Preview
1 Todd A. Jones (Bar No. 1 98024) „ .
Gregory K. Federico (Bar No. 242 1 84) .x ^rf^ Cfi^CMftfTR^ S-H"~
2 ARPHFR NORRTS ( *-- —t-HsrEj^jft la U U i * w i- **
A Professional Law Corporation """"""
3 655 University Avenue, Suite 225 UAV 6 ?f)DQ
MAY
Sacramento, California 95825-6747 ^U
4 Telephone: 916.646.2480
Facsimile: 916.646.5696 Ru A MACIAS
5 DEPUTY CLERK
Attorneys for Defendants and Cross-Defendants
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 DECLARATION OF GREGORY K.
Plaintiffs, FEDERICO IN SUPPORT OF CA
13 CONSTRUCTION'S OPPOSITION TO
V.
+
PLAINTIFFS' EX-PARTE APPLICATION
14 FOR AN ORDER SHORTENING TIME TO
RONALD PAUL BRITSCHGI, et al., HEAR A MOTION TO CONTINUE THE
15 TRIAL DATE
Defendants.
16 Action Filed: September 24, 2007
17 Trial Date: May 11, 2009
18 Ex-Parte Hearing: May 6, 2009
Time: 9:00 a.m.
19
20 AND ALL RELATED CROSS-ACTIONS.
21
22
I, Gregory K. Federico, declare as follows:
23
1. I am an attorney duly licensed to practice before all the Courts in the State of
24
California and I am an associate with Archer Norris, attorneys of record for Defendant and Cross-
25
Complainant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION
26
(hereinafter "CA CONSTRUCTION"). I have personal knowledge of the matters set forth herein
27
except where stated on information and belief. If called upon as a witness in this matter, I could
28
NIC341/793622-1
DECLARATION OF GREGORY K FEDERICO IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO
PLAINTIFFS' EX-PARTE APPLICATION FOR A MOTION TO CONTINUE THE TRIAL DATE
1 and would competently testify thereto.
2 2. This case involves allegations of construction defects at a custom single-family
3 home located at 8601 Rolling Green Way in Fair Oaks, California. Plaintiffs RODNEY and
4 FLORENTINE ABBOTT (hereinafter "PLAINTIFFS") are the owners of the home. Pursuant to
5 owner/builder declarations filed with the Sacramento County Building Department, Florence
6 Abbott acted as the owner/builder for all phases of construction of the subject home, which was
7 built in the late 2005 to early 2006 time frame.
8 3. PLAINTIFFS hired Defendant Ronald Paul Britschgi (hereinafter "BRITSCHGI")
9 to act as the general contractor for the construction of the home through the framing stage.
10 4. PLAINTIFFS entered into contracts with individual contractors for various
11 segments of the project, including CA CONSTRUCTION. CA CONSTRUCTION supplied and
12 installed the concrete foundation and garage slab per plans and specifications.
13 5. Cross-Defendant CADRE DESIGN GROUP, INC. (hereinafter "CADRE")
14 designed the home with substantial input from PLAINTIFFS.
15 6. PLAINTIFFS allege that BRITSCHGI and CA CONSTRUCTION failed to
16 properly place the house and garage on the lot, particularly with regard to the elevation, as called
17 for pursuant to the plans and specifications and as requested by Mrs. Abbott. In addition,
18 Plaintiffs allege that BRITSCHGI and CA CONSTRUCTION breached their respective contracts,
19 failed to comply with all applicable building codes, and failed to comply with the standard of care
20 within the relevant industry.
21 7. During Mrs. Abbott's deposition, she indicated that the compaction beneath her
22 house was an issue she was concerned about. Mrs. Abbott's deposition was completed in
23 December of 2008 and January of 2009. See Exhibit "A" attached hereto.
24 8. PLAINTIFFS' retained consultants have also reiterated PLAINTIFFS' concern
25 with the compaction of the fill beneath the garage slab, and potentially the foundation for the
26 house. PLAINTIFFS' experts were produced for deposition on April 24 and 27, 2009. During
27 the depositions, PLAINTIFFS' experts indicated that it was their belief that the fill beneath the
28 garage slab and potentially the house foundation was improperly compacted or not compacted at
NIC34I/793622-1 2
DECLARATION OF GREGORY K. FEDERICO IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO
PLAINTIFFS' EX-PARTE APPLICATION FOR A MOTION TO CONTINUE THE TRIAL DATE
1 all. They also testified that it was their intention to opine on the compaction issues at the time of
2 trial. Upon questioning, however, they could not offer any evidence in support of these claims
3 and indicated that they had done no independent investigation into this issue.
4 9. PLAINTIFFS now seek to continue the trial date based on these unsupported
5 assumptions of their retained consultants.
6 10. Trial is set for this coming Monday, May 11, 2009.
7 11. PLAINTIFFS have had knowledge of the potential compaction issue since Mrs.
8 Abbott's deposition in late 2008 and early 2009, and potentially before these dates. They have
9 done nothing in terms of pre-trial discovery to pursue, investigate and substantiate these
10 assumptions.
11 12. PLAINTIFFS have not made the requisite factual showing of irreparable harm,
12 immediate danger, or any other statutory basis for ex-parte relief, nor have they shown good
13 cause necessary for consideration of a trial continuance.
14
15 I declare under penalty of perjury under the laws of the State of California that the
16 foregoing is true and correct. Executed this 5th day of May, 2009, aJ^Sa^ramento, California.
17
18 n
19 GREGORY It. FEDERICO
20
21
22
23
24
25
26
27
28
NIC341/793622-1 3
DECLARATION OF GREGORY K. FEDERICO IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO
PLAINTIFFS' EX-PARTE APPLICATION FOR A MOTION TO CONTINUE THE TRIAL DATE
Condensed Transcript
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SACRAMENTO
RODNEY ABBOTT and FLORENTINE
ABBOTT,
Plaintiffs,
CASE NO.
vs. 07AS04450
RONALD PAUL BRTTSCHGI, individually
and dba BRTTSCHGICONSTRCTUION,
RICHARD KIRK RUYBALID, individually
and dba CA CONSTRUCTION, SURETY
COMPANY OF THE PACIFIC, WESTERN
SURETY COMPANY, and DOES 1 through
20, inclusive,
Defendants.
DEPOSITION OF
FLORENTINE ABBOTT
December 15, 2008
215 1 River Plaza Drive, Suite 300
Sacramento, California
Tend Tavita, CSR No. 1 1962
Toll Free: 800.300.1214
Facsimile: 916.446.2777
ESQUIRE
DEPOSITION SERVICES'
L SO
REPORTING & LITIGATION SERVICES. LLC Suite 300
2151 River Plaza Drive
Sacramento, CA 95833
www.paulsonreportlnq.com
\
Exhibit
Condensed Transcript
DSf THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SACRAMENTO
RODNEY ABBOTT and FLORENTINE
ABBOTT,
Plaintiffs,
CASE NO.
vs. 07AS04450
RONALD PAUL BRTTSCHGI, individually
and dba BRTTSCHGICONSTRCTUION,
RICHARD KIRK RUYBALID, individually
and dba CA CONSTRUCTION, SURETY
COMPANY OF THE PACIFIC, WESTERN
SURETY COMPANY, and DOES 1 through
20, inclusive,
Defendants.
DEPOSITIONOF
FLORENTINE ABBOTT
December 15, 2008
2151 River Plaza Drive, Suite 300
Sacramento, California
Terri Tavita, CSR No. 1 1962
Toll Free: 800.300.1214
Facsimile: 916.446.2777
ESQUIRE
DEPOSITION SERVICES*
L SO
R E P O R T I N G & U T I G A T I O N SERVICES, LLC
Suite 300
2151 River Plaza Drive
Sacramento, CA 95833
www.paulsonreportlnq.com
\
t I
Florentine AJ-_,ott December 15, 2008
1 3
IN THE SUPERIOR COURT OP THE STATE OF CALIFORNIA 1 APPEARANCES OF COUNSEL (Continued)
IN AND FOR THE COUNTY OF SACRAMENTO
2
RODNEY ABBOTT and
FLORENTINE ABBOTT, 3 For Cadre Design, Defendant:
Plaintiffs, 4
vs. CASE NO. 07AS04450
5 MALONEY WHEATLEY SOPP & BROOKS, LLP
6 RICHARD D. SOPP, ESQ.
RONALD PAUL BRITECHGI,
individually and dba 7 1004 River Rock Drive, Suite 241
BRITSCHOI COHSTRCTOIOH,
RICHARD KIRK RDYBALID,
8 Folsom, California 95630
individually and dba 9 (916) 988-3857
CA CONSTRUCTION, SURETY
COMPANY OF THE PACIFIC, 10
WESTERN SURETY COMPANY,
and DOES 1 through 20, 11 Also present:
inclusive. 12
Defendants.
Al PCLJ 1 f^ OAKI^*U[T7
13 ALBtm O. oANUnti
DEPOSITION O? 14
FLORENTINE ABBOTT
15
December 15, 2008
11:10 a.m. 16
17
2151 River Plaza Drive, Suite 300
Sacramento, California 18
Tern Tavita, CSR No. 11562 19
20
21
22
23
24
25
2 4
1 APPEARANCES OF COUNSEL 1 INDEX OF EXAMINATION
2 2
3 For Plaintiffs: 3 WITNESS: FLORENTINE ABBOTT
4 4
5 LAW OFFICE OF STEPHANIE J. FINELLI 5 EXAMINATION PAGE
6 STEPHANIE J. FINELLI, ESQ. 6
7 1007 7th Street. Suite 500 7 BY MR. LUNDGREN 5
8 Sacramento, California 95814 8
9 (916)443-2144 9
10 10 INDEX TO EXHIBITS
11 For CA Construction, Defendant: 11 EXHIBITS MARKED
12 12
13 ARCHER NORRIS 13 1 Blueprints, 11-8-05 62
14 GREGORY K. FEDERICO. ESQ. 14 2 Blueprints 67
15 655 University Avenue, Suite 225 15 3 Six color photographs 76
16 Sacramento, California 95825 16 4 Three color photographs 83
17 (916) 646-2480 17 5 Cadre Design Rolling Green Way 116
18 18 improvement agreement
19 For Rondal Britschgi, Defendant: 19
20 20
21 THE LAW OFFICES OF CRAIG N. LUNDGREN 21
22 CRAIG N. LUNDGREN, ESQ. 22
23 424 2nd Street, Suite A 23
24 Davis, California 95616 24
25 (530) 792-8800 25
Toll Free: 800.300.1214
Facsimile: 916.446.2777
ESQUIRE S O 1ST Suite 300
REPORTING ft LITIGATION SERVICES, LI.C 2151 River Plaza Drive
DEPOSITION SERVICES* Sacramento, CA 95833
www.paulsonreporting.com
Florentine Abbott December 15, 2008
45 47
A Okay. 1 A I donl believe so.
(Recess) 2 MS. FINELLI: Object to the extent it calls for
BY MR. LUNDGREN: 3 an expert opinion.
Q Mrs. Abbott, you are still under the same 4 MR. LUNDGREN: She is a contractor.
oath as you were this morning? s Q You can go ahead and answer.
A Yes. 6 A No. It was not followed. He did not
Q Can you tell me what exactly are the 7 follow the plans.
issues you want to resolve in this lawsuit? 8 Q What aspect of the foundation is
MS. FINELLI: Object. First of all, it's 9 inconsistent with the plans?
vague, and potentially calls for a legal conclusion. 10 MS. FINELLI: Same objection.
If you want to ask her specific questions that's 11 THE WITNESS: Where it sits compared to the
valid. To ask what issues she wants to resolve, I 12 street, the plan showed a house that was supposed to
donl think is appropriate. 13 go up from the street, not down. There was supposed
BY MR. LUNDGREN: 14 to be stairs in tt~? bark that go up to the garage, not
Q What defects do you see with this home? 15 down.
MS. FINELLI: I'll object. It calls for expert 16 BY MR. LUNDGREN:
opinion. You can answer to the extent you have an 1*7 Q So the stairs dont go up to the garage
answer to the question. ie from the outside?
THE WITNESS: The driveway. 19 A Correct. Like it was supposed to be.
BY MR. LUNDGREN: 20 Q Do you have any understanding as to how
Q Are there any other problems? 21 tall the foundation is for the garage?
A The drainage, the soil compaction, the 22 A Currently?
way the house looks, the stairs. That's about it. 23 Q Yeah.
Q What is the problem with the driveway? 24 A No.
u- A You have to have a four-wheel drive to 25 Q What was constructed?
46 48
1 get in and out, a vehicle that's like a four-wheel 1 A No.
2 drive. A regular car could not get in and out. 2 Q Do you believe the foundation should have
3 Q So it's too steep? 3 been taller?
4 A Yes. 4 A Yes.
5 Q And do you have an understanding of why s Q And the height of the foundation, how
6 the driveway is too steep? e tall do you understand the foundation to be?
7 MS. FINELLI: Object. It calls for an expert 7 A I don't know what you mean.
a opinion. 8 Q Do you know what I mean when I say
9 THE WITNESS: I believe they set the foundation 9 foundation?
10 too low. 10 A Yeah.
11 BY MR. LUNDGREN: 11 Q What is your understanding of the term
12 Q When you say they set the foundation too 12 foundation?
13 low, what do you mean? 13 A What the entire structure sits on.
14 A The foundation is set way below the 14 Q And it's constructed of what material?
is street level. They being CA Construction and Ron is A All depending on what he used. I dont
16 Britschgi. 16 know how he gets to the foundation or how he was to
17 Q Are you talking about the ground that the 17 construct it. All I know, it doesn't match the
18 foundation sits on is too low or the top of the is blueprints of what I wanted or what he said it was
19 foundation is too low? 19 going to be.
20 A The foundation itself Is set too low to 20 Q And you said it didn't match what he said
21 where it should have been set compared to the street. 21 it was going to be and the plans. What else? It
22 Q Do you have an understanding there was a 22 doesn't match the blueprints?
23 design for the foundation of the house? 23 A Correct.
24 A Yes. 24 Q Is there any blueprint that indicates the
25 Q Was that designed followed? 25 relative elevation of the house to the street?
Toll Free: 800.300.1214
Facsimile: 916.446.2777
ESQUIRE L SO Suite 300
REPORTING A LITIGATION SERVICES, LLC 2151 River Plaza Drive
DEPOSITION SERVICES'
Sacramento, CA 95833
www.paulsonreporting.com
Florentine Abbott December 15, 2008
93 95
1 with drainage was with your house? Iniquez?
2 A Rain comes in really close on a heavy A He was referred to me by Mr. Santiago.
3 shower. If the rain is really heavy, it puddles. Q Who is Mr. Santiago?
4 Even with the additional drains, everything drains A A county engineer.
5 right directly into the garage even with the channels Q Why was he referred to you by
e that we put in, the extra drains. It still goes in Mr. Santiago?
7 there, and gets real soppy for mosquitos. MS. FINELLI: Calls for speculation.
8 Q You have standing water in your garage? . THE WITNESS: He was referred to me to talk to
9 A If the rain is really heavy. him about the situation about my house.
10 Q Has it caused any damage to your house? BY MR. LUNDGREN:
11 A To the inside of the house? Q Now, why were you in contact with
12 Q Tell me where the water when the water Mr. Santiago? Did you call him up?
13 gets into your garage, where does it go? A Yes. I did.
14 A To the left-hand comer, front left-hand Q And when did you call him up?
is comer. A About three months ago.
16 Q The western wall of your garage? Q When you called up Mr. Santiago, this is
17 A Correct. at a time whan you were not represented; is that
is Q Sits up against the wall? correct?
19 A I don't go out every time. It certainly A Yes.
2o goes that direction. Q You called Mr. Santiago and what did you
21 MR. FEDERICO: I want to clarify. Is that the tell him?
22 wall thafs closest to the house? A I didn't tell him anything. I wanted to
23 THE WITNESS: Yes. talk to him.
24 BY MR. LUNDGREN: Q Okay. Did you get a chance to speak to
25 p Q Do you have any other issues with "him?
94 96
i drainage other than what you just described? 1 A Yes.
2 A Nope. 2 Q What did you describe to him as your
3 Q What about soil compaction? You 3 situation?
4 indicated one of the defects you found was soil 4 A I just had some questions on the
5 compaction. Can you tell me what you mean by that? 5 culdesac.
6 A I'm not sure. That was a conversation 6 Q What were your questions?
7 with the county. 7 A How it was relative with the lot.
8 Q I don't know what you're talking about. a Q You wanted to know why the culdesac was
9 Did you have a conversation with someone 9 so much higher than your lot?
10 from the county about soils compaction? 10 A I wanted to know why my house was so much
11 A They believe the laws were violated by 11 lower.
12 the contractor that set the foundation. 12 Q That was one question you asked
13 Q Who did you speak to from the county? 13 Mr. Santiago. You asked him why your house was so
14 A Chuck Iniquez. 14 much lower than the culdesac you built?
15 Q How do you spell the last name? is A Yeah.
16 A I-n-i-q-u-e-z, I believe. 16 Q And what did he tell you?
17 Q l-n-i -- 17 A That I had to speak to Chuck, that the
18 A - q-u-e-z. is culdesac was built and constructed according to plans
19 Q When did you speak with Chuck Iniquez? 19 so it wasn't any issue with the culdesac, and that it
20 A It's been about two months ago. 20 was obviously a structure problem.
21 Q Did you seek him out? 21 Q What was obviously a structure problem?
22 MS. FINELLI: Vague. 22 A If my house doesn't match the blueprints
23 THE WITNESS: No. 23 and Mr. Santiago is in charge of the culdesac, and the
24 BY MR. LUNDGREN: 24 culdesac was built according to plans and identified
25' ' Q How did you come to speak to Chuck 25 and passed, If I have a building issue, I'd have to go
Toll Free: 800.300.1214
Facsimile: 916.446.2777
!>ATLJ L S O Suite 300
ESQUIRE
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REPORTING A LITIGATION SERVICES. LlC 2151 River Plaza Drive
Sacramento, CA 95833
www.paulsonreporting.com
Florentine Abbott December 15, 2008
109 Ill
what the problem was with the soils compaction, and house. He said it would go out of their hands and on
you indicated that you were stall investigating that. to the Contractors Board which Is like two or three
You had teamed of the problem with the soils weeks ago.
compaction from your discussion from Mr. Iniquez, and Q It's gone to the Contractors Board to
then we found out that Mr. Iniquez had not inspected your understanding?
your home, but that he had sent a fellow named, "Jim* A Yes, it has.
to go out and inspect your plans? Q Do you have any documents that discuss
A That's correct that or in your possession related to that issue?
Q You testified as to what Jim's comments A Yeah, I do, not with me. I lust got the
to you were, and he said that he believed the house letter.
was not constructed per the plans because someone had MR. LUNDGREN: Counsel, can we get that at the
installed stairs that were not reflected on the plans. next deposition?
Is that basically correct? MS. FINELLI: I think so. I don't know what
MS. FINELLI: I think it misstates. that is. I need to look at it. I can't imagine there
THE WITNESS: It does. What I said Is from the would be a problem. Let me take a look at it
house to the garage there were twice as many stairs , BY MR. LUNDGREN:
that show on the plans, meaning they sunk the garage Q And next you said that you didn't - one
lower than it should have been, and the stairs from of the defects that you had or observed the way the
the culdesac to my house is an indication that was not house looks, what was that issue?
on the blueprints meaning the house to them is lower A Just looks like a house sunk in the
than where it was supposed to be. ground. You cant see the yard. It has no curb
BY MR. LUNDGREN: appeal. You can't go up the driveway without being
Q I didnt hear anything from your afraid that you're going to run somebody over because
testimony about Jim that had to do with soils you can't see.
compaction. Q And then the stairs issue, I guess we
110 112
A That's correct. 1 discussed that. That was having to do with the number
MS. FINELLI: There is no question. 2 of stairs going from the culdesac down to the sidewalk
THE WITNESS: That's right. 3 in front of your front door. You found that to be a
BY MR. LUNDGREN: 4 defect?
Q Did Mr. Iniquez opine as to soils s A It was not something I wanted. My mom is
compaction issues separate and apart from what Jim had 6 handicap.
observed? 7 Q I wanted to understand a little bit about
A No. a the retaining wall.
Q Who is it that Informed you that there 9 At what point did you determine you
was an issue with soils compaction on your home? 10 needed to have a retaining wall around your house or
A If I'm remembering correctly it was 11 on the west side of your house?
Mr. Santiago informed Mr. Iniquez that he believes 12 A It wasn't up to me. It was on my final
there was compaction laws violated by contractors, and 13 inspection.
they would contact the Contractors Board to open an 14 Q Okay. How deep cut into the earth was -
investigation against them. is the retaining wall was necessary because the
Q What was the compaction issues that is contractors had to cut into the earth on the west side
Mr. Santiago told you about? 17 of the house; is that correct?
A He says - this (s what I believe, he 18 MS. FINELLI: Assumes facts not in evidence.
said that - I'm trying to remember. 19 THE WITNESS: Yes.
The foundation contractors should not 20 BY MR LUNDGREN:
move more than 350 cubic yards of soil without 21 Q Did you hire a prime contractor to do
obtaining a permit, and they should know that If 22 that work?
they did, to their understanding, there was more than 23 A Which work?
350 cubic yards moved and that violates the compaction 24 Q Cutting into the side of the hill on the
laws, and could cause structural problems to the 25 west side of your house?
Toll Free: 800.300.1214
Facsimile: 916.446.2777
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Suite 300
2151 River Plaza Drive
Sacramento, CA 95833
www.paulsonreporting.com
Preview
1 Todd A. Jones (Bar No. 1 98024) „ . Gregory K. Federico (Bar No. 242 1 84) .x ^rf^ Cfi^CMftfTR^ S-H"~ 2 ARPHFR NORRTS ( *-- —t-HsrEj^jft la U U i * w i- ** A Professional Law Corporation """""" 3 655 University Avenue, Suite 225 UAV 6 ?f)DQ MAY Sacramento, California 95825-6747 ^U 4 Telephone: 916.646.2480 Facsimile: 916.646.5696 Ru A MACIAS 5 DEPUTY CLERK Attorneys for Defendants and Cross-Defendants 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 DECLARATION OF GREGORY K. Plaintiffs, FEDERICO IN SUPPORT OF CA 13 CONSTRUCTION'S OPPOSITION TO V. + PLAINTIFFS' EX-PARTE APPLICATION 14 FOR AN ORDER SHORTENING TIME TO RONALD PAUL BRITSCHGI, et al., HEAR A MOTION TO CONTINUE THE 15 TRIAL DATE Defendants. 16 Action Filed: September 24, 2007 17 Trial Date: May 11, 2009 18 Ex-Parte Hearing: May 6, 2009 Time: 9:00 a.m. 19 20 AND ALL RELATED CROSS-ACTIONS. 21 22 I, Gregory K. Federico, declare as follows: 23 1. I am an attorney duly licensed to practice before all the Courts in the State of 24 California and I am an associate with Archer Norris, attorneys of record for Defendant and Cross- 25 Complainant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 26 (hereinafter "CA CONSTRUCTION"). I have personal knowledge of the matters set forth herein 27 except where stated on information and belief. If called upon as a witness in this matter, I could 28 NIC341/793622-1 DECLARATION OF GREGORY K FEDERICO IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO PLAINTIFFS' EX-PARTE APPLICATION FOR A MOTION TO CONTINUE THE TRIAL DATE 1 and would competently testify thereto. 2 2. This case involves allegations of construction defects at a custom single-family 3 home located at 8601 Rolling Green Way in Fair Oaks, California. Plaintiffs RODNEY and 4 FLORENTINE ABBOTT (hereinafter "PLAINTIFFS") are the owners of the home. Pursuant to 5 owner/builder declarations filed with the Sacramento County Building Department, Florence 6 Abbott acted as the owner/builder for all phases of construction of the subject home, which was 7 built in the late 2005 to early 2006 time frame. 8 3. PLAINTIFFS hired Defendant Ronald Paul Britschgi (hereinafter "BRITSCHGI") 9 to act as the general contractor for the construction of the home through the framing stage. 10 4. PLAINTIFFS entered into contracts with individual contractors for various 11 segments of the project, including CA CONSTRUCTION. CA CONSTRUCTION supplied and 12 installed the concrete foundation and garage slab per plans and specifications. 13 5. Cross-Defendant CADRE DESIGN GROUP, INC. (hereinafter "CADRE") 14 designed the home with substantial input from PLAINTIFFS. 15 6. PLAINTIFFS allege that BRITSCHGI and CA CONSTRUCTION failed to 16 properly place the house and garage on the lot, particularly with regard to the elevation, as called 17 for pursuant to the plans and specifications and as requested by Mrs. Abbott. In addition, 18 Plaintiffs allege that BRITSCHGI and CA CONSTRUCTION breached their respective contracts, 19 failed to comply with all applicable building codes, and failed to comply with the standard of care 20 within the relevant industry. 21 7. During Mrs. Abbott's deposition, she indicated that the compaction beneath her 22 house was an issue she was concerned about. Mrs. Abbott's deposition was completed in 23 December of 2008 and January of 2009. See Exhibit "A" attached hereto. 24 8. PLAINTIFFS' retained consultants have also reiterated PLAINTIFFS' concern 25 with the compaction of the fill beneath the garage slab, and potentially the foundation for the 26 house. PLAINTIFFS' experts were produced for deposition on April 24 and 27, 2009. During 27 the depositions, PLAINTIFFS' experts indicated that it was their belief that the fill beneath the 28 garage slab and potentially the house foundation was improperly compacted or not compacted at NIC34I/793622-1 2 DECLARATION OF GREGORY K. FEDERICO IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO PLAINTIFFS' EX-PARTE APPLICATION FOR A MOTION TO CONTINUE THE TRIAL DATE 1 all. They also testified that it was their intention to opine on the compaction issues at the time of 2 trial. Upon questioning, however, they could not offer any evidence in support of these claims 3 and indicated that they had done no independent investigation into this issue. 4 9. PLAINTIFFS now seek to continue the trial date based on these unsupported 5 assumptions of their retained consultants. 6 10. Trial is set for this coming Monday, May 11, 2009. 7 11. PLAINTIFFS have had knowledge of the potential compaction issue since Mrs. 8 Abbott's deposition in late 2008 and early 2009, and potentially before these dates. They have 9 done nothing in terms of pre-trial discovery to pursue, investigate and substantiate these 10 assumptions. 11 12. PLAINTIFFS have not made the requisite factual showing of irreparable harm, 12 immediate danger, or any other statutory basis for ex-parte relief, nor have they shown good 13 cause necessary for consideration of a trial continuance. 14 15 I declare under penalty of perjury under the laws of the State of California that the 16 foregoing is true and correct. Executed this 5th day of May, 2009, aJ^Sa^ramento, California. 17 18 n 19 GREGORY It. FEDERICO 20 21 22 23 24 25 26 27 28 NIC341/793622-1 3 DECLARATION OF GREGORY K. FEDERICO IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO PLAINTIFFS' EX-PARTE APPLICATION FOR A MOTION TO CONTINUE THE TRIAL DATE Condensed Transcript IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SACRAMENTO RODNEY ABBOTT and FLORENTINE ABBOTT, Plaintiffs, CASE NO. vs. 07AS04450 RONALD PAUL BRTTSCHGI, individually and dba BRTTSCHGICONSTRCTUION, RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION, SURETY COMPANY OF THE PACIFIC, WESTERN SURETY COMPANY, and DOES 1 through 20, inclusive, Defendants. DEPOSITION OF FLORENTINE ABBOTT December 15, 2008 215 1 River Plaza Drive, Suite 300 Sacramento, California Tend Tavita, CSR No. 1 1962 Toll Free: 800.300.1214 Facsimile: 916.446.2777 ESQUIRE DEPOSITION SERVICES' L SO REPORTING & LITIGATION SERVICES. LLC Suite 300 2151 River Plaza Drive Sacramento, CA 95833 www.paulsonreportlnq.com \ Exhibit Condensed Transcript DSf THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SACRAMENTO RODNEY ABBOTT and FLORENTINE ABBOTT, Plaintiffs, CASE NO. vs. 07AS04450 RONALD PAUL BRTTSCHGI, individually and dba BRTTSCHGICONSTRCTUION, RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION, SURETY COMPANY OF THE PACIFIC, WESTERN SURETY COMPANY, and DOES 1 through 20, inclusive, Defendants. DEPOSITIONOF FLORENTINE ABBOTT December 15, 2008 2151 River Plaza Drive, Suite 300 Sacramento, California Terri Tavita, CSR No. 1 1962 Toll Free: 800.300.1214 Facsimile: 916.446.2777 ESQUIRE DEPOSITION SERVICES* L SO R E P O R T I N G & U T I G A T I O N SERVICES, LLC Suite 300 2151 River Plaza Drive Sacramento, CA 95833 www.paulsonreportlnq.com \ t I Florentine AJ-_,ott December 15, 2008 1 3 IN THE SUPERIOR COURT OP THE STATE OF CALIFORNIA 1 APPEARANCES OF COUNSEL (Continued) IN AND FOR THE COUNTY OF SACRAMENTO 2 RODNEY ABBOTT and FLORENTINE ABBOTT, 3 For Cadre Design, Defendant: Plaintiffs, 4 vs. CASE NO. 07AS04450 5 MALONEY WHEATLEY SOPP & BROOKS, LLP 6 RICHARD D. SOPP, ESQ. RONALD PAUL BRITECHGI, individually and dba 7 1004 River Rock Drive, Suite 241 BRITSCHOI COHSTRCTOIOH, RICHARD KIRK RDYBALID, 8 Folsom, California 95630 individually and dba 9 (916) 988-3857 CA CONSTRUCTION, SURETY COMPANY OF THE PACIFIC, 10 WESTERN SURETY COMPANY, and DOES 1 through 20, 11 Also present: inclusive. 12 Defendants. Al PCLJ 1 f^ OAKI^*U[T7 13 ALBtm O. oANUnti DEPOSITION O? 14 FLORENTINE ABBOTT 15 December 15, 2008 11:10 a.m. 16 17 2151 River Plaza Drive, Suite 300 Sacramento, California 18 Tern Tavita, CSR No. 11562 19 20 21 22 23 24 25 2 4 1 APPEARANCES OF COUNSEL 1 INDEX OF EXAMINATION 2 2 3 For Plaintiffs: 3 WITNESS: FLORENTINE ABBOTT 4 4 5 LAW OFFICE OF STEPHANIE J. FINELLI 5 EXAMINATION PAGE 6 STEPHANIE J. FINELLI, ESQ. 6 7 1007 7th Street. Suite 500 7 BY MR. LUNDGREN 5 8 Sacramento, California 95814 8 9 (916)443-2144 9 10 10 INDEX TO EXHIBITS 11 For CA Construction, Defendant: 11 EXHIBITS MARKED 12 12 13 ARCHER NORRIS 13 1 Blueprints, 11-8-05 62 14 GREGORY K. FEDERICO. ESQ. 14 2 Blueprints 67 15 655 University Avenue, Suite 225 15 3 Six color photographs 76 16 Sacramento, California 95825 16 4 Three color photographs 83 17 (916) 646-2480 17 5 Cadre Design Rolling Green Way 116 18 18 improvement agreement 19 For Rondal Britschgi, Defendant: 19 20 20 21 THE LAW OFFICES OF CRAIG N. LUNDGREN 21 22 CRAIG N. LUNDGREN, ESQ. 22 23 424 2nd Street, Suite A 23 24 Davis, California 95616 24 25 (530) 792-8800 25 Toll Free: 800.300.1214 Facsimile: 916.446.2777 ESQUIRE S O 1ST Suite 300 REPORTING ft LITIGATION SERVICES, LI.C 2151 River Plaza Drive DEPOSITION SERVICES* Sacramento, CA 95833 www.paulsonreporting.com Florentine Abbott December 15, 2008 45 47 A Okay. 1 A I donl believe so. (Recess) 2 MS. FINELLI: Object to the extent it calls for BY MR. LUNDGREN: 3 an expert opinion. Q Mrs. Abbott, you are still under the same 4 MR. LUNDGREN: She is a contractor. oath as you were this morning? s Q You can go ahead and answer. A Yes. 6 A No. It was not followed. He did not Q Can you tell me what exactly are the 7 follow the plans. issues you want to resolve in this lawsuit? 8 Q What aspect of the foundation is MS. FINELLI: Object. First of all, it's 9 inconsistent with the plans? vague, and potentially calls for a legal conclusion. 10 MS. FINELLI: Same objection. If you want to ask her specific questions that's 11 THE WITNESS: Where it sits compared to the valid. To ask what issues she wants to resolve, I 12 street, the plan showed a house that was supposed to donl think is appropriate. 13 go up from the street, not down. There was supposed BY MR. LUNDGREN: 14 to be stairs in tt~? bark that go up to the garage, not Q What defects do you see with this home? 15 down. MS. FINELLI: I'll object. It calls for expert 16 BY MR. LUNDGREN: opinion. You can answer to the extent you have an 1*7 Q So the stairs dont go up to the garage answer to the question. ie from the outside? THE WITNESS: The driveway. 19 A Correct. Like it was supposed to be. BY MR. LUNDGREN: 20 Q Do you have any understanding as to how Q Are there any other problems? 21 tall the foundation is for the garage? A The drainage, the soil compaction, the 22 A Currently? way the house looks, the stairs. That's about it. 23 Q Yeah. Q What is the problem with the driveway? 24 A No. u- A You have to have a four-wheel drive to 25 Q What was constructed? 46 48 1 get in and out, a vehicle that's like a four-wheel 1 A No. 2 drive. A regular car could not get in and out. 2 Q Do you believe the foundation should have 3 Q So it's too steep? 3 been taller? 4 A Yes. 4 A Yes. 5 Q And do you have an understanding of why s Q And the height of the foundation, how 6 the driveway is too steep? e tall do you understand the foundation to be? 7 MS. FINELLI: Object. It calls for an expert 7 A I don't know what you mean. a opinion. 8 Q Do you know what I mean when I say 9 THE WITNESS: I believe they set the foundation 9 foundation? 10 too low. 10 A Yeah. 11 BY MR. LUNDGREN: 11 Q What is your understanding of the term 12 Q When you say they set the foundation too 12 foundation? 13 low, what do you mean? 13 A What the entire structure sits on. 14 A The foundation is set way below the 14 Q And it's constructed of what material? is street level. They being CA Construction and Ron is A All depending on what he used. I dont 16 Britschgi. 16 know how he gets to the foundation or how he was to 17 Q Are you talking about the ground that the 17 construct it. All I know, it doesn't match the 18 foundation sits on is too low or the top of the is blueprints of what I wanted or what he said it was 19 foundation is too low? 19 going to be. 20 A The foundation itself Is set too low to 20 Q And you said it didn't match what he said 21 where it should have been set compared to the street. 21 it was going to be and the plans. What else? It 22 Q Do you have an understanding there was a 22 doesn't match the blueprints? 23 design for the foundation of the house? 23 A Correct. 24 A Yes. 24 Q Is there any blueprint that indicates the 25 Q Was that designed followed? 25 relative elevation of the house to the street? Toll Free: 800.300.1214 Facsimile: 916.446.2777 ESQUIRE L SO Suite 300 REPORTING A LITIGATION SERVICES, LLC 2151 River Plaza Drive DEPOSITION SERVICES' Sacramento, CA 95833 www.paulsonreporting.com Florentine Abbott December 15, 2008 93 95 1 with drainage was with your house? Iniquez? 2 A Rain comes in really close on a heavy A He was referred to me by Mr. Santiago. 3 shower. If the rain is really heavy, it puddles. Q Who is Mr. Santiago? 4 Even with the additional drains, everything drains A A county engineer. 5 right directly into the garage even with the channels Q Why was he referred to you by e that we put in, the extra drains. It still goes in Mr. Santiago? 7 there, and gets real soppy for mosquitos. MS. FINELLI: Calls for speculation. 8 Q You have standing water in your garage? . THE WITNESS: He was referred to me to talk to 9 A If the rain is really heavy. him about the situation about my house. 10 Q Has it caused any damage to your house? BY MR. LUNDGREN: 11 A To the inside of the house? Q Now, why were you in contact with 12 Q Tell me where the water when the water Mr. Santiago? Did you call him up? 13 gets into your garage, where does it go? A Yes. I did. 14 A To the left-hand comer, front left-hand Q And when did you call him up? is comer. A About three months ago. 16 Q The western wall of your garage? Q When you called up Mr. Santiago, this is 17 A Correct. at a time whan you were not represented; is that is Q Sits up against the wall? correct? 19 A I don't go out every time. It certainly A Yes. 2o goes that direction. Q You called Mr. Santiago and what did you 21 MR. FEDERICO: I want to clarify. Is that the tell him? 22 wall thafs closest to the house? A I didn't tell him anything. I wanted to 23 THE WITNESS: Yes. talk to him. 24 BY MR. LUNDGREN: Q Okay. Did you get a chance to speak to 25 p Q Do you have any other issues with "him? 94 96 i drainage other than what you just described? 1 A Yes. 2 A Nope. 2 Q What did you describe to him as your 3 Q What about soil compaction? You 3 situation? 4 indicated one of the defects you found was soil 4 A I just had some questions on the 5 compaction. Can you tell me what you mean by that? 5 culdesac. 6 A I'm not sure. That was a conversation 6 Q What were your questions? 7 with the county. 7 A How it was relative with the lot. 8 Q I don't know what you're talking about. a Q You wanted to know why the culdesac was 9 Did you have a conversation with someone 9 so much higher than your lot? 10 from the county about soils compaction? 10 A I wanted to know why my house was so much 11 A They believe the laws were violated by 11 lower. 12 the contractor that set the foundation. 12 Q That was one question you asked 13 Q Who did you speak to from the county? 13 Mr. Santiago. You asked him why your house was so 14 A Chuck Iniquez. 14 much lower than the culdesac you built? 15 Q How do you spell the last name? is A Yeah. 16 A I-n-i-q-u-e-z, I believe. 16 Q And what did he tell you? 17 Q l-n-i -- 17 A That I had to speak to Chuck, that the 18 A - q-u-e-z. is culdesac was built and constructed according to plans 19 Q When did you speak with Chuck Iniquez? 19 so it wasn't any issue with the culdesac, and that it 20 A It's been about two months ago. 20 was obviously a structure problem. 21 Q Did you seek him out? 21 Q What was obviously a structure problem? 22 MS. FINELLI: Vague. 22 A If my house doesn't match the blueprints 23 THE WITNESS: No. 23 and Mr. Santiago is in charge of the culdesac, and the 24 BY MR. LUNDGREN: 24 culdesac was built according to plans and identified 25' ' Q How did you come to speak to Chuck 25 and passed, If I have a building issue, I'd have to go Toll Free: 800.300.1214 Facsimile: 916.446.2777 !>ATLJ L S O Suite 300 ESQUIRE DEPOSITION SERVICES' REPORTING A LITIGATION SERVICES. LlC 2151 River Plaza Drive Sacramento, CA 95833 www.paulsonreporting.com Florentine Abbott December 15, 2008 109 Ill what the problem was with the soils compaction, and house. He said it would go out of their hands and on you indicated that you were stall investigating that. to the Contractors Board which Is like two or three You had teamed of the problem with the soils weeks ago. compaction from your discussion from Mr. Iniquez, and Q It's gone to the Contractors Board to then we found out that Mr. Iniquez had not inspected your understanding? your home, but that he had sent a fellow named, "Jim* A Yes, it has. to go out and inspect your plans? Q Do you have any documents that discuss A That's correct that or in your possession related to that issue? Q You testified as to what Jim's comments A Yeah, I do, not with me. I lust got the to you were, and he said that he believed the house letter. was not constructed per the plans because someone had MR. LUNDGREN: Counsel, can we get that at the installed stairs that were not reflected on the plans. next deposition? Is that basically correct? MS. FINELLI: I think so. I don't know what MS. FINELLI: I think it misstates. that is. I need to look at it. I can't imagine there THE WITNESS: It does. What I said Is from the would be a problem. Let me take a look at it house to the garage there were twice as many stairs , BY MR. LUNDGREN: that show on the plans, meaning they sunk the garage Q And next you said that you didn't - one lower than it should have been, and the stairs from of the defects that you had or observed the way the the culdesac to my house is an indication that was not house looks, what was that issue? on the blueprints meaning the house to them is lower A Just looks like a house sunk in the than where it was supposed to be. ground. You cant see the yard. It has no curb BY MR. LUNDGREN: appeal. You can't go up the driveway without being Q I didnt hear anything from your afraid that you're going to run somebody over because testimony about Jim that had to do with soils you can't see. compaction. Q And then the stairs issue, I guess we 110 112 A That's correct. 1 discussed that. That was having to do with the number MS. FINELLI: There is no question. 2 of stairs going from the culdesac down to the sidewalk THE WITNESS: That's right. 3 in front of your front door. You found that to be a BY MR. LUNDGREN: 4 defect? Q Did Mr. Iniquez opine as to soils s A It was not something I wanted. My mom is compaction issues separate and apart from what Jim had 6 handicap. observed? 7 Q I wanted to understand a little bit about A No. a the retaining wall. Q Who is it that Informed you that there 9 At what point did you determine you was an issue with soils compaction on your home? 10 needed to have a retaining wall around your house or A If I'm remembering correctly it was 11 on the west side of your house? Mr. Santiago informed Mr. Iniquez that he believes 12 A It wasn't up to me. It was on my final there was compaction laws violated by contractors, and 13 inspection. they would contact the Contractors Board to open an 14 Q Okay. How deep cut into the earth was - investigation against them. is the retaining wall was necessary because the Q What was the compaction issues that is contractors had to cut into the earth on the west side Mr. Santiago told you about? 17 of the house; is that correct? A He says - this (s what I believe, he 18 MS. FINELLI: Assumes facts not in evidence. said that - I'm trying to remember. 19 THE WITNESS: Yes. The foundation contractors should not 20 BY MR LUNDGREN: move more than 350 cubic yards of soil without 21 Q Did you hire a prime contractor to do obtaining a permit, and they should know that If 22 that work? they did, to their understanding, there was more than 23 A Which work? 350 cubic yards moved and that violates the compaction 24 Q Cutting into the side of the hill on the laws, and could cause structural problems to the 25 west side of your house? Toll Free: 800.300.1214 Facsimile: 916.446.2777 J P A U L S O 3ST ESQUIRE DEPOSITION SERVICES* REPORTING A LITIGATION SERVICES, LLC Suite 300 2151 River Plaza Drive Sacramento, CA 95833 www.paulsonreporting.com