Preview
1 Todd A. Jones (Bar No. 198024)
Gregory K. Federico (Bar No. 242184)
2 ARCHER NORRIS FILED,
A Professional Law Corporation ENna&S-FtP
3 655 University Avenue, Suite 225
Sacramento, California 95825-6747
4 Telephone: 916.646.2480 JUL -7 2009
Facsimile: 916.646.5696
5 By i\ "
Attorneys for Defendants and Cross-Defendants A O'Donnell
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 MEMORANDUM OF POINTS AND
Plaintiffs, AUTHORITIES IN SUPPORT OF CA
13 CONSTRUCTION'S OPPOSITION TO
v. PLAINTIFFS' MOTION FOR LEAVE TO
14 FILE FIRST AMENDED COMPLAINT;
RONALD PAUL BRTTSCHGI, et al. DECLARATION OF GREGORY K.
15 FEDERICO IN SUPPORT THEREOF
Defendants.
16 Date: July 20, 2009
Time: 9:00 a,m.
17 Dept: 54
18
19 AND ALL RELATED CROSS-ACTIONS. BY FAX
20
21 I.
INTRODUCTION
22
Defendant and Cross-Defendant RICHARD KIRK RUYBALID, individually and dba CA
23
CONSTRUCTION ("CA CONSTRUCTION") hereby files this Memorandum of Points and
24
Authorities in Support of its Opposition to Plaintiffs RODNEY and FLORENTINE ABBOTT'S
25
("PLAINTIFFS") Motion for Leave to File a First Amended Complaint. PLAINTIFFS seek
26
leave to file an amendment to their complaint to add new factual allegations and causes of action
27
against existing defendants, and to add new causes of action against two new parties. CA
28
NIC341/819324-1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION
TO PLAINTIFFS' MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION
1 CONSTRUCTION does not oppose PLAINTIFFS' request to amend their complaint to add new
2 causes of action against the two new parties, but opposes PLAINTIFFS' request to amend their
3 complaint to add new facts and causes of action against CA CONSTRUCTION.
4 II.
PERTINENT FACTS
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. Florence Abbott acted as the owner/builder for all phases of construction of the subject
8
home. PLAINTIFFS hired Defendant Ronald Paul Britschgi (hereinafter "BRITSCHGI") as the
9
general contractor for the construction of the home through the framing stage. PLAINTIFFS
10
hired CA CONSTRUCTION to supply and install the concrete foundation and garage slab per
11
plans and specifications. Finally, Cross-Defendant CADRE DESIGN GROUP, INC. (hereinafter
12
"CADRE") designed the home with substantial input from PLAINTIFFS.
13
As to the entities PLAINTIFFS have named in the proposed First Amended Complaint,
14
both were involved with the original construction of PLAINTIFFS' home. PLAINTIFFS hired
15
Defendant Mark Smith, an individual doing business as Groundbreakers (hereinafter "SMITH")
16
to provide grading and earth movement for the subject property. CA CONSTRUCTION was not
17
involved with hiring or coordinating the work of SMITH. CONSTRUCTION TESTING &
18
ENGINEERING, INC. (hereinafter "CTE") was the entity that PLAINTIFFS' ultimately hired
19
and paid to perform the soils/compaction testing on the subject property.
20
Throughout their moving papers, PLAINTIFFS have continually argued that the facts
21
offered in support of the instant motion to amend were "recently discovered." This is simply not
22
the case. CTE conducted an inspection of PLAINTIFFS' property on or about January 28,2006
23
and issued its soils/compaction testing report thereafter. (Please see the CTE Report attached as
24
Exhibit "A" to the Declaration of Gregory K. Federico filed concurrently herewith). Thus,
25
concerns over proper/improper compaction would have arisen at the issuance of this report.
26
Also, during Mrs. Abbott's deposition, she indicated that the compaction beneath her
27
house was an issue she was concerned about. Mrs. Abbott's deposition was completed in
28
NIC341/819324-1 2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION
TO PLAINTIFFS' MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION
1 December 2008 and January 2009. (Please see the excerpts of Florentine Abbott's deposition
2 attached as Exhibit "B" to the Declaration of Gregory K. Federico filed concurrently herewith).
3 Again, concern over compaction is not an issue that was "recently discovered".
4 PLAINTIFFS conducted limited written and oral discovery. PLAINTIFFS deposed the
5 parties and percipient witnesses with knowledge of PLAINTIFFS' claims. Most significantly,
6 PLAINTIFFS failed to timely notice and take the depositions of any defense experts.
7 PLAINTIFFS' retained consultants maintained that it was their belief that the fill beneath
8 the garage slab and the house foundation were improperly compacted or not compacted at all.
9 Upon questioning, however, they failed to offer any evidence in support of these claims and
10 indicated they had done no investigation into this issue. On or about May 6,2009, PLAINTIFFS
11 unsuccessfully sought to continue the initial trial date in order to provide then- experts additional
12 time to substantiate their compaction claims. The Court denied PLAINTIFFS' motion.
13 The case was set to proceed to trial on May 11,2009. Upon reporting to the Court, the
14 parties were advised that no courtrooms were available. The parties thereafter met with the
15 Honorable Brian Van Camp and were given a new trial date of June 7,2010. Discovery is closed.
16 PLAINTIFFS have filed a motion to re-open discovery that is set for hearing on August 7,2009.
17 It has recently come to defense counsels' attention that PLAINTIFFS have filed a claim
18 under their homeowner's insurance policy. During deposition, Mrs. Abbott responded that she
19 had filed no claims under the homeowner's policy for the home. An investigation occurred and a
20 report was prepared. It was provided to defense counsel after the date initial set for trial. It is the
21 defense understanding that no destructive testing has occurred at the subject property.
22
III.
23 ARGUMENT
24 A. The Right to Amend the Complaint Rests Within the Sound Discretion of the Court,
And May be Denied Where There Has Been Unreasonable Delay.
9S
There is no doubt that the right to amend a complaint rests within the sound discretion of
fyc.
the court but even then, the Court may in the exercise of this discretion, deny the proposed
27
amendment if there has been a long delay in seeking the amendment (See Fisher v. Larsen (1982)
28
NIC341/819324-I 3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION
TO PLAINTIFFS' MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION
1 138 Cal.App.3d 627,649 citing to Robinson & Wilson. Inc. v. Stone (\973) 35 Cal.App.3d 396,
2 413: and Rainer v. Com. Mem. Hospital (1971) 18 Cal.App.3d 240.258).
3 PLAINTIFF comes before this Court, more than one year and nine months after filing
4 their initial complaint seeking leave to file an amendment to the complaint adding, among other
5 things, personal injury claims due to alleged mold exposure, additional factual allegations against
6 existing defendants, additional causes of action against existing defendants, and two new causes
7 of action against two new parties. CA CONSTRUCTION does not oppose the new causes of
8 action against the two new parties SMITH and CTE, but opposes the addition of new facts and
9 causes of action against CA CONSTRUCTION.
10 PLAINTIFFS' only justification for this long delay is that their attorney, or the litigants
11 themselves, did not know of the grounds for the existence of the two proposed causes of action
12 until just recently. Or, in the alternative, PLAINTIFFS' did not know the full extent of their
13 claims until discovery was completed. PLAINTIFFS' counsel gives no credible reason for the
14 delay in amending the complaint, nor do they establish a mistake, inadvertence, surprise, or
15 excusable neglect that provides the necessary basis for seeking leave to amend the complaint. As
16 discussed below, PLAINTIFFS' have known or should have known of the existence of the claims
17 they now seek to add to the complaint long before the filing of the present motion.
18 First, mold allegations are something that do not magically appear overnight. The claims
19 usually involved long, sustained periods of illness and/or property damage, none of which has
20 ever been discussed or claimed by PLAINTIFFS in the present action until the issuance of
21 PLAINTIFFS' proposed First Amended Complaint.
22 Second, CTE conducted an inspection of PLAINTIFFS' property on or about January 28,
23 2006 and issued its soils/compaction testing report thereafter. PLAINTIFFS had knowledge of
24 potential compaction issues at or near the issuance of this report. Thus, PLAINTIFFS have not
25 "recently discovered" these so-called compaction claims.
26 Third, Mrs. Abbott indicated during her deposition that she was concerned about the
27 compaction beneath her house. This occurred as early as December 2008 and January 2009.
28 Again, concern over compaction was not "recently discovered".
NJC341/819324-1 4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION
TO PLAINTIFFS' MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION
1 Fourth, PLAINTIFFS' experts were produced for deposition on April 24 and 27,2009,
2 and were providing consulting services for PLAINTIFFS well before this date. PLAINTIFFS'
3 experts maintained that it was their belief that the fill beneath the garage slab and potentially the
4 house foundation were improperly compacted or not compacted at all. Upon questioning,
5 however, they failed to offer any evidence in support of these claims and indicated that had done
6 no independent investigation into this issue. Presumably, PLAINTIFFS experts inspected the site
7 and had the chance to review all of PLAINTIFFS' documentation, including the CTE report, well
8 before their deposition. Thus, it is disingenuous for PLAINTIFFS to now argue that their experts
9 have only "recently discovered" the potential for compaction claims.
10 It is abundantly clear that PLAINTIFFS' and/or their counsel knew of these facts and
11 potential theories well before initial trial date of May 11,2009, and the filing of the present
12 motion. Throughout this time, PLAINTIFFS took no action to notify the court nor to notify
13 opposing defense counsel that PLAINTIFFS intended to amend the First Amended Complaint
14 and change the basis of PLAINTIFFS' claims. Certainly, if PLAINTIFFS had done so, the
15 defense would have re-deposed PLAINTIFFS to explore these new and much broader claims.
16 B. If Plaintiffs Are Permitted To Amend Their Complaint, CA Construction Will Be
Subject To Prejudice.
If the party seeking the amendment has been dilatory, and the delay has prejudiced the
18
opposing party, the judge has discretion to deny leave to amend. See Hirsa v. Superior Court
19
(Vickers) (1981) 118 Cal.App.3d 486,490. Prejudice exists where the amendment would require
20
delaying the trial, resulting in loss of critical evidence or added costs of preparation, increased
21
burden of discovery, etc. Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471,486-488.
22
The parties conducted substantial discovery prior to the initial trial date of May 11,2009,
23
including the depositions of all of PLAINTIFFS' expert witnesses. The defense incurred the costs
24
of these depositions despite the fact the witnesses were not prepared to render their final opinions
25
because they lacked the factual basis to support their compaction claims. Thereafter, the parties
26
expended substantial time in preparing their respective cases for trial. But for the unavailability
27
of courtrooms in this Court, the trial of this matter would have already taken place.
28
NrC341/8l9324-l 5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION
TO PLAINTIFFS' MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION
1 The ultimate goal of PLAINTIFFS in seeking to amend their complaint is to provide the ,
2 necessary grounds for their motion to re-open discovery proceedings. PLAINTIFFS will argue
3 that the new claims, the new facts, and the new parties require the parties to basically "re-do" all
4 of the discovery in this matter. PLAINTIFFS' experts will need to be re-deposed, and if
5 PLAINTIFFS are permitted to pursue their unverified mold allegations, independent medical
6 examinations and massive document production will be required. The defense will undoubtedly
7 bear the burden of these additional costs.
8 As stated above, PLAINTIFFS already moved to continue the trial date in order to provide
9 their experts additional time to substantiate their compaction claims. The Court denied this
10 motion. Further, for reasons unknown to the defense, PLAINTIFFS failed to timely notice and
11 take the depositions of any defense experts. If permitted to amend, PLAINTIFFS would
12 essentially get another "bite at the apple" to substantiate their compaction claims and conduct
13 discovery by way of the depositions of defense experts. The defense should not bear the burden
14 and costs associated with PLAINTIFFS' lack of diligence in establishing their claims.
15 C. If Plaintiffs Are Permitted To Amend Their Complaint, The Court Should Impose
Conditions On Plaintiffs Right To Amend.
16
If the Court is inclined to allow PLAINTIFFS to amend, the Court should impose
17
conditions on PLAINTIFFS' right to amend based on the prejudice CA CONSTRUCTION and
18
the other defendants will suffer. The Court is authorized to grant leave ".. .on such terms as may
19
be proper." Code of Civil Procedure §§ 473(aXl) and 576. Thus, for example, the judge may
20
continue the trial date (if requested by the opposing party); limit discovery; and/or order the party
21
seeking the amendment to pay the costs and fees incurred by the opposing party in preparing for
22
trial. See Fuller v. Vista Del Arroyo Hotel (1941) 42 CaLApp. 2d 400,404.
23
If the Court permits PLAINTIFFS to amend their complaint, CA CONSTRUCTION
24
requests that the Court issue an order limiting PLAINTIFFS' right to conduct further discovery in
25
this case. The proposed order would limit PLAINTIFFS' right to conduct discovery to only new
26
issues raised by the amended complaint. Also, since PLAINTIFFS failed to timely notice and
27
take the depositions of the defense experts prior to the initial trial, PLAINTIFFS' should not be
28
NIC341/819324-1 6
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION
TO PLAINTIFFS' MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION
1 entitled to use the new trial date and the amendment of their complaint as a basis to take the
2 deposition of CA CONSTRUCTION'S expert witnesses. PLAINTIFFS failed to notice the
3 depositions and should be foreclosed for deposing them in the future.
4 In the alternative, the Court should issue an order that relieves the defendants from paying
5 the costs associated with further deposition testimony of PLAINTIFFS' experts. The defense
6 timely noticed, took, and paid for the depositions of PLAINTIFFS' experts when these experts
7 were clearly unprepared to render the full extent of their opinions on the compaction issues.
CONCLUSION
Based upon the foregoing, CA CONSTRUCTION does not oppose the new causes of
., action against the two new parties SMITH and CTE. CA CONSTRUCTION does oppose
.« PLAINTIFFS' personal injury claims due to alleged mold exposure, the new factual allegations
against CA CONSTRUCTION, and the new causes of action against CA CONSTRUCTION. CA
14 CONSTRUCTION respectfully requests that PLAINTIFFS Motion for Leave to File a First
5 Amended Complaint Against CA CONSTRUCTION be denied.
In the alternative, C A CONSTRUCTION respectfully requests that this Court limit
.7 PLAINTIFFS' right to conduct discovery to only new issues raised by the amended complaint
.0 and to prevent PLAINTIFFS' from having yet another chance to depose the defense experts.
Io
.Q Finally, the Court should issue an order that relieves the defendants from paying the costs
2ft associated with further depositions of PLAINTIFFS' experts.
21
Dated: July
Preview
1 Todd A. Jones (Bar No. 198024) Gregory K. Federico (Bar No. 242184) 2 ARCHER NORRIS FILED, A Professional Law Corporation ENna&S-FtP 3 655 University Avenue, Suite 225 Sacramento, California 95825-6747 4 Telephone: 916.646.2480 JUL -7 2009 Facsimile: 916.646.5696 5 By i\ " Attorneys for Defendants and Cross-Defendants A O'Donnell 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 MEMORANDUM OF POINTS AND Plaintiffs, AUTHORITIES IN SUPPORT OF CA 13 CONSTRUCTION'S OPPOSITION TO v. PLAINTIFFS' MOTION FOR LEAVE TO 14 FILE FIRST AMENDED COMPLAINT; RONALD PAUL BRTTSCHGI, et al. DECLARATION OF GREGORY K. 15 FEDERICO IN SUPPORT THEREOF Defendants. 16 Date: July 20, 2009 Time: 9:00 a,m. 17 Dept: 54 18 19 AND ALL RELATED CROSS-ACTIONS. BY FAX 20 21 I. INTRODUCTION 22 Defendant and Cross-Defendant RICHARD KIRK RUYBALID, individually and dba CA 23 CONSTRUCTION ("CA CONSTRUCTION") hereby files this Memorandum of Points and 24 Authorities in Support of its Opposition to Plaintiffs RODNEY and FLORENTINE ABBOTT'S 25 ("PLAINTIFFS") Motion for Leave to File a First Amended Complaint. PLAINTIFFS seek 26 leave to file an amendment to their complaint to add new factual allegations and causes of action 27 against existing defendants, and to add new causes of action against two new parties. CA 28 NIC341/819324-1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION 1 CONSTRUCTION does not oppose PLAINTIFFS' request to amend their complaint to add new 2 causes of action against the two new parties, but opposes PLAINTIFFS' request to amend their 3 complaint to add new facts and causes of action against CA CONSTRUCTION. 4 II. PERTINENT FACTS 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. Florence Abbott acted as the owner/builder for all phases of construction of the subject 8 home. PLAINTIFFS hired Defendant Ronald Paul Britschgi (hereinafter "BRITSCHGI") as the 9 general contractor for the construction of the home through the framing stage. PLAINTIFFS 10 hired CA CONSTRUCTION to supply and install the concrete foundation and garage slab per 11 plans and specifications. Finally, Cross-Defendant CADRE DESIGN GROUP, INC. (hereinafter 12 "CADRE") designed the home with substantial input from PLAINTIFFS. 13 As to the entities PLAINTIFFS have named in the proposed First Amended Complaint, 14 both were involved with the original construction of PLAINTIFFS' home. PLAINTIFFS hired 15 Defendant Mark Smith, an individual doing business as Groundbreakers (hereinafter "SMITH") 16 to provide grading and earth movement for the subject property. CA CONSTRUCTION was not 17 involved with hiring or coordinating the work of SMITH. CONSTRUCTION TESTING & 18 ENGINEERING, INC. (hereinafter "CTE") was the entity that PLAINTIFFS' ultimately hired 19 and paid to perform the soils/compaction testing on the subject property. 20 Throughout their moving papers, PLAINTIFFS have continually argued that the facts 21 offered in support of the instant motion to amend were "recently discovered." This is simply not 22 the case. CTE conducted an inspection of PLAINTIFFS' property on or about January 28,2006 23 and issued its soils/compaction testing report thereafter. (Please see the CTE Report attached as 24 Exhibit "A" to the Declaration of Gregory K. Federico filed concurrently herewith). Thus, 25 concerns over proper/improper compaction would have arisen at the issuance of this report. 26 Also, during Mrs. Abbott's deposition, she indicated that the compaction beneath her 27 house was an issue she was concerned about. Mrs. Abbott's deposition was completed in 28 NIC341/819324-1 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION 1 December 2008 and January 2009. (Please see the excerpts of Florentine Abbott's deposition 2 attached as Exhibit "B" to the Declaration of Gregory K. Federico filed concurrently herewith). 3 Again, concern over compaction is not an issue that was "recently discovered". 4 PLAINTIFFS conducted limited written and oral discovery. PLAINTIFFS deposed the 5 parties and percipient witnesses with knowledge of PLAINTIFFS' claims. Most significantly, 6 PLAINTIFFS failed to timely notice and take the depositions of any defense experts. 7 PLAINTIFFS' retained consultants maintained that it was their belief that the fill beneath 8 the garage slab and the house foundation were improperly compacted or not compacted at all. 9 Upon questioning, however, they failed to offer any evidence in support of these claims and 10 indicated they had done no investigation into this issue. On or about May 6,2009, PLAINTIFFS 11 unsuccessfully sought to continue the initial trial date in order to provide then- experts additional 12 time to substantiate their compaction claims. The Court denied PLAINTIFFS' motion. 13 The case was set to proceed to trial on May 11,2009. Upon reporting to the Court, the 14 parties were advised that no courtrooms were available. The parties thereafter met with the 15 Honorable Brian Van Camp and were given a new trial date of June 7,2010. Discovery is closed. 16 PLAINTIFFS have filed a motion to re-open discovery that is set for hearing on August 7,2009. 17 It has recently come to defense counsels' attention that PLAINTIFFS have filed a claim 18 under their homeowner's insurance policy. During deposition, Mrs. Abbott responded that she 19 had filed no claims under the homeowner's policy for the home. An investigation occurred and a 20 report was prepared. It was provided to defense counsel after the date initial set for trial. It is the 21 defense understanding that no destructive testing has occurred at the subject property. 22 III. 23 ARGUMENT 24 A. The Right to Amend the Complaint Rests Within the Sound Discretion of the Court, And May be Denied Where There Has Been Unreasonable Delay. 9S There is no doubt that the right to amend a complaint rests within the sound discretion of fyc. the court but even then, the Court may in the exercise of this discretion, deny the proposed 27 amendment if there has been a long delay in seeking the amendment (See Fisher v. Larsen (1982) 28 NIC341/819324-I 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION 1 138 Cal.App.3d 627,649 citing to Robinson & Wilson. Inc. v. Stone (\973) 35 Cal.App.3d 396, 2 413: and Rainer v. Com. Mem. Hospital (1971) 18 Cal.App.3d 240.258). 3 PLAINTIFF comes before this Court, more than one year and nine months after filing 4 their initial complaint seeking leave to file an amendment to the complaint adding, among other 5 things, personal injury claims due to alleged mold exposure, additional factual allegations against 6 existing defendants, additional causes of action against existing defendants, and two new causes 7 of action against two new parties. CA CONSTRUCTION does not oppose the new causes of 8 action against the two new parties SMITH and CTE, but opposes the addition of new facts and 9 causes of action against CA CONSTRUCTION. 10 PLAINTIFFS' only justification for this long delay is that their attorney, or the litigants 11 themselves, did not know of the grounds for the existence of the two proposed causes of action 12 until just recently. Or, in the alternative, PLAINTIFFS' did not know the full extent of their 13 claims until discovery was completed. PLAINTIFFS' counsel gives no credible reason for the 14 delay in amending the complaint, nor do they establish a mistake, inadvertence, surprise, or 15 excusable neglect that provides the necessary basis for seeking leave to amend the complaint. As 16 discussed below, PLAINTIFFS' have known or should have known of the existence of the claims 17 they now seek to add to the complaint long before the filing of the present motion. 18 First, mold allegations are something that do not magically appear overnight. The claims 19 usually involved long, sustained periods of illness and/or property damage, none of which has 20 ever been discussed or claimed by PLAINTIFFS in the present action until the issuance of 21 PLAINTIFFS' proposed First Amended Complaint. 22 Second, CTE conducted an inspection of PLAINTIFFS' property on or about January 28, 23 2006 and issued its soils/compaction testing report thereafter. PLAINTIFFS had knowledge of 24 potential compaction issues at or near the issuance of this report. Thus, PLAINTIFFS have not 25 "recently discovered" these so-called compaction claims. 26 Third, Mrs. Abbott indicated during her deposition that she was concerned about the 27 compaction beneath her house. This occurred as early as December 2008 and January 2009. 28 Again, concern over compaction was not "recently discovered". NJC341/819324-1 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION 1 Fourth, PLAINTIFFS' experts were produced for deposition on April 24 and 27,2009, 2 and were providing consulting services for PLAINTIFFS well before this date. PLAINTIFFS' 3 experts maintained that it was their belief that the fill beneath the garage slab and potentially the 4 house foundation were improperly compacted or not compacted at all. Upon questioning, 5 however, they failed to offer any evidence in support of these claims and indicated that had done 6 no independent investigation into this issue. Presumably, PLAINTIFFS experts inspected the site 7 and had the chance to review all of PLAINTIFFS' documentation, including the CTE report, well 8 before their deposition. Thus, it is disingenuous for PLAINTIFFS to now argue that their experts 9 have only "recently discovered" the potential for compaction claims. 10 It is abundantly clear that PLAINTIFFS' and/or their counsel knew of these facts and 11 potential theories well before initial trial date of May 11,2009, and the filing of the present 12 motion. Throughout this time, PLAINTIFFS took no action to notify the court nor to notify 13 opposing defense counsel that PLAINTIFFS intended to amend the First Amended Complaint 14 and change the basis of PLAINTIFFS' claims. Certainly, if PLAINTIFFS had done so, the 15 defense would have re-deposed PLAINTIFFS to explore these new and much broader claims. 16 B. If Plaintiffs Are Permitted To Amend Their Complaint, CA Construction Will Be Subject To Prejudice. If the party seeking the amendment has been dilatory, and the delay has prejudiced the 18 opposing party, the judge has discretion to deny leave to amend. See Hirsa v. Superior Court 19 (Vickers) (1981) 118 Cal.App.3d 486,490. Prejudice exists where the amendment would require 20 delaying the trial, resulting in loss of critical evidence or added costs of preparation, increased 21 burden of discovery, etc. Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471,486-488. 22 The parties conducted substantial discovery prior to the initial trial date of May 11,2009, 23 including the depositions of all of PLAINTIFFS' expert witnesses. The defense incurred the costs 24 of these depositions despite the fact the witnesses were not prepared to render their final opinions 25 because they lacked the factual basis to support their compaction claims. Thereafter, the parties 26 expended substantial time in preparing their respective cases for trial. But for the unavailability 27 of courtrooms in this Court, the trial of this matter would have already taken place. 28 NrC341/8l9324-l 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION 1 The ultimate goal of PLAINTIFFS in seeking to amend their complaint is to provide the , 2 necessary grounds for their motion to re-open discovery proceedings. PLAINTIFFS will argue 3 that the new claims, the new facts, and the new parties require the parties to basically "re-do" all 4 of the discovery in this matter. PLAINTIFFS' experts will need to be re-deposed, and if 5 PLAINTIFFS are permitted to pursue their unverified mold allegations, independent medical 6 examinations and massive document production will be required. The defense will undoubtedly 7 bear the burden of these additional costs. 8 As stated above, PLAINTIFFS already moved to continue the trial date in order to provide 9 their experts additional time to substantiate their compaction claims. The Court denied this 10 motion. Further, for reasons unknown to the defense, PLAINTIFFS failed to timely notice and 11 take the depositions of any defense experts. If permitted to amend, PLAINTIFFS would 12 essentially get another "bite at the apple" to substantiate their compaction claims and conduct 13 discovery by way of the depositions of defense experts. The defense should not bear the burden 14 and costs associated with PLAINTIFFS' lack of diligence in establishing their claims. 15 C. If Plaintiffs Are Permitted To Amend Their Complaint, The Court Should Impose Conditions On Plaintiffs Right To Amend. 16 If the Court is inclined to allow PLAINTIFFS to amend, the Court should impose 17 conditions on PLAINTIFFS' right to amend based on the prejudice CA CONSTRUCTION and 18 the other defendants will suffer. The Court is authorized to grant leave ".. .on such terms as may 19 be proper." Code of Civil Procedure §§ 473(aXl) and 576. Thus, for example, the judge may 20 continue the trial date (if requested by the opposing party); limit discovery; and/or order the party 21 seeking the amendment to pay the costs and fees incurred by the opposing party in preparing for 22 trial. See Fuller v. Vista Del Arroyo Hotel (1941) 42 CaLApp. 2d 400,404. 23 If the Court permits PLAINTIFFS to amend their complaint, CA CONSTRUCTION 24 requests that the Court issue an order limiting PLAINTIFFS' right to conduct further discovery in 25 this case. The proposed order would limit PLAINTIFFS' right to conduct discovery to only new 26 issues raised by the amended complaint. Also, since PLAINTIFFS failed to timely notice and 27 take the depositions of the defense experts prior to the initial trial, PLAINTIFFS' should not be 28 NIC341/819324-1 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DECLARATION 1 entitled to use the new trial date and the amendment of their complaint as a basis to take the 2 deposition of CA CONSTRUCTION'S expert witnesses. PLAINTIFFS failed to notice the 3 depositions and should be foreclosed for deposing them in the future. 4 In the alternative, the Court should issue an order that relieves the defendants from paying 5 the costs associated with further deposition testimony of PLAINTIFFS' experts. The defense 6 timely noticed, took, and paid for the depositions of PLAINTIFFS' experts when these experts 7 were clearly unprepared to render the full extent of their opinions on the compaction issues. CONCLUSION Based upon the foregoing, CA CONSTRUCTION does not oppose the new causes of ., action against the two new parties SMITH and CTE. CA CONSTRUCTION does oppose .« PLAINTIFFS' personal injury claims due to alleged mold exposure, the new factual allegations against CA CONSTRUCTION, and the new causes of action against CA CONSTRUCTION. CA 14 CONSTRUCTION respectfully requests that PLAINTIFFS Motion for Leave to File a First 5 Amended Complaint Against CA CONSTRUCTION be denied. In the alternative, C A CONSTRUCTION respectfully requests that this Court limit .7 PLAINTIFFS' right to conduct discovery to only new issues raised by the amended complaint .0 and to prevent PLAINTIFFS' from having yet another chance to depose the defense experts. Io .Q Finally, the Court should issue an order that relieves the defendants from paying the costs 2ft associated with further depositions of PLAINTIFFS' experts. 21 Dated: July