI: _ _% CADRE DESIGN GROUP, INC; _% TOTAL - 100 _ % VIOLATION OF THE BUSINESS AND PROFESSIONS CODES CA CONSTRUCTION Please answer questions; 15,16, and 17. 15. Did Defendant RICHARD KIRK RUYBALID dba CA CONSTRUCTION willfully depart from accepted trade standards for good and workmanlike construction? YES NO 16. Did Defendant RICHARD KIRK RUYBALID dba CA CONSTRUCTION perform work as a concrete contractor without a valid C-8 license? YES NO 17. Did Defendant RICHARD KIRK RUYBALID dba CA CONSTRUCTION knowingly make false or fraudulent representations to Plaintiffe about his ability to properly perform the sen/ices he was required to perfonn underthe contract with the Plaintiffs? YES NO If you answered Question 15, 16 or 17 "Yes", then answer Question 18 and sign the form. If you answered "No", then sign the form. 18. Were the Plaintiffs banned by this violation? YES NO Dated; Signed;. Foreperson After you have completed this form, please inform the Court Attendant.