Preview
1 Todd A. Jones (Bar No. 198024)
tj ones(^archemorri s. com
2 Gregory K. Federico (Bar No. 242184)
gfederico(^archemorris.com
3 ARCHER NORRIS
A Professional Law Corporation
4 301 University Avenue, Suite 110
Sacramento, Califomia 95825-5537
5 Telephone: 916.646.2480
Facsimile: 916.646.5696
6
Attomeys for Defendants and Cross-Defendants
7 RICHARD KIRK RUYBALID, individually, and
dba CA CONSTRUCTION
8
SUPERIOR COURT OF CALIFORNIA
9
COUNTY OF SACRAMENTO
10
11
RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
12 ABBOTT,
DEFENDANTS RICHARD KIRK
13 Plaintiffs, RUYBALID, individually, and dba CA
CONSTRUCTION REQUEST FOR
14 EVIDENCE CODE § 402 HEARING
REGARDING FOUNDATION FOR THE
CD 15 RONALD PAUL BRITSCHGI, et al.. OPINIONS OF PLAINTIFF'S EXPERT
ROBERT DONALD WEAHUNT, JR.
OC 16 Defendants.
O Trial: January 18, 2011
17 Time: 8:30 a.m.
Dept: 11
18
Action Filed: September 24, 2007
19
AND RELATED CROSS-ACTIONS.
20
21 COME NOW Defendants RICHARD KIRK RUYBALID, individually, and dba CA
22 CONSTRUCTION (hereinafter collectively referred to as "Defendants") which present the
23 following Motion for an Evidence Code section 402 hearing regarding the testimony of plaintiff
24 expert, Robert Donald Weahunt, Jr., regarding issues of allegedly improper or failed compaction
25 and standard of care for foundation contractors and related opinions pertaining to the subject
26 residence and the absence of essential predicate facts upon which Weahunt's opinions are
27 apparently based.
28 ///
NIC341/1079486-1
DEFENDANTS' REQUEST FOR EVIDENCE CODE SECTION 402 HEARING AS TO PROPOSED TESTIMONY OF
PLAINTIFFS' EXPERT WEAHUNT
)
1 I. FACTUAL BACKGROUND
2 The case at issue involves claims, presented by two plaintiff home owners, as to the
3 allegedly defective construction of their single family residence in Fair Oaks, Sacramento
4 County, Califomia and more specifically their claims that the foundation was improperly dug and
5 prepared by Defendants. Plaintiffs have retained as one of their construction experts Robert
6 Donald Weahunt, Jr., a licensed Califomia general contractor, who has given opinions in
7 deposition that: (1) defendants failed to properly compact the soils and fill materials underlying
8 the garage slab; and (2) failed to follow approved building plans in the constmction ofthe
9 plaintiffs' residence.
10 II. LEGAL AUTHORITY
11 A. Prejudicial, Confusing or Misleading Evidence May Be Excluded at the Court's
Discretion.
12
Califomia Evidence Code section 352 states in pertinent part that:
13
The Court in its discretion may exclude evidence if its probative
14 value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption oftime or, (b)
15 create substantial danger of undue prejudice, of confusing the
issues, or misleading the jury.
16
As will be demonstrated below, there is substantial risk of prejudice, jury confusion and
17
deception and undue consumption of the jury's time since adequate foundation for the opinions
18
Lee intends to render at trial is lacking.
19
B. An Evidence Code Section 402 Hearing is Warranted Prior to Weahunt's
20 Testimony to Determine Foundational or Preliminary Facts
21 Califomia Evidence Code section 402 (a) and (b) state in pertinent part that when the
22 existence of a preliminary (predicate) fact is disputed, the court may hear and determine the
23 question ofthe admissibility of evidence out ofthe presence or hearing of the jury.
24 Under Califomia Evidence Code section 403, the proponent of proffered evidence has the
25 burden of producing evidence as to the existence ofthe preliminary fact. In this case, plaintiffs
26 have the burden of proving the predicate or preliminary facts (foundation) upon which Weahunt
27 will base his opinions at trial. Defendants believe, as set forth below, that: (a) Weahunt does not
28 have evidence ofthe existence of key preliminary facts upon which to base his opinions; (b) he
N1C341/1079486-1 2
DEFENDANTS REQUEST FOR EVIDENCE CODE SECTION 402 HEARING AS TO PROPOSED TESTIMONY OF
PLAINTIFFS' EXPERT WEAHUNT
) #
1 has based his opinions on assumptions, speculation or outdated or irrelevant information; (c) his
2 testimony/opinions are informed by his desire to advocate for the plaintiff, Flo Abbott who is his
3 employee in an ongoing business enterprise in which he (Weahunt) is a partner; and (d) the
4 foundations for his opinions are wholly lacking. A 402 hearing will be necessary to explore the
5 absence of the requisite foundation outside the presence of the jury.
6 III. ARGUMENT
7 A. Weahunt's Opinions Lack Requisite Foundation and Should Be Precluded / 402
Request
8
As the Court stated in Kennemur v. State ofCalifornia (1982) 133 Cal.App.3d 907 stated,
9
".. .like a house built on sand, the expert's opinion is no better than the facts upon which it is
10
based." The Court should exercise its discretion in precluding the testimony of Weahunt
11
regarding the alleged failure to adequately compact the soils under the garage slab of plaintiffs'
12
home on the bases that as demonstrated by Weahunt in his expert depositions, taken April 24,
13
2009 and January 12, 2011, he lacks any direct knowledge ofthe as-built conditions or ofthe
14
actual constmction practices employed by the defendants in the digging and preparation of the
15
foundation ofthe Plaintiffs' home. In addition and more importantly, he lacks the requisite
16
expertise to offer expert opinion on the subject of compaction of soils for the support of concrete
17
constmction in a residential setting.
18
1. No Direct Knowledge or Even Hearsay Knowledge Upon Which to Base His
19 Opinions.
20 Weahunt appeared for his expert deposition, day one, on April 27, 2009 and testified that
21 he is solely a licensed general contractor with no other constmction or design related licenses.
22 (See Declaration of Mike McGuire, Exhibit "A" thereto, incorporated by reference herein, pp.
23 25:13-15; 252:24-25; Exhibit "B" thereto, p. 315:13-21.) Weahunt did not graduate from college
24 and possesses no college degrees. (See Declaration of McGuire, Exhibit "A," p. 22:25; 23:1-2).
25 His predominant constmction experience has been as a framer. (Declaration of McGuire, Exhibit
26 "A," pp. 24:13-20; 25:6-7.) He now teaches classes at his privately owned "Owner Builders
27 Center" to lay people on how to act as our ovra contractor in the constmction ofyour residence.
28 (Declaration of McGuire, Exhibit "A," pp. 28:9-25; 29:1.) Weahunt has never testified in court as
NIC341/1079486-1 3
DEFENDANTS REQUEST FOR EVIDENCE CODE SECTION 402 HEARING AS TO PROPOSED TESTIMONY OF
PLAINTIFFS' EXPERT WEAHUNT
^ )
)
1 an expert. (Declarationof McGuire, Exhibit "A," p. 106:7-1.2)
2 Weah unt testified that:
3 (I) He performed no testing at the Abbott residence. (Declaration of McGuire, Exhibit
4 "A," p. 253:1-2.)
5 (2) There is no standard of care for an owner/builder. (Declarationof McGuire, Exhibit
6 "A," p. 20:1-6.)
7 (3) He is not able to identify what should have been done to the Abbott's lot to allow the
8 successful constmction ofthe home that the Abbott's desired. He is not an expert in identifying
9 necessary grading of lots for the constmction of homes but has always relied upon landscape
10 architects and or site designers for such advice. (Declaration of McGuire, Exhibit "A," p. 38:10-
11 21.)
12 (4) Opines that project manager Britschgi was negligent in not obtaining a grading permit
13 for the removal of 350 cubic yards or more of dirt, yet he has never physically calculated the total
14 amount of dirt that was excavated. (Declaration of McGuire, Exhibit A," pp. 40:11-25; 12:41:1-
15 5; 13-22; 42:8-17.)
16 (5) That the elevation ofthe home foundation should have been level with the elevation
17 ofthe cul-de-sac but he then admits that to determine how to do so is beyond his experience
18 level/expertise. (Declaration of McGuire, Exhibit "A," pp. 45:14-25; 46:1-15.)
19 (6) He testifies that while there are no written standards of care for an owner/builder in
20 the constmction of a residence he "defines" what the responsibilities ofthe ovmer/builder are.
21 (Declaration of McGuire, Exhibit "A," pp. 54:22-25; 55:1-10.)
22 (7) He admits that he does not know if Plaintiff Abbott did everything she could have
23 done as an owner/builder to ensure that the house was built correctly but feels that she could have
24 done more. (Declaration of McGuire, Exhibit "A," pp. 57:21-23; 58:1 -8.)
25 (8) That he believes that Defendants CA Constmction was negligent by putting the
26 foundation on uncompacted soils yet he has no evidence that the soils were uncompacted.
27 (Declaration of McGuire, Exhibit "A," pp. 58:14-24.)
28 ///
N1C341/1079486-1 4
DEFENDANTS REQUEST FOR EVIDENCE CODE SECTION 402 HEARING AS TO PROPOSED TESTIMONY OF
PLAINTIFFS' EXPERT WEAHUNT
J
s
1 (9) That even though the contract between Abbott and CA Constmction excludes
2 excavating or grading or anything associated with compaction that CA Constmction is still
3 required to ensure compaction. (Declaration of McGuire, Exhibit "A," pp. 62:15-24; 258:23-25;
4 259:1-6, 18-25; 260:1-12.)
5 (10) He testifies that he will offer expert opinion on compaction at trial yet he does not
6 possess any licenses that would authorize him to opine on compaction. (Declaration of McGuire,
7 Exhibit "A," pp. 63:22-24; 64:4-18.)
8 (11) Testified that he does not know if the footings were placed on fill dirt (Declaration of
9 McGuire, Exhibit "A," p. 74:11-25) yet that is his "belief and that a geotechnical engineer would
10 be needed to confirm this condition (Declaration of McGuire, Exhibit "A," pp. 76:16-25; 77:1)
11 Then, when shown a photograph in his expert deposition, changes his testimony/opinion to state,
12 '''I don't know what is going on now." (Declarationof McGuire, Exhibit "A," p. 120:1-6).
13 (12) Speculates that the soils beneath the stem walls is moving, settling, yet he admits
14 that a geotechnical engineer would be needed to make that determination. (Declaration of
15 McGuire, Exhibit "A," pp. 75:18-25; 76: 1-8.)
16 (13) He opines from nothing more than a photograph ofthe as-built condition that there is
17 3 vertical feet of uncompacted soil at the base ofthe interior ofthe stem wall because he has not
18 seen a compaction report and has observed cracking. (Declaration of McGuire, Exhibit "A," pp.
19 97:23-25; 98:1-21.)
20 (14) Based on a lack of a compaction report, he opines that all soils beneath the concrete
21 flatwork are uncompacted (Declaration of McGuire, Exhibit "A," p, 104:3-8); yet he opines at a
22 later point that the owner/builder/Abbott was "responsible" of obtaining the necessary testing to
23 obtain a permit for construction. (Declaration of McGuire, Exhibit "A," p. 195:15-18.)
24 (15) He opines that the garage floor slab is moving yet he has never before testified as to
25 the differential movement of concrete and has no engineering background or any education as a
26 civil engineer or an engineer. (Declaration of McGuire, Exhibit "A," pp. 105:24-25; 107:20-25;
27 108:102.)
28 ///
NIC341/1079486-1 5
DEFENDANTS REQUEST FOR EVIDENCE CODE SECTION 402 HEARING AS TO PROPOSED TESTIMONY OF
PLAINTIFFS' EXPERT WEAHUNT
1 (16) Admits that CA Constmction built according to the permitted plans as received from
2 Abbott. (Declaration of McGuire, Exhibit "A," p. 229:2-24.)
3 (17) Admits that no designs were ever provided to the defendants that would have
4 indicated how to constmct a home with a street level entrance, no steps, a little ramp to the house
5 and a workable driveway. (Declaration of McGuire, Exhibit "A," pp. 231:18-25; 232:1-4.)
6 (18) Opines that there is fill beneath the garage slab "because it's the logical conclusion.
7 But the only way that you would actually know is to have a geotech company test the adjacent
8 soil and see what relative compaction is." (Declaration of McGuire, Exhibit "B," p. 322:9-14.)
9 Weahunt clearly has no basis upon which to render any opinion relevant to the claims of
10 the Plaintiffs and any testimony he may provide would be purely speculative, conjectural and not
11 based on any direct knowledge or investigation that would assist the trier-of-fact. Indeed, any
12 testimony by Weahunt would only serve to prolong the trial, waste valuable time and resources
13 of the court and confuse the jury.
14 Weahunt Has No Appropriate Expertise:
15 -Weahunt is a licensed contractor and nothing more and does not possess any other
16 constmction related or design professional licenses issued by the State of Califomia. (Declaration
17 of McGuire, Exhibit "A," pp. 25:13-15; 252:24-25; Exhibit "B," p. 315:13-21.) Weahunt has
18 admitted that he has no basis upon which to opine about compaction but that only a geotechnical
19 engineer should or could. (Declaration of McGuire, Exhibit "A," pp. 63:22-24; 64:4-18.)
20 This above listed testimony points to a complete lack of any significant training,
21 experience or expertise that would qualify Weahunt to render opinions on compaction or the
22 appropriate standard of care for foundation contractors and underscores the significant lack of
23 foundation for those opinions.
24 IV.
CONCLUSION
25 Weahunt's deposition testimony demonstrates that he intends to offer opinions that go to
26 establishing an essential predicate or preliminary fact in the absence ofthe required foundation.
27 He has testified to his acknowledged lack of expertise in determining proper compaction or even
28 N1C341/1079486-1 6
DEFENDANTS REQUEST FOR EVIDENCE CODE SECTION 402 HEARING AS TO PROPOSED TESTIMONY OF
PLAINTIFFS' EXPERT WEAHUNT
)
1 diagnosing improper compaction. He has testified that he does not possess the necessary training
2 or expertise or licenses to opine as to those limited requirements of his retention. Finally, he
3 lacks even the most mdimentary knowledge ofthe case as to the facts ofthe constmction ofthe
4 subject residence.
5 Allowing Weahunt to testify and opine would prejudice the defendants by planting a
6 suggestion in the jury's mind that there is substance to his opinions arid that he is, somehow,
7 qualified to render such opinions. Defendants believe that the appropriate foundation is totally
8 lacking on multiple levels and that Weahunt should not be allowed to testify as an expert for
9 plaintiffs on any subject but in particular, subjects related to compaction and proper constmction
10 in accordance with the plans.
11 Due to the obvious lack of any foundation for the opinions to be offered by Weahunt,
12 defendants hereby request a 402 hearing outside the presence of the jury to establish the lack of
13 any appropriate foundation for his opinion(s) and to exclude his testimony from trial.
14
15 Dated: January 21, 2011 ARCHER NORRIS
16
17
18
M
Gregory K. Federico
Attomeys for Defendants and Cross-
Defendants
19 RICHARD KIRK RUYBALID, individually,
and dba CA CONSTRUCTION
20
21
22
23
24
25
26
27
28
NIC341/1079486-1
DEFENDANTS REQUEST FOR EVIDENCE CODE SECTION 402 HEARING AS TO PROPOSED TESTIMONY OF
PLAINTIFFS' EXPERT WEAHUNT
Preview
1 Todd A. Jones (Bar No. 198024) tj ones(^archemorri s. com 2 Gregory K. Federico (Bar No. 242184) gfederico(^archemorris.com 3 ARCHER NORRIS A Professional Law Corporation 4 301 University Avenue, Suite 110 Sacramento, Califomia 95825-5537 5 Telephone: 916.646.2480 Facsimile: 916.646.5696 6 Attomeys for Defendants and Cross-Defendants 7 RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 12 ABBOTT, DEFENDANTS RICHARD KIRK 13 Plaintiffs, RUYBALID, individually, and dba CA CONSTRUCTION REQUEST FOR 14 EVIDENCE CODE § 402 HEARING REGARDING FOUNDATION FOR THE CD 15 RONALD PAUL BRITSCHGI, et al.. OPINIONS OF PLAINTIFF'S EXPERT ROBERT DONALD WEAHUNT, JR. OC 16 Defendants. O Trial: January 18, 2011 17 Time: 8:30 a.m. Dept: 11 18 Action Filed: September 24, 2007 19 AND RELATED CROSS-ACTIONS. 20 21 COME NOW Defendants RICHARD KIRK RUYBALID, individually, and dba CA 22 CONSTRUCTION (hereinafter collectively referred to as "Defendants") which present the 23 following Motion for an Evidence Code section 402 hearing regarding the testimony of plaintiff 24 expert, Robert Donald Weahunt, Jr., regarding issues of allegedly improper or failed compaction 25 and standard of care for foundation contractors and related opinions pertaining to the subject 26 residence and the absence of essential predicate facts upon which Weahunt's opinions are 27 apparently based. 28 /// NIC341/1079486-1 DEFENDANTS' REQUEST FOR EVIDENCE CODE SECTION 402 HEARING AS TO PROPOSED TESTIMONY OF PLAINTIFFS' EXPERT WEAHUNT ) 1 I. FACTUAL BACKGROUND 2 The case at issue involves claims, presented by two plaintiff home owners, as to the 3 allegedly defective construction of their single family residence in Fair Oaks, Sacramento 4 County, Califomia and more specifically their claims that the foundation was improperly dug and 5 prepared by Defendants. Plaintiffs have retained as one of their construction experts Robert 6 Donald Weahunt, Jr., a licensed Califomia general contractor, who has given opinions in 7 deposition that: (1) defendants failed to properly compact the soils and fill materials underlying 8 the garage slab; and (2) failed to follow approved building plans in the constmction ofthe 9 plaintiffs' residence. 10 II. LEGAL AUTHORITY 11 A. Prejudicial, Confusing or Misleading Evidence May Be Excluded at the Court's Discretion. 12 Califomia Evidence Code section 352 states in pertinent part that: 13 The Court in its discretion may exclude evidence if its probative 14 value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption oftime or, (b) 15 create substantial danger of undue prejudice, of confusing the issues, or misleading the jury. 16 As will be demonstrated below, there is substantial risk of prejudice, jury confusion and 17 deception and undue consumption of the jury's time since adequate foundation for the opinions 18 Lee intends to render at trial is lacking. 19 B. An Evidence Code Section 402 Hearing is Warranted Prior to Weahunt's 20 Testimony to Determine Foundational or Preliminary Facts 21 Califomia Evidence Code section 402 (a) and (b) state in pertinent part that when the 22 existence of a preliminary (predicate) fact is disputed, the court may hear and determine the 23 question ofthe admissibility of evidence out ofthe presence or hearing of the jury. 24 Under Califomia Evidence Code section 403, the proponent of proffered evidence has the 25 burden of producing evidence as to the existence ofthe preliminary fact. In this case, plaintiffs 26 have the burden of proving the predicate or preliminary facts (foundation) upon which Weahunt 27 will base his opinions at trial. Defendants believe, as set forth below, that: (a) Weahunt does not 28 have evidence ofthe existence of key preliminary facts upon which to base his opinions; (b) he N1C341/1079486-1 2 DEFENDANTS REQUEST FOR EVIDENCE CODE SECTION 402 HEARING AS TO PROPOSED TESTIMONY OF PLAINTIFFS' EXPERT WEAHUNT ) # 1 has based his opinions on assumptions, speculation or outdated or irrelevant information; (c) his 2 testimony/opinions are informed by his desire to advocate for the plaintiff, Flo Abbott who is his 3 employee in an ongoing business enterprise in which he (Weahunt) is a partner; and (d) the 4 foundations for his opinions are wholly lacking. A 402 hearing will be necessary to explore the 5 absence of the requisite foundation outside the presence of the jury. 6 III. ARGUMENT 7 A. Weahunt's Opinions Lack Requisite Foundation and Should Be Precluded / 402 Request 8 As the Court stated in Kennemur v. State ofCalifornia (1982) 133 Cal.App.3d 907 stated, 9 ".. .like a house built on sand, the expert's opinion is no better than the facts upon which it is 10 based." The Court should exercise its discretion in precluding the testimony of Weahunt 11 regarding the alleged failure to adequately compact the soils under the garage slab of plaintiffs' 12 home on the bases that as demonstrated by Weahunt in his expert depositions, taken April 24, 13 2009 and January 12, 2011, he lacks any direct knowledge ofthe as-built conditions or ofthe 14 actual constmction practices employed by the defendants in the digging and preparation of the 15 foundation ofthe Plaintiffs' home. In addition and more importantly, he lacks the requisite 16 expertise to offer expert opinion on the subject of compaction of soils for the support of concrete 17 constmction in a residential setting. 18 1. No Direct Knowledge or Even Hearsay Knowledge Upon Which to Base His 19 Opinions. 20 Weahunt appeared for his expert deposition, day one, on April 27, 2009 and testified that 21 he is solely a licensed general contractor with no other constmction or design related licenses. 22 (See Declaration of Mike McGuire, Exhibit "A" thereto, incorporated by reference herein, pp. 23 25:13-15; 252:24-25; Exhibit "B" thereto, p. 315:13-21.) Weahunt did not graduate from college 24 and possesses no college degrees. (See Declaration of McGuire, Exhibit "A," p. 22:25; 23:1-2). 25 His predominant constmction experience has been as a framer. (Declaration of McGuire, Exhibit 26 "A," pp. 24:13-20; 25:6-7.) He now teaches classes at his privately owned "Owner Builders 27 Center" to lay people on how to act as our ovra contractor in the constmction ofyour residence. 28 (Declaration of McGuire, Exhibit "A," pp. 28:9-25; 29:1.) Weahunt has never testified in court as NIC341/1079486-1 3 DEFENDANTS REQUEST FOR EVIDENCE CODE SECTION 402 HEARING AS TO PROPOSED TESTIMONY OF PLAINTIFFS' EXPERT WEAHUNT ^ ) ) 1 an expert. (Declarationof McGuire, Exhibit "A," p. 106:7-1.2) 2 Weah unt testified that: 3 (I) He performed no testing at the Abbott residence. (Declaration of McGuire, Exhibit 4 "A," p. 253:1-2.) 5 (2) There is no standard of care for an owner/builder. (Declarationof McGuire, Exhibit 6 "A," p. 20:1-6.) 7 (3) He is not able to identify what should have been done to the Abbott's lot to allow the 8 successful constmction ofthe home that the Abbott's desired. He is not an expert in identifying 9 necessary grading of lots for the constmction of homes but has always relied upon landscape 10 architects and or site designers for such advice. (Declaration of McGuire, Exhibit "A," p. 38:10- 11 21.) 12 (4) Opines that project manager Britschgi was negligent in not obtaining a grading permit 13 for the removal of 350 cubic yards or more of dirt, yet he has never physically calculated the total 14 amount of dirt that was excavated. (Declaration of McGuire, Exhibit A," pp. 40:11-25; 12:41:1- 15 5; 13-22; 42:8-17.) 16 (5) That the elevation ofthe home foundation should have been level with the elevation 17 ofthe cul-de-sac but he then admits that to determine how to do so is beyond his experience 18 level/expertise. (Declaration of McGuire, Exhibit "A," pp. 45:14-25; 46:1-15.) 19 (6) He testifies that while there are no written standards of care for an owner/builder in 20 the constmction of a residence he "defines" what the responsibilities ofthe ovmer/builder are. 21 (Declaration of McGuire, Exhibit "A," pp. 54:22-25; 55:1-10.) 22 (7) He admits that he does not know if Plaintiff Abbott did everything she could have 23 done as an owner/builder to ensure that the house was built correctly but feels that she could have 24 done more. (Declaration of McGuire, Exhibit "A," pp. 57:21-23; 58:1 -8.) 25 (8) That he believes that Defendants CA Constmction was negligent by putting the 26 foundation on uncompacted soils yet he has no evidence that the soils were uncompacted. 27 (Declaration of McGuire, Exhibit "A," pp. 58:14-24.) 28 /// N1C341/1079486-1 4 DEFENDANTS REQUEST FOR EVIDENCE CODE SECTION 402 HEARING AS TO PROPOSED TESTIMONY OF PLAINTIFFS' EXPERT WEAHUNT J s 1 (9) That even though the contract between Abbott and CA Constmction excludes 2 excavating or grading or anything associated with compaction that CA Constmction is still 3 required to ensure compaction. (Declaration of McGuire, Exhibit "A," pp. 62:15-24; 258:23-25; 4 259:1-6, 18-25; 260:1-12.) 5 (10) He testifies that he will offer expert opinion on compaction at trial yet he does not 6 possess any licenses that would authorize him to opine on compaction. (Declaration of McGuire, 7 Exhibit "A," pp. 63:22-24; 64:4-18.) 8 (11) Testified that he does not know if the footings were placed on fill dirt (Declaration of 9 McGuire, Exhibit "A," p. 74:11-25) yet that is his "belief and that a geotechnical engineer would 10 be needed to confirm this condition (Declaration of McGuire, Exhibit "A," pp. 76:16-25; 77:1) 11 Then, when shown a photograph in his expert deposition, changes his testimony/opinion to state, 12 '''I don't know what is going on now." (Declarationof McGuire, Exhibit "A," p. 120:1-6). 13 (12) Speculates that the soils beneath the stem walls is moving, settling, yet he admits 14 that a geotechnical engineer would be needed to make that determination. (Declaration of 15 McGuire, Exhibit "A," pp. 75:18-25; 76: 1-8.) 16 (13) He opines from nothing more than a photograph ofthe as-built condition that there is 17 3 vertical feet of uncompacted soil at the base ofthe interior ofthe stem wall because he has not 18 seen a compaction report and has observed cracking. (Declaration of McGuire, Exhibit "A," pp. 19 97:23-25; 98:1-21.) 20 (14) Based on a lack of a compaction report, he opines that all soils beneath the concrete 21 flatwork are uncompacted (Declaration of McGuire, Exhibit "A," p, 104:3-8); yet he opines at a 22 later point that the owner/builder/Abbott was "responsible" of obtaining the necessary testing to 23 obtain a permit for construction. (Declaration of McGuire, Exhibit "A," p. 195:15-18.) 24 (15) He opines that the garage floor slab is moving yet he has never before testified as to 25 the differential movement of concrete and has no engineering background or any education as a 26 civil engineer or an engineer. (Declaration of McGuire, Exhibit "A," pp. 105:24-25; 107:20-25; 27 108:102.) 28 /// NIC341/1079486-1 5 DEFENDANTS REQUEST FOR EVIDENCE CODE SECTION 402 HEARING AS TO PROPOSED TESTIMONY OF PLAINTIFFS' EXPERT WEAHUNT 1 (16) Admits that CA Constmction built according to the permitted plans as received from 2 Abbott. (Declaration of McGuire, Exhibit "A," p. 229:2-24.) 3 (17) Admits that no designs were ever provided to the defendants that would have 4 indicated how to constmct a home with a street level entrance, no steps, a little ramp to the house 5 and a workable driveway. (Declaration of McGuire, Exhibit "A," pp. 231:18-25; 232:1-4.) 6 (18) Opines that there is fill beneath the garage slab "because it's the logical conclusion. 7 But the only way that you would actually know is to have a geotech company test the adjacent 8 soil and see what relative compaction is." (Declaration of McGuire, Exhibit "B," p. 322:9-14.) 9 Weahunt clearly has no basis upon which to render any opinion relevant to the claims of 10 the Plaintiffs and any testimony he may provide would be purely speculative, conjectural and not 11 based on any direct knowledge or investigation that would assist the trier-of-fact. Indeed, any 12 testimony by Weahunt would only serve to prolong the trial, waste valuable time and resources 13 of the court and confuse the jury. 14 Weahunt Has No Appropriate Expertise: 15 -Weahunt is a licensed contractor and nothing more and does not possess any other 16 constmction related or design professional licenses issued by the State of Califomia. (Declaration 17 of McGuire, Exhibit "A," pp. 25:13-15; 252:24-25; Exhibit "B," p. 315:13-21.) Weahunt has 18 admitted that he has no basis upon which to opine about compaction but that only a geotechnical 19 engineer should or could. (Declaration of McGuire, Exhibit "A," pp. 63:22-24; 64:4-18.) 20 This above listed testimony points to a complete lack of any significant training, 21 experience or expertise that would qualify Weahunt to render opinions on compaction or the 22 appropriate standard of care for foundation contractors and underscores the significant lack of 23 foundation for those opinions. 24 IV. CONCLUSION 25 Weahunt's deposition testimony demonstrates that he intends to offer opinions that go to 26 establishing an essential predicate or preliminary fact in the absence ofthe required foundation. 27 He has testified to his acknowledged lack of expertise in determining proper compaction or even 28 N1C341/1079486-1 6 DEFENDANTS REQUEST FOR EVIDENCE CODE SECTION 402 HEARING AS TO PROPOSED TESTIMONY OF PLAINTIFFS' EXPERT WEAHUNT ) 1 diagnosing improper compaction. He has testified that he does not possess the necessary training 2 or expertise or licenses to opine as to those limited requirements of his retention. Finally, he 3 lacks even the most mdimentary knowledge ofthe case as to the facts ofthe constmction ofthe 4 subject residence. 5 Allowing Weahunt to testify and opine would prejudice the defendants by planting a 6 suggestion in the jury's mind that there is substance to his opinions arid that he is, somehow, 7 qualified to render such opinions. Defendants believe that the appropriate foundation is totally 8 lacking on multiple levels and that Weahunt should not be allowed to testify as an expert for 9 plaintiffs on any subject but in particular, subjects related to compaction and proper constmction 10 in accordance with the plans. 11 Due to the obvious lack of any foundation for the opinions to be offered by Weahunt, 12 defendants hereby request a 402 hearing outside the presence of the jury to establish the lack of 13 any appropriate foundation for his opinion(s) and to exclude his testimony from trial. 14 15 Dated: January 21, 2011 ARCHER NORRIS 16 17 18 M Gregory K. Federico Attomeys for Defendants and Cross- Defendants 19 RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 20 21 22 23 24 25 26 27 28 NIC341/1079486-1 DEFENDANTS REQUEST FOR EVIDENCE CODE SECTION 402 HEARING AS TO PROPOSED TESTIMONY OF PLAINTIFFS' EXPERT WEAHUNT