Preview
1 STEPHANIE J. FINELLI, SBN 173462
2
Law Office of Stephanie J. Finelli
1007-7th Street, Suite 500
/i
Sacramento, CA 95814
3 tel 916-443-2144 JAN 1 2 2011
fax 916-443-1511
4
Attomey for Plaintiffs, By:. D JOHNSON
5 DEPUTY CLERK
FLORENTINE and RODNEY ABBOTT
6
7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 IN AND FOR THE COUNTY OF SACRAMENTO
9
10 FLORENTINE AND RODNEY ABBOTT, CaseNo:07AS04450
11 Plaintiffs, PLAINTIFFS' SUPPLEMENTAL BRIEF RE
ELECTION OF REMEDIES
12 vs.
Hearing on Motion: January 14,2011
13 RONALD BRITSCHGI, et. al., Time: 9:00 a.m.
Trial Date: January 18, 2011
14 Defendants Judge: Brian Van Camp
Dept: 43
15
16 Defendants argue that plaintiffs are required to elect—^prior to the start of trial—whether
17 they will seek as damages the diminution in value of their house or the cost to repair the house.
18 This is not the law.
19 The standard jury instmctions specifically envision that the plaintiff in an action for
20 damage to real property will have put on evidence of both reduction in the property's value and
21 the cost to repair it. (See CACI 3903F.) Rather than repeat, verbatim, what is set forth in that
22 jury instruction, along with bracketed material, plaintiffs have attached a copy of the CACI
23 instruction itself as Exhibit 1. That instmction states that the plaintiff must prove the reduction
24 in the property's value or the reasonable cost to repair it, and "if there is evidence ofboth," the
25 plaintiff is entitled to the lesser value unless the plaintiff has a genuine desire to repair the
26 property for personal reasons. (CACI 3903F; Exh 1.)
27 In Kelly v. CB«S:A Constmctors. Inc. (2009) 179 Cal.App.4th 442, 448-449, plaintiff put
28 on evidence at trial that his property had been worth $1.6 million to $1.8 million at the time ol
Plaintiffs Supplemental Motion in Limine - 1
1 the fire, but had no market value whatsoever in its current condition, and that the total cost to
2 restore the structures and land was approximately $2.8 million. The court instmcted the jury, "II
3 plaintiffhas a genuine desire to repair the property for personal reasons, and ifthe costs of repair
4 are reasonable given the damage to the property and the value after repair, then the costs oi
5 repair may be awarded even if they exceed the property's loss ofvalue." And the special verdict
6 form asked the jury to determine if plaintiff had "a genuine desire to rebuild and repair his
7 property for personal reasons" and, if so, "the present costs of rebuilding and repairing
8 [plaintiffs] real property." (Id. at p. 449.) The jury found that plaintiffhad "a genuine desire to
9 rebuild for personal reasons," and determined plaintiffs total damages to be $3,646,810
10 including $543,000 for annoyance and discomfort. (Id. at pp. 449-450.)
11 On appeal, defendant argued that, because the jury's damage award so vastly exceeded
12 the value of the property, the award was excessive as a matter of law. The appellate court
13 disagreed. (Id. at p. 452.) It noted, "Plaintiff testified that he intended to move back to the
14 property with his fiancee and disabled son as soon as practicable, and that the restoration work
15 was necessary to make that possible. There was thus substantial evidence that plaintiff intended
16 to restore the property for use as his primary residence." (Id- at p. 454.)
17 As Kelly and CACI 3903F make clear, plaintiffs are entitled to present evidence of both
18 the diminution in value and the cost to repair, and allow the jury to determine (1) if plaintiffs
19 have a genuine desire to repair the property for personal reasons, and if so, (2) the costs to repair
20 Plaintiffs built this type of house on this property for specific reasons—^the location was in close
21 proximity to Rodney's parents (their son's grandparents), and the lack of steps and size ofthe
22 house was to accommodate Flo's disabled mother moving in with them. They are entitled to
23 request the jury find they have personal reasons for repairing the house (i.e., rebuilding it after
24 raising it level with the street and thus removing the steps) and award cost-of-repair damages
25 But they are not required to make that election before trial, and may also offer diminution in
26 value evidence on the off chance that the jury will not find they htve pgrsonaf reasons to repair.
27
28 Dated: January \ ^ , 2011
Stephanie J
Plaintiffs Supplemental Motion in Limine - 2
3903F. Damage to Real Property (Economic Damage)
{Insert number, e.g., "6."] The harm to [name of plawtiff\^s property.
To recover damages for harm to property, [name ofplaintiff] must
prove [the reduction in the property's value/ [or] the reasonable
cost of repairing the harm]. [If there is evidence of both, [name of
plaintiff] is entitled to the lesser of the two amounts. [However, if
[name ofplaintiff] has a genuine desire to repair the property for
personal reasons, and if the costs of repair are reasonable given
the damage to the property and the value after repair, then the
costs of repair may be awarded even if they exceed the property's
loss of value.]]
[To determine the reduction in value, you must determine the fair
market value of the property before the harm occurred and then
subtract the fair market value of the property immediately after
the harm occurred. The difference is the reduction of value.
"Fair market value" is the highest price for the property that a
willing buyer would have paid to a willing seller, assuming:
1. That there is no pressure on either one to buy or sell; and
2. That the buyer and seller know all the uses and purposes
for which the property is reasonably capable of being used.]
[To determine whether the cost of repairing the harm is
reasonable, you must decide if there is a reasonable relationship
between the cost of repair and the harm caused by [name of
defendantys conduct. You must consider the expense and time
involved to restore the property to its original condition compared
to the value of the property [and [insert other applicable factors ]].
If you find that the cost of repairing the harm is not reasonable,
then you may award any reduction in the property's value.]
New September 2003, Revised April 2008, April 2009
Directions for Use
Give this instruction for damages to real property caused by trespass,
permanent nuisance, or other tortious conduct. See also CACI No 3903G,
Loss of Use of Real Property (Economic Damage).
748 (Pub 1283)
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
€y\^ I
www/ Iexisnexis com/bookstore, for public and internal court use
PROOF OF SERVICE BY HAND AND MAIL
CASE NAME: Abbott v. Britschgi
CASE NUMBER- Sacramento County Superior Court 07AS04450
I declare that:
I am a citizen ofthe United States and a resident ofthe County of Sacramento. I am,
and at all times mentioned herein was, an active member of the State Bar of Califomia and
not a party to the above-entitled cause. My business address is 1007 Seventh Street, Suite
500, Sacramento, Califomia 95814.
On January 12,2011, pursuant to CCP §1013A(2), I served the following:
PLAINTIFFS' SUPPLEMENTAL BRIEF RE ELECTION OF REMEDIES
BY HAND: by hand-delivering a copy ofsaid document in at 301 University Avenue, Suite
110, Sacramento, CA 95825 to the following:
Gregory Federico
Archer Norris
301 University Ave., Suite 110
Sacramento, CA 95825
Richard W. Freeman, Jr.
Wood, Smith, Henning & Berman
1401 Willow Pass Road, Suite 700
Concord, CA 94520-7982
BY MAIL: by depositing a copy of said document in the United States mail in Sacramento,
Califomia, in a sealed envelope, with postage fiilly prepaid, addressed as follows:
Richard Sopp
Maloney, Wheatley, Sopp & Brooks
1004 Moon River Rock Drive, Suite 245
Folsom, CA 95630
Mark Smith
8549 Willow Valley Place
Granite Bay, CA 95746
I declare under penalty of perjury under the laws of the State of Califomia the
foregoing is true and correct.
DATED: January 12,2011
Stephanie J. Finelli
Preview
1 STEPHANIE J. FINELLI, SBN 173462 2 Law Office of Stephanie J. Finelli 1007-7th Street, Suite 500 /i Sacramento, CA 95814 3 tel 916-443-2144 JAN 1 2 2011 fax 916-443-1511 4 Attomey for Plaintiffs, By:. D JOHNSON 5 DEPUTY CLERK FLORENTINE and RODNEY ABBOTT 6 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SACRAMENTO 9 10 FLORENTINE AND RODNEY ABBOTT, CaseNo:07AS04450 11 Plaintiffs, PLAINTIFFS' SUPPLEMENTAL BRIEF RE ELECTION OF REMEDIES 12 vs. Hearing on Motion: January 14,2011 13 RONALD BRITSCHGI, et. al., Time: 9:00 a.m. Trial Date: January 18, 2011 14 Defendants Judge: Brian Van Camp Dept: 43 15 16 Defendants argue that plaintiffs are required to elect—^prior to the start of trial—whether 17 they will seek as damages the diminution in value of their house or the cost to repair the house. 18 This is not the law. 19 The standard jury instmctions specifically envision that the plaintiff in an action for 20 damage to real property will have put on evidence of both reduction in the property's value and 21 the cost to repair it. (See CACI 3903F.) Rather than repeat, verbatim, what is set forth in that 22 jury instruction, along with bracketed material, plaintiffs have attached a copy of the CACI 23 instruction itself as Exhibit 1. That instmction states that the plaintiff must prove the reduction 24 in the property's value or the reasonable cost to repair it, and "if there is evidence ofboth," the 25 plaintiff is entitled to the lesser value unless the plaintiff has a genuine desire to repair the 26 property for personal reasons. (CACI 3903F; Exh 1.) 27 In Kelly v. CB«S:A Constmctors. Inc. (2009) 179 Cal.App.4th 442, 448-449, plaintiff put 28 on evidence at trial that his property had been worth $1.6 million to $1.8 million at the time ol Plaintiffs Supplemental Motion in Limine - 1 1 the fire, but had no market value whatsoever in its current condition, and that the total cost to 2 restore the structures and land was approximately $2.8 million. The court instmcted the jury, "II 3 plaintiffhas a genuine desire to repair the property for personal reasons, and ifthe costs of repair 4 are reasonable given the damage to the property and the value after repair, then the costs oi 5 repair may be awarded even if they exceed the property's loss ofvalue." And the special verdict 6 form asked the jury to determine if plaintiff had "a genuine desire to rebuild and repair his 7 property for personal reasons" and, if so, "the present costs of rebuilding and repairing 8 [plaintiffs] real property." (Id. at p. 449.) The jury found that plaintiffhad "a genuine desire to 9 rebuild for personal reasons," and determined plaintiffs total damages to be $3,646,810 10 including $543,000 for annoyance and discomfort. (Id. at pp. 449-450.) 11 On appeal, defendant argued that, because the jury's damage award so vastly exceeded 12 the value of the property, the award was excessive as a matter of law. The appellate court 13 disagreed. (Id. at p. 452.) It noted, "Plaintiff testified that he intended to move back to the 14 property with his fiancee and disabled son as soon as practicable, and that the restoration work 15 was necessary to make that possible. There was thus substantial evidence that plaintiff intended 16 to restore the property for use as his primary residence." (Id- at p. 454.) 17 As Kelly and CACI 3903F make clear, plaintiffs are entitled to present evidence of both 18 the diminution in value and the cost to repair, and allow the jury to determine (1) if plaintiffs 19 have a genuine desire to repair the property for personal reasons, and if so, (2) the costs to repair 20 Plaintiffs built this type of house on this property for specific reasons—^the location was in close 21 proximity to Rodney's parents (their son's grandparents), and the lack of steps and size ofthe 22 house was to accommodate Flo's disabled mother moving in with them. They are entitled to 23 request the jury find they have personal reasons for repairing the house (i.e., rebuilding it after 24 raising it level with the street and thus removing the steps) and award cost-of-repair damages 25 But they are not required to make that election before trial, and may also offer diminution in 26 value evidence on the off chance that the jury will not find they htve pgrsonaf reasons to repair. 27 28 Dated: January \ ^ , 2011 Stephanie J Plaintiffs Supplemental Motion in Limine - 2 3903F. Damage to Real Property (Economic Damage) {Insert number, e.g., "6."] The harm to [name of plawtiff\^s property. To recover damages for harm to property, [name ofplaintiff] must prove [the reduction in the property's value/ [or] the reasonable cost of repairing the harm]. [If there is evidence of both, [name of plaintiff] is entitled to the lesser of the two amounts. [However, if [name ofplaintiff] has a genuine desire to repair the property for personal reasons, and if the costs of repair are reasonable given the damage to the property and the value after repair, then the costs of repair may be awarded even if they exceed the property's loss of value.]] [To determine the reduction in value, you must determine the fair market value of the property before the harm occurred and then subtract the fair market value of the property immediately after the harm occurred. The difference is the reduction of value. "Fair market value" is the highest price for the property that a willing buyer would have paid to a willing seller, assuming: 1. That there is no pressure on either one to buy or sell; and 2. That the buyer and seller know all the uses and purposes for which the property is reasonably capable of being used.] [To determine whether the cost of repairing the harm is reasonable, you must decide if there is a reasonable relationship between the cost of repair and the harm caused by [name of defendantys conduct. You must consider the expense and time involved to restore the property to its original condition compared to the value of the property [and [insert other applicable factors ]]. If you find that the cost of repairing the harm is not reasonable, then you may award any reduction in the property's value.] New September 2003, Revised April 2008, April 2009 Directions for Use Give this instruction for damages to real property caused by trespass, permanent nuisance, or other tortious conduct. See also CACI No 3903G, Loss of Use of Real Property (Economic Damage). 748 (Pub 1283) This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637, €y\^ I www/ Iexisnexis com/bookstore, for public and internal court use PROOF OF SERVICE BY HAND AND MAIL CASE NAME: Abbott v. Britschgi CASE NUMBER- Sacramento County Superior Court 07AS04450 I declare that: I am a citizen ofthe United States and a resident ofthe County of Sacramento. I am, and at all times mentioned herein was, an active member of the State Bar of Califomia and not a party to the above-entitled cause. My business address is 1007 Seventh Street, Suite 500, Sacramento, Califomia 95814. On January 12,2011, pursuant to CCP §1013A(2), I served the following: PLAINTIFFS' SUPPLEMENTAL BRIEF RE ELECTION OF REMEDIES BY HAND: by hand-delivering a copy ofsaid document in at 301 University Avenue, Suite 110, Sacramento, CA 95825 to the following: Gregory Federico Archer Norris 301 University Ave., Suite 110 Sacramento, CA 95825 Richard W. Freeman, Jr. Wood, Smith, Henning & Berman 1401 Willow Pass Road, Suite 700 Concord, CA 94520-7982 BY MAIL: by depositing a copy of said document in the United States mail in Sacramento, Califomia, in a sealed envelope, with postage fiilly prepaid, addressed as follows: Richard Sopp Maloney, Wheatley, Sopp & Brooks 1004 Moon River Rock Drive, Suite 245 Folsom, CA 95630 Mark Smith 8549 Willow Valley Place Granite Bay, CA 95746 I declare under penalty of perjury under the laws of the State of Califomia the foregoing is true and correct. DATED: January 12,2011 Stephanie J. Finelli