Preview
1 Todd A. Jones (Bar No. 198024)
Gregory K. Federico (Bar No. 242184)
2 ARCHER NORRIS C ft! .££!/ 1 N 0 CIRSEB-
A Professional Law Corporation
3 655 University Avenue, Suite 225
Sacramento, California 95825-6747 MAY 6 2009
4 Telephone: 916.646.2480
Facsimile: 916.646.5696
5 Bv. A MACIAS
DEPUTY CLERK
Attorneys for Defendants and Cross-Defenda
6 RICHARD KIRK RUYBALID, individually, and
dba CA CONSTRUCTION
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10
11 RODNEY ABBOTT and FLORENTINE Case No. 07AS04450
ABBOTT,
12 CA CONSTRUCTION'S MEMORANDUM
Plaintiffs, OF POINTS AND AUTHORITIES IN
13 OPPOSITION TO PLAINTIFFS' EX-
V. PARTE APPLICATION FOR AN ORDER
14 SHORTENING TIME TO HEAR A
RONALD PAUL BRITSCHGI, et al., MOTION TO CONTINUE THE TRIAL
15 DATE; DECLARATION OF GREGORY K.
Defendants. FEDERICO IN SUPPORT THEREOF
16
' Action Filed: September 24, 2007
17
Trial Date: May 11, 2009
18
Ex-Parte Hearing: May 6, 2009
19 Time: 9:00 a.m.
20
AND ALL RELATED CROSS-ACTIONS.
21
22
23 I.
INTRODUCTION
24
Defendant and Cross-Defendant RICHARD KIRK RUYBALID, individually and dba CA
25
CONSTRUCTION (hereinafter "CA CONSTRUCTION") hereby files this Memorandum of
26
Points and Authorities in Opposition to Plaintiffs RODNEY and FLORENTINE ABBOTT' s
27
(hereinafter "PLAINTIFFS") Ex-Parte Application For An Order Shortening Time to Continue
28
NIC341/793563-1
CA CONSTRUCTION'S POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS' EX-PARTE
APPLICATION FOR AN OST TO HEAR A MOTION TO CONTINUE THE TRIAL DATE
1 The Trial Date. At the time of this filing, CA CONSTRUCTION has not received or reviewed
2 Plaintiffs' Ex-Parte Application or contents thereof. CA CONSTRUCTION requests that the
3 Court consider this filing prior to the Ex-Parte hearing.
4 II.
PERTINENT FACTS AND SUMMARY OF ARGUMENT
5
This case involves allegations of construction defects at a custom single-family home
6
located at 8601 Rolling Green Way in Fair Oaks, California. The PLAINTIFFS are the owners of
7
the home. Pursuant to owner/builder declarations filed with the Sacramento County Building
8
Department, Florence Abbott acted as the owner/builder for all phases of construction of the
9
subject home, which was built in the late 2005 to early 2006 time frame. PLAINTIFFS hired
10
Defendant Ronald Paul Britschgi (hereinafter "BRITSCHGI") to act as the general contractor for
11
the construction of the home through the framing stage. PLAINTIFFS entered into contracts with
12
individual contractors for various segments of the project, including CA CONSTRUCTION. CA
13
CONSTRUCTION supplied and installed the concrete foundation and garage slab per plans and
14
specifications. Finally, Cross-Defendant CADRE DESIGN GROUP, INC. (hereinafter
15
"CADRE") designed the home with substantial input from PLAINTIFFS. .
16
PLAINTIFFS allege that BRITSCHGI and CA CONSTRUCTION failed to properly
17
place the house and garage on the lot, particularly with regard to the elevation, as called for
18
pursuant to the plans and specifications and as requested by Mrs. Abbott. In addition, Plaintiffs
19
allege that BRITSCHGI and CA CONSTRUCTION breached their respective contracts, failed to
20
comply with all applicable building codes, and failed to comply with the standard of care within
21
the relevant industry.
22
During Mrs. Abbott's deposition, she indicated that the compaction beneath her house was
23
an issue she was concerned about. Mrs. Abbott's deposition was completed in December of 2008
24
and January of 2009. (Please see the excerpts of Florentine Abbott's deposition attached as
25
Exhibit "A" to the Declaration of Gregory K. Federico filed concurrently herewith).
26
PLAINTIFFS' retained consultants have also reiterated PLAINTIFFS' concern with the
27
compaction of the fill beneath the garage slab, and potentially the foundation for the house.
28
NIC341/793563-1 2
CA CONSTRUCTION'S POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS' EX-PARTE
APPLICATION FOR AN OST TO HEAR A MOTION TO CONTINUE THE TRIAL DATE
1 PLAINTIFFS' experts were produced for deposition on April 24 and 27, 2009. During the
2 depositions, PLAINTIFFS' experts indicated that it was their belief that the fill beneath the
3 garage slab and potentially the house foundation was improperly compacted or not compacted at
4 all. They also testified that it was their intention to opine on the compaction issues at the time of
5 trial. Upon questioning, however, they could not offer any evidence in support of these claims
6 and indicated that they had done no independent investigation into this issue. It is the Defendants
7 and Cross-Defendants' understanding that PLAINTIFFS now seek to continue the trial date based
8 on these unsupported assumptions.
9 Trial is set for this coming Monday, May 11, 2009. PLAINTIFFS have known about this
10 issue since Mrs. Abbott's deposition in late 2008 and early 2009, and potentially before these
11 dates. They have done nothing to pursue, investigate and substantiate these assumptions. Five
12 days before trial is not the time to notify the parties of their desire to conduct further testing in an
13 effort to find marginal support for their claims.
14
III.
15 PLAINTIFFS HAVE NOT MADE A SHOWING OF IRREPARABLE HARM,
IMMEDIATE DANGER, OR OTHER STATUTORY BASIS FOR EX-PARTE RELIEF
California Rules of Court, Rule 3.1202(c) provides the basis for which an exparte
application maybe brought. It states as follows:
18
An applicant must make an affirmative factual showing in a
19 declaration containing competent testimony based on personal
knowledge of irreparable harm, immediate danger, or any other
20 statutory basis for granting exparte.
2| For the following reasons, PLAINTIFFS have not made the requisite factual showing of
22 irreparable harm, immediate danger, or any other statutory basis for ex-parte relief.
23 A. Plaintiffs Have Unreasonably Delayed In Filing This Ex-Parte Application
For An Order Shortening Time To Continue The Trial
24
California Rules of Court, Rule 3.1332(b) provides that a party seeking a continuance of
25
the trial date must make the request,' either by motion or by Ex Parte application, as soon as
26
reasonably practical once the necessity for the continuance is discovered.
27
California Rules of Court, Rule 3.1332(c) provides in relevant part as follows:
28
NIC341/793563-1 3
CA CONSTRUCTION'S POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS' EX-PARTE
APPLICATION FOR AN OST TO HEAR A MOTION TO CONTINUE THE TRIAL DATE
1 "The court may grant a continuance only upon an affirmative
showing of good cause requiring the continuance. Circumstances
2 that may indicate good cause include:
3 (1) The unavailability of an essential lay or expert witness
because of death, illness, or other excusable circumstances;
4
(2) . The unavailability of a party because of death, illness, or
5 other excusable circumstances;
6
7 (6) A party's excused inability to obtain essential testimony,
documents, or other material evidence despite diligent
8 efforts..."
9 „„•. - California Rules of Court, Rule 3.1332(c)(6) is the most applicable factor for the Court to
10 consider with respect to PLAINTIFFS' current request to hear a motion to continue the trial date.
11 PLAINTIFFS' do not have an "excused inability to obtain essential testimony, documents, or
12 other material evidence despite diligent efforts...". PLAINTIFFS had knowledge of the
13 compaction issue at least as early as Mrs. Abbott's deposition in December 2008 and January
14 2009, and most likely much earlier than this. Despite this knowledge, PLAINTIFFS neglected to
15 conduct substantive discovery on this issue during the Code mandated discovery period.
1g PLAINTIFFS have shown no diligence in conducting discovery on this issue and therefore their
17 delay in failing to do so is inexcusable.
18 California Rules of Court, Rule 3.1332(d) also provides in part as follows:
19 "In ruling on a motion or application for continuance, the court
must consider all the facts and circumstances that are relevant to the
20 determination.
21 These may include:
22 (1) The proximity of the trial date;
23 (5) The prejudice that parties or witnesses will suffer as a result
of the continuance;
24
(10) Whether the interests of justice are best served by a
25 continuance, by the trial of the matter, or by imposing
conditions on the continuance; and
26
(11) Any other fact or circumstance relevant to the fair
27 determination of the motion or application."
28
NIC341/793563-1 4
CA CONSTRUCTION'S POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS' EX-PARTE
APPLICATION FOR AN OST TO HEAR A MOTION TO CONTINUE THE TRIAL DATE
1 The Court must consider that the trial of this matter is five (5) days away. All parties have
2 engaged in substantial trial preparation and have positioned their respective cases for trial. It
3 would work a great prejudice to allow the PLAINTIFFS to essentially re-open discovery on this
4 issue when they have had more than an ample time to investigate these issues. Good cause does
5 not exist for a brief trial continuance, and the moving party has not brought this application as
6 soon as reasonably practical after discovering the necessity for the continuance. PLAINTIFFS
7 have had an adequate opportunity to obtain discovery on this issue and have failed to do so. The
8 interests of justice are best served by proceeding with the trial as scheduled due to the substantial
9 work the parties have put into the case.
10 At a minimum, if the Court is inclined to grant PLAINTIFFS' application, the Court
11 should shorten time to allow the parties ample opportunity to brief the issue of whether a
12 continuance is warranted by the facts of this case.
13 VI.
14 CONCLUSION
Based upon the foregoing, CA CONSTRUCTION requests that the Court deny
15
PLAINTIFFS' Ex-Parte Application because the PLAINTIFFS have failed to make the requisite
16
factual showing of irreparable harm, immediate danger, or any other statutory basis necessary for
17
ex-parte relief.
18
In the alternative, CA CONSTRUCTION respectfully requests that this Court allow the
19
parties to brief the issue on a trial continuance.
20
21
22 Dated: May ,2009 ARCHER NORKIS
23
24
Gregory K. Federico
25 Attorneys for Defendants and Cross-
Defendants RICHARD KIRK RUYBALID,
26 individually, and dba CA CONSTRUCTION
27
28
NIC341/793563-1
CA CONSTRUCTION'S POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS' EX-PARTE
APPLICATION FOR AN OST TO HEAR A MOTION TO CONTINUE THE TRIAL DATE
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1 Todd A. Jones (Bar No. 198024) Gregory K. Federico (Bar No. 242184) 2 ARCHER NORRIS C ft! .££!/ 1 N 0 CIRSEB- A Professional Law Corporation 3 655 University Avenue, Suite 225 Sacramento, California 95825-6747 MAY 6 2009 4 Telephone: 916.646.2480 Facsimile: 916.646.5696 5 Bv. A MACIAS DEPUTY CLERK Attorneys for Defendants and Cross-Defenda 6 RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 RODNEY ABBOTT and FLORENTINE Case No. 07AS04450 ABBOTT, 12 CA CONSTRUCTION'S MEMORANDUM Plaintiffs, OF POINTS AND AUTHORITIES IN 13 OPPOSITION TO PLAINTIFFS' EX- V. PARTE APPLICATION FOR AN ORDER 14 SHORTENING TIME TO HEAR A RONALD PAUL BRITSCHGI, et al., MOTION TO CONTINUE THE TRIAL 15 DATE; DECLARATION OF GREGORY K. Defendants. FEDERICO IN SUPPORT THEREOF 16 ' Action Filed: September 24, 2007 17 Trial Date: May 11, 2009 18 Ex-Parte Hearing: May 6, 2009 19 Time: 9:00 a.m. 20 AND ALL RELATED CROSS-ACTIONS. 21 22 23 I. INTRODUCTION 24 Defendant and Cross-Defendant RICHARD KIRK RUYBALID, individually and dba CA 25 CONSTRUCTION (hereinafter "CA CONSTRUCTION") hereby files this Memorandum of 26 Points and Authorities in Opposition to Plaintiffs RODNEY and FLORENTINE ABBOTT' s 27 (hereinafter "PLAINTIFFS") Ex-Parte Application For An Order Shortening Time to Continue 28 NIC341/793563-1 CA CONSTRUCTION'S POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS' EX-PARTE APPLICATION FOR AN OST TO HEAR A MOTION TO CONTINUE THE TRIAL DATE 1 The Trial Date. At the time of this filing, CA CONSTRUCTION has not received or reviewed 2 Plaintiffs' Ex-Parte Application or contents thereof. CA CONSTRUCTION requests that the 3 Court consider this filing prior to the Ex-Parte hearing. 4 II. PERTINENT FACTS AND SUMMARY OF ARGUMENT 5 This case involves allegations of construction defects at a custom single-family home 6 located at 8601 Rolling Green Way in Fair Oaks, California. The PLAINTIFFS are the owners of 7 the home. Pursuant to owner/builder declarations filed with the Sacramento County Building 8 Department, Florence Abbott acted as the owner/builder for all phases of construction of the 9 subject home, which was built in the late 2005 to early 2006 time frame. PLAINTIFFS hired 10 Defendant Ronald Paul Britschgi (hereinafter "BRITSCHGI") to act as the general contractor for 11 the construction of the home through the framing stage. PLAINTIFFS entered into contracts with 12 individual contractors for various segments of the project, including CA CONSTRUCTION. CA 13 CONSTRUCTION supplied and installed the concrete foundation and garage slab per plans and 14 specifications. Finally, Cross-Defendant CADRE DESIGN GROUP, INC. (hereinafter 15 "CADRE") designed the home with substantial input from PLAINTIFFS. . 16 PLAINTIFFS allege that BRITSCHGI and CA CONSTRUCTION failed to properly 17 place the house and garage on the lot, particularly with regard to the elevation, as called for 18 pursuant to the plans and specifications and as requested by Mrs. Abbott. In addition, Plaintiffs 19 allege that BRITSCHGI and CA CONSTRUCTION breached their respective contracts, failed to 20 comply with all applicable building codes, and failed to comply with the standard of care within 21 the relevant industry. 22 During Mrs. Abbott's deposition, she indicated that the compaction beneath her house was 23 an issue she was concerned about. Mrs. Abbott's deposition was completed in December of 2008 24 and January of 2009. (Please see the excerpts of Florentine Abbott's deposition attached as 25 Exhibit "A" to the Declaration of Gregory K. Federico filed concurrently herewith). 26 PLAINTIFFS' retained consultants have also reiterated PLAINTIFFS' concern with the 27 compaction of the fill beneath the garage slab, and potentially the foundation for the house. 28 NIC341/793563-1 2 CA CONSTRUCTION'S POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS' EX-PARTE APPLICATION FOR AN OST TO HEAR A MOTION TO CONTINUE THE TRIAL DATE 1 PLAINTIFFS' experts were produced for deposition on April 24 and 27, 2009. During the 2 depositions, PLAINTIFFS' experts indicated that it was their belief that the fill beneath the 3 garage slab and potentially the house foundation was improperly compacted or not compacted at 4 all. They also testified that it was their intention to opine on the compaction issues at the time of 5 trial. Upon questioning, however, they could not offer any evidence in support of these claims 6 and indicated that they had done no independent investigation into this issue. It is the Defendants 7 and Cross-Defendants' understanding that PLAINTIFFS now seek to continue the trial date based 8 on these unsupported assumptions. 9 Trial is set for this coming Monday, May 11, 2009. PLAINTIFFS have known about this 10 issue since Mrs. Abbott's deposition in late 2008 and early 2009, and potentially before these 11 dates. They have done nothing to pursue, investigate and substantiate these assumptions. Five 12 days before trial is not the time to notify the parties of their desire to conduct further testing in an 13 effort to find marginal support for their claims. 14 III. 15 PLAINTIFFS HAVE NOT MADE A SHOWING OF IRREPARABLE HARM, IMMEDIATE DANGER, OR OTHER STATUTORY BASIS FOR EX-PARTE RELIEF California Rules of Court, Rule 3.1202(c) provides the basis for which an exparte application maybe brought. It states as follows: 18 An applicant must make an affirmative factual showing in a 19 declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other 20 statutory basis for granting exparte. 2| For the following reasons, PLAINTIFFS have not made the requisite factual showing of 22 irreparable harm, immediate danger, or any other statutory basis for ex-parte relief. 23 A. Plaintiffs Have Unreasonably Delayed In Filing This Ex-Parte Application For An Order Shortening Time To Continue The Trial 24 California Rules of Court, Rule 3.1332(b) provides that a party seeking a continuance of 25 the trial date must make the request,' either by motion or by Ex Parte application, as soon as 26 reasonably practical once the necessity for the continuance is discovered. 27 California Rules of Court, Rule 3.1332(c) provides in relevant part as follows: 28 NIC341/793563-1 3 CA CONSTRUCTION'S POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS' EX-PARTE APPLICATION FOR AN OST TO HEAR A MOTION TO CONTINUE THE TRIAL DATE 1 "The court may grant a continuance only upon an affirmative showing of good cause requiring the continuance. Circumstances 2 that may indicate good cause include: 3 (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; 4 (2) . The unavailability of a party because of death, illness, or 5 other excusable circumstances; 6 7 (6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent 8 efforts..." 9 „„•. - California Rules of Court, Rule 3.1332(c)(6) is the most applicable factor for the Court to 10 consider with respect to PLAINTIFFS' current request to hear a motion to continue the trial date. 11 PLAINTIFFS' do not have an "excused inability to obtain essential testimony, documents, or 12 other material evidence despite diligent efforts...". PLAINTIFFS had knowledge of the 13 compaction issue at least as early as Mrs. Abbott's deposition in December 2008 and January 14 2009, and most likely much earlier than this. Despite this knowledge, PLAINTIFFS neglected to 15 conduct substantive discovery on this issue during the Code mandated discovery period. 1g PLAINTIFFS have shown no diligence in conducting discovery on this issue and therefore their 17 delay in failing to do so is inexcusable. 18 California Rules of Court, Rule 3.1332(d) also provides in part as follows: 19 "In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the 20 determination. 21 These may include: 22 (1) The proximity of the trial date; 23 (5) The prejudice that parties or witnesses will suffer as a result of the continuance; 24 (10) Whether the interests of justice are best served by a 25 continuance, by the trial of the matter, or by imposing conditions on the continuance; and 26 (11) Any other fact or circumstance relevant to the fair 27 determination of the motion or application." 28 NIC341/793563-1 4 CA CONSTRUCTION'S POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS' EX-PARTE APPLICATION FOR AN OST TO HEAR A MOTION TO CONTINUE THE TRIAL DATE 1 The Court must consider that the trial of this matter is five (5) days away. All parties have 2 engaged in substantial trial preparation and have positioned their respective cases for trial. It 3 would work a great prejudice to allow the PLAINTIFFS to essentially re-open discovery on this 4 issue when they have had more than an ample time to investigate these issues. Good cause does 5 not exist for a brief trial continuance, and the moving party has not brought this application as 6 soon as reasonably practical after discovering the necessity for the continuance. PLAINTIFFS 7 have had an adequate opportunity to obtain discovery on this issue and have failed to do so. The 8 interests of justice are best served by proceeding with the trial as scheduled due to the substantial 9 work the parties have put into the case. 10 At a minimum, if the Court is inclined to grant PLAINTIFFS' application, the Court 11 should shorten time to allow the parties ample opportunity to brief the issue of whether a 12 continuance is warranted by the facts of this case. 13 VI. 14 CONCLUSION Based upon the foregoing, CA CONSTRUCTION requests that the Court deny 15 PLAINTIFFS' Ex-Parte Application because the PLAINTIFFS have failed to make the requisite 16 factual showing of irreparable harm, immediate danger, or any other statutory basis necessary for 17 ex-parte relief. 18 In the alternative, CA CONSTRUCTION respectfully requests that this Court allow the 19 parties to brief the issue on a trial continuance. 20 21 22 Dated: May ,2009 ARCHER NORKIS 23 24 Gregory K. Federico 25 Attorneys for Defendants and Cross- Defendants RICHARD KIRK RUYBALID, 26 individually, and dba CA CONSTRUCTION 27 28 NIC341/793563-1 CA CONSTRUCTION'S POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS' EX-PARTE APPLICATION FOR AN OST TO HEAR A MOTION TO CONTINUE THE TRIAL DATE