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1 Todd A. Jones (Bar No. 198024)
Gregory K. Federico (Bar No. 242184)
2 ARCHERNORRIS
A Professional Law Corporation
3 301 University Avenue, Suite 110
Sacramento, (Talifomia 95825
4 Telephone: 916.646.2480
Facsimile: 916.646.5696
5
Attomeys for 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 CaseNo. 07AS04450
ABBOTT,
12 CA CONSTRUCTION'S REPLY IN
Plaintiffs, SUPPORT OF MOTION IN LIMINE NO. 6
13 TO EXCLUDE EXPERT WITNESS
TESTIMONY THAT IS OUTSIDE THE
14 SCOPE OF THE EXPERT'S
RONALD PAUL BRITSCHGI, et al.. DESIGNATION
15
Defendants Action Filed: September 24, 2007
16
Hearing Date- January 7, 2011
17 Trial Date: January 18,2011
Time' 8:30 a.m.
18 Location: Department 43
19 AND ALL RELATED CROSS-ACTIONS.
20
Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION
21
(hereinafter "CA CONSTRUCTION") hereby submits tiiis reply brief in support of its Motion in
22
Limine No, 6.
23
Again, the purpose of this motion is straightforward - to limit the experts to the items
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stated in their designation and their respective categories of expertise. In the moving papers, CA
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CONSTRUCTION attached and specifically cited the language contained in Plaintiffs' expert
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designation. None ofthe designations point to any qualifications or anticipated testimony on soils
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and compaction related issues.
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N1C549/1068658-I
REPLY TO MOTION IN LIMINE NO 6 TO EXCLUDE EXPERT TESTIMONY
OUTSIDE SCOPE OF DESIGNATION
1 As to Plaintiffs' expert Lee, his designation does not include any reference to soil
2 compaction, proper soils consolidation, and fails to state that he will be offering opinions on these
3 topics at ttial. As such, he is foreclosedfi-omdoing so now. Despite tiiis. Plaintiffs have argued
4 in other motions that their experts may provide opinions on compactton issues based on hearsay
5 statementsfi-omothers, as well as other potentially inadmissible evidence. The Bond decision is
6 clear on this point. The Califomia Supreme Court held that if a party wishes to expand the scope
7 of an expert's testimony beyond what is stated in the declaration, it must successfully move for
8 leave to amend that party's expert witness declaration with respect to the general substance of the
9 testimony that a previously designated expert is expected to give. See Bonds v Rov. 20 Cal 4th
10 140 (1999). Plaintiffs have made no such motion to amend their designation.
11 A similar analysis applies to Plaintiffs' other experts Dillingham and Weahunt.
12 Notwithstanding the fact that they are not qualified to do so, their disclosures say notiiing about
13 soils compaction, proper soils consolidation, and fail to state that they will offer opinions on these
14 topics at trial. As such, they too are foreclosed from doing so now.
15 Also, It should be noted tiiat Plaintiffs withdrew the only concrete related expert they
16 initially disclosed - Timothy Crews Thus, Plaintiffs need an expert to discuss concrete related
17 issues, including compaction claims, but have no qualified expert to do so.
18 Again, perhaps an Evidence Code section 402(b) hearing is appropriate on this matter.
19 Dated: December 30, 2010 ARCHER NORRIS
20
21 Ll
Gregory K. Federico
22 Attomeys for Defendants RICHARD KIRK
RUYBALID, individually and dba CA
23 CONSTRUCTION
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27
28
N1C549/1068658-1 2
REPLY TO MOTION IN LIMINE NO 6 TO EXCLUDE EXPERT TESTIMONY
OUTSIDE SCOPE OF DESIGNATION
1 PROOF OF SERVICE
2 Name of Action: Rodney Abbott, et aL v. Ronald Paul Britschgi, et al.
Court and Action No: Sacramento County Superior No. 07AS04450
3
I, Cindy A. Ingland, declare that I am over the age of 18 years and not a party to this
4 action or proceeding. My business address is 301 University Avenue, Suite 110, Sacramento,
Califomia 95825. On December 30, 2010,1 caused the following document(s) to be served:
5
CA CONSTRUCTION'S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 6 TO
6 EXCLUDE EXPERT WITNESS TESTIMONY THAT IS OUTSIDE THE SCOPE OF
THE EXPERT'S DESIGNATION
7
I—I By placing atiruecopy ofthe documents listed above, enclosed in a sealed envelope,
8 addressed as set forth below, for collection and mailing on the date and at the business
address shown above following our ordinary business practices. I am readily familiar
9 with this business' practice for collection and processing of conespondence for
10 mailing with tiie United States Postal Service. On the same day that a sealed envelope
is placed for collection and mailing, it is deposited in the ordinary course of business
11 with the United States Postal Service with postage fully prepaid.
12 I—I By having a true copy ofthe document(s) listed above transmitted by facsimile to the
person(s) at the facsimile number(s) set forth below before 5:00 p.m The transmission
13 was reported as complete without error by a report issued by the transmitting facsimile
machine.
14
15 153 By placing a true copy ofthe document(s) listed above, in a box or other facility
regularly maintained by UPS, an express service carrier, or delivered to a courier or
16 driver authorized by the express service carrier to receive documents, in an envelope
designated by the express service carrier, with delivery fees paid or provided for,
17 addressed as set forth below.
18 r-j by having personal delivery by FIRST LEGAL SUPPORT SERVICES a true copy of
19 the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the
address(es) set forth below.
20
21 [SEE ATTACHED SERVICE LIST]
22 I declare under penalty of perjury that the foregoing is true and correct. Executed on
December 30,2010, at Sacramento, Califomia.
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(Sn^!^bnA-^
^ C l [NDY A, INGLAND
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NIC341/608293-1
PROOF OF SERVICE
I Service List
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Stephanie Finelli PLAINTIFFS
3 Law Offices of Stephanie J Finelli
1007 Seventh Street, Suite 500 Tel. (916) 443-2144
4 Sacramento, CA 95814 Fax:(916)443-1511
E-mail: sfinelli700(gyahoo.com
5
Richard D Sopp Counsel for CADRE DESIGN GROUP, INC.
6 Wheatley Sopp LLP
1004 River Rock Drive, Suite 245 Tel. (916) 988-3857
7 Folsom, CA 95630 Fax:(916)988-5296
Email rds(^mwsblaw.com
8
Mark Smith In Pro Per
9 8549 Willow Valley Place
Granite Bay, CA 95746
10
Richard W. Freeman Counsel for R4C0RP
11 Scott S Brooks
WOOD SMITH HENNING & BERMAN LLP Tel. (925) 356-8200
12 1401 Willow Pass Road, Suite 700 Fax: (925) 356-8250
Concord, CA 94520-7982
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N]a41/608293-1
SERVICE LIST
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1 Todd A. Jones (Bar No. 198024) Gregory K. Federico (Bar No. 242184) 2 ARCHERNORRIS A Professional Law Corporation 3 301 University Avenue, Suite 110 Sacramento, (Talifomia 95825 4 Telephone: 916.646.2480 Facsimile: 916.646.5696 5 Attomeys for 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 CaseNo. 07AS04450 ABBOTT, 12 CA CONSTRUCTION'S REPLY IN Plaintiffs, SUPPORT OF MOTION IN LIMINE NO. 6 13 TO EXCLUDE EXPERT WITNESS TESTIMONY THAT IS OUTSIDE THE 14 SCOPE OF THE EXPERT'S RONALD PAUL BRITSCHGI, et al.. DESIGNATION 15 Defendants Action Filed: September 24, 2007 16 Hearing Date- January 7, 2011 17 Trial Date: January 18,2011 Time' 8:30 a.m. 18 Location: Department 43 19 AND ALL RELATED CROSS-ACTIONS. 20 Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 21 (hereinafter "CA CONSTRUCTION") hereby submits tiiis reply brief in support of its Motion in 22 Limine No, 6. 23 Again, the purpose of this motion is straightforward - to limit the experts to the items 24 stated in their designation and their respective categories of expertise. In the moving papers, CA 25 CONSTRUCTION attached and specifically cited the language contained in Plaintiffs' expert 26 designation. None ofthe designations point to any qualifications or anticipated testimony on soils 27 and compaction related issues. 28 N1C549/1068658-I REPLY TO MOTION IN LIMINE NO 6 TO EXCLUDE EXPERT TESTIMONY OUTSIDE SCOPE OF DESIGNATION 1 As to Plaintiffs' expert Lee, his designation does not include any reference to soil 2 compaction, proper soils consolidation, and fails to state that he will be offering opinions on these 3 topics at ttial. As such, he is foreclosedfi-omdoing so now. Despite tiiis. Plaintiffs have argued 4 in other motions that their experts may provide opinions on compactton issues based on hearsay 5 statementsfi-omothers, as well as other potentially inadmissible evidence. The Bond decision is 6 clear on this point. The Califomia Supreme Court held that if a party wishes to expand the scope 7 of an expert's testimony beyond what is stated in the declaration, it must successfully move for 8 leave to amend that party's expert witness declaration with respect to the general substance of the 9 testimony that a previously designated expert is expected to give. See Bonds v Rov. 20 Cal 4th 10 140 (1999). Plaintiffs have made no such motion to amend their designation. 11 A similar analysis applies to Plaintiffs' other experts Dillingham and Weahunt. 12 Notwithstanding the fact that they are not qualified to do so, their disclosures say notiiing about 13 soils compaction, proper soils consolidation, and fail to state that they will offer opinions on these 14 topics at trial. As such, they too are foreclosed from doing so now. 15 Also, It should be noted tiiat Plaintiffs withdrew the only concrete related expert they 16 initially disclosed - Timothy Crews Thus, Plaintiffs need an expert to discuss concrete related 17 issues, including compaction claims, but have no qualified expert to do so. 18 Again, perhaps an Evidence Code section 402(b) hearing is appropriate on this matter. 19 Dated: December 30, 2010 ARCHER NORRIS 20 21 Ll Gregory K. Federico 22 Attomeys for Defendants RICHARD KIRK RUYBALID, individually and dba CA 23 CONSTRUCTION 24 25 26 27 28 N1C549/1068658-1 2 REPLY TO MOTION IN LIMINE NO 6 TO EXCLUDE EXPERT TESTIMONY OUTSIDE SCOPE OF DESIGNATION 1 PROOF OF SERVICE 2 Name of Action: Rodney Abbott, et aL v. Ronald Paul Britschgi, et al. Court and Action No: Sacramento County Superior No. 07AS04450 3 I, Cindy A. Ingland, declare that I am over the age of 18 years and not a party to this 4 action or proceeding. My business address is 301 University Avenue, Suite 110, Sacramento, Califomia 95825. On December 30, 2010,1 caused the following document(s) to be served: 5 CA CONSTRUCTION'S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 6 TO 6 EXCLUDE EXPERT WITNESS TESTIMONY THAT IS OUTSIDE THE SCOPE OF THE EXPERT'S DESIGNATION 7 I—I By placing atiruecopy ofthe documents listed above, enclosed in a sealed envelope, 8 addressed as set forth below, for collection and mailing on the date and at the business address shown above following our ordinary business practices. I am readily familiar 9 with this business' practice for collection and processing of conespondence for 10 mailing with tiie United States Postal Service. On the same day that a sealed envelope is placed for collection and mailing, it is deposited in the ordinary course of business 11 with the United States Postal Service with postage fully prepaid. 12 I—I By having a true copy ofthe document(s) listed above transmitted by facsimile to the person(s) at the facsimile number(s) set forth below before 5:00 p.m The transmission 13 was reported as complete without error by a report issued by the transmitting facsimile machine. 14 15 153 By placing a true copy ofthe document(s) listed above, in a box or other facility regularly maintained by UPS, an express service carrier, or delivered to a courier or 16 driver authorized by the express service carrier to receive documents, in an envelope designated by the express service carrier, with delivery fees paid or provided for, 17 addressed as set forth below. 18 r-j by having personal delivery by FIRST LEGAL SUPPORT SERVICES a true copy of 19 the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the address(es) set forth below. 20 21 [SEE ATTACHED SERVICE LIST] 22 I declare under penalty of perjury that the foregoing is true and correct. Executed on December 30,2010, at Sacramento, Califomia. 23 24 25 (Sn^!^bnA-^ ^ C l [NDY A, INGLAND 26 27 28 NIC341/608293-1 PROOF OF SERVICE I Service List 2 Stephanie Finelli PLAINTIFFS 3 Law Offices of Stephanie J Finelli 1007 Seventh Street, Suite 500 Tel. (916) 443-2144 4 Sacramento, CA 95814 Fax:(916)443-1511 E-mail: sfinelli700(gyahoo.com 5 Richard D Sopp Counsel for CADRE DESIGN GROUP, INC. 6 Wheatley Sopp LLP 1004 River Rock Drive, Suite 245 Tel. (916) 988-3857 7 Folsom, CA 95630 Fax:(916)988-5296 Email rds(^mwsblaw.com 8 Mark Smith In Pro Per 9 8549 Willow Valley Place Granite Bay, CA 95746 10 Richard W. Freeman Counsel for R4C0RP 11 Scott S Brooks WOOD SMITH HENNING & BERMAN LLP Tel. (925) 356-8200 12 1401 Willow Pass Road, Suite 700 Fax: (925) 356-8250 Concord, CA 94520-7982 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 N]a41/608293-1 SERVICE LIST