Preview
« w
1 Todd A. Jones (Bar No. 198024)
Gregory K. Federico (BarNo. 242184)
2 ARCHERNORRIS
A Professional Law Corporation
3 301 University Avenue, Suite 110
Sacramento, California 95825
4 Telephone: 916.646.2480
Facsimile: 916.646.5696
5
Attomeys for Defendants
6 RICHARD KIRK RUYBALID, individually and
dba CA CONSTRUCTION; and R4C0RP., INC.
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10
11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
ABBOTT,
12 MOTION IN LIMINE NO. 14 TO
Plaintiffs, EXCLUDE OPINION TESTIMONY
13 INTERPRETING VIOLATIONS OF THE
V. BUSINESS AND PROFESSIONS CODE
14 AND BUILDING CODE VIOLATIONS
RONALD PAUL BRITSCHGI, et al..
15 Action Filed: September 24,2007
Defendants.
16 Trial Date: January 17, 2011
Time: 8:30 a.m.
17 Location: Department 43
18 AND ALL RELATED CROSS-ACTIONS.
19
20 I.
INTRODUCTION
21
22 Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION
23 (hereinafter "CA CONSTRUCTION") and Defendant R4C0RP., INC. (hereinafter "R4C0RP")
24 (hereinafter collectively "Defendants") hereby incorporate by reference herein the "Introduction"
25 section set forth in its Motion in Limine No. 1.
26 ///
27 ///
28 ///
NIC549/I058902-I
DEFENDANTS' MOTION IN LIMINE NO 14 TO EXCLUDE OPINION TESTIMONY RE CODE VIOLATION
1 MOTION IN LIMINE NO. 1 4 TO EXCLUDE OPINION TESTIMONY INTERPRETING
VIOLATIONS OF THE BUSINESS & PROFESSIONS CODEAND BUILDING CODE
2 VIOLATIONS
3 Defendants hereby request that this Court grant this motion in limine and prohibit
4 Plaintiffs FLORENTINE and RODNEY ABBOTT (hereinafter "Plaintiffs") from introducing
5 witness opinion testimony conceming alleged violations ofthe Business and Professions Code
6 Sections 7000 et seq. pertaining to the contractors' licensing laws and/or pertaining to building
7 codes or other applicable standards.
8 This case arises out of alleged defects in constmction of a concrete foundation at the
9 Plaintiffs' single-family residence located at 8601 Rolling Green Way in Fair Oaks, California.
10 The Defendants anticipate that Plaintiffs' counsel will attempt to discuss in opening statement
11 that Defendant CA CONSTRUCTION was improperly licensed to perform the concrete work on
12 the project and will try to introduce expert or lay witness opinion testimony as to the same issue.
13 In addition, we anticipate that there may be expert and lay witness testimony on the interpretation
14 of building codes and other applicable standards and the Defendants' possible violation ofthese
15 codes and standards. This motion is submitted to ensure that Plaintiffs are not allowed to present
16 expert testimony interpreting licensing and building code violations as this is purely a question of
17 law to be decided by the court and, as such, is not an appropriate subject for expert opinion.
18 IL
LEGAL AUTHORITY
19
A. Testimony Relating To Alleged Building Code Violations Or Applicable Standards Is
20 Improper Opinion Testimony
21 California Evidence Code §310(a) provides as follows:
22 All questions ofthe law (including but not limited to questions
conceming the construction of statutes and other writings, the
23 admissibility of evidence, and other rules of evidence) are to be
decided by the court.
24
A determination conceming the relevance and/or applicability of particular standards,
25
ordinances and building codes would necessarily require the interpretation of statutory language
26
and therefore is, by definition, a question of law. Accordingly, such a determination lies
27 NIC549/I058902-I 2
28
DEFENDANTS' MOTION IN LIMINE NO. 14 TO EXCLUDE OPINION TESTIMONY RE CODE VIOLATION
1 exclusively within the province ofthe court.
2 California Evidence Code §720 provides as follows.
3 A person is qualified to testify as an expert if he has special
knowledge, skill, experience, training or education sufficient to
4 qualify him as an expert on the subject to which his testimony
relates. Against the objections of a party, such special knowledge,
5 skill, experience, training or educafion must be shown before the
witness may testify as an expert.
(b) A witness' special knowledge, skill, training or education
7 may be shown by any otherwise admissible evidence, including his
o own testimony.
9 California Evidence Code §803 states as follows:
10 The court may, and upon objecfion shall, exclude testimony in the
form ofan opinion that is based in whole or in significant part on
11 matter that is not a proper basis for such an opinion. In such case,
the witness may, if there remains a proper basis for his opinion,
12 then state his opinion after excluding from consideration the matter
determined to be improper.
13 Any testimony pertaining to determining the relevance of, applicability or application of
14 building standards, statutes, and/or codes is a quesfion of law for determination by the court and
15 therefore is not the proper subject for expert opinion. Specifically, the California Court of Appeal
16 in Elder v S&C Tel. & Telco (1977) 66 Cal App.3d 650, 774, stated:
17
Plainfiff has also called an architect to testify as to the custom and
1g practices in the constmction industry and sought his opinion as to
the applicability to defendant or certain construction safety orders
19 relafing to demolifion work. The latter opinion was properly
excluded. While an expert witness may properly testify as to the
20 custom and practice in constmction safety [cite], he may not state
interpretations ofthe law, whether it be of statute, ordinance or
21 safety regulation promulgated pursuant to statute.
22 Elder and its progeny specifically state that although a witness is qualified as an
23 expert, that witness may not give interpretafions ofthe law. See Sullivan v Fox (1987)
24 189 Cal.App.3d 673,684; California Shoppers, Inc v Ro7al Globe Insurance Co (1985)
25 175 Cal.App.3d 65, 67; Communication Satellite Corporation v. Franchise Tax Board
26 (1984) 156 CalApp.3d 726, 747. In the case at bar, any tesfimony elicited by witnesses or
27 NIC549/1058902-1 3
28
DEFENDANTS' MOTION IN LIMINE NO 14 TO EXCLUDE OPINION TESTIMONY RE CODE VIOLATION
1 experts related to alleged violations of Business and Professions Code Section 7000 et
2 seq , building codes and/or applicable standards is improper opinion testimony calling for
3 an interpretation ofthe law. Califomia case law explicifiy precludes such tesfimony.
4 Therefore, the Plaintiffs should not be allowed to present any improper evidence or
5 opinion testimony regarding the relevance, applicability or violation ofany building
6 codes, standards or ordinances.
7 HI.
8 CONCLUSION
For the above reasons, Defendants respectfully request that this Court exclude from use at
9
trial any and all witness testimony related to alleged violations of contractors' licensing and/or
10
building codes and applicable standards.
11
12
Dated: December 6, 2010 ARCHERNORRIS
13
14
15 Gregory K/Federico
Attomeys for Defendants RICHARD KIRK
16 RUYBALID, individually and dba CA
CONSTRUCTION; and R4C0RP., INC.
17
18
19 IT IS SO ORDERED.
20
21 DATED:
22
23
JUDGE OF THE SUPERIOR COURT
24
25
26
27 NIC549/I058902-I
28
DEFENDANTS' MOTION IN LIMINE NO 14 TO EXCLUDE OPINION TESTIMONY RE CODE VIOLATION
1 PROOF OF SERVICE
2 Nameof 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 acfion or proceeding. My business address is 301 University Avenue, Suite 110, Sacramento,
Califomia 95825. On December 7, 2010,1 caused the following document(s) to be served:
5
MOTION IN LIMINE NO. 14 TO EXCLUDE OPINION TESTIMONY
6 INTERPRETING VIOLATIONS OF THE BUSINESS AND PROFESSIONS CODE
AND BUILDING CODE VIOLATIONS
7
R^ By placing a true copy of the 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 correspondence for
0 mailing with the United States Postal Service On the same day that a sealed envelope
is placed for collecfion and mailing, it is deposited in the ordinary course ofbusiness
11 with the United States Postal Service with postage fully prepaid.
12 I I By having a true copy of the 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 tremsmitting facsimile
machine.
14
15 rn By placing a true copy of the 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,
1' addressed as set forth below.
'^ r - j bv having personal deliverv bv 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 ofperjury that the foregoing is true and correct. Executed on
December 7, 2010, at Sacramento, Califomia.
23
24
25 <-C»rf)Y A. INGLAND
26
27
28
NIC34I/608293-I
PROOF OF SERVICE
1 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@yahoo 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
N1C34I/608293-I 2
SERVICE LIST
Preview
« w 1 Todd A. Jones (Bar No. 198024) Gregory K. Federico (BarNo. 242184) 2 ARCHERNORRIS A Professional Law Corporation 3 301 University Avenue, Suite 110 Sacramento, California 95825 4 Telephone: 916.646.2480 Facsimile: 916.646.5696 5 Attomeys for Defendants 6 RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION; and R4C0RP., INC. 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 ABBOTT, 12 MOTION IN LIMINE NO. 14 TO Plaintiffs, EXCLUDE OPINION TESTIMONY 13 INTERPRETING VIOLATIONS OF THE V. BUSINESS AND PROFESSIONS CODE 14 AND BUILDING CODE VIOLATIONS RONALD PAUL BRITSCHGI, et al.. 15 Action Filed: September 24,2007 Defendants. 16 Trial Date: January 17, 2011 Time: 8:30 a.m. 17 Location: Department 43 18 AND ALL RELATED CROSS-ACTIONS. 19 20 I. INTRODUCTION 21 22 Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 23 (hereinafter "CA CONSTRUCTION") and Defendant R4C0RP., INC. (hereinafter "R4C0RP") 24 (hereinafter collectively "Defendants") hereby incorporate by reference herein the "Introduction" 25 section set forth in its Motion in Limine No. 1. 26 /// 27 /// 28 /// NIC549/I058902-I DEFENDANTS' MOTION IN LIMINE NO 14 TO EXCLUDE OPINION TESTIMONY RE CODE VIOLATION 1 MOTION IN LIMINE NO. 1 4 TO EXCLUDE OPINION TESTIMONY INTERPRETING VIOLATIONS OF THE BUSINESS & PROFESSIONS CODEAND BUILDING CODE 2 VIOLATIONS 3 Defendants hereby request that this Court grant this motion in limine and prohibit 4 Plaintiffs FLORENTINE and RODNEY ABBOTT (hereinafter "Plaintiffs") from introducing 5 witness opinion testimony conceming alleged violations ofthe Business and Professions Code 6 Sections 7000 et seq. pertaining to the contractors' licensing laws and/or pertaining to building 7 codes or other applicable standards. 8 This case arises out of alleged defects in constmction of a concrete foundation at the 9 Plaintiffs' single-family residence located at 8601 Rolling Green Way in Fair Oaks, California. 10 The Defendants anticipate that Plaintiffs' counsel will attempt to discuss in opening statement 11 that Defendant CA CONSTRUCTION was improperly licensed to perform the concrete work on 12 the project and will try to introduce expert or lay witness opinion testimony as to the same issue. 13 In addition, we anticipate that there may be expert and lay witness testimony on the interpretation 14 of building codes and other applicable standards and the Defendants' possible violation ofthese 15 codes and standards. This motion is submitted to ensure that Plaintiffs are not allowed to present 16 expert testimony interpreting licensing and building code violations as this is purely a question of 17 law to be decided by the court and, as such, is not an appropriate subject for expert opinion. 18 IL LEGAL AUTHORITY 19 A. Testimony Relating To Alleged Building Code Violations Or Applicable Standards Is 20 Improper Opinion Testimony 21 California Evidence Code §310(a) provides as follows: 22 All questions ofthe law (including but not limited to questions conceming the construction of statutes and other writings, the 23 admissibility of evidence, and other rules of evidence) are to be decided by the court. 24 A determination conceming the relevance and/or applicability of particular standards, 25 ordinances and building codes would necessarily require the interpretation of statutory language 26 and therefore is, by definition, a question of law. Accordingly, such a determination lies 27 NIC549/I058902-I 2 28 DEFENDANTS' MOTION IN LIMINE NO. 14 TO EXCLUDE OPINION TESTIMONY RE CODE VIOLATION 1 exclusively within the province ofthe court. 2 California Evidence Code §720 provides as follows. 3 A person is qualified to testify as an expert if he has special knowledge, skill, experience, training or education sufficient to 4 qualify him as an expert on the subject to which his testimony relates. Against the objections of a party, such special knowledge, 5 skill, experience, training or educafion must be shown before the witness may testify as an expert. (b) A witness' special knowledge, skill, training or education 7 may be shown by any otherwise admissible evidence, including his o own testimony. 9 California Evidence Code §803 states as follows: 10 The court may, and upon objecfion shall, exclude testimony in the form ofan opinion that is based in whole or in significant part on 11 matter that is not a proper basis for such an opinion. In such case, the witness may, if there remains a proper basis for his opinion, 12 then state his opinion after excluding from consideration the matter determined to be improper. 13 Any testimony pertaining to determining the relevance of, applicability or application of 14 building standards, statutes, and/or codes is a quesfion of law for determination by the court and 15 therefore is not the proper subject for expert opinion. Specifically, the California Court of Appeal 16 in Elder v S&C Tel. & Telco (1977) 66 Cal App.3d 650, 774, stated: 17 Plainfiff has also called an architect to testify as to the custom and 1g practices in the constmction industry and sought his opinion as to the applicability to defendant or certain construction safety orders 19 relafing to demolifion work. The latter opinion was properly excluded. While an expert witness may properly testify as to the 20 custom and practice in constmction safety [cite], he may not state interpretations ofthe law, whether it be of statute, ordinance or 21 safety regulation promulgated pursuant to statute. 22 Elder and its progeny specifically state that although a witness is qualified as an 23 expert, that witness may not give interpretafions ofthe law. See Sullivan v Fox (1987) 24 189 Cal.App.3d 673,684; California Shoppers, Inc v Ro7al Globe Insurance Co (1985) 25 175 Cal.App.3d 65, 67; Communication Satellite Corporation v. Franchise Tax Board 26 (1984) 156 CalApp.3d 726, 747. In the case at bar, any tesfimony elicited by witnesses or 27 NIC549/1058902-1 3 28 DEFENDANTS' MOTION IN LIMINE NO 14 TO EXCLUDE OPINION TESTIMONY RE CODE VIOLATION 1 experts related to alleged violations of Business and Professions Code Section 7000 et 2 seq , building codes and/or applicable standards is improper opinion testimony calling for 3 an interpretation ofthe law. Califomia case law explicifiy precludes such tesfimony. 4 Therefore, the Plaintiffs should not be allowed to present any improper evidence or 5 opinion testimony regarding the relevance, applicability or violation ofany building 6 codes, standards or ordinances. 7 HI. 8 CONCLUSION For the above reasons, Defendants respectfully request that this Court exclude from use at 9 trial any and all witness testimony related to alleged violations of contractors' licensing and/or 10 building codes and applicable standards. 11 12 Dated: December 6, 2010 ARCHERNORRIS 13 14 15 Gregory K/Federico Attomeys for Defendants RICHARD KIRK 16 RUYBALID, individually and dba CA CONSTRUCTION; and R4C0RP., INC. 17 18 19 IT IS SO ORDERED. 20 21 DATED: 22 23 JUDGE OF THE SUPERIOR COURT 24 25 26 27 NIC549/I058902-I 28 DEFENDANTS' MOTION IN LIMINE NO 14 TO EXCLUDE OPINION TESTIMONY RE CODE VIOLATION 1 PROOF OF SERVICE 2 Nameof 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 acfion or proceeding. My business address is 301 University Avenue, Suite 110, Sacramento, Califomia 95825. On December 7, 2010,1 caused the following document(s) to be served: 5 MOTION IN LIMINE NO. 14 TO EXCLUDE OPINION TESTIMONY 6 INTERPRETING VIOLATIONS OF THE BUSINESS AND PROFESSIONS CODE AND BUILDING CODE VIOLATIONS 7 R^ By placing a true copy of the 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 correspondence for 0 mailing with the United States Postal Service On the same day that a sealed envelope is placed for collecfion and mailing, it is deposited in the ordinary course ofbusiness 11 with the United States Postal Service with postage fully prepaid. 12 I I By having a true copy of the 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 tremsmitting facsimile machine. 14 15 rn By placing a true copy of the 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, 1' addressed as set forth below. '^ r - j bv having personal deliverv bv 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 ofperjury that the foregoing is true and correct. Executed on December 7, 2010, at Sacramento, Califomia. 23 24 25 <-C»rf)Y A. INGLAND 26 27 28 NIC34I/608293-I PROOF OF SERVICE 1 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@yahoo 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 N1C34I/608293-I 2 SERVICE LIST