Preview
1 Todd A. Jones (Bar No. 198024)
Gregory K. Federico (Bar No. 242184)
ARCHER NORRIS
FILED"
2
A Professional Law Corporation ENDORSED
3 301 University Avenue, Suite 110
Sacramento, Califomia 95825 ' O O E C - 7 AMII: 0 0
4 Telephone: 916.646.2480 LEGAL PROCESS U l
Facsimile: 916.646.5696
5
Attomeys 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. 6 TO EXCLUDE
Plaintiffs, EXPERT WITNESS TESTIMONY THAT
13 IS OUTSIDE THE SCOPE OF THE
EXPERT'S DESIGNATION
14
RONALD PAUL BRITSCHGI, et al., Action Filed: September 24,2007
15
Defendants. Trial Date: January 17, 2011
16 Time. 8:30 a.m.
Location: Department 43
17
AND ALL RELATED CROSS-ACTIONS.
18
19
I.
20 INTRODUCTION
21
Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION
22
(hereinafter "CA CONSTRUCTION") and Defendant R4C0RP., INC. (hereinafter "R4C0RP")
23
(hereinafter collectively "Defendants") hereby incorporate by reference herein the "Introduction"
24
section set forth in its Motion in Limine No. 1.
25
///
26
///
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///
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N1C549/1058394-1
DEFENDANTS' MOTION IN LIMINE NO 6 TO EXCLUDE EXPERT TESTIMONY
OUTSIDE SCOPE OF DESIGNATION
1 MOTION IN LIMINE NO. 6 TO EXCLUDE EXPERT WITNESS TESTIMONY
THAT IS OUTSIDE THE SCOPE OF THE EXPERT'S DESIGNATION
2
Defendants hereby move this Court for an order precluding any testimony by an expert
3
witness that is beyond the scope ofthat expert's designation.
4
H.
5 ARGUMENT
6 A. Expert Witness Testimony Outside The Scope Of The Witness' Designation Should
Be Excluded At Trial
7
Code ofCivil Procedure §2034.260(c) addresses the exchange of expert witness
8
information by the parties in an action and it provides in pertinent part:
9
If any witness on the list is an expert as described in subdivision (b)
10 of Section 2034.210, the exchange shall also include or be
accompanied by an expert witness declaration signed only by the
attorney for the party designating the expert, or by that party if that
party has no attorney. This declaration shall be under penalty of
12 perjury and shall contain:
13 (2) A brief narrative statement ofthe general substance ofthe
testimony that the expert is expected to give.
14
In Bonds V Roy, 20 Cal.4th 140 (1999), the plaintiff sued a doctor for medical
15
malpractice committed during a surgical procedure. The parties exchanged expert designations,
16
including expert witness declarations pursuant to Section 2034.260. Id. at 142. The defendant
17
designated Dr. Jan Duncan as an expert, and the declaration described Duncan's expected
18
testimony as relating to damages. Id. However, at trial, the defendant's counsel sought to expand
19
the scope of Duncan's testimony to include testimony regarding the appropriate standard of care.
20
Id. at 143. The California Supreme Court held that this was not permitted. If a party wishes to
21
expand the scope of an expert's testimony beyond what is stated in the declaration, it must
22
successfully move for leave to amend that party's expert witness declaration with respect to the
23
general substance ofthe testimony that an expert previously designated is expected to give. Id. at
24
145. As the Court explained:
25
the very purposes ofthe expert witness discovery statute is to give
26 fair notice of what an expert will say at trial This allows the parties
to assess whether to take the expert's deposition, to fully explore
27 the relevant subject area at any such deposition, and to select an
expert who can respond with a competing opinion on that subject
28 area. Id. at 146-147.
N1C549/1058394-1 2
DEFENDANTS' MOTION IN LIMINE NO. 6 TO EXCLUDE EXPERT TESTIMONY
OUTSIDE SCOPE OF DESIGNATION
1 Allowing new and unexpected testimony for the first fime at trial is inconsistent with this
2 purpose. Id. at 148. Therefore, the Califomia Supreme Court held that the trial court in this case
3 properly limited the scope of Duncan's testimony to the general substance of what was previously
4 described in the expert witness declaration. Id. at 149
5 In the present case, it would be contrary to the holding of Bonds and contrary to the
6 language of Section 2034.260(c), to allow an expert to testify as to matters outside ofthe expert's
7 designafion as disclosed in his/her expert witness declaration. For instance, Plainfiffs have
8 designated James Dillingham as their structural engineer. The expert designation as required by
9 Code ofCivil Procedure §2034.260, idenfifies, inter aha, Dillingham's areas of testimony as:
10 "He is expected to testify as to the structure ofthe house, including
the garage, whether the house and garage are stmcturally sound, the
11 manner in which they could and/or should be repaired and/or
replaced, the cost of repair and replacement..."(See Declaration of
12 Gregory K. Federico and Exhibit-A thereto - Plainfiffs' Expert
Disclosure, pg.3:14-17).
In fact, at his expert deposition, Dillingham had no opinions about the house and restricted
14
his opinions to the vertical framing aspects ofthe garage. (See Defendants' Motion in Limine
15
No. 3 with excepts of Dillingham's testimony). His tesfimony is illustrative of his narrow
16
designation, scope of work and preparation:
17
18 *His scope of retention as defined by the plaintiff-was to talk about the structural capacity
ofthe house itself and the garage in particular(Dillingham, pg. 15.4-16) and he received
19 no additional charge from plaintiffs' attorney F/«e///(Dillingham, pg. 18:23-25; 19:1-3);
he changes his testimony and testifies that he is to testify onlv as to repair with respect to
20 the slab heisht(Di\\'m^ham, pg. 26:2-5); vet he admits that he is not an expert on
grafi(mg(Dillingham, pg. 25:6)
r.j *will offer opinion that the wall studs are too tall to meet the deflection requirementsfor
stucco and that project engineer was not informed of the height-but he does not know
23 where this information caOTe^o/w(Dillingham, pg. 28:3-21)
24 * he does not know who is responsible for the taller wall studs; the tall wall studs
were the only thing that he noted during his site visit that he feels he could testify
25 a6ow/(Dillingham, pg. 39:10-17)
26
"• he has observed no damage to the stucco waterproofing system on the
27 garage(Dillingham, pg. 54:2-8); has no opinion on whether there has been
movement in the framing ofthe house itself or movement in the foundation ofthe
28 /2ow5e(Dillingham, pg. 61:2-6;14-20;21-24).
NIC549/i058394-l e > re. 3
DEFENDANTS' MOTION IN LIMINE NO 6 TO EXCLUDE EXPERT TESTIMONY
OUTSIDE SCOPE OF DESIGNATION
1 Putfing aside his own admitted lack of qualifications to opine about the garage slab or
2 compaction claims, it is clear from his tesfimony that he is to testify only about "slab height",
3 wall stud height and not the myriad of issues set forth in his expert disclosure. If Plaintiffs'
4 structural engineer were to give testimony at trial regarding alleged deficiencies with the concrete
5 slab beneath the garage, or any other item of construction for that matter, scope of repair, cost of
6 repair, etc., such testimony should be excluded, as he has specifically identified the very narrow
7 areas of his opinion testimony. To allow such testimony would preclude the other parties in this
8 action from having an opportunity to adequately prepare to meet the testimony and counter the
9 testimony.
10 In addifion to Dillingham, Plainfiffs have disclosed Robert "Skip" Weahunt as one of
11 those rare experts who has an opinion on everything. He is disclosed via Code of Civil Procedure
12 §2034.260(c), as being prepared to offer an opinion as to:
13
'...the standard of care, whether the defendants were working
^^ under valid licenses when they performed the work for plaintiffs,
whether defendants complied with the plans, whether piaintiffs
^5 suffered any damages as a result of any of the defendants' action,
the scope and amount of such damages, the cost to repair and/or
^" replace plaintiffs' home and various aspects thereof,.. .the
responsibilities and obligations ofa licensed contractor hired by an
'' "owner-builder".. ."(See Declaration of Federico, Ehxibit-A,
Plainfiffs' Expert Disclosure, pg. 2:17-23)
18
Initially, we note that Weahunt is a general building contractor and, by his own
19
admission, not an architect, stmctural engineer or concrete contractor, so he is not qualified to
20
testify about the adequacy ofthe construction plans, or their lack thereof, or the alleged need to
21
raise the garage slab four (4) feet to bring it in line with the cul-de-sac that abuts Plaintiffs' home
22
(See Defendants' Mofion in Limine No. 2, Weahunt, pg. 252:24-25; 201:5-25; 202:19-21;
23
203:20-22). Furthermore, Weahunt admitted that he is not a grading contractor and has no
24
knowledge of grading issues (Weahunt, pg. 3810-16; pg. 46:4-15); and he admitted that he is not
25
a geotechnical engineer and is not qualified to testify about compaction issues (Weahunt, pg.
26
64:14-18). Thus, to allow Weahunt to give opinion testimony about such items exceeds the scope
27
of his disclosure by Plaintiffs and more importantly, exceeds his own very limited qualifications.
28
NIC549/1058394-i 4
DEFENDANTS' MOTION IN LIMINE NO. 6 TO EXCLUDE EXPERT TESTIMONY
OUTSIDE SCOPE OF DESIGNATION
1 Finally, Plaintiffs have disclosed James Lee, Jr., a landscape architect, via Code ofCivil
2 Procedure § 2034.260(c), as being prepared to offer an opinion as to:
3 "...the different opfions available to the parties to build the house
according to plans and the approximate cost of such
4 opfions.. .and.. .will also provide.. .a grading plan that could have
been used to grade the property so as to build the house according
5 to plans." (Declaration of Federico, Exhibit-A, Plaintiffs' Expert
Disclosure, pg. 2:4-9).
6
_ Again, Plaintiffs offer as an expert an individual with no skill, training, expertise or
g licensure by the State ofCalifomia to opine on architectural, construction or grading matters.
9 Also, Mr. Lee himself stated in deposition that most counties will not let him design actual
^0 retaining walls and perform the calculations to support the walls based on this qualifications.
(Lee, pg. 82:22-25;83:l-3)(See Defendants' Mofion in Limine No. 1 for excerpts of Lee's
12
testimony).
13
Lee by his own admission, states that he holds no construction licenses. He also states
14 ^
j^ that he prepares grading plans, but is not licensed to do so (Lee, pgs. 39:20-25;40:21-25;146:17-
16 19). Furthermore, he testifies that he is not prepared to render opinions on different options
17 available to the parties to build the house according to the plans and the approximate costs of such
18
options (Lee, pg. 44:8-12); he has not been authorized to create a grading plan and he cannot
19
calculate yardage, walls, or obtain informafion from other professionals (Lee, pg. 44:18-25).
20
As to Lee, he testifies that the soils under the garage were not properly compacted, but
21
22 later testifies that he does not know if compaction was adequate (Lee, pg. 74:6-19). He also
23 presumes that the stem wall ofthe garage would have been built on uncompacted fill, but later
24 testifies that he does not know ifthe stem wall was built on nafive ground. Finally, he is not
25 aware of its true height ofthe slab (Lee, pg. 126:1-5), and later admits that he does not know what
26
occurred under the slab (Lee, pg. 99:7-13). Plaintiffs' expert Lee is all over the map in his
27
opinions and exceeds the scope of his licensure as a landscape architect in his testimony and
28
NiC549/1058394-l 5
DEFENDANTS' MOTION IN LIMINE NO 6 TO EXCLUDE EXPERT TESTIMONY
OUTSIDE SCOPE OF DESIGNATION
disclosure.
2 III.
CONCLUSION
3
Based on the foregoing, Defendants respectfully request that this Court grant this motion
4
in limine to exclude any testimony by an expert witness that is outside ofthe scope ofthat
5
expert's designafion.
6
Dated: December 6, 2010 ARCHER NORRIS
7
8
9 Gregory K. Federico
Attomeys for Defendants RICHARD KIRK
10 RUYBALID, individually and dba CA
CONSTRUCTION; and R4C0RP., INC.
11
12
IT IS SO ORDERED.
13
14
DATED:
15
16
17 JUDGE OF THE SUPERIOR COURT
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N1C549/I058394-1
DEFENDANTS' MOTION IN LIMINE NO 6 TO EXCLUDE EXPERT TESTIMONY
OUTSIDE SCOPE OF DESIGNATION
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
1, 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
MOTION IN LIMINE NO. 6 TO EXCLUDE EXPERT WITNESS TESTIMONY
6 THAT IS OUTSIDE THE SCOPE OF THE EXPERT'S DESIGNATION
7 By placing a tme copy ofthe documents listed above, enclosed in a sealed envelope,
HI addressed as set forth below, for collection and mailing on the date and at the business
8 address shown above following our ordinary business pracfices. I am readily familiar
with this business' practice for collecfion and processing of correspondence for
9
mailing with the United States Postal Service. On the same day that a sealed envelope
10 is placed for collection and mailing, it is deposited in the ordinary course ofbusiness
with the United States Postal Service with postage fully prepaid.
11
I I By having a true copy ofthe document(s) listed above transmitted by facsimile to the
12 person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission
was reported as complete without error by a report issued by the transmitting facsimile
13
machine.
14
I I By placing a true copy ofthe document(s) listed above, in a box or other facility
15 regularly maintained by UPS, an express service carrier, or delivered to a courier or
driver authorized by the express service carrier to receive documents, in an envelope
16 designated by the express service carrier, with delivery fees paid or provided for,
addressed as set forth below.
17
rn by having personal delivery by FIRST LEGAL SUPPORT SERVICES a tnje copy of
18
the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the
19 address(es) set forth below.
20
[SEE ATTACHED SERVICE LIST]
21
22
1 declare under penalty ofperjury that the foregoing is true and correct. Executed on
23 Dccembei:..6r^ 10. at Sacramento, Califomia.
24
25 W^
DY A. INGLAND
26
27
28
NiC341/608293-l
PROOF OF SERVICE
1 Service List
2
Stephanie Finelli PLAINTIFFS
3 Law Offices of Stephanie J Finelli
1007 Seventh Street, Suite 500 Tel (916)443-2144
4 Sacramento, CA 95814 Fax:(916)443-1511
E-mail sfinelli700(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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N1C34I/608293-I
SERVICE LIST
Preview
1 Todd A. Jones (Bar No. 198024) Gregory K. Federico (Bar No. 242184) ARCHER NORRIS FILED" 2 A Professional Law Corporation ENDORSED 3 301 University Avenue, Suite 110 Sacramento, Califomia 95825 ' O O E C - 7 AMII: 0 0 4 Telephone: 916.646.2480 LEGAL PROCESS U l Facsimile: 916.646.5696 5 Attomeys 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. 6 TO EXCLUDE Plaintiffs, EXPERT WITNESS TESTIMONY THAT 13 IS OUTSIDE THE SCOPE OF THE EXPERT'S DESIGNATION 14 RONALD PAUL BRITSCHGI, et al., Action Filed: September 24,2007 15 Defendants. Trial Date: January 17, 2011 16 Time. 8:30 a.m. Location: Department 43 17 AND ALL RELATED CROSS-ACTIONS. 18 19 I. 20 INTRODUCTION 21 Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 22 (hereinafter "CA CONSTRUCTION") and Defendant R4C0RP., INC. (hereinafter "R4C0RP") 23 (hereinafter collectively "Defendants") hereby incorporate by reference herein the "Introduction" 24 section set forth in its Motion in Limine No. 1. 25 /// 26 /// 27 /// 28 N1C549/1058394-1 DEFENDANTS' MOTION IN LIMINE NO 6 TO EXCLUDE EXPERT TESTIMONY OUTSIDE SCOPE OF DESIGNATION 1 MOTION IN LIMINE NO. 6 TO EXCLUDE EXPERT WITNESS TESTIMONY THAT IS OUTSIDE THE SCOPE OF THE EXPERT'S DESIGNATION 2 Defendants hereby move this Court for an order precluding any testimony by an expert 3 witness that is beyond the scope ofthat expert's designation. 4 H. 5 ARGUMENT 6 A. Expert Witness Testimony Outside The Scope Of The Witness' Designation Should Be Excluded At Trial 7 Code ofCivil Procedure §2034.260(c) addresses the exchange of expert witness 8 information by the parties in an action and it provides in pertinent part: 9 If any witness on the list is an expert as described in subdivision (b) 10 of Section 2034.210, the exchange shall also include or be accompanied by an expert witness declaration signed only by the attorney for the party designating the expert, or by that party if that party has no attorney. This declaration shall be under penalty of 12 perjury and shall contain: 13 (2) A brief narrative statement ofthe general substance ofthe testimony that the expert is expected to give. 14 In Bonds V Roy, 20 Cal.4th 140 (1999), the plaintiff sued a doctor for medical 15 malpractice committed during a surgical procedure. The parties exchanged expert designations, 16 including expert witness declarations pursuant to Section 2034.260. Id. at 142. The defendant 17 designated Dr. Jan Duncan as an expert, and the declaration described Duncan's expected 18 testimony as relating to damages. Id. However, at trial, the defendant's counsel sought to expand 19 the scope of Duncan's testimony to include testimony regarding the appropriate standard of care. 20 Id. at 143. The California Supreme Court held that this was not permitted. If a party wishes to 21 expand the scope of an expert's testimony beyond what is stated in the declaration, it must 22 successfully move for leave to amend that party's expert witness declaration with respect to the 23 general substance ofthe testimony that an expert previously designated is expected to give. Id. at 24 145. As the Court explained: 25 the very purposes ofthe expert witness discovery statute is to give 26 fair notice of what an expert will say at trial This allows the parties to assess whether to take the expert's deposition, to fully explore 27 the relevant subject area at any such deposition, and to select an expert who can respond with a competing opinion on that subject 28 area. Id. at 146-147. N1C549/1058394-1 2 DEFENDANTS' MOTION IN LIMINE NO. 6 TO EXCLUDE EXPERT TESTIMONY OUTSIDE SCOPE OF DESIGNATION 1 Allowing new and unexpected testimony for the first fime at trial is inconsistent with this 2 purpose. Id. at 148. Therefore, the Califomia Supreme Court held that the trial court in this case 3 properly limited the scope of Duncan's testimony to the general substance of what was previously 4 described in the expert witness declaration. Id. at 149 5 In the present case, it would be contrary to the holding of Bonds and contrary to the 6 language of Section 2034.260(c), to allow an expert to testify as to matters outside ofthe expert's 7 designafion as disclosed in his/her expert witness declaration. For instance, Plainfiffs have 8 designated James Dillingham as their structural engineer. The expert designation as required by 9 Code ofCivil Procedure §2034.260, idenfifies, inter aha, Dillingham's areas of testimony as: 10 "He is expected to testify as to the structure ofthe house, including the garage, whether the house and garage are stmcturally sound, the 11 manner in which they could and/or should be repaired and/or replaced, the cost of repair and replacement..."(See Declaration of 12 Gregory K. Federico and Exhibit-A thereto - Plainfiffs' Expert Disclosure, pg.3:14-17). In fact, at his expert deposition, Dillingham had no opinions about the house and restricted 14 his opinions to the vertical framing aspects ofthe garage. (See Defendants' Motion in Limine 15 No. 3 with excepts of Dillingham's testimony). His tesfimony is illustrative of his narrow 16 designation, scope of work and preparation: 17 18 *His scope of retention as defined by the plaintiff-was to talk about the structural capacity ofthe house itself and the garage in particular(Dillingham, pg. 15.4-16) and he received 19 no additional charge from plaintiffs' attorney F/«e///(Dillingham, pg. 18:23-25; 19:1-3); he changes his testimony and testifies that he is to testify onlv as to repair with respect to 20 the slab heisht(Di\\'m^ham, pg. 26:2-5); vet he admits that he is not an expert on grafi(mg(Dillingham, pg. 25:6) r.j *will offer opinion that the wall studs are too tall to meet the deflection requirementsfor stucco and that project engineer was not informed of the height-but he does not know 23 where this information caOTe^o/w(Dillingham, pg. 28:3-21) 24 * he does not know who is responsible for the taller wall studs; the tall wall studs were the only thing that he noted during his site visit that he feels he could testify 25 a6ow/(Dillingham, pg. 39:10-17) 26 "• he has observed no damage to the stucco waterproofing system on the 27 garage(Dillingham, pg. 54:2-8); has no opinion on whether there has been movement in the framing ofthe house itself or movement in the foundation ofthe 28 /2ow5e(Dillingham, pg. 61:2-6;14-20;21-24). NIC549/i058394-l e > re. 3 DEFENDANTS' MOTION IN LIMINE NO 6 TO EXCLUDE EXPERT TESTIMONY OUTSIDE SCOPE OF DESIGNATION 1 Putfing aside his own admitted lack of qualifications to opine about the garage slab or 2 compaction claims, it is clear from his tesfimony that he is to testify only about "slab height", 3 wall stud height and not the myriad of issues set forth in his expert disclosure. If Plaintiffs' 4 structural engineer were to give testimony at trial regarding alleged deficiencies with the concrete 5 slab beneath the garage, or any other item of construction for that matter, scope of repair, cost of 6 repair, etc., such testimony should be excluded, as he has specifically identified the very narrow 7 areas of his opinion testimony. To allow such testimony would preclude the other parties in this 8 action from having an opportunity to adequately prepare to meet the testimony and counter the 9 testimony. 10 In addifion to Dillingham, Plainfiffs have disclosed Robert "Skip" Weahunt as one of 11 those rare experts who has an opinion on everything. He is disclosed via Code of Civil Procedure 12 §2034.260(c), as being prepared to offer an opinion as to: 13 '...the standard of care, whether the defendants were working ^^ under valid licenses when they performed the work for plaintiffs, whether defendants complied with the plans, whether piaintiffs ^5 suffered any damages as a result of any of the defendants' action, the scope and amount of such damages, the cost to repair and/or ^" replace plaintiffs' home and various aspects thereof,.. .the responsibilities and obligations ofa licensed contractor hired by an '' "owner-builder".. ."(See Declaration of Federico, Ehxibit-A, Plainfiffs' Expert Disclosure, pg. 2:17-23) 18 Initially, we note that Weahunt is a general building contractor and, by his own 19 admission, not an architect, stmctural engineer or concrete contractor, so he is not qualified to 20 testify about the adequacy ofthe construction plans, or their lack thereof, or the alleged need to 21 raise the garage slab four (4) feet to bring it in line with the cul-de-sac that abuts Plaintiffs' home 22 (See Defendants' Mofion in Limine No. 2, Weahunt, pg. 252:24-25; 201:5-25; 202:19-21; 23 203:20-22). Furthermore, Weahunt admitted that he is not a grading contractor and has no 24 knowledge of grading issues (Weahunt, pg. 3810-16; pg. 46:4-15); and he admitted that he is not 25 a geotechnical engineer and is not qualified to testify about compaction issues (Weahunt, pg. 26 64:14-18). Thus, to allow Weahunt to give opinion testimony about such items exceeds the scope 27 of his disclosure by Plaintiffs and more importantly, exceeds his own very limited qualifications. 28 NIC549/1058394-i 4 DEFENDANTS' MOTION IN LIMINE NO. 6 TO EXCLUDE EXPERT TESTIMONY OUTSIDE SCOPE OF DESIGNATION 1 Finally, Plaintiffs have disclosed James Lee, Jr., a landscape architect, via Code ofCivil 2 Procedure § 2034.260(c), as being prepared to offer an opinion as to: 3 "...the different opfions available to the parties to build the house according to plans and the approximate cost of such 4 opfions.. .and.. .will also provide.. .a grading plan that could have been used to grade the property so as to build the house according 5 to plans." (Declaration of Federico, Exhibit-A, Plaintiffs' Expert Disclosure, pg. 2:4-9). 6 _ Again, Plaintiffs offer as an expert an individual with no skill, training, expertise or g licensure by the State ofCalifomia to opine on architectural, construction or grading matters. 9 Also, Mr. Lee himself stated in deposition that most counties will not let him design actual ^0 retaining walls and perform the calculations to support the walls based on this qualifications. (Lee, pg. 82:22-25;83:l-3)(See Defendants' Mofion in Limine No. 1 for excerpts of Lee's 12 testimony). 13 Lee by his own admission, states that he holds no construction licenses. He also states 14 ^ j^ that he prepares grading plans, but is not licensed to do so (Lee, pgs. 39:20-25;40:21-25;146:17- 16 19). Furthermore, he testifies that he is not prepared to render opinions on different options 17 available to the parties to build the house according to the plans and the approximate costs of such 18 options (Lee, pg. 44:8-12); he has not been authorized to create a grading plan and he cannot 19 calculate yardage, walls, or obtain informafion from other professionals (Lee, pg. 44:18-25). 20 As to Lee, he testifies that the soils under the garage were not properly compacted, but 21 22 later testifies that he does not know if compaction was adequate (Lee, pg. 74:6-19). He also 23 presumes that the stem wall ofthe garage would have been built on uncompacted fill, but later 24 testifies that he does not know ifthe stem wall was built on nafive ground. Finally, he is not 25 aware of its true height ofthe slab (Lee, pg. 126:1-5), and later admits that he does not know what 26 occurred under the slab (Lee, pg. 99:7-13). Plaintiffs' expert Lee is all over the map in his 27 opinions and exceeds the scope of his licensure as a landscape architect in his testimony and 28 NiC549/1058394-l 5 DEFENDANTS' MOTION IN LIMINE NO 6 TO EXCLUDE EXPERT TESTIMONY OUTSIDE SCOPE OF DESIGNATION disclosure. 2 III. CONCLUSION 3 Based on the foregoing, Defendants respectfully request that this Court grant this motion 4 in limine to exclude any testimony by an expert witness that is outside ofthe scope ofthat 5 expert's designafion. 6 Dated: December 6, 2010 ARCHER NORRIS 7 8 9 Gregory K. Federico Attomeys for Defendants RICHARD KIRK 10 RUYBALID, individually and dba CA CONSTRUCTION; and R4C0RP., INC. 11 12 IT IS SO ORDERED. 13 14 DATED: 15 16 17 JUDGE OF THE SUPERIOR COURT 18 19 20 21 22 23 24 25 26 27 28 N1C549/I058394-1 DEFENDANTS' MOTION IN LIMINE NO 6 TO EXCLUDE EXPERT TESTIMONY OUTSIDE SCOPE OF DESIGNATION 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 1, 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 MOTION IN LIMINE NO. 6 TO EXCLUDE EXPERT WITNESS TESTIMONY 6 THAT IS OUTSIDE THE SCOPE OF THE EXPERT'S DESIGNATION 7 By placing a tme copy ofthe documents listed above, enclosed in a sealed envelope, HI addressed as set forth below, for collection and mailing on the date and at the business 8 address shown above following our ordinary business pracfices. I am readily familiar with this business' practice for collecfion and processing of correspondence for 9 mailing with the United States Postal Service. On the same day that a sealed envelope 10 is placed for collection and mailing, it is deposited in the ordinary course ofbusiness with the United States Postal Service with postage fully prepaid. 11 I I By having a true copy ofthe document(s) listed above transmitted by facsimile to the 12 person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission was reported as complete without error by a report issued by the transmitting facsimile 13 machine. 14 I I By placing a true copy ofthe document(s) listed above, in a box or other facility 15 regularly maintained by UPS, an express service carrier, or delivered to a courier or driver authorized by the express service carrier to receive documents, in an envelope 16 designated by the express service carrier, with delivery fees paid or provided for, addressed as set forth below. 17 rn by having personal delivery by FIRST LEGAL SUPPORT SERVICES a tnje copy of 18 the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the 19 address(es) set forth below. 20 [SEE ATTACHED SERVICE LIST] 21 22 1 declare under penalty ofperjury that the foregoing is true and correct. Executed on 23 Dccembei:..6r^ 10. at Sacramento, Califomia. 24 25 W^ DY A. INGLAND 26 27 28 NiC341/608293-l PROOF OF SERVICE 1 Service List 2 Stephanie Finelli PLAINTIFFS 3 Law Offices of Stephanie J Finelli 1007 Seventh Street, Suite 500 Tel (916)443-2144 4 Sacramento, CA 95814 Fax:(916)443-1511 E-mail sfinelli700(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 N1C34I/608293-I SERVICE LIST