Preview
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SACRAMENTO
CIVIL
TENTATIVE RULINGS - January 06, 2011
EVENT DATE: 01/07/2011 EVENT TIME: 10:00:00 AM DEPT.: 43
JUDICIAL OFFICER:
CASE NO.: 07AS04450
CASE TITLE: RODNEY ABBOTT, ET AL VS. RONALD PAUL BRITSCHGI, ET AL
CASE CATEGORY: Civil - Unlimited CASE TYPE: Breach of Contract/Warranty
EVENT TYPE: Motion in Limine - Civil Trial
CAUSAL DOCUMENT/DATE FILED:
Plaintiffs' Motions in Limine
1. Motion to exclude expert testimony
The motion is denied.
Plaintiffs seeks to exclude defendants' expert witnesses, William Poulton, Jerry Aplass, Jason Newlin,
Dave Heryet and Fari Barzegar on the ground the defendants failed to produce them for deposition and
failed to produce documents, including reports, in response to subpoena. Plaintiff relies on Code of Civil
Procedure section 2034.300.
According to plaintiffs, deposition notices for William Poulton, Jerry Aplass and Dave Heryat were served
on April 21, 2009, stating that the depositions would be taken on April 28. Defendants objected that
such was a) insufficient notice and b) the date for the depositions was after the discovery cut-off; based
on such contentions, Defendants declined to produce such experts for the noticed depositions.
Plaintiffs here contend that the depositions were set late, because the depositions were originally
noticed by cross-defendant Cadre for April 27, the last date for discovery, but later were withdrawn.
Plaintiffs allege they did not receive notification of the withdrawal until April 20, leaving insufficient time
for plaintiffs to give sufficient notice in order to set them for a date inside the discovery cut-off. Plaintiffs
also assert that defendants had offered to stipulate to extend the expert cut-off date.
Plaintiffs contend that one of the reasons they did not notice the depositions sooner was because
defendants had assured plaintiffs prior to April 15, 2009, the date they inspected the property, that the
experts had nothing to report.
Although defendants disagree about some of the details, they do confirm that the depositions did not go
forward because they objected to the notices as untimely.
Defendants also point out that plaintiffs never responded to their April 17, email offer to stipulate to
Event ID: 1399335 TENTATIVE RULINGS Calendar No.:
Page: 1
CASE TITLE: RODNEY ABBOTT, ET AL VS. CASE NUMBER: 07AS04450
RONALD PAUL BRITSCHGI, ET AL
extend expert discovery. They therefore argue that, since no stipulation was executed, the notices were
untimely, as noted in defendants' objections.
Defendants further contend plaintiffs' motion should be denied because plaintiffs have not been diligent
in attempting to reopen discovery, even though they have had 17 months in which to do so. Defendants
also state that they will comply with a proper trial subpoena for experts and documents issued for the
upcoming trial.
Exclusion of expert testimony is an evidentiary sanction pursuant to Code of Civil Procedure section
2034.300. The sanction is warranted only on a finding of an unreasonable failure to comply with the
statute.
On the basis of the facts presented, the Court finds that the defendants' failure to make the experts
available was based on a proper objection that the notices were untimely. Accordingly, the failure to
produce the experts was not unreasonable in the circumstances. Further, Plaintiffs have had ample
opportunity to try to remedy the situation, but have elected no to have done so. Consequently, the Court
can find no basis to exclude the testimony of Defendants' experts as a sanction.
The Court notes that, in order to avoid prejudice to plaintiffs, the Court will look favorably on a motion to
reopen discovery for the limited purpose of taking depositions of the experts, should plaintiffs wish to
make such motion. In such case, however, Plaintiffs shall bear the expenses of all parties for any such
additional depositions.
2. Motion to Bifurcate
The motion to bifurcate is denied.
Plaintiffs seeks a bifurcated court trial before the jury trial on the issue of whether defendant CA
Construction violated Business and Professions Code sections 7028, 7031 and 7057 for failure to have
possessed the proper construction licenses for the work it performed.
Plaintiffs argue that the issue of whether CA Construction was properly licensed for the work it
performed is a legal issue for the court that requires only limited evidence.
In opposition, defendant CA Construction contends that resolution of the proper licensure issue involves
mixed questions of law and fact. Defendant also contends that the evidence for the various causes of
action is interrelated, and bifurcation does not promote convenience of witnesses, the ends of justice or
the efficiency of handling the litigation. (Code Civ. Proc. §§ 598 and 1048.)
The Court agrees with defendant. On the present record, it appears that underlying factual questions
must be determined by the jury before the Court can determine as a matter of law whether defendant CA
Construction was an unlicensed contractor subject to Business & Professions Code sections 7028 and
7031. (See Dahl-Beck Electric Co. v. Rogge (1996) 275 Cal. App. 2d 893, 900)
Moreover, even if that is not the case, the Court perceives no value in bifurcating the issue in light of the
fact that the witnesses on all causes of action are predominantly the same, and the evidence is
interrelated. Bifurcation serves neither the ends of justice, nor the efficient handling of the case.
Event ID: 1399335 TENTATIVE RULINGS Calendar No.:
Page: 2
CASE TITLE: RODNEY ABBOTT, ET AL VS. CASE NUMBER: 07AS04450
RONALD PAUL BRITSCHGI, ET AL
Defendants' Joint Motions in Limine
Motions in Limine 1, 2 and 3 to exclude testimony of experts James Lee, Jr., Robert Weahunt and
James Dillingham
The motions are denied, without prejudice.
In this construction defect case, defendants seek to exclude the testimony of plaintiffs' experts, because
none of the experts ever inspected, documented or tested the home or observed any defects.
Defendants contend the evidence should be excluded under Evidence Code section 802(b) because
they lack personal knowledge. Defendants also contend the evidence should be excluded under
Evidence Code section 352, because it is speculative and any probative value is substantially
outweighed by the prejudice it will cause to defendants.
Notwithstanding the above-stated deficiencies, Defendants rely on selective portions of the three, said
plaintiffs' experts' depositions.
The motion is vague and premature. It is denied for that reason.
Moreover, as plaintiffs correctly state, an expert may base an opinion on matters made known to him at
or before the hearing, whether or not the matters are admissible, as long as the matter is of a type that
reasonably may be relied upon by an expert in forming an opinion upon the subject to which his
testimony related. (Ev. Code § 801(b).) The opinion may, but is not required to be, based on matter
actually perceived or personally known to him.
Here, it appears that the proffered testimony of the three witnesses is based upon their expert and
personal knowledge. On the present record, the Court has no reason to doubt that the sufficiency of
foundation for the opinions. Last, Defendants' objections go to weight, not admissibility.
This ruling is without prejudice to bringing specific objections as matters develop at trial. Should it
appear necessary, the Court will conduct 402 hearings outside the presence of the jury in order to
determine the proper scope of the experts' testimony.
4. Motion to exclude hearsay evidence as basis for testimony by plaintiffs' experts
The motion is denied without prejudice.
Defendants seek an order prohibiting "plaintiffs' experts from introducing opinion evidence that contains
or alludes to the substance of, or concurrence with, improper hearsay evidence obtained from
undisclosed experts, texts, or other references."
Defendants acknowledge that expert witnesses may state that they have relied upon opinions, texts or
references from non-testifying experts. However, defendants seek an order to prohibit introduction of
the content of those opinions, texts or references during direct examination.
Defendants cite no specific testimony they seek to exclude. Accordingly, the motion is vague and
premature, and is therefore denied. (See, e.g., Kelly v. New West Federal Savings (1996) 49
Cal.App.4th 659, 670)
Event ID: 1399335 TENTATIVE RULINGS Calendar No.:
Page: 3
CASE TITLE: RODNEY ABBOTT, ET AL VS. CASE NUMBER: 07AS04450
RONALD PAUL BRITSCHGI, ET AL
Such denial is without prejudice to defendants' objections, should plaintiff attempt to introduce the
hearsay content of materials on which the experts relied.
5. Motion to exclude evidence of emotional distress
The motion is granted in part and denied in part.
Defendants seek an order prohibiting plaintiffs from introducing evidence that plaintiffs or family
members have suffered damages from emotional distress.
In opposition, plaintiffs state they are not seeking emotional distress damages. The motion is granted
due to this lack of opposition by plaintiffs.
However, this ruling does not mean that plaintiffs cannot introduce evidence that a specific purpose for
building the home was that plaintiffs intended that Florentine's mother, who is disabled, could live there,
including the concomitant reasons for the omission of steps. The fact that plaintiffs are not seeking
damages for emotional distress does not mean this evidence is irrelevant.
6. Motion to exclude expert testimony that is outside the scope of the designation.
The motion is denied.
Defendants seek to exclude any testimony of three experts that goes beyond the scope of their
designation.
While such motion appears to ask only for a syllogism, the Court agrees with plaintiffs that it is being
asked to "rule in a vacuum." The motion is vague and premature, so is denied. (See, e.g., Kelly v. New
West Federal Savings (1996) 49 Cal.App.4th 659, 670).
Defendants may object during trial if it appears that plaintiffs are embarking on a line of questioning that
goes beyond the scope of any designation. (Bonds v. Roy (1999) 20 Cal.4th 140)
7. Motion to allow introduction of copies of business records of a party without further
authentication
The motion is denied. The motion is vague and premature. (See, e.g., Kelly v. New West Federal
Savings (1996) 49 Cal.App.4th 659, 670) It is denied for that reason. The motion is also an improper
motion in limine.
Notwithstanding this ruling, the Court encourages and requests the parties to enter into stipulations to
admit any and all routine business records, including, if appropriate, medical treatment records and
invoices. The issue of the admissibility of all exhibits will be addressed at the appropriate time.
8. Motion to exclude experts from testifying about post-deposition work and opinions
The motion is denied without prejudice.
The motion is vague and premature. It is denied for that reason.
Event ID: 1399335 TENTATIVE RULINGS Calendar No.:
Page: 4
CASE TITLE: RODNEY ABBOTT, ET AL VS. CASE NUMBER: 07AS04450
RONALD PAUL BRITSCHGI, ET AL
The motion is also denied on the merits.
Defendants rely on Kennemur v. State of California (1982) 133 Cal.App.3d 907. Generally, exclusion of
expert testimony is warranted only as an evidentiary sanction pursuant to Code of Civil Procedure
section 2034.300.
In Easterby v. Clark (2009) 171 Cal. App. 4th 772, the Second District Court of Appeal discussed the
issue of when exclusion is appropriate under the reasoning of Jones v. Moore (2000) 80 Cal.App.4th
557; Kennemur v. State of California (1982) 133 Cal.App.3d 907 and Bonds v. Roy (1999) 20 Cal.4th
140.
The Easterby court explained that the overarching principle in Kennemur, Jones, and Bond is clear: A
party's expert may not offer testimony at trial that exceeds the scope of his deposition testimony, if the
opposing party has no notice or expectation that the expert will offer the new testimony, or if notice of the
new testimony comes at a time when deposing the expert is unreasonably difficult. (Emph. added) (Id.
at 781)
Under the reasoning of Jones v. Moore (supra), defendants have the burden to demonstrate that they
closed the door on additional expert testimony. At this time, defendants have failed to show that they
closed that door.
The Court is willing to reconsider this matter if plaintiff is able to make a stronger showing for exclusion
during trial. However, it appears from the present record that it is unlikely that defendants will be able to
show they closed the door, or that they had no notice of post-deposition testimony.
Plaintiff may make objections at trial to specific questions and testimony as they occur.
9. Motion to exclude lay opinions
The motion is granted. It is not opposed.
The Court notes that the parties have raised an unrelated issue in this motion. The question of whether
defendants may introduce the status of plaintiff, Florentine Abbott's, contractors' license is not properly
before the Court at this time. Plaintiffs may bring any additional motions to address the issue either
before or during trial.
10. Motion to exclude evidence of insurance
The motion is granted. It is not opposed.
11. Motion to exclude evidence of damages based on speculation and/or extrapolation
The motion is denied without prejudice.
The motion is vague and premature. (See, e.g., Kelly v. New West Federal Savings (1996) 49
Cal.App.4th 659, 670) It is denied for that reason.
Event ID: 1399335 TENTATIVE RULINGS Calendar No.:
Page: 5
CASE TITLE: RODNEY ABBOTT, ET AL VS. CASE NUMBER: 07AS04450
RONALD PAUL BRITSCHGI, ET AL
12. Motion to exclude subcontractors being responsible for design defects
The motion is denied.
Defendants seek an order prohibiting plaintiffs from introducing evidence that subcontractors can be
responsible for defective design.
Defendants cite cases for the proposition that architects and subcontractors are not joint tortfeasors for
work done by subcontractors according to the original design professionals' plans. (See e.g. Sunbeam
Construction v. Fisci (1969) 2 Cal.App.3d 181, 184-185)
Defendants argue that the evidence shows that defendant Britschgi signed off on an elevation and
layout, approving such on behalf of plaintiffs and that therefore, plaintiffs were in complete control of the
design elements.
In opposition, plaintiffs contend that the court cannot at this time determine the issue on the proper
allocation of blame for the improper placement of the foundation.
Plaintiffs are persuasive. Strictly speaking, this is not an in limine motion. (See Amtower v. Photon
Dynamics, Inc. (2008) 158 Cal.App.4th 1582)
In limine motions are designed to facilitate the management of a case, generally by deciding difficult
evidentiary issues in advance of trial. The usual purpose of motions in limine is to preclude the
presentation of evidence deemed inadmissible and prejudicial by the moving party. A typical order in
limine excludes the challenged evidence and directs counsel, parties, and witnesses not to refer to the
excluded matters during trial. The advantage of such motions is to avoid the obviously futile attempt to
'un-ring the bell,' in the event a motion to strike is granted in the proceedings before the jury. In limine
motions are not designed to replace the dispositive motions prescribed by the Code of Civil Procedure.
(Ibid.)
The motion is more properly seen as a motion for summary adjudication or a request for a jury
instruction on the issue and so is denied here as an improper motion in limine.
The Court makes no determination on the merits or the issue of whether a subcontractor may be held for
a design defect at this time.
13. Motion for view of property
The motion is denied, without prejudice.
Defendants request the Court to order a visual inspection of the property by the jury, because it will help
the jury realistically understand the overall condition of the property and evaluate the damages.
Plaintiffs contend a view will cause undue consumption of time, confuse the jury and cause prejudice.
Plaintiffs argue that the property looks nothing like it did during construction when the grading,
compaction and elevation issues arose.
Code of Civil Procedure section 651(a)(1) provides that the court may order a view of the property that is
Event ID: 1399335 TENTATIVE RULINGS Calendar No.:
Page: 6
CASE TITLE: RODNEY ABBOTT, ET AL VS. CASE NUMBER: 07AS04450
RONALD PAUL BRITSCHGI, ET AL
the subject of litigation, on its own motion or on the motion of a party, where the court finds that such a
view would be proper and would aid the trier of fact in its determination of the case.
According to the Legislative Committee comment, this section 651(a)(1) provides a procedure whereby
the trier of fact--whether judge or jury--may leave the courtroom to receive evidence. Subdivision (a)
provides the standard for determining whether the trier of fact should view evidence outside the
courtroom. The court has discretion whether to order a view. In making the determination, the court
should weigh the need for the view against such considerations as whether the view would necessitate
undue consumption of time or create a danger of misleading the trier of fact because of changed
conditions.
At the present time and on the present record, the Court is not convinced that a view would be proper in
light of its arguably changed condition; nor does it appear that such would necessarily aid the jury in its
determination of the case. Conceivably, such view could cause an undue consumption of time in moving
the entire court proceedings to the property, as required by Code of Civil Procedure 651(b). The Court
is provisionally convinced that the jury can adequately determine the issues in this case, based solely on
the evidence to be presented in the courtroom.
14. Motion to exclude opinion testimony interpreting violations of the Business & Professions
Code and Building Code violations
The motion is denied without prejudice.
Defendants seek to preclude expert testimony interpreting licensing and building code violations on the
ground that this is purely a question of law for the Court and not a proper subject for expert opinion.
Specifically, defendants ask the Court to prohibit plaintiffs from introducing witness opinion testimony
concerning alleged violations of the Business & Professions Code sections 7000 et seq, pertaining to the
contractors' licensing laws and/or pertaining to building codes and other applicable standards.
Defendants are concerned that plaintiffs will discuss in opening statement that defendant CA
Construction was improperly licensed to perform the concrete work on the project and will try to
introduce expert or lay witness testimony as to the same issue.
In opposition, plaintiffs acknowledge, as they must, that experts are not allowed to testify as to their
interpretation of the law. However, plaintiffs contend that the experts may testify as to whether building
codes were violated as that is part of the standard of care.
Plaintiffs are aware that experts are not allowed to testify about the proper interpretation of statutes and
regulations or ultimate questions of law. Accordingly, the Court expects that plaintiffs' counsel will not
attempt to elicit any such testimony; the Court will be sensitive to any objections by defendants if she
does so. However, the Court cannot issue a blanket order regarding the issue at this time.
The Court will be open to reconsider this issue as the nature of the testimony becomes clearer at trial.
Plaintiffs shall seek the Court's permission and be prepared to make an offer of proof before asking any
expert questions about violation of statute or building code regulations.
15. Motion to bar reference of costs to repair defects that have caused no physical damage
Event ID: 1399335 TENTATIVE RULINGS Calendar No.:
Page: 7
CASE TITLE: RODNEY ABBOTT, ET AL VS. CASE NUMBER: 07AS04450
RONALD PAUL BRITSCHGI, ET AL
prior to a 402 hearing
The motion is denied.
Defendants contend that the Court should exclude evidence of defects that have not caused any
physical property damage, because such damages are not obtainable under the economic loss rule as
stated in Aas v.Superior Court (2000) Cal.4th 627.
The reliance on the Aas case is misplaced. As the court stated in Greystone Homes, Inc. v. Midtec, Inc
(2008) 168 Cal. App. 4th 1194, the Right to Repair Act (Civil Code section 895 et. seq) abrogates the
economic loss rule in actions brought by homeowners against individual product manufacturers for a
violation of the Act's standards based upon the manufacturer's negligence or breach of contract. (Id. at
1217)
Moreover, even if the economic loss rule applies, the evidence of defects is relevant to the breach of
contract claims.
Defendant R4 Corp. Inc.'s Motions in Limine
1. Motion to exclude documentary evidence not produced during discovery
The motion is denied.
The motion is vague and premature. (See, e.g., Kelly v. New West Federal Savings (1996) 49
Cal.App.4th 659, 670) It is denied for that reason.
Moreover, exclusion of evidence as a sanction at trial requires evidence of willful abuse of the discovery
process or willful failure to obey a court order. It also requires evidence that defendants were prejudiced.
There is no such evidence here.
The Court notes that on January 3, 2011, defendant filed motion 16 and plaintiff filed two supplemental
motions. There is no opposition to the motions, although defendant's motion to exclude Bryan Hill's
testimony and plaintiff's motion to permit that same testimony address the same subject.
- Motion Excluding Evidence against R4 Corp Regarding Construction Defects.
To have oral argument.
Given the lateness of the filing the Court will not issue tentative rulings on any of the three matters that
were filed on January 3, 2011. The parties may therefore address them at oral argument.
The above ruling constitutes the Court's tentative decision and shall be the ruling of the Court on
the Motion(s), unless, by 5:00 pm, Thursday, January 06, 2011, either party notifies Court Clerk
Mr. Anthony Brown, at 874-7561, to request oral argument. Such request must include the
representation that the requesting party has notified opposing counsel. If the request and affirmative
Event ID: 1399335 TENTATIVE RULINGS Calendar No.:
Page: 8
CASE TITLE: RODNEY ABBOTT, ET AL VS. CASE NUMBER: 07AS04450
RONALD PAUL BRITSCHGI, ET AL
representation have been made timely, the Court will entertain oral argument on the date and time
specified.
Event ID: 1399335 TENTATIVE RULINGS Calendar No.:
Page: 9
Preview
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO CIVIL TENTATIVE RULINGS - January 06, 2011 EVENT DATE: 01/07/2011 EVENT TIME: 10:00:00 AM DEPT.: 43 JUDICIAL OFFICER: CASE NO.: 07AS04450 CASE TITLE: RODNEY ABBOTT, ET AL VS. RONALD PAUL BRITSCHGI, ET AL CASE CATEGORY: Civil - Unlimited CASE TYPE: Breach of Contract/Warranty EVENT TYPE: Motion in Limine - Civil Trial CAUSAL DOCUMENT/DATE FILED: Plaintiffs' Motions in Limine 1. Motion to exclude expert testimony The motion is denied. Plaintiffs seeks to exclude defendants' expert witnesses, William Poulton, Jerry Aplass, Jason Newlin, Dave Heryet and Fari Barzegar on the ground the defendants failed to produce them for deposition and failed to produce documents, including reports, in response to subpoena. Plaintiff relies on Code of Civil Procedure section 2034.300. According to plaintiffs, deposition notices for William Poulton, Jerry Aplass and Dave Heryat were served on April 21, 2009, stating that the depositions would be taken on April 28. Defendants objected that such was a) insufficient notice and b) the date for the depositions was after the discovery cut-off; based on such contentions, Defendants declined to produce such experts for the noticed depositions. Plaintiffs here contend that the depositions were set late, because the depositions were originally noticed by cross-defendant Cadre for April 27, the last date for discovery, but later were withdrawn. Plaintiffs allege they did not receive notification of the withdrawal until April 20, leaving insufficient time for plaintiffs to give sufficient notice in order to set them for a date inside the discovery cut-off. Plaintiffs also assert that defendants had offered to stipulate to extend the expert cut-off date. Plaintiffs contend that one of the reasons they did not notice the depositions sooner was because defendants had assured plaintiffs prior to April 15, 2009, the date they inspected the property, that the experts had nothing to report. Although defendants disagree about some of the details, they do confirm that the depositions did not go forward because they objected to the notices as untimely. Defendants also point out that plaintiffs never responded to their April 17, email offer to stipulate to Event ID: 1399335 TENTATIVE RULINGS Calendar No.: Page: 1 CASE TITLE: RODNEY ABBOTT, ET AL VS. CASE NUMBER: 07AS04450 RONALD PAUL BRITSCHGI, ET AL extend expert discovery. They therefore argue that, since no stipulation was executed, the notices were untimely, as noted in defendants' objections. Defendants further contend plaintiffs' motion should be denied because plaintiffs have not been diligent in attempting to reopen discovery, even though they have had 17 months in which to do so. Defendants also state that they will comply with a proper trial subpoena for experts and documents issued for the upcoming trial. Exclusion of expert testimony is an evidentiary sanction pursuant to Code of Civil Procedure section 2034.300. The sanction is warranted only on a finding of an unreasonable failure to comply with the statute. On the basis of the facts presented, the Court finds that the defendants' failure to make the experts available was based on a proper objection that the notices were untimely. Accordingly, the failure to produce the experts was not unreasonable in the circumstances. Further, Plaintiffs have had ample opportunity to try to remedy the situation, but have elected no to have done so. Consequently, the Court can find no basis to exclude the testimony of Defendants' experts as a sanction. The Court notes that, in order to avoid prejudice to plaintiffs, the Court will look favorably on a motion to reopen discovery for the limited purpose of taking depositions of the experts, should plaintiffs wish to make such motion. In such case, however, Plaintiffs shall bear the expenses of all parties for any such additional depositions. 2. Motion to Bifurcate The motion to bifurcate is denied. Plaintiffs seeks a bifurcated court trial before the jury trial on the issue of whether defendant CA Construction violated Business and Professions Code sections 7028, 7031 and 7057 for failure to have possessed the proper construction licenses for the work it performed. Plaintiffs argue that the issue of whether CA Construction was properly licensed for the work it performed is a legal issue for the court that requires only limited evidence. In opposition, defendant CA Construction contends that resolution of the proper licensure issue involves mixed questions of law and fact. Defendant also contends that the evidence for the various causes of action is interrelated, and bifurcation does not promote convenience of witnesses, the ends of justice or the efficiency of handling the litigation. (Code Civ. Proc. §§ 598 and 1048.) The Court agrees with defendant. On the present record, it appears that underlying factual questions must be determined by the jury before the Court can determine as a matter of law whether defendant CA Construction was an unlicensed contractor subject to Business & Professions Code sections 7028 and 7031. (See Dahl-Beck Electric Co. v. Rogge (1996) 275 Cal. App. 2d 893, 900) Moreover, even if that is not the case, the Court perceives no value in bifurcating the issue in light of the fact that the witnesses on all causes of action are predominantly the same, and the evidence is interrelated. Bifurcation serves neither the ends of justice, nor the efficient handling of the case. Event ID: 1399335 TENTATIVE RULINGS Calendar No.: Page: 2 CASE TITLE: RODNEY ABBOTT, ET AL VS. CASE NUMBER: 07AS04450 RONALD PAUL BRITSCHGI, ET AL Defendants' Joint Motions in Limine Motions in Limine 1, 2 and 3 to exclude testimony of experts James Lee, Jr., Robert Weahunt and James Dillingham The motions are denied, without prejudice. In this construction defect case, defendants seek to exclude the testimony of plaintiffs' experts, because none of the experts ever inspected, documented or tested the home or observed any defects. Defendants contend the evidence should be excluded under Evidence Code section 802(b) because they lack personal knowledge. Defendants also contend the evidence should be excluded under Evidence Code section 352, because it is speculative and any probative value is substantially outweighed by the prejudice it will cause to defendants. Notwithstanding the above-stated deficiencies, Defendants rely on selective portions of the three, said plaintiffs' experts' depositions. The motion is vague and premature. It is denied for that reason. Moreover, as plaintiffs correctly state, an expert may base an opinion on matters made known to him at or before the hearing, whether or not the matters are admissible, as long as the matter is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony related. (Ev. Code § 801(b).) The opinion may, but is not required to be, based on matter actually perceived or personally known to him. Here, it appears that the proffered testimony of the three witnesses is based upon their expert and personal knowledge. On the present record, the Court has no reason to doubt that the sufficiency of foundation for the opinions. Last, Defendants' objections go to weight, not admissibility. This ruling is without prejudice to bringing specific objections as matters develop at trial. Should it appear necessary, the Court will conduct 402 hearings outside the presence of the jury in order to determine the proper scope of the experts' testimony. 4. Motion to exclude hearsay evidence as basis for testimony by plaintiffs' experts The motion is denied without prejudice. Defendants seek an order prohibiting "plaintiffs' experts from introducing opinion evidence that contains or alludes to the substance of, or concurrence with, improper hearsay evidence obtained from undisclosed experts, texts, or other references." Defendants acknowledge that expert witnesses may state that they have relied upon opinions, texts or references from non-testifying experts. However, defendants seek an order to prohibit introduction of the content of those opinions, texts or references during direct examination. Defendants cite no specific testimony they seek to exclude. Accordingly, the motion is vague and premature, and is therefore denied. (See, e.g., Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 670) Event ID: 1399335 TENTATIVE RULINGS Calendar No.: Page: 3 CASE TITLE: RODNEY ABBOTT, ET AL VS. CASE NUMBER: 07AS04450 RONALD PAUL BRITSCHGI, ET AL Such denial is without prejudice to defendants' objections, should plaintiff attempt to introduce the hearsay content of materials on which the experts relied. 5. Motion to exclude evidence of emotional distress The motion is granted in part and denied in part. Defendants seek an order prohibiting plaintiffs from introducing evidence that plaintiffs or family members have suffered damages from emotional distress. In opposition, plaintiffs state they are not seeking emotional distress damages. The motion is granted due to this lack of opposition by plaintiffs. However, this ruling does not mean that plaintiffs cannot introduce evidence that a specific purpose for building the home was that plaintiffs intended that Florentine's mother, who is disabled, could live there, including the concomitant reasons for the omission of steps. The fact that plaintiffs are not seeking damages for emotional distress does not mean this evidence is irrelevant. 6. Motion to exclude expert testimony that is outside the scope of the designation. The motion is denied. Defendants seek to exclude any testimony of three experts that goes beyond the scope of their designation. While such motion appears to ask only for a syllogism, the Court agrees with plaintiffs that it is being asked to "rule in a vacuum." The motion is vague and premature, so is denied. (See, e.g., Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 670). Defendants may object during trial if it appears that plaintiffs are embarking on a line of questioning that goes beyond the scope of any designation. (Bonds v. Roy (1999) 20 Cal.4th 140) 7. Motion to allow introduction of copies of business records of a party without further authentication The motion is denied. The motion is vague and premature. (See, e.g., Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 670) It is denied for that reason. The motion is also an improper motion in limine. Notwithstanding this ruling, the Court encourages and requests the parties to enter into stipulations to admit any and all routine business records, including, if appropriate, medical treatment records and invoices. The issue of the admissibility of all exhibits will be addressed at the appropriate time. 8. Motion to exclude experts from testifying about post-deposition work and opinions The motion is denied without prejudice. The motion is vague and premature. It is denied for that reason. Event ID: 1399335 TENTATIVE RULINGS Calendar No.: Page: 4 CASE TITLE: RODNEY ABBOTT, ET AL VS. CASE NUMBER: 07AS04450 RONALD PAUL BRITSCHGI, ET AL The motion is also denied on the merits. Defendants rely on Kennemur v. State of California (1982) 133 Cal.App.3d 907. Generally, exclusion of expert testimony is warranted only as an evidentiary sanction pursuant to Code of Civil Procedure section 2034.300. In Easterby v. Clark (2009) 171 Cal. App. 4th 772, the Second District Court of Appeal discussed the issue of when exclusion is appropriate under the reasoning of Jones v. Moore (2000) 80 Cal.App.4th 557; Kennemur v. State of California (1982) 133 Cal.App.3d 907 and Bonds v. Roy (1999) 20 Cal.4th 140. The Easterby court explained that the overarching principle in Kennemur, Jones, and Bond is clear: A party's expert may not offer testimony at trial that exceeds the scope of his deposition testimony, if the opposing party has no notice or expectation that the expert will offer the new testimony, or if notice of the new testimony comes at a time when deposing the expert is unreasonably difficult. (Emph. added) (Id. at 781) Under the reasoning of Jones v. Moore (supra), defendants have the burden to demonstrate that they closed the door on additional expert testimony. At this time, defendants have failed to show that they closed that door. The Court is willing to reconsider this matter if plaintiff is able to make a stronger showing for exclusion during trial. However, it appears from the present record that it is unlikely that defendants will be able to show they closed the door, or that they had no notice of post-deposition testimony. Plaintiff may make objections at trial to specific questions and testimony as they occur. 9. Motion to exclude lay opinions The motion is granted. It is not opposed. The Court notes that the parties have raised an unrelated issue in this motion. The question of whether defendants may introduce the status of plaintiff, Florentine Abbott's, contractors' license is not properly before the Court at this time. Plaintiffs may bring any additional motions to address the issue either before or during trial. 10. Motion to exclude evidence of insurance The motion is granted. It is not opposed. 11. Motion to exclude evidence of damages based on speculation and/or extrapolation The motion is denied without prejudice. The motion is vague and premature. (See, e.g., Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 670) It is denied for that reason. Event ID: 1399335 TENTATIVE RULINGS Calendar No.: Page: 5 CASE TITLE: RODNEY ABBOTT, ET AL VS. CASE NUMBER: 07AS04450 RONALD PAUL BRITSCHGI, ET AL 12. Motion to exclude subcontractors being responsible for design defects The motion is denied. Defendants seek an order prohibiting plaintiffs from introducing evidence that subcontractors can be responsible for defective design. Defendants cite cases for the proposition that architects and subcontractors are not joint tortfeasors for work done by subcontractors according to the original design professionals' plans. (See e.g. Sunbeam Construction v. Fisci (1969) 2 Cal.App.3d 181, 184-185) Defendants argue that the evidence shows that defendant Britschgi signed off on an elevation and layout, approving such on behalf of plaintiffs and that therefore, plaintiffs were in complete control of the design elements. In opposition, plaintiffs contend that the court cannot at this time determine the issue on the proper allocation of blame for the improper placement of the foundation. Plaintiffs are persuasive. Strictly speaking, this is not an in limine motion. (See Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582) In limine motions are designed to facilitate the management of a case, generally by deciding difficult evidentiary issues in advance of trial. The usual purpose of motions in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party. A typical order in limine excludes the challenged evidence and directs counsel, parties, and witnesses not to refer to the excluded matters during trial. The advantage of such motions is to avoid the obviously futile attempt to 'un-ring the bell,' in the event a motion to strike is granted in the proceedings before the jury. In limine motions are not designed to replace the dispositive motions prescribed by the Code of Civil Procedure. (Ibid.) The motion is more properly seen as a motion for summary adjudication or a request for a jury instruction on the issue and so is denied here as an improper motion in limine. The Court makes no determination on the merits or the issue of whether a subcontractor may be held for a design defect at this time. 13. Motion for view of property The motion is denied, without prejudice. Defendants request the Court to order a visual inspection of the property by the jury, because it will help the jury realistically understand the overall condition of the property and evaluate the damages. Plaintiffs contend a view will cause undue consumption of time, confuse the jury and cause prejudice. Plaintiffs argue that the property looks nothing like it did during construction when the grading, compaction and elevation issues arose. Code of Civil Procedure section 651(a)(1) provides that the court may order a view of the property that is Event ID: 1399335 TENTATIVE RULINGS Calendar No.: Page: 6 CASE TITLE: RODNEY ABBOTT, ET AL VS. CASE NUMBER: 07AS04450 RONALD PAUL BRITSCHGI, ET AL the subject of litigation, on its own motion or on the motion of a party, where the court finds that such a view would be proper and would aid the trier of fact in its determination of the case. According to the Legislative Committee comment, this section 651(a)(1) provides a procedure whereby the trier of fact--whether judge or jury--may leave the courtroom to receive evidence. Subdivision (a) provides the standard for determining whether the trier of fact should view evidence outside the courtroom. The court has discretion whether to order a view. In making the determination, the court should weigh the need for the view against such considerations as whether the view would necessitate undue consumption of time or create a danger of misleading the trier of fact because of changed conditions. At the present time and on the present record, the Court is not convinced that a view would be proper in light of its arguably changed condition; nor does it appear that such would necessarily aid the jury in its determination of the case. Conceivably, such view could cause an undue consumption of time in moving the entire court proceedings to the property, as required by Code of Civil Procedure 651(b). The Court is provisionally convinced that the jury can adequately determine the issues in this case, based solely on the evidence to be presented in the courtroom. 14. Motion to exclude opinion testimony interpreting violations of the Business & Professions Code and Building Code violations The motion is denied without prejudice. Defendants seek to preclude expert testimony interpreting licensing and building code violations on the ground that this is purely a question of law for the Court and not a proper subject for expert opinion. Specifically, defendants ask the Court to prohibit plaintiffs from introducing witness opinion testimony concerning alleged violations of the Business & Professions Code sections 7000 et seq, pertaining to the contractors' licensing laws and/or pertaining to building codes and other applicable standards. Defendants are concerned that plaintiffs will discuss in opening statement that defendant CA Construction was improperly licensed to perform the concrete work on the project and will try to introduce expert or lay witness testimony as to the same issue. In opposition, plaintiffs acknowledge, as they must, that experts are not allowed to testify as to their interpretation of the law. However, plaintiffs contend that the experts may testify as to whether building codes were violated as that is part of the standard of care. Plaintiffs are aware that experts are not allowed to testify about the proper interpretation of statutes and regulations or ultimate questions of law. Accordingly, the Court expects that plaintiffs' counsel will not attempt to elicit any such testimony; the Court will be sensitive to any objections by defendants if she does so. However, the Court cannot issue a blanket order regarding the issue at this time. The Court will be open to reconsider this issue as the nature of the testimony becomes clearer at trial. Plaintiffs shall seek the Court's permission and be prepared to make an offer of proof before asking any expert questions about violation of statute or building code regulations. 15. Motion to bar reference of costs to repair defects that have caused no physical damage Event ID: 1399335 TENTATIVE RULINGS Calendar No.: Page: 7 CASE TITLE: RODNEY ABBOTT, ET AL VS. CASE NUMBER: 07AS04450 RONALD PAUL BRITSCHGI, ET AL prior to a 402 hearing The motion is denied. Defendants contend that the Court should exclude evidence of defects that have not caused any physical property damage, because such damages are not obtainable under the economic loss rule as stated in Aas v.Superior Court (2000) Cal.4th 627. The reliance on the Aas case is misplaced. As the court stated in Greystone Homes, Inc. v. Midtec, Inc (2008) 168 Cal. App. 4th 1194, the Right to Repair Act (Civil Code section 895 et. seq) abrogates the economic loss rule in actions brought by homeowners against individual product manufacturers for a violation of the Act's standards based upon the manufacturer's negligence or breach of contract. (Id. at 1217) Moreover, even if the economic loss rule applies, the evidence of defects is relevant to the breach of contract claims. Defendant R4 Corp. Inc.'s Motions in Limine 1. Motion to exclude documentary evidence not produced during discovery The motion is denied. The motion is vague and premature. (See, e.g., Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 670) It is denied for that reason. Moreover, exclusion of evidence as a sanction at trial requires evidence of willful abuse of the discovery process or willful failure to obey a court order. It also requires evidence that defendants were prejudiced. There is no such evidence here. The Court notes that on January 3, 2011, defendant filed motion 16 and plaintiff filed two supplemental motions. There is no opposition to the motions, although defendant's motion to exclude Bryan Hill's testimony and plaintiff's motion to permit that same testimony address the same subject. - Motion Excluding Evidence against R4 Corp Regarding Construction Defects. To have oral argument. Given the lateness of the filing the Court will not issue tentative rulings on any of the three matters that were filed on January 3, 2011. The parties may therefore address them at oral argument. The above ruling constitutes the Court's tentative decision and shall be the ruling of the Court on the Motion(s), unless, by 5:00 pm, Thursday, January 06, 2011, either party notifies Court Clerk Mr. Anthony Brown, at 874-7561, to request oral argument. Such request must include the representation that the requesting party has notified opposing counsel. If the request and affirmative Event ID: 1399335 TENTATIVE RULINGS Calendar No.: Page: 8 CASE TITLE: RODNEY ABBOTT, ET AL VS. CASE NUMBER: 07AS04450 RONALD PAUL BRITSCHGI, ET AL representation have been made timely, the Court will entertain oral argument on the date and time specified. Event ID: 1399335 TENTATIVE RULINGS Calendar No.: Page: 9