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1 STEPHANIE J. FINELLI, SEN 173462
Law Office of Stephanie J. Finelli
2 1007-7th Street, Suite 500
Sacramento, CA 95814
3 tel 916-443-2144
fax 916-443-1511
4
Attorney for Plaintiff By Tony/feroy/)eputy Cler
5
6 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
7 IN AND FOR THE COUNTY OF SACRAMENTO
8
9 FLORENTINE AND RODNEY ABBOTT, CaseNo.:07AS04450
10 Plaintiffs, OPPOSITION TO EX PARTE REQUEST TO
LIMIT TESTING DONE BY PLAINTIFFS ON
11 vs. THEIR OWN PROPERTY
12 RONALD BRITSCHGI, et. al. Date: May 28,2009
Time: 9:00 a.m.
13 Defendants Dept: 58
Judge: Van Camp
14
15 and related cross-action
16
17 Plaintiffs hereby oppose defendant Britschgi's ex parte request to limit the testing
18 plaintiffs may conduct on their own property. Notably, plaintiffs have not seen defendants' e>
19 parte papers prior to preparing this opposition, and can thus only guess as to the legal or factua
20 basis for the motion.
21 First, the motion is improper and premature. Ex parte relief may only be granted upon a
22 showing of "good cause." This requires "an affirmative factual showing in a declaration
23 containing competent testimony based on personal knowledge of irreparable harm, immediate
24 danger, or any other statutory basis for granting relief ex parte." (CRC Rule 3.102(c).) Given
25 that trial is over one year away, plaintiffs fail to see how there is any irreparable harm,
26 immediate danger, or other statutory basis on which this Court could granting ex parte relief. To
27 the extent defendants are seeking to limit the evidence that plaintiffs may present at trial, which
28 will begin on June 7, 2010, the proper procedure would be a motion in limine prior to trial.
Opposition to ex Parte Request -1
Second, plaintiffs do not need to reopen discovery in order to conduct testing on theii
2 own property. (See, e.g. Pullin v. Superior Court (2000) 81 Cal.App.4th 1161, 1162, 1164-1165
3 ["We publish this opinion to confirm that, as the plaintiff in this case claims, there is nothing in
4 the Civil Discovery Act (Code Civ. Proc., § 2016 et seq.) to prevent a party from conducting a
5 unilateral investigation without resort to any statutory discovery device, provided only that the
6 investigation is lawful."]) In Pullin, the "discovery" was an investigation by plaintiffs' expert of
7 a portion of defendants' floor conducted while defendants' store was open to the public. The
8 Second District held that this was "investigation" rather than formal "discovery" and that the
9 results of the testing were thus not inadmissible as a result of failure to abide by discovery rules.
10 (Id. at p. 1165 ["If it is a lawful investigation, it is not 'discovery' within the meaning of the
11 Discovery Act, and it is immaterial that the discovery cut-off date may have come and gone."])
12 Under the Discovery Act, plaintiffs have every right to perform testing on their own property,|
13 regardless of whether discovery is open or closed.
14 Third, to the extent defendants are seeking an advisory opinion as to whether they shoul<
15 conduct discovery as to the testing plaintiffs may do on their own property, such is also improper
16 and premature. Trial is not until June 7, 2010; no decisions should be made today—or even this
17 year—as to what may or may not be admissible in that trial.
18 In early April 2009, an engineer did an inspection of the Abbott house and made
19 numerous findings which he put into a report. The Abbotts obtained a copy of that report on or
20 about May 19, 2009 and immediately forwarded a copy to all defendants via email.
21 Additionally, while formulating their opinions in preparation for their depositions, certain of the
22 Abbott's retained experts discovered evidence that the house may not be built on compacted soil.
23 If the house is not built on compacted soil, that is a real threat to its structural integrity. On or
24 about May 12, 2009, the Abbotts had a portion of their property excavated down to the footings.
25 That day, they notified defendants of this excavation and invited them to have their experts
26 inspect it. On May 18, 2009, defendants experts did inspect the excavation. Thus, there can be
27 no prejudice to this testing having been done after discovery closed, especially in light of the fact
28 that trial is not for another year. The Abbotts are in the process of getting additional testing done
Opposition to ex Parte Request - 2
on their property to determine if the soil under the house was properly compacted, despite the
absence of a compaction report from a soils engineer, and as to whether sufficient gravel was
placed under the slab of the house. They will keep defendants fully apprised of this testing an-
invite them to inspect it.
Fourth, the testing being done by the Abbotts is not only to their own property, but is to
property built by the defendants. They have actual knowledge as to the facts plaintiffs are
seeking to determine via the excavation and any future testing: (1) whether any part of the
foundation was placed on uncompacted soil; (2) the amount of fill placed under the house am
9 garage slabs; (3) the amount of gravel placed under the house and garage slabs; and (4) the actua
10 depth of the footings and the amount of backfill placed against the retaining wall in the garage.
11 These are facts of which defendants are aware without conducting any discovery on palintiffs'
12 property. Thus, they cannot claim they were somehow "unaware" of the need to do discovery as
13 to the condition of the soil under the foundation. As defendants mentioned in their opposition to
14 plaintiffs' motion to continue the trial date, they were aware in December 2008 that Ms. Abbot
15 was complaining of soils violations. She did not understand what she meant by that, but
16 apparently defendants did. There is no prejudice to plaintiffs conducting any testing.
17 Fifth, plaintiffs are in the process of amending the complaint to add allegations regarding
18 the uncompacted soil, the lack of sufficient gravel, and to add additional defendants, to wit, the
19 grader and the firm that supposedly inspected the soil before the foundation was poured.
20 Plaintiffs will seek to reopen discovery at that time.
21
22 Dated: May 28, 2009
„.„,_„, _,.
Stephanie J. Finelli,
23
Attorney for Plaintiffs
24
25
26
27
28
Opposition to ex Parte Request - 3
Preview
1 STEPHANIE J. FINELLI, SEN 173462 Law Office of Stephanie J. Finelli 2 1007-7th Street, Suite 500 Sacramento, CA 95814 3 tel 916-443-2144 fax 916-443-1511 4 Attorney for Plaintiff By Tony/feroy/)eputy Cler 5 6 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 7 IN AND FOR THE COUNTY OF SACRAMENTO 8 9 FLORENTINE AND RODNEY ABBOTT, CaseNo.:07AS04450 10 Plaintiffs, OPPOSITION TO EX PARTE REQUEST TO LIMIT TESTING DONE BY PLAINTIFFS ON 11 vs. THEIR OWN PROPERTY 12 RONALD BRITSCHGI, et. al. Date: May 28,2009 Time: 9:00 a.m. 13 Defendants Dept: 58 Judge: Van Camp 14 15 and related cross-action 16 17 Plaintiffs hereby oppose defendant Britschgi's ex parte request to limit the testing 18 plaintiffs may conduct on their own property. Notably, plaintiffs have not seen defendants' e> 19 parte papers prior to preparing this opposition, and can thus only guess as to the legal or factua 20 basis for the motion. 21 First, the motion is improper and premature. Ex parte relief may only be granted upon a 22 showing of "good cause." This requires "an affirmative factual showing in a declaration 23 containing competent testimony based on personal knowledge of irreparable harm, immediate 24 danger, or any other statutory basis for granting relief ex parte." (CRC Rule 3.102(c).) Given 25 that trial is over one year away, plaintiffs fail to see how there is any irreparable harm, 26 immediate danger, or other statutory basis on which this Court could granting ex parte relief. To 27 the extent defendants are seeking to limit the evidence that plaintiffs may present at trial, which 28 will begin on June 7, 2010, the proper procedure would be a motion in limine prior to trial. Opposition to ex Parte Request -1 Second, plaintiffs do not need to reopen discovery in order to conduct testing on theii 2 own property. (See, e.g. Pullin v. Superior Court (2000) 81 Cal.App.4th 1161, 1162, 1164-1165 3 ["We publish this opinion to confirm that, as the plaintiff in this case claims, there is nothing in 4 the Civil Discovery Act (Code Civ. Proc., § 2016 et seq.) to prevent a party from conducting a 5 unilateral investigation without resort to any statutory discovery device, provided only that the 6 investigation is lawful."]) In Pullin, the "discovery" was an investigation by plaintiffs' expert of 7 a portion of defendants' floor conducted while defendants' store was open to the public. The 8 Second District held that this was "investigation" rather than formal "discovery" and that the 9 results of the testing were thus not inadmissible as a result of failure to abide by discovery rules. 10 (Id. at p. 1165 ["If it is a lawful investigation, it is not 'discovery' within the meaning of the 11 Discovery Act, and it is immaterial that the discovery cut-off date may have come and gone."]) 12 Under the Discovery Act, plaintiffs have every right to perform testing on their own property,| 13 regardless of whether discovery is open or closed. 14 Third, to the extent defendants are seeking an advisory opinion as to whether they shoul< 15 conduct discovery as to the testing plaintiffs may do on their own property, such is also improper 16 and premature. Trial is not until June 7, 2010; no decisions should be made today—or even this 17 year—as to what may or may not be admissible in that trial. 18 In early April 2009, an engineer did an inspection of the Abbott house and made 19 numerous findings which he put into a report. The Abbotts obtained a copy of that report on or 20 about May 19, 2009 and immediately forwarded a copy to all defendants via email. 21 Additionally, while formulating their opinions in preparation for their depositions, certain of the 22 Abbott's retained experts discovered evidence that the house may not be built on compacted soil. 23 If the house is not built on compacted soil, that is a real threat to its structural integrity. On or 24 about May 12, 2009, the Abbotts had a portion of their property excavated down to the footings. 25 That day, they notified defendants of this excavation and invited them to have their experts 26 inspect it. On May 18, 2009, defendants experts did inspect the excavation. Thus, there can be 27 no prejudice to this testing having been done after discovery closed, especially in light of the fact 28 that trial is not for another year. The Abbotts are in the process of getting additional testing done Opposition to ex Parte Request - 2 on their property to determine if the soil under the house was properly compacted, despite the absence of a compaction report from a soils engineer, and as to whether sufficient gravel was placed under the slab of the house. They will keep defendants fully apprised of this testing an- invite them to inspect it. Fourth, the testing being done by the Abbotts is not only to their own property, but is to property built by the defendants. They have actual knowledge as to the facts plaintiffs are seeking to determine via the excavation and any future testing: (1) whether any part of the foundation was placed on uncompacted soil; (2) the amount of fill placed under the house am 9 garage slabs; (3) the amount of gravel placed under the house and garage slabs; and (4) the actua 10 depth of the footings and the amount of backfill placed against the retaining wall in the garage. 11 These are facts of which defendants are aware without conducting any discovery on palintiffs' 12 property. Thus, they cannot claim they were somehow "unaware" of the need to do discovery as 13 to the condition of the soil under the foundation. As defendants mentioned in their opposition to 14 plaintiffs' motion to continue the trial date, they were aware in December 2008 that Ms. Abbot 15 was complaining of soils violations. She did not understand what she meant by that, but 16 apparently defendants did. There is no prejudice to plaintiffs conducting any testing. 17 Fifth, plaintiffs are in the process of amending the complaint to add allegations regarding 18 the uncompacted soil, the lack of sufficient gravel, and to add additional defendants, to wit, the 19 grader and the firm that supposedly inspected the soil before the foundation was poured. 20 Plaintiffs will seek to reopen discovery at that time. 21 22 Dated: May 28, 2009 „.„,_„, _,. Stephanie J. Finelli, 23 Attorney for Plaintiffs 24 25 26 27 28 Opposition to ex Parte Request - 3