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1 STEPHANIE J. FINELLI, SBN 173462
Law Office of Stephanie J. Finelli
2 1007-7th Street, Suite 500
Sacramento, CA 95814
3 tel 916-443-2144 AND MOTION #1
fax 916-443-1511
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Attorney for Plaintiffs,
5 RODNEY and FLORENTINE ABBOTT
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7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 IN AND FOR THE COUNTY OF SACRAMENTO
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10 RODNEY ABBOT and FLORENTINE CaseNo.:07AS04450
ABBOTT,
Plaintiffs, MOTION FOR LEAVE TO REOPEN
DISCOVERY; DECLARATION OF
12 STEPHANIE J. FINELLI
vs.
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RONALD PAUL BRITSCHGI, et. al.
Date: August 7, 2009
14 Time: 9:00 a.m.
Defendants
Dept: 54
15 Trial: 6/7/10
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and related cross-actions
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NOTICE OF MOTION
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TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD:
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NOTICE IS HEREBY GIVEN THAT on August 7, 2009 at 9:00 a.m. or as soon
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thereafter as the matter may be heard, in Dept. 54 of the above-entitled court, located at 720
22 Ninth Street, Sacramento, California, 95814, plaintiffs RODNEY ABBOTT and FLORENTINE
23 ABBOTT move the court for leave to reopen discovery in this case. This motion is made undei
24 Code of Civil Procedure section 2024.050 on the grounds that additional discovery is necessary
25 to allow plaintiffs and defendants to determine the nature and extent of the defects to plaintiffs'
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home, especially given the additional information plaintiffs acquired in April and May 2009, and)
given that trial of this matter is not scheduled to begin until June 7, 2010.
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Motion to Reopen Discovery - 1
i This motion is based on this notice, the attached memorandum of points and authorities,
2 the declaration of Stephanie J. Finelli and attached exhibits served and filed herewith, and the
3 pleadings, records and papers on file herein.
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5 Pursuant to Local Rule 3.04, the court will make a tentative ruling on
the merits of this matter by 2:00 p.m. the court day before the hearing.
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To receive the tentative ruling, call the department in which the matter is
7 to be heard at 916-448-8239 (Dept. 53) or 916-448-8234 (Dept. 54). If
you do not call the court and the opposing party by 4:00 p.m. the court
8 day before the hearing, no hearing will be held.
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Dated: June^/,, 2009
^ STEPHANIE JTFTNELLI
12 Attorney for Plaintiffs,
RODNEY and FLO ABBOTT
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Motion to Reopen Discovery - 2
i POINTS AND AUTHORITIES
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I. INTRODUCTION
This is a construction defect case arising out of the construction of Plaintiffs' single-
family custom home in 2005 to 2006. The complaint in this action was filed in September 2007.
At that time, plaintiffs were represented by counsel. Thereafter, they were intermittently in pro
per and represented by counsel until November 19, 2008 when present counsel substituted into
the case. Trial was set for May 11, 2009.
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At the time of the substitution, no depositions had been taken, and discovery was limite
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to some written discovery requests and an informal production of documents by plaintiffs to the
defendants. Meaningful discovery did not really begin on this case until December 2008, wher
the first deposition was taken. Thereafter, Plaintiffs took defendants' depositions, anc
defendants deposed plaintiffs and certain other witnesses. On March 23, 2009, expert witnesses
were disclosed. Before then, plaintiffs' experts, including a licensed general building contractor
and a licensed landscape architect, had inspected the home. Following those inspections anc
prior to the depositions, the experts began to suspect that uncompacted fill had been placed undei
the foundation of the home. This was based upon an evaluation and comparison of the
topography of the land prior to any grading or construction and as it presently stands.
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On April 9, 2009, Plaintiffs' house was inspected by a structural engineer as part of an
insurance claim. This engineer opined, among other things, that the soil under the house anc
garage slabs was not properly compacted. This report was prepared on April 18, 2009. Th<
Abbotts obtained a copy of that report on or about May 19, 2009 and immediately forwarded a
copy to all defendants via email.
On April 15, 2009, less than one month from the trial date, defendants' experts conductec
an on-site inspection of plaintiffs' home.
While formulating their opinions in preparation for their depositions, certain of the
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Abbott's retained experts discovered evidence that the house may not be built on compacted soil.
At his April 27, 2009 deposition, James "Robert" Lee testified that he believed there was
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Motion to Reopen Discovery - 3
uncompacted soil and fill under the house and garage, and that serious structural problems couk
2 result therefrom.
3 The trial was set for May 11, 2009. Due to the lack of available courtrooms, the case was
4 assigned to the Honorable Brian Van Camp. Following a meeting with the judge, trial of this
5 matter was set for a date certain: June 7, 2010.
6 On or about May 12, 2009, the Abbotts had a portion of their property excavated down to
7 the footings. That day, they notified defendants of this excavation and invited them to have their
experts inspect it. Defendants objected to this excavation, asserting that discovery was closed.
9 However, on May 18, 2009, defendants experts did inspect the excavation.
10 Because plaintiffs have recently discovered additional defects with the home, anc
11 because additional testing is necessary to determine the extent of the defects and how they coulc
12 be repaired, plaintiffs seek leave of court to reopen discovery. The Abbotts are in the process oi
13 getting additional testing done on their property to determine if the soil under the house was
14 properly compacted, despite the absence of a compaction report from a soils engineer, and as to
15 whether sufficient gravel was placed under the slab of the house. However, given defendants'
16 objections to plaintiffs performing any testing on their own property, plaintiffs seek leave to
17 reopen discovery so that all parties may obtain information regarding the condition of plaintiffs'
18 home given this new information.
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20 II. LEGAL ARGUMENT
21 A. Discovery Should Be Reopened in the Interests of Justice
22 It is imperative that plaintiffs discover the true facts regarding the extent of the defects tcj
23 their home before the June 7, 2010 trial. If the house is not built on compacted soil, that is a read
24 threat to its structural integrity. It also changes much of plaintiffs' lawsuit. Previously, plaintiffs
25 were largely concerned about the severe slope from the street to their garage and the fact thai
26 their house was so far below street level. Now that they understand the house and garage may be
27 built on uncompacted and unsuitable soil—and that the house may be structurally unsound anc
28 actually settling so as to render the structure unusable—the entire lawsuit has changed. In lighti
Motion to Reopen Discovery - 4
of this, plaintiffs are also seeking to file a first amended complaint to name two additional
defendants and to add allegations against the current defendants.
Defendants will not be prejudiced by reopening discovery. Trial is almost one year away,
and they have plenty of time to conduct discovery and apprise their experts of the results.
Moreover, the testing plaintiffs seek to perform is not only to their own property, but is to
property built by the defendants. Defendants thus already have knowledge as to (1) whether any
part of the foundation was placed on uncompacted soil; (2) the amount of fill placed under the
house and garage slabs; (3) the amount of gravel placed under the house and garage slabs; anc
9 (4) the actual depth of the footings and the amount and content of the backfill placed against the
10 retaining wall in the garage. These are facts of which defendants are aware without conducting
11 any discovery on plaintiffs' property.
12 Plaintiffs seek to reopen discovery so that neither party can or will be prejudiced, and all]
13 will have access to information concerning the nature and extent of the defects to plaintiffs'
14 property. This will actually benefit defendants, as this Court has previously denied defendants'
15 motion to limit testing plaintiffs may do on their own property, and ordered that plaintiffs
16 provide at least 15 days' notice for any additional testing. (See Exh A hereto.) Reopening
17 discovery will allow the free flow of information as to the true nature of plaintiffs' property so
18 that neither party is prejudiced.
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20 III. CONCLUSION
21 Defendants will not be prejudiced by the reopening of discovery; to the contrary, they
22 will be able to conduct their own discovery as to the defects on plaintiffs' property. This wil
23 allow each party to properly prepare for trial—which is in June 2010. Plaintiffs respectfully
24 request that this Court order that discovery be reopened and remain open until the June 7, 2010
25 trial, and close commensurate with that trial date.
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27 Dated: June 26,2009
Stephanie J^
Attorney for Plaintiffs
Motion to Reopen Discovery - 5
DECLARATION OF STEPHANIE J. FINELLI
I, Stephanie J. Finelli, hereby declare under penalty of perjury, and if called as a witness,
would and competently testify as follows:
1. I am an attorney, duly licensed to practice in the State of California. I represent
plaintiffs herein.
2. Attached hereto as Exhibit A is a true and correct copy of the Minute Order from
the May 28, 2009 hearing on defendant Britschgi's ex parte application for an order limiting the
testing plaintiffs were permitted to do on their own property.
9 3. I did not substitute in as Plaintiffs' attorney of record until November 17, 2008.
10 At that time, no depositions had been taken, and discovery was limited to some written discovery
11 requests and an "informal" production of documents by plaintiffs to the defendants. Meaningful
12 discovery did not really begin on this case until December 2008, when the first day of Florentine
13 Abbott's deposition was taken. In January and February 2009, I took defendants' depositions,
14 and defendants deposed plaintiffs and certain other witnesses. On March 23, 2009, expert
15 witnesses were disclosed. Shortly before then, plaintiffs' experts, including a licensed general
16 building contractor and a licensed landscape architect, had inspected the home. Following those
17 inspections and prior to the depositions, the experts began to suspect that uncompacted fill hac
18 been placed under the foundation of the home. This was based upon an evaluation am
19 comparison of the topography of the land prior to any grading or construction and as it presently
20 stands.
21 4. On April 9, 2009, Plaintiffs' house was inspected by a structural engineer as parti
22 of an insurance claim. This engineer opined, among other things, that the soil under the house
23 and garage slabs was not properly compacted. This report was prepared on April 18, 2009. The
24 Abbotts obtained a copy of that report on or about May 19, 2009 and immediately forwarded it to
25 me, and I immediately forwarded a copy to all defendants via email.
26 5. On April 15, 2009, less than one month from the trial date, defendants' experts
27 conducted an on-site inspection of plaintiffs' home.
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Motion to Reopen Discovery - 6
1 6. At his April 27, 2009 deposition, James "Robert" Lee testified that he believed
2 there was uncompacted soil and fill under the house and garage, and that serious structural
3 problems could result therefrom.
4 7. The trial was set for May 11, 2009. Due to the lack of available courtrooms, the
5 case was assigned to the Honorable Brian Van Camp. Following a meeting with the judge, tria
6 of this matter was set for a date certain: June 7, 2010.
7 8. On or about May 12, 2009, the Abbotts had a portion of their property excavated
down to the footings. That day, they notified defendants of this excavation and invited them to
9 have their experts inspect it. Defendants objected to this excavation, asserting that discovery was
10 closed. However, on May 18, 2009, defendants experts did inspect the excavation.
11 9. I have met and conferred with defendants on this matter. They have made it clear
12 that I will need to bring a formal motion to reopen discovery in this case. That was the impetu;
13 for the ex parte application by defendant Britschgi, the minute order on which is attached hereto
14 as Exhibit A. During the May 28, 2009 hearing, attorneys for defendants Britschgi and CA
15 Construction made it clear that they would not allow discovery to be reopened without a court
16 order. Also attached hereto as Exhibit B is a true and correct copy of a May 13, 2009 letter from
17 Gregory Federico, attorney for defendant CA Construction, stating his opinion that plaintiff;
18 would need to seek leave of court to even conduct testing on their property. On June 24, 2009,1
19 faxed attorneys Craig Lundgren, Gregory Federico, and Richard Sopp a letter, asking if they
20 would stipulate to allow me to reopen discovery without a noticed motion. Mr. Lundgren'
21 office replied, reminding me that he was unavailable. But on June 25, 2009, Mr. Federico
22 replied, stating he would not so stipulate. Attached hereto as Exhibit C is a true and correct copy
23 of a June 25, 2009 letter from Gregory Federico, attorney for defendant CA Construction, stating
24 that he would not stipulate to reopening discovery, and that I would need to file a notice motion.
25 10. It is imperative that plaintiffs conduct additional testing on their home to
26 determine the nature and extent of the defects. I cannot properly try this case in June 201(
27 without all of the information relevant to the foundation, the soils, the compaction, and the grave
28 base. The Abbotts are in the process of getting additional testing done on their property to
Motion to Reopen Discovery - 7
1 determine if the soil under the house was properly compacted and as to whether sufficient gravel
2 was placed under the slab of the house. If discovery is reopened, then all parties will have an
3 opportunity to obtain the information obtained via this additional testing. Defendants have
4 made it clear that they will object to the admissibility of any evidence plaintiffs obtain via any
5 testing they perform after discovery closed prior to the May 11, 2009 trial date. Unless
6 discovery is reopened, plaintiffs will be in the position of not knowing what evidence may be
7 admissible at trial—even though it is relevant, probative, and material to the case—because
defendants may object to it as having been discovered by plaintiffs after the discovery cutofi
9 date.
10 I declare under penalty of perjury the foregoing is true and correct.
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12 n Dated: June ^^
2^2009 __,.
By:
Stephanie J. Finem
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Motion to Reopen Discovery - 8
{'ERIOR COURT OF CALIFORNIA,
COUNTY OF SACRAMENTO
GORDON D SCHABER COURTHOUSE
MINUTE ORDER
Date: 05/28/2009 Time: 09:00:00 AM Dept: 58
Judicial Officer Presiding: Judge Brian Van Camp
Clerk: A. Brown
Bailiff/Court Attendant: A. Hughey
ERM:
Reporter: E Varela #4977
Case Init. Date: 11/10/2007
Case No: 07AS04450 Case Title: RODNEY ABBOTT. ET AL VS. RONALD PAUL
BRITSCHGI. ETAL
Case Category: Civil - Unlimited
Event Type: Motion - Other - Civil Trial
Causal Document & Date Filed:
Appearances:
STEPHANIE J. FINELLI was present for the plaintiff
CRAIG N. LUNDGREN was present for defendant Britschgi
GREGORY K. FEDERICO was present for defendant CA Construction
PROCEEDINGS: PLAINTIFF'S EX PARTE APPLICATION FOR ORDER TO LIMIT TESTING WITHOUT
NOTICED MOTION
The above-entitled matter came before this Court by request of the defendant with the above-indicated
counsel present.
The Court recieved, read and considered the moving papers of the defendant and the opposition papers
of the plaintiffs.
The Court heard oral arguments of counsel.
The Court DENIED defendant's application and ruled that plaintiff must give all parties 15 days notice of
the complete scope of any further testing.
Moving party to serve and submit a formal order for the Court's signature within 5 days.
Court was adjourned.
Date: 05/28/2009 MINUTE ORDER Page: 1
Dept: 58 Calendar No.:
1S1SS4S5-
ARCHERNORRIS
A PROFESSIONAL LAW CORPORATION
655 University Avenue, Suite ZZS GREGORY K. FEDERICO
Sacramento, CA 95825-6747 gfederl03@archemorrts.cam
916,616.2480 916.646,2480
916.646.5696 (Fax)
www.archernorris.com
May 13,2009
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 County Superior Court Case No. 07AS04450
My Client: CA Construction
Our File No.: NIC-341
Dear Ms. Finelli;
We are in receipt of your letter dated May 12, 2009 wherein you inform the parties thai
Plaintiffs have excavated the Jand to the right of the garage and are in the process of performing
destructive testing to determine the compaction under the slab. The purpose of this letter is to
advise you of CA Construction's objection to Plaintiffs' proposed testing.
As you know, the initial trial date was set for May 11, 2009. You informed the defense
one day after the initial trial date that testing was underway. Discovery closed in this matter on
April 13,2009. Under Code of Civif Procedure S2Q24.02Q. a postponement of the trial date does
not re-open discovery proceedings. Further, expert discovery closed on April 27,2009. You
already offered the opinions of your experts and they are now foreclosed from conducting new
investigations to support the opinions they offered.
During the May 13, 2009 conference with Judge Brian R, Van Camp, the defense advised
the Judge that discovery was closed and that Plaintiffs were conducting testing beyond the
discovery cutoff. You agreed with the Judge that discovery was closed. Judge Van Camp's
order was clear - Plaintiffs are required to bring a formal motion to determine whether they are
permitted to conduct this testing. After the conference, you indicated to me that Plaintiffs will
proceed with the testing.
WALNUTCRECK SACRAMENTO NEWPORT OEACH LOS ANGELCS
12:24 1916646F' ^ ARCHER MORRIS PAGE 03/04
Stephanie Finelli, Esq.
Law Offices of Stephanie J. Finelli
May 13,2009
Page 2
Thus, if Mr. and Mrs. Abbott proceed with their testing, they do so at their own risk.
Discovery is closed in this matter, and it has been for sometime now. Testing at the 11 th hour is
improper and violates the provisions of the Discovery Act. We will seek to exclude any and all
results of this testing, including any data or opinions generated therefrom, at the time of trial.
Furthermore, such testing will be performed in direct contravention to Judge Van Camp's order
of May 13, 2009. If there is any doubt on your part that Judge Van Camp was requiring
Plaintiffs to seek leave of Court prior to conducting the testing, please so advise. I will be
happy to seek clarification from the Judge.
Thank you for your attention to this matter.
Very truly yours,
ARCHER NORRIS
/s/Gregory K. F&derico
Gregory K. Federico
GKF/sm
cc: All Counsel
NIC341/796539-1
06/25/2009 14:03 19166465caS ARCHER MORRIS PAGE 02/03
ARCHERNORRIS
A PROFESSIONAL LAW CORPORATION
ess University Avenue, Suite 225 GREGORY K. FEDERICO
Sacramento, CA 95825-6747 gfedertco^archernorrls.oom
916.646 2480 916.646.2480
916.646.5696 (Fox)
www.archernorris.com
June 25, 2009
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 County Superior Court Cose No. Q7AS04450
My Client: CA Construction
Our File No.: NIC-341
Dear Mrs. Finelli:
I am in receipt of your letter dated June 24,2009 wherein you request that the parties
stipulate to allow Plaintiffs to reopen discovery proceedings in the above-referenced matter. At
this time, CA Construction cannot stipulate to Plaintiffs' reopening discovery. As such, if
Plaintiffs wish to reopen discovery, a formal motion must be filed.
Thank you for your attention to this matter.
Very truly yours,
ARCHER NI
Gregory K. Federico
GKF/mc
cc: All Counsel (Via Fax)
WALNUT C K E E K SACRAMENTO NEWPORT BEACH LOS ANGELES
NIC34J/BI6354-I
PROOF OF SERVICE BY MAIL
CASE NAME: Abbott v. Britschgi
CASE NUMBER: Sacramento County Superior Court 07AS04450
I declare that:
I am a citizen of the United States and a resident of the County 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 June 26,2009, pursuant to CCP §1013A(2), I served the following:
MOTION FOR LEAVE TO REOPEN DISCOVERY; DECLARATION OF
STEPHANIE J. FINELLI
BY MAIL: by depositing a copy of said document in the United States mail in Sacramento,
California, in a sealed envelope, with postage fully prepaid, addressed as follows:
Craig Lundgren
424 2nd Street, Suite A
Davis, CA 95616
Gregory Federico
Archer Norris
655 University Ave., Suite 225
Sacramento, CA 95825
Richard Sopp
Maloney, Wheatley, Sopp & Brooks
1004 Moon River Rock Drive, Suite 245
Folsom, CA 95630
I declare under penalty of perjury under the laws of the State of California the
foregoing is true and correct.
DATED: June 26, 2009
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1 STEPHANIE J. FINELLI, SBN 173462 Law Office of Stephanie J. Finelli 2 1007-7th Street, Suite 500 Sacramento, CA 95814 3 tel 916-443-2144 AND MOTION #1 fax 916-443-1511 4 Attorney for Plaintiffs, 5 RODNEY and FLORENTINE ABBOTT 6 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SACRAMENTO 9 10 RODNEY ABBOT and FLORENTINE CaseNo.:07AS04450 ABBOTT, Plaintiffs, MOTION FOR LEAVE TO REOPEN DISCOVERY; DECLARATION OF 12 STEPHANIE J. FINELLI vs. 13 RONALD PAUL BRITSCHGI, et. al. Date: August 7, 2009 14 Time: 9:00 a.m. Defendants Dept: 54 15 Trial: 6/7/10 16 and related cross-actions 17 18 NOTICE OF MOTION 19 TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD: 20 NOTICE IS HEREBY GIVEN THAT on August 7, 2009 at 9:00 a.m. or as soon 21 thereafter as the matter may be heard, in Dept. 54 of the above-entitled court, located at 720 22 Ninth Street, Sacramento, California, 95814, plaintiffs RODNEY ABBOTT and FLORENTINE 23 ABBOTT move the court for leave to reopen discovery in this case. This motion is made undei 24 Code of Civil Procedure section 2024.050 on the grounds that additional discovery is necessary 25 to allow plaintiffs and defendants to determine the nature and extent of the defects to plaintiffs' 26 home, especially given the additional information plaintiffs acquired in April and May 2009, and) given that trial of this matter is not scheduled to begin until June 7, 2010. 27 28 Motion to Reopen Discovery - 1 i This motion is based on this notice, the attached memorandum of points and authorities, 2 the declaration of Stephanie J. Finelli and attached exhibits served and filed herewith, and the 3 pleadings, records and papers on file herein. 4 5 Pursuant to Local Rule 3.04, the court will make a tentative ruling on the merits of this matter by 2:00 p.m. the court day before the hearing. 6 To receive the tentative ruling, call the department in which the matter is 7 to be heard at 916-448-8239 (Dept. 53) or 916-448-8234 (Dept. 54). If you do not call the court and the opposing party by 4:00 p.m. the court 8 day before the hearing, no hearing will be held. 9 10 Dated: June^/,, 2009 ^ STEPHANIE JTFTNELLI 12 Attorney for Plaintiffs, RODNEY and FLO ABBOTT 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion to Reopen Discovery - 2 i POINTS AND AUTHORITIES 2 3 I. INTRODUCTION This is a construction defect case arising out of the construction of Plaintiffs' single- family custom home in 2005 to 2006. The complaint in this action was filed in September 2007. At that time, plaintiffs were represented by counsel. Thereafter, they were intermittently in pro per and represented by counsel until November 19, 2008 when present counsel substituted into the case. Trial was set for May 11, 2009. 9 At the time of the substitution, no depositions had been taken, and discovery was limite 10 to some written discovery requests and an informal production of documents by plaintiffs to the defendants. Meaningful discovery did not really begin on this case until December 2008, wher the first deposition was taken. Thereafter, Plaintiffs took defendants' depositions, anc defendants deposed plaintiffs and certain other witnesses. On March 23, 2009, expert witnesses were disclosed. Before then, plaintiffs' experts, including a licensed general building contractor and a licensed landscape architect, had inspected the home. Following those inspections anc prior to the depositions, the experts began to suspect that uncompacted fill had been placed undei the foundation of the home. This was based upon an evaluation and comparison of the topography of the land prior to any grading or construction and as it presently stands. 18 On April 9, 2009, Plaintiffs' house was inspected by a structural engineer as part of an insurance claim. This engineer opined, among other things, that the soil under the house anc garage slabs was not properly compacted. This report was prepared on April 18, 2009. Th< Abbotts obtained a copy of that report on or about May 19, 2009 and immediately forwarded a copy to all defendants via email. On April 15, 2009, less than one month from the trial date, defendants' experts conductec an on-site inspection of plaintiffs' home. While formulating their opinions in preparation for their depositions, certain of the 26 Abbott's retained experts discovered evidence that the house may not be built on compacted soil. At his April 27, 2009 deposition, James "Robert" Lee testified that he believed there was 28 Motion to Reopen Discovery - 3 uncompacted soil and fill under the house and garage, and that serious structural problems couk 2 result therefrom. 3 The trial was set for May 11, 2009. Due to the lack of available courtrooms, the case was 4 assigned to the Honorable Brian Van Camp. Following a meeting with the judge, trial of this 5 matter was set for a date certain: June 7, 2010. 6 On or about May 12, 2009, the Abbotts had a portion of their property excavated down to 7 the footings. That day, they notified defendants of this excavation and invited them to have their experts inspect it. Defendants objected to this excavation, asserting that discovery was closed. 9 However, on May 18, 2009, defendants experts did inspect the excavation. 10 Because plaintiffs have recently discovered additional defects with the home, anc 11 because additional testing is necessary to determine the extent of the defects and how they coulc 12 be repaired, plaintiffs seek leave of court to reopen discovery. The Abbotts are in the process oi 13 getting additional testing done on their property to determine if the soil under the house was 14 properly compacted, despite the absence of a compaction report from a soils engineer, and as to 15 whether sufficient gravel was placed under the slab of the house. However, given defendants' 16 objections to plaintiffs performing any testing on their own property, plaintiffs seek leave to 17 reopen discovery so that all parties may obtain information regarding the condition of plaintiffs' 18 home given this new information. 19 20 II. LEGAL ARGUMENT 21 A. Discovery Should Be Reopened in the Interests of Justice 22 It is imperative that plaintiffs discover the true facts regarding the extent of the defects tcj 23 their home before the June 7, 2010 trial. If the house is not built on compacted soil, that is a read 24 threat to its structural integrity. It also changes much of plaintiffs' lawsuit. Previously, plaintiffs 25 were largely concerned about the severe slope from the street to their garage and the fact thai 26 their house was so far below street level. Now that they understand the house and garage may be 27 built on uncompacted and unsuitable soil—and that the house may be structurally unsound anc 28 actually settling so as to render the structure unusable—the entire lawsuit has changed. In lighti Motion to Reopen Discovery - 4 of this, plaintiffs are also seeking to file a first amended complaint to name two additional defendants and to add allegations against the current defendants. Defendants will not be prejudiced by reopening discovery. Trial is almost one year away, and they have plenty of time to conduct discovery and apprise their experts of the results. Moreover, the testing plaintiffs seek to perform is not only to their own property, but is to property built by the defendants. Defendants thus already have knowledge as to (1) whether any part of the foundation was placed on uncompacted soil; (2) the amount of fill placed under the house and garage slabs; (3) the amount of gravel placed under the house and garage slabs; anc 9 (4) the actual depth of the footings and the amount and content of the backfill placed against the 10 retaining wall in the garage. These are facts of which defendants are aware without conducting 11 any discovery on plaintiffs' property. 12 Plaintiffs seek to reopen discovery so that neither party can or will be prejudiced, and all] 13 will have access to information concerning the nature and extent of the defects to plaintiffs' 14 property. This will actually benefit defendants, as this Court has previously denied defendants' 15 motion to limit testing plaintiffs may do on their own property, and ordered that plaintiffs 16 provide at least 15 days' notice for any additional testing. (See Exh A hereto.) Reopening 17 discovery will allow the free flow of information as to the true nature of plaintiffs' property so 18 that neither party is prejudiced. 19 20 III. CONCLUSION 21 Defendants will not be prejudiced by the reopening of discovery; to the contrary, they 22 will be able to conduct their own discovery as to the defects on plaintiffs' property. This wil 23 allow each party to properly prepare for trial—which is in June 2010. Plaintiffs respectfully 24 request that this Court order that discovery be reopened and remain open until the June 7, 2010 25 trial, and close commensurate with that trial date. 26 27 Dated: June 26,2009 Stephanie J^ Attorney for Plaintiffs Motion to Reopen Discovery - 5 DECLARATION OF STEPHANIE J. FINELLI I, Stephanie J. Finelli, hereby declare under penalty of perjury, and if called as a witness, would and competently testify as follows: 1. I am an attorney, duly licensed to practice in the State of California. I represent plaintiffs herein. 2. Attached hereto as Exhibit A is a true and correct copy of the Minute Order from the May 28, 2009 hearing on defendant Britschgi's ex parte application for an order limiting the testing plaintiffs were permitted to do on their own property. 9 3. I did not substitute in as Plaintiffs' attorney of record until November 17, 2008. 10 At that time, no depositions had been taken, and discovery was limited to some written discovery 11 requests and an "informal" production of documents by plaintiffs to the defendants. Meaningful 12 discovery did not really begin on this case until December 2008, when the first day of Florentine 13 Abbott's deposition was taken. In January and February 2009, I took defendants' depositions, 14 and defendants deposed plaintiffs and certain other witnesses. On March 23, 2009, expert 15 witnesses were disclosed. Shortly before then, plaintiffs' experts, including a licensed general 16 building contractor and a licensed landscape architect, had inspected the home. Following those 17 inspections and prior to the depositions, the experts began to suspect that uncompacted fill hac 18 been placed under the foundation of the home. This was based upon an evaluation am 19 comparison of the topography of the land prior to any grading or construction and as it presently 20 stands. 21 4. On April 9, 2009, Plaintiffs' house was inspected by a structural engineer as parti 22 of an insurance claim. This engineer opined, among other things, that the soil under the house 23 and garage slabs was not properly compacted. This report was prepared on April 18, 2009. The 24 Abbotts obtained a copy of that report on or about May 19, 2009 and immediately forwarded it to 25 me, and I immediately forwarded a copy to all defendants via email. 26 5. On April 15, 2009, less than one month from the trial date, defendants' experts 27 conducted an on-site inspection of plaintiffs' home. 28 Motion to Reopen Discovery - 6 1 6. At his April 27, 2009 deposition, James "Robert" Lee testified that he believed 2 there was uncompacted soil and fill under the house and garage, and that serious structural 3 problems could result therefrom. 4 7. The trial was set for May 11, 2009. Due to the lack of available courtrooms, the 5 case was assigned to the Honorable Brian Van Camp. Following a meeting with the judge, tria 6 of this matter was set for a date certain: June 7, 2010. 7 8. On or about May 12, 2009, the Abbotts had a portion of their property excavated down to the footings. That day, they notified defendants of this excavation and invited them to 9 have their experts inspect it. Defendants objected to this excavation, asserting that discovery was 10 closed. However, on May 18, 2009, defendants experts did inspect the excavation. 11 9. I have met and conferred with defendants on this matter. They have made it clear 12 that I will need to bring a formal motion to reopen discovery in this case. That was the impetu; 13 for the ex parte application by defendant Britschgi, the minute order on which is attached hereto 14 as Exhibit A. During the May 28, 2009 hearing, attorneys for defendants Britschgi and CA 15 Construction made it clear that they would not allow discovery to be reopened without a court 16 order. Also attached hereto as Exhibit B is a true and correct copy of a May 13, 2009 letter from 17 Gregory Federico, attorney for defendant CA Construction, stating his opinion that plaintiff; 18 would need to seek leave of court to even conduct testing on their property. On June 24, 2009,1 19 faxed attorneys Craig Lundgren, Gregory Federico, and Richard Sopp a letter, asking if they 20 would stipulate to allow me to reopen discovery without a noticed motion. Mr. Lundgren' 21 office replied, reminding me that he was unavailable. But on June 25, 2009, Mr. Federico 22 replied, stating he would not so stipulate. Attached hereto as Exhibit C is a true and correct copy 23 of a June 25, 2009 letter from Gregory Federico, attorney for defendant CA Construction, stating 24 that he would not stipulate to reopening discovery, and that I would need to file a notice motion. 25 10. It is imperative that plaintiffs conduct additional testing on their home to 26 determine the nature and extent of the defects. I cannot properly try this case in June 201( 27 without all of the information relevant to the foundation, the soils, the compaction, and the grave 28 base. The Abbotts are in the process of getting additional testing done on their property to Motion to Reopen Discovery - 7 1 determine if the soil under the house was properly compacted and as to whether sufficient gravel 2 was placed under the slab of the house. If discovery is reopened, then all parties will have an 3 opportunity to obtain the information obtained via this additional testing. Defendants have 4 made it clear that they will object to the admissibility of any evidence plaintiffs obtain via any 5 testing they perform after discovery closed prior to the May 11, 2009 trial date. Unless 6 discovery is reopened, plaintiffs will be in the position of not knowing what evidence may be 7 admissible at trial—even though it is relevant, probative, and material to the case—because defendants may object to it as having been discovered by plaintiffs after the discovery cutofi 9 date. 10 I declare under penalty of perjury the foregoing is true and correct. 11 12 n Dated: June ^^ 2^2009 __,. By: Stephanie J. Finem 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion to Reopen Discovery - 8 {'ERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO GORDON D SCHABER COURTHOUSE MINUTE ORDER Date: 05/28/2009 Time: 09:00:00 AM Dept: 58 Judicial Officer Presiding: Judge Brian Van Camp Clerk: A. Brown Bailiff/Court Attendant: A. Hughey ERM: Reporter: E Varela #4977 Case Init. Date: 11/10/2007 Case No: 07AS04450 Case Title: RODNEY ABBOTT. ET AL VS. RONALD PAUL BRITSCHGI. ETAL Case Category: Civil - Unlimited Event Type: Motion - Other - Civil Trial Causal Document & Date Filed: Appearances: STEPHANIE J. FINELLI was present for the plaintiff CRAIG N. LUNDGREN was present for defendant Britschgi GREGORY K. FEDERICO was present for defendant CA Construction PROCEEDINGS: PLAINTIFF'S EX PARTE APPLICATION FOR ORDER TO LIMIT TESTING WITHOUT NOTICED MOTION The above-entitled matter came before this Court by request of the defendant with the above-indicated counsel present. The Court recieved, read and considered the moving papers of the defendant and the opposition papers of the plaintiffs. The Court heard oral arguments of counsel. The Court DENIED defendant's application and ruled that plaintiff must give all parties 15 days notice of the complete scope of any further testing. Moving party to serve and submit a formal order for the Court's signature within 5 days. Court was adjourned. Date: 05/28/2009 MINUTE ORDER Page: 1 Dept: 58 Calendar No.: 1S1SS4S5- ARCHERNORRIS A PROFESSIONAL LAW CORPORATION 655 University Avenue, Suite ZZS GREGORY K. FEDERICO Sacramento, CA 95825-6747 gfederl03@archemorrts.cam 916,616.2480 916.646,2480 916.646.5696 (Fax) www.archernorris.com May 13,2009 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 County Superior Court Case No. 07AS04450 My Client: CA Construction Our File No.: NIC-341 Dear Ms. Finelli; We are in receipt of your letter dated May 12, 2009 wherein you inform the parties thai Plaintiffs have excavated the Jand to the right of the garage and are in the process of performing destructive testing to determine the compaction under the slab. The purpose of this letter is to advise you of CA Construction's objection to Plaintiffs' proposed testing. As you know, the initial trial date was set for May 11, 2009. You informed the defense one day after the initial trial date that testing was underway. Discovery closed in this matter on April 13,2009. Under Code of Civif Procedure S2Q24.02Q. a postponement of the trial date does not re-open discovery proceedings. Further, expert discovery closed on April 27,2009. You already offered the opinions of your experts and they are now foreclosed from conducting new investigations to support the opinions they offered. During the May 13, 2009 conference with Judge Brian R, Van Camp, the defense advised the Judge that discovery was closed and that Plaintiffs were conducting testing beyond the discovery cutoff. You agreed with the Judge that discovery was closed. Judge Van Camp's order was clear - Plaintiffs are required to bring a formal motion to determine whether they are permitted to conduct this testing. After the conference, you indicated to me that Plaintiffs will proceed with the testing. WALNUTCRECK SACRAMENTO NEWPORT OEACH LOS ANGELCS 12:24 1916646F' ^ ARCHER MORRIS PAGE 03/04 Stephanie Finelli, Esq. Law Offices of Stephanie J. Finelli May 13,2009 Page 2 Thus, if Mr. and Mrs. Abbott proceed with their testing, they do so at their own risk. Discovery is closed in this matter, and it has been for sometime now. Testing at the 11 th hour is improper and violates the provisions of the Discovery Act. We will seek to exclude any and all results of this testing, including any data or opinions generated therefrom, at the time of trial. Furthermore, such testing will be performed in direct contravention to Judge Van Camp's order of May 13, 2009. If there is any doubt on your part that Judge Van Camp was requiring Plaintiffs to seek leave of Court prior to conducting the testing, please so advise. I will be happy to seek clarification from the Judge. Thank you for your attention to this matter. Very truly yours, ARCHER NORRIS /s/Gregory K. F&derico Gregory K. Federico GKF/sm cc: All Counsel NIC341/796539-1 06/25/2009 14:03 19166465caS ARCHER MORRIS PAGE 02/03 ARCHERNORRIS A PROFESSIONAL LAW CORPORATION ess University Avenue, Suite 225 GREGORY K. FEDERICO Sacramento, CA 95825-6747 gfedertco^archernorrls.oom 916.646 2480 916.646.2480 916.646.5696 (Fox) www.archernorris.com June 25, 2009 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 County Superior Court Cose No. Q7AS04450 My Client: CA Construction Our File No.: NIC-341 Dear Mrs. Finelli: I am in receipt of your letter dated June 24,2009 wherein you request that the parties stipulate to allow Plaintiffs to reopen discovery proceedings in the above-referenced matter. At this time, CA Construction cannot stipulate to Plaintiffs' reopening discovery. As such, if Plaintiffs wish to reopen discovery, a formal motion must be filed. Thank you for your attention to this matter. Very truly yours, ARCHER NI Gregory K. Federico GKF/mc cc: All Counsel (Via Fax) WALNUT C K E E K SACRAMENTO NEWPORT BEACH LOS ANGELES NIC34J/BI6354-I PROOF OF SERVICE BY MAIL CASE NAME: Abbott v. Britschgi CASE NUMBER: Sacramento County Superior Court 07AS04450 I declare that: I am a citizen of the United States and a resident of the County 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 June 26,2009, pursuant to CCP §1013A(2), I served the following: MOTION FOR LEAVE TO REOPEN DISCOVERY; DECLARATION OF STEPHANIE J. FINELLI BY MAIL: by depositing a copy of said document in the United States mail in Sacramento, California, in a sealed envelope, with postage fully prepaid, addressed as follows: Craig Lundgren 424 2nd Street, Suite A Davis, CA 95616 Gregory Federico Archer Norris 655 University Ave., Suite 225 Sacramento, CA 95825 Richard Sopp Maloney, Wheatley, Sopp & Brooks 1004 Moon River Rock Drive, Suite 245 Folsom, CA 95630 I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct. DATED: June 26, 2009