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1 Todd A. Jones (Bar No. 198024)
tjones@archemorris.com
2 Gregory K. Federico (Bar No. 242184)
gfederico@archemorris.com
3 ARCHERNORRIS
A Professional Law Corporation
4 301 University Avenue, Suite 110
Sacramento, Califomia 95825-5537
5 Telephone: 916.646.2480
Facsunile: 916.646.5696
6
Attomeys for Defendants and Cross-Defendants
7 RICHARD KIRK RUYBALID, individually, and
dba CA CONSTRUCTION
8
9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF SACRAMENTO
11
r
12 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 ,
ABBOTT,
13 DECLARATION OF DAVE HERYET IN
Plaintiffs, SUPPORT OF CA CONSTRUCTION'S
14 OPPOSITION TO PLAINTIFFS' MOTIO
TO TAX COSTS
15
RONALD PAUL BRITSCHGI, et al, Hearing Date: Apnl 8, 2011
16 Time: 9:30 a.m.
Defendants. Dept.: 43
17 Judge: Hon. Brian Van Camp
18 Action Filed: September 24,2007
19
20
AND ALL RELATED CROSS-ACTIONS.
21
22
I, David T. Heryet, declare:
23
1. I am a constmction consultant and licensed general contiactor in the state of
24
Califomia with over 30 years of expenence in the constmction industry and more than 20 years of
25
experience residential and commercial constmction defect and property loss projects. I am
26
currently employed as the regional manager of Govan Associates, Inc. where I have acted as a
27
consultant and/or expert witness on more than 100 litigation projects on behalf of developers,
28
NIC341/1109901-1 1
DECLARATION OF DAVE HERYET DSF SUPPORT OF OPPOSITION
TO PLAINTIFFS' MOTION TO TAX COSTS
1 general contractors, architects, material suppliers, and subcontractors. I have personal knowledge
2 ofthe matters herein stated and, if called as a witness, could and would competently testify
3 thereto.
4 2. On or about November 28,2007, the law offices of Archer Norris retained Govan
5 Associates, Inc. as consultants to assist them in the defense of CA CONSTRUCTION in this case.
6 At the time of retention, Govan Associates, Inc. was hired to analyze all potential constmction
7 defect claims at issue in the case.
8 3 . 1 was retained to consuh and give testimony, if necessary, regarding all liability,
9 causation, standard ofcare, design, and damage aspects of this case, including but not limited to
10 the foUowmg general categories: (1) the work performed by CA CONSTRUCTION at 8601
11 ' Rolling Green Way in Fair Oaks, Cahfomia; (2) the work and design of all other trades and
12 contractors, including the Owner/Builder, Plaintiff Florentine Abbott in the constmction ofthe
13 residence and the cul-de-sac; (3) the design of Plaintiffs' house, garage, civil and landscape
14 improvements and cul-de-sac, and; (4) the appropriate scope and cost of repainng Plaintiffs'
15 house and garage.
16 4. During my work as a consultant m this case, I met with counsel for CA
17 CONSTRUCTION and Plaintiff Florentine Abbott at her home on March 3,2008. During this
18 meeting, Plamtiff Florentine Abbott explained her concems related to the home, and I inspected
19 various aspects of constmction after the meeting. The purpose of my site inspection was to
20 document as-built constmction conditions, take photographs and evaluate the merit of Plaintiffs'
21 claims.
22 5. During my work as a consultant, I reviewed and analyzed approximately seven
23 sets of plans pertaining to Plaintiffs' home and the development ofthe cul-de-sac. I also
24 reviewed various documents pertaining to this case, including but not limited to contacts,
25 invoices, CA CONSTRUCTION'S job file, various deposition exhibits and trial transcripts.
26 6. During my work as a consultant, I read the depositions of:
27 Florentme Abbott, Volume 1
28 Florentme Abbott, Volume 2
NIC341/U09901-1 2
DECLARATION OF DAVE HERYET IN SUPPORT OF OPPOSITION
TO PLAINTIFFS' MOTION TO TAX COSTS
1 Florentine Abbott, Volume 3
2 Rodney Abbott, Volume 1
3 Rodney Abbott, Volume 2
4 Rodney Abbott, Volume 3
5 Peter Atchinson
6 Ronald Britschgi
7 Donn Marinovich
8 Albert Sanchez
9 Donald Weahunt, Volume 1
10 Donald Weahunt, Volume 2
11 The purpose of reviewing each of these deposition transcripts and exhibits was to discover the
12 conditions that existed during constmction from the various witnesses involved, and to respond to
13 the claims asserted by Plaintiffs' experts Robert Weahunt and James Lee. In constmction defect
14 litigation, it is common for experts to review the deposition tianscripts of witnesses and other
15 parties' experts in order to properly respond to the allegations against a particular party.
16 7. During my work as a consultant, I performed cost calculations associated with the
17 materials needed to raise the level ofthe house and garage to the level ofthe street by importing
18 fill dirt to the project site. In doing so, I oversaw the preparation of several three (3) dimensional
19 diagrams that represented various foundation options available to Plaintiffs. The first option
20 represented the as-built conditions. The second option showed the building pad being raised to
21 the level ofthe stieet with a large retaining wall and the volume of material necessary to achieve
22 this result. The third option showed a staggered building pad without a large retaining wall that
23 used a 2-to-l slope from the rear yard, and the volume of matenal necessary to achieve this result.
24 8. During my work as a consultant, I prepared two (2) separate cost estimates that
25 represented several options for repairing the garage. The first scenario involved raising the level
26 ofthe garage surface by approximately 4 to 5 feet so it would be at the same level as the house.
27 The second scenario involved raising only 1/2 ofthe garage surface so it would be at the same
28 level as the house. In addition, I prepared an estimate ofthe cost of possible stractural repair
NIC341/1109901-1 3
DECLARATION OF DAVE HERYET IN SUPPORT OF OPPOSITION
TO PLAINTIFFS' MOTION TO TAX COSTS
1 work at the front elevation ofthe garage, based on a scope of repair created by Jason Newlin, P.E.
2 9. My deposition was never taken in this case.
3 10. During my work as a consultant, I prepared my job file, met with counsel for CA
4 CONSTRUCTION to prepare trial defenses and arguments, and I prepared for my trial testimony.
5 On January 28, 2011,1 testified on behalf of CA CONSTRUCTION.
6 11. My billing rate for consulting services for this case was $200.00 per hour. My
7 billing rate for trial expert testimony for this case was $300.00 per hour. These fees charged for
8 this matter are customary for the constmction consultant industry.
9 12. I spent a total number of 136.5 hours performing professional services in this case,
10 including tiial preparation. I spent 1.0 hours testifying at trial. The total amount billed from my
a office for my services was $27,600, which includes consulting fees and costs.
12 13. All of my bills are being paid 100% by Archer Norris.
13
14 I declare imder penalty of perjury under the laws ofthe State ofCalifomia that the
15 foregoing is tme and correct and that this declaration ^^/^ executed in CA^BjSjKf fh(i.K, Califomia,
16 on t h i s ^ ' ^ a y of March, 2011.
17
18
David T. Heryet
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N1C341/1109901-1
DECLARATION OF DAVE HERYET IN SUPPORT OF OPPOSITION
TO PLAINTIFFS' MOTION TO TAX COSTS
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1 Todd A. Jones (Bar No. 198024) tjones@archemorris.com 2 Gregory K. Federico (Bar No. 242184) gfederico@archemorris.com 3 ARCHERNORRIS A Professional Law Corporation 4 301 University Avenue, Suite 110 Sacramento, Califomia 95825-5537 5 Telephone: 916.646.2480 Facsunile: 916.646.5696 6 Attomeys for Defendants and Cross-Defendants 7 RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 r 12 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 , ABBOTT, 13 DECLARATION OF DAVE HERYET IN Plaintiffs, SUPPORT OF CA CONSTRUCTION'S 14 OPPOSITION TO PLAINTIFFS' MOTIO TO TAX COSTS 15 RONALD PAUL BRITSCHGI, et al, Hearing Date: Apnl 8, 2011 16 Time: 9:30 a.m. Defendants. Dept.: 43 17 Judge: Hon. Brian Van Camp 18 Action Filed: September 24,2007 19 20 AND ALL RELATED CROSS-ACTIONS. 21 22 I, David T. Heryet, declare: 23 1. I am a constmction consultant and licensed general contiactor in the state of 24 Califomia with over 30 years of expenence in the constmction industry and more than 20 years of 25 experience residential and commercial constmction defect and property loss projects. I am 26 currently employed as the regional manager of Govan Associates, Inc. where I have acted as a 27 consultant and/or expert witness on more than 100 litigation projects on behalf of developers, 28 NIC341/1109901-1 1 DECLARATION OF DAVE HERYET DSF SUPPORT OF OPPOSITION TO PLAINTIFFS' MOTION TO TAX COSTS 1 general contractors, architects, material suppliers, and subcontractors. I have personal knowledge 2 ofthe matters herein stated and, if called as a witness, could and would competently testify 3 thereto. 4 2. On or about November 28,2007, the law offices of Archer Norris retained Govan 5 Associates, Inc. as consultants to assist them in the defense of CA CONSTRUCTION in this case. 6 At the time of retention, Govan Associates, Inc. was hired to analyze all potential constmction 7 defect claims at issue in the case. 8 3 . 1 was retained to consuh and give testimony, if necessary, regarding all liability, 9 causation, standard ofcare, design, and damage aspects of this case, including but not limited to 10 the foUowmg general categories: (1) the work performed by CA CONSTRUCTION at 8601 11 ' Rolling Green Way in Fair Oaks, Cahfomia; (2) the work and design of all other trades and 12 contractors, including the Owner/Builder, Plaintiff Florentine Abbott in the constmction ofthe 13 residence and the cul-de-sac; (3) the design of Plaintiffs' house, garage, civil and landscape 14 improvements and cul-de-sac, and; (4) the appropriate scope and cost of repainng Plaintiffs' 15 house and garage. 16 4. During my work as a consultant m this case, I met with counsel for CA 17 CONSTRUCTION and Plaintiff Florentine Abbott at her home on March 3,2008. During this 18 meeting, Plamtiff Florentine Abbott explained her concems related to the home, and I inspected 19 various aspects of constmction after the meeting. The purpose of my site inspection was to 20 document as-built constmction conditions, take photographs and evaluate the merit of Plaintiffs' 21 claims. 22 5. During my work as a consultant, I reviewed and analyzed approximately seven 23 sets of plans pertaining to Plaintiffs' home and the development ofthe cul-de-sac. I also 24 reviewed various documents pertaining to this case, including but not limited to contacts, 25 invoices, CA CONSTRUCTION'S job file, various deposition exhibits and trial transcripts. 26 6. During my work as a consultant, I read the depositions of: 27 Florentme Abbott, Volume 1 28 Florentme Abbott, Volume 2 NIC341/U09901-1 2 DECLARATION OF DAVE HERYET IN SUPPORT OF OPPOSITION TO PLAINTIFFS' MOTION TO TAX COSTS 1 Florentine Abbott, Volume 3 2 Rodney Abbott, Volume 1 3 Rodney Abbott, Volume 2 4 Rodney Abbott, Volume 3 5 Peter Atchinson 6 Ronald Britschgi 7 Donn Marinovich 8 Albert Sanchez 9 Donald Weahunt, Volume 1 10 Donald Weahunt, Volume 2 11 The purpose of reviewing each of these deposition transcripts and exhibits was to discover the 12 conditions that existed during constmction from the various witnesses involved, and to respond to 13 the claims asserted by Plaintiffs' experts Robert Weahunt and James Lee. In constmction defect 14 litigation, it is common for experts to review the deposition tianscripts of witnesses and other 15 parties' experts in order to properly respond to the allegations against a particular party. 16 7. During my work as a consultant, I performed cost calculations associated with the 17 materials needed to raise the level ofthe house and garage to the level ofthe street by importing 18 fill dirt to the project site. In doing so, I oversaw the preparation of several three (3) dimensional 19 diagrams that represented various foundation options available to Plaintiffs. The first option 20 represented the as-built conditions. The second option showed the building pad being raised to 21 the level ofthe stieet with a large retaining wall and the volume of material necessary to achieve 22 this result. The third option showed a staggered building pad without a large retaining wall that 23 used a 2-to-l slope from the rear yard, and the volume of matenal necessary to achieve this result. 24 8. During my work as a consultant, I prepared two (2) separate cost estimates that 25 represented several options for repairing the garage. The first scenario involved raising the level 26 ofthe garage surface by approximately 4 to 5 feet so it would be at the same level as the house. 27 The second scenario involved raising only 1/2 ofthe garage surface so it would be at the same 28 level as the house. In addition, I prepared an estimate ofthe cost of possible stractural repair NIC341/1109901-1 3 DECLARATION OF DAVE HERYET IN SUPPORT OF OPPOSITION TO PLAINTIFFS' MOTION TO TAX COSTS 1 work at the front elevation ofthe garage, based on a scope of repair created by Jason Newlin, P.E. 2 9. My deposition was never taken in this case. 3 10. During my work as a consultant, I prepared my job file, met with counsel for CA 4 CONSTRUCTION to prepare trial defenses and arguments, and I prepared for my trial testimony. 5 On January 28, 2011,1 testified on behalf of CA CONSTRUCTION. 6 11. My billing rate for consulting services for this case was $200.00 per hour. My 7 billing rate for trial expert testimony for this case was $300.00 per hour. These fees charged for 8 this matter are customary for the constmction consultant industry. 9 12. I spent a total number of 136.5 hours performing professional services in this case, 10 including tiial preparation. I spent 1.0 hours testifying at trial. The total amount billed from my a office for my services was $27,600, which includes consulting fees and costs. 12 13. All of my bills are being paid 100% by Archer Norris. 13 14 I declare imder penalty of perjury under the laws ofthe State ofCalifomia that the 15 foregoing is tme and correct and that this declaration ^^/^ executed in CA^BjSjKf fh(i.K, Califomia, 16 on t h i s ^ ' ^ a y of March, 2011. 17 18 David T. Heryet 19 20 21 22 23 24 25 26 27 28 N1C341/1109901-1 DECLARATION OF DAVE HERYET IN SUPPORT OF OPPOSITION TO PLAINTIFFS' MOTION TO TAX COSTS