Preview
Todd A. Jones (BarNo. 198024) fi*"'*"
Gregory K. Federico (BarNo. 242184)
2 ARCHERNORRIS
3
A Professional Law Corporation
301 University Avenue, Suite 110
ENDORSED
Sacramento, Califomia 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. 15 FOR AN
Plaintiffs, ORDER BARRING ANY REFERENCE TO
13 COSTS TO REPAIR DEFECTS THAT
v. HAVE CAUSED NO PHYSICAL DAMAGE
14 PRIOR TO EVIDENCE CODE § 402
RONALD PAUL BRITSCHGI, et al.. HEARING
15
Defendants. Action Filed: September 24,2007
16
Trial Date: JanuarJ' 17,2011
17 Time: 8-30 a.m.
Location: Department 43
18
AND ALL RELATED CROSS-ACTION§.
19
20
I.
21 INTRODUCTION
22
Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION
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(hereinafter "CA CONSTRUCTION") and Defendant R4C0RP., INC. (hereinafter "R4C0RP")
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(hereinafter collectively "Defendants") hereby incorporate by reference herein the "Introduction"
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section set forth in its Motion in Limine No. 1.
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///
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///
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NICS49/I058925-I
DEFENDANTS' MOTION IN LIMINE NO 15 RE ALLEGED DEFECTS THAT HAVE CAUSED NO DAMAGE
1 MOTION IN LIMINE NO. 15 FOR AN ORDER BARRING ANY REFERENCE TO
COSTS TO REPAIR DEFECTS THAT HAVE CAUSED NO PHYSICAL DAMAGE
2 PRIOR TO EVIDENCE CODE § 402 HEARING
3
This case arises out of alleged defects in constmction of a concrete foundation at the
4
Plaintiffs' single-family residence located at 8601 Rolling Green Way in Fair Oaks, Califomia.
5
The contract between Plaintiffs and Defendant CA CONSTRUCTION was signed on October 25,
6
2005 CA CONSTRUCTION was under contract to supply and install the concrete foundation
7
and garage slab per plans and specifications. CA CONSTRUCTION played no role in the design
8
ofthe foundation, and grading/earth movement was specifically excluded from its contract.
9
Plaintiffs' home sits on a lot with a substantial elevation change of approximately 20 feet. Per the
10
decision ofthe owner/builder Plaintiff FLORENTINE ABBOTT, the project was done without a
11
grading permit or grading plan. Plaintiffs will likely seek damages in excess of $319,000, and
12
will seek damages to have the garage, and potentially portions ofthe home, completely rebuilt.
13
n.
14 ARGUMENT
15 Defendants move this Court for an Order before voir dire examination that precludes
16 Plaintiffs, their counsel and witnesses from making any reference to alleged construction defects
1^ that have not resulted in physical property damage. Plaintiffs allege several construction defects.
18 The primary claims involve alleged damages from the foundation work that has left the driveway
19 too steep, the home being too low in relation to the lot upon which it sits, and the home allegedly
20 sitting on uncompacted and unstable fill. All ofthese alleged claims involve the "potential" risk
21 of damage. However, there have been no instances of damage since the home was completed in
22 early to mid 2006. The construction ofthe foundation was the intended work ofthe contract
23 between Plaintiffs and Defendant CA CONSTRUCTION. No physical property damage has
24 resulted fromjhe alleged defect. Yet Plaintiffs are requesting economic loss damages - the cost
25 to repair these alleged defects - even though these alleged defects have not caused any actual
26 physical property damage.
27 NIC549/I058925-1
28
DEFEND ANTS' MOTION IN LIMINE NO 15 RE ALLEGED DEFECTS THAT HAVE CAUSED NO DAMAGE
1 Califomia law bars the introduction of such claims into evidence based on the California
2 Supreme Court decision in Aas v. Superior Court, 24 Cal.4th 627 (2000), in which the Supreme
3 Court distinguished between physical damage to property other than the defective product itself,
4 for which a plaintiff can recover in strict liability and negligence, and economic damage (i.e. the
5 cost to repair defects that have not yet caused actual physical damage), which is not recoverable.
6 In Aas, the California Supreme Court applied the economic loss mle in a negligence action by
7 homeowners against the developer, contractor, and subcontractors who built their dwellings. The
8 plaintiffs alleged that their homes suffered from many constmction defects, but they conceded
9 that many ofthe defects had caused no bodily injury or property damage. The trial court barred
10 plaintiffs from introducing evidence of defects that had caused no injury to persons or property.
11 The Aas court upheld the trial court's ruling, and explained that under the economic loss
12 mle, "appreciable, non-speculative, present injury is an essential element ofa tort cause of
13 action " Id. at 646. The court acknowledged that constmction defects, including failure to comply
14 with building codes, could diminish the value ofthe house, but held that any recovery for such
15 economic loss must arise from contract or warranty law, rather than under negligence. Plaintiffs
16 could not, therefore, recover in strict liability or negligence for defects that had not resulted in
17 physical damage Id. at 639. Additionally, the court held that "[cjonstruction defects that have not
18 ripened into property damage, or at least into involuntary out-of-pocket losses do not comfortably
19 fit the definition of 'appreciable harm'—an essential element of a negligence claim." Id; also see
20 Rosen v State Farm General Insur. Co. (2003) 30 Cal.4th 1070, 1079.
21 By way of example, the Aas court illustrated that evidence of flashing that was not lapped
22 properly under industry standards and the Umform Buildmg Code, for example, should be
23 excluded where there are no leaks or water damage. Id. at 634. Additionally, where there were
24 nailing pattems that were not in compliance with the building standards on the shear walls, but
25 the house was still standing and had not swayed or manifested a lack of structural integrity, the
26 evidence should similarly be excluded. Id.
27 NIC549/1058925-
28
DEFEND ANTS' MOTION IN LIMINE NO 15 RE ALLEGED DEFECTS THAT HAVE CAUSED NO DAMAGE
1 The Aas court also reiterated the long-standing principle that there must be separate
2 physical damage other than damage to the product itself in order for the plaintiffto recover under
3 tort theories: "Whatever the product, whether homes or automobiles, strict liability affords a
4 remedy only when the defective product causes property damage or personal injury." Id. at 639.
5 Similarly, "in actions for negligence,.. .a manufacturer's liability is limited to damages for
6 physical injuries and there is no recovery for economic loss alone, [citation omitted]" Id. at 640.
7 In other words, when the defect and the product are one and the same, the defect is not considered
8 to have caused physical injury, and the plaintiffis limited to contract or warranty claims.
9 Also, in Zamora v Shell Oil Co (1997) 55 Cal.App.4th 204, the plaintiff homeowners
10 brought an action for construction defects conceming plastic plumbing pipes at their homes. The
11 plaintiffs contended that the plastic pipes had experienced "micro-cracking" and would ultimately
12 fail. However, no pipes had actually leaked and there was no resulting damage. Observing that
13 even though the 14 homeowners asserted that their pipes were inherently defective and suffered
14 degradation and 'micro-cracking', the court nevertheless held that ". .these factors, if true, do not
15 show that there has been the requisite 'damage' for a negligence cause of action.. .Appreciable
16 present harm, not merely the threat of future harm, is required". Id.
17 These cases hold that, as a matter of law, plaintiffs may not recover in negligence or strict
18 liability for construction defects that have not caused property damage, or for economic loss to
19 the product itself. Without tangible property damage to the pertinent building elements, plaintiffs
20 cannot recover. Plaintiffs may not recover for the cost of repair ofan allegedly defective product.
21 Seely v White Motor Co (1965) 63 Cal.2d 9.
22 In Stearman v Centex Homes (2000) 78 Cal.App.4th 611, 619, the court allowed the
23 plaintiffs to recover for damage to property other than the product itself, noting, "the line between
24 physical injury to property and economic loss reflects the line of demarcation between tort theory
25 and contract theory." Therefore, Plaintiffs here may not recover under tort theories for damage to
26 the product itself.
27
NIC549/I058925-I
28
DEFEND ANTS' MOTION IN LIMINE NO 15 RE ALLEGED DEFECTS THAT HAVE CAUSED NO DAMAGE
1 The Aas court cited the Stearman decision with approval, as well as the holding in Casey
2 V Overhead Door Corp (1999) 74 Cal.App.4th 112, 123-124. Casey was a negligence case based
3 on defective windows where the court upheld an order excluding testimony regarding damages
4 for the cost to replace defective windows that had not caused any property damage. In holding
5 that the plaintiffs could not recover economic loss damages against the manufacturer of a
6 defective product in a cause of action for strict liability or negligence, the Casey court stated,
7 "[sjince plaintiffs could not recover economic losses, testimony on that item of damages would
8 have been irrelevant. Irrelevant evidence is not admissible." Id. at 123.
9 In the present case. Plaintiffs claim that the work itself, i.e., the foundation work, resulted
10 in a driveway that is too steep, that the home, in its present location, is too low in relation to the
11 lot upon which it sits, and that the foundation sits upon uncompacted and unstable fill. Plaintiffs
12 claim that they are exposed to any number of possible scenarios where the home is unstable, is
13 subject to future flooding, and stmcturally unsound. However, since the home was completed in
14 early to mid 2006, there have been no instances evidencing the home is unstable, has sustained
15 flooding damage, or that it is structurally unsound. Economic loss damages are not recoverable
16 under the tort theory of negligence. Since those damages are not recoverable, evidence of such
17 damages is irrelevant, unfairly prejudicial, and should be excluded.
18 IH.
CONCLUSION
19
For this reason. Defendants seek an Order from the Court that a hearing should be held
20
under California Evidence Code § 402, before the impaneling of the jury, to determine which of
21
Plaintiffs' claims, ifany, satisfy the legal requirement that each defect has caused actual personal
22
injury or property damage before Plaintiffs be allowed to introduce any evidence ofthe alleged
23
defect at trial. Until this requirement is satisfied, the court should issue an order excluding any
24
reference to each claim until Plaintiffs make an offer of proof upon which a reasonable jury might
25
find that they can establish resultant damage that each defect has caused, with the Court to make a
26
ruling as to whether the evidence is sufficient for a reasonable jury to find that property damage
27
NIC549/I058925-I S
28
DEFEND ANTS' MOTION IN LIMINE NO 15 RE ALLEGED DEFECTS THAT HAVE CAUSED NO DAMAGE
1 has occurred, and requiring that even where there is some evidence ofpersonal injury or property
2 damage, any evidence ofthe cost of making any repairs is excluded other than to address the
3 property damages caused by the alleged defect.
4
Dated: December 6, 2010 ARCHER NORRIS
5
6
7 Gregory K. Federico
Attorneys for Defendants RICHARD KIRK
8 RUYBALID, individually and dba CA
CONSTRUCTION; and R4C0RP., INC.
9
10
11 IT IS SO ORDERED.
12
13 DATED-
14
15
JUDGE OF THE SUPERIOR COURT
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NIC549/1058925-I
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DEFEND ANTS' MOTION IN LIMFNE NO. 15 RE ALLEGED DEFECTS THAT HAVE CAUSED NO DAMAGE
1 P R O O F O F SERVICE
2 N a m e o f 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 action 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
M O T I O N IN LIMINE NO. 15 F O R AN O R D E R BARRING ANY R E F E R E N C E T O
6 COSTS T O REPAIR DEFECTS THAT HAVE CAUSED NO PHYSICAL DAMAGE
P R I O R T O EVIDENCE CODE § 402 HEARING
7
[5^ By placing a tme copy ofthe 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
JQ mailing with the United States Postal Service. On the same day that a sealed envelope
is placed for collection and mailing, it is deposited in the ordinary course ofbusiness
11 with the United States Postal Service with postage fully prepaid.
12 I — I B y having a tme 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
1^ was reported as complete without error by a report issued by the transmitting facsimile
14 machine.
15 I—I By placing a tme 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.
^^ rn bv having personal deliverv bv FIRST LEGAL SUPPORT SERVICES a tme copy of
Ig 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, California
23
24 SnA^^
25 (^^CINjbY A. INGLAND
26
27
28
NIC341/608293-1
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
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NIC341/608293-1
SERVICE LIST
Preview
Todd A. Jones (BarNo. 198024) fi*"'*" Gregory K. Federico (BarNo. 242184) 2 ARCHERNORRIS 3 A Professional Law Corporation 301 University Avenue, Suite 110 ENDORSED Sacramento, Califomia 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. 15 FOR AN Plaintiffs, ORDER BARRING ANY REFERENCE TO 13 COSTS TO REPAIR DEFECTS THAT v. HAVE CAUSED NO PHYSICAL DAMAGE 14 PRIOR TO EVIDENCE CODE § 402 RONALD PAUL BRITSCHGI, et al.. HEARING 15 Defendants. Action Filed: September 24,2007 16 Trial Date: JanuarJ' 17,2011 17 Time: 8-30 a.m. Location: Department 43 18 AND ALL RELATED CROSS-ACTION§. 19 20 I. 21 INTRODUCTION 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 NICS49/I058925-I DEFENDANTS' MOTION IN LIMINE NO 15 RE ALLEGED DEFECTS THAT HAVE CAUSED NO DAMAGE 1 MOTION IN LIMINE NO. 15 FOR AN ORDER BARRING ANY REFERENCE TO COSTS TO REPAIR DEFECTS THAT HAVE CAUSED NO PHYSICAL DAMAGE 2 PRIOR TO EVIDENCE CODE § 402 HEARING 3 This case arises out of alleged defects in constmction of a concrete foundation at the 4 Plaintiffs' single-family residence located at 8601 Rolling Green Way in Fair Oaks, Califomia. 5 The contract between Plaintiffs and Defendant CA CONSTRUCTION was signed on October 25, 6 2005 CA CONSTRUCTION was under contract to supply and install the concrete foundation 7 and garage slab per plans and specifications. CA CONSTRUCTION played no role in the design 8 ofthe foundation, and grading/earth movement was specifically excluded from its contract. 9 Plaintiffs' home sits on a lot with a substantial elevation change of approximately 20 feet. Per the 10 decision ofthe owner/builder Plaintiff FLORENTINE ABBOTT, the project was done without a 11 grading permit or grading plan. Plaintiffs will likely seek damages in excess of $319,000, and 12 will seek damages to have the garage, and potentially portions ofthe home, completely rebuilt. 13 n. 14 ARGUMENT 15 Defendants move this Court for an Order before voir dire examination that precludes 16 Plaintiffs, their counsel and witnesses from making any reference to alleged construction defects 1^ that have not resulted in physical property damage. Plaintiffs allege several construction defects. 18 The primary claims involve alleged damages from the foundation work that has left the driveway 19 too steep, the home being too low in relation to the lot upon which it sits, and the home allegedly 20 sitting on uncompacted and unstable fill. All ofthese alleged claims involve the "potential" risk 21 of damage. However, there have been no instances of damage since the home was completed in 22 early to mid 2006. The construction ofthe foundation was the intended work ofthe contract 23 between Plaintiffs and Defendant CA CONSTRUCTION. No physical property damage has 24 resulted fromjhe alleged defect. Yet Plaintiffs are requesting economic loss damages - the cost 25 to repair these alleged defects - even though these alleged defects have not caused any actual 26 physical property damage. 27 NIC549/I058925-1 28 DEFEND ANTS' MOTION IN LIMINE NO 15 RE ALLEGED DEFECTS THAT HAVE CAUSED NO DAMAGE 1 Califomia law bars the introduction of such claims into evidence based on the California 2 Supreme Court decision in Aas v. Superior Court, 24 Cal.4th 627 (2000), in which the Supreme 3 Court distinguished between physical damage to property other than the defective product itself, 4 for which a plaintiff can recover in strict liability and negligence, and economic damage (i.e. the 5 cost to repair defects that have not yet caused actual physical damage), which is not recoverable. 6 In Aas, the California Supreme Court applied the economic loss mle in a negligence action by 7 homeowners against the developer, contractor, and subcontractors who built their dwellings. The 8 plaintiffs alleged that their homes suffered from many constmction defects, but they conceded 9 that many ofthe defects had caused no bodily injury or property damage. The trial court barred 10 plaintiffs from introducing evidence of defects that had caused no injury to persons or property. 11 The Aas court upheld the trial court's ruling, and explained that under the economic loss 12 mle, "appreciable, non-speculative, present injury is an essential element ofa tort cause of 13 action " Id. at 646. The court acknowledged that constmction defects, including failure to comply 14 with building codes, could diminish the value ofthe house, but held that any recovery for such 15 economic loss must arise from contract or warranty law, rather than under negligence. Plaintiffs 16 could not, therefore, recover in strict liability or negligence for defects that had not resulted in 17 physical damage Id. at 639. Additionally, the court held that "[cjonstruction defects that have not 18 ripened into property damage, or at least into involuntary out-of-pocket losses do not comfortably 19 fit the definition of 'appreciable harm'—an essential element of a negligence claim." Id; also see 20 Rosen v State Farm General Insur. Co. (2003) 30 Cal.4th 1070, 1079. 21 By way of example, the Aas court illustrated that evidence of flashing that was not lapped 22 properly under industry standards and the Umform Buildmg Code, for example, should be 23 excluded where there are no leaks or water damage. Id. at 634. Additionally, where there were 24 nailing pattems that were not in compliance with the building standards on the shear walls, but 25 the house was still standing and had not swayed or manifested a lack of structural integrity, the 26 evidence should similarly be excluded. Id. 27 NIC549/1058925- 28 DEFEND ANTS' MOTION IN LIMINE NO 15 RE ALLEGED DEFECTS THAT HAVE CAUSED NO DAMAGE 1 The Aas court also reiterated the long-standing principle that there must be separate 2 physical damage other than damage to the product itself in order for the plaintiffto recover under 3 tort theories: "Whatever the product, whether homes or automobiles, strict liability affords a 4 remedy only when the defective product causes property damage or personal injury." Id. at 639. 5 Similarly, "in actions for negligence,.. .a manufacturer's liability is limited to damages for 6 physical injuries and there is no recovery for economic loss alone, [citation omitted]" Id. at 640. 7 In other words, when the defect and the product are one and the same, the defect is not considered 8 to have caused physical injury, and the plaintiffis limited to contract or warranty claims. 9 Also, in Zamora v Shell Oil Co (1997) 55 Cal.App.4th 204, the plaintiff homeowners 10 brought an action for construction defects conceming plastic plumbing pipes at their homes. The 11 plaintiffs contended that the plastic pipes had experienced "micro-cracking" and would ultimately 12 fail. However, no pipes had actually leaked and there was no resulting damage. Observing that 13 even though the 14 homeowners asserted that their pipes were inherently defective and suffered 14 degradation and 'micro-cracking', the court nevertheless held that ". .these factors, if true, do not 15 show that there has been the requisite 'damage' for a negligence cause of action.. .Appreciable 16 present harm, not merely the threat of future harm, is required". Id. 17 These cases hold that, as a matter of law, plaintiffs may not recover in negligence or strict 18 liability for construction defects that have not caused property damage, or for economic loss to 19 the product itself. Without tangible property damage to the pertinent building elements, plaintiffs 20 cannot recover. Plaintiffs may not recover for the cost of repair ofan allegedly defective product. 21 Seely v White Motor Co (1965) 63 Cal.2d 9. 22 In Stearman v Centex Homes (2000) 78 Cal.App.4th 611, 619, the court allowed the 23 plaintiffs to recover for damage to property other than the product itself, noting, "the line between 24 physical injury to property and economic loss reflects the line of demarcation between tort theory 25 and contract theory." Therefore, Plaintiffs here may not recover under tort theories for damage to 26 the product itself. 27 NIC549/I058925-I 28 DEFEND ANTS' MOTION IN LIMINE NO 15 RE ALLEGED DEFECTS THAT HAVE CAUSED NO DAMAGE 1 The Aas court cited the Stearman decision with approval, as well as the holding in Casey 2 V Overhead Door Corp (1999) 74 Cal.App.4th 112, 123-124. Casey was a negligence case based 3 on defective windows where the court upheld an order excluding testimony regarding damages 4 for the cost to replace defective windows that had not caused any property damage. In holding 5 that the plaintiffs could not recover economic loss damages against the manufacturer of a 6 defective product in a cause of action for strict liability or negligence, the Casey court stated, 7 "[sjince plaintiffs could not recover economic losses, testimony on that item of damages would 8 have been irrelevant. Irrelevant evidence is not admissible." Id. at 123. 9 In the present case. Plaintiffs claim that the work itself, i.e., the foundation work, resulted 10 in a driveway that is too steep, that the home, in its present location, is too low in relation to the 11 lot upon which it sits, and that the foundation sits upon uncompacted and unstable fill. Plaintiffs 12 claim that they are exposed to any number of possible scenarios where the home is unstable, is 13 subject to future flooding, and stmcturally unsound. However, since the home was completed in 14 early to mid 2006, there have been no instances evidencing the home is unstable, has sustained 15 flooding damage, or that it is structurally unsound. Economic loss damages are not recoverable 16 under the tort theory of negligence. Since those damages are not recoverable, evidence of such 17 damages is irrelevant, unfairly prejudicial, and should be excluded. 18 IH. CONCLUSION 19 For this reason. Defendants seek an Order from the Court that a hearing should be held 20 under California Evidence Code § 402, before the impaneling of the jury, to determine which of 21 Plaintiffs' claims, ifany, satisfy the legal requirement that each defect has caused actual personal 22 injury or property damage before Plaintiffs be allowed to introduce any evidence ofthe alleged 23 defect at trial. Until this requirement is satisfied, the court should issue an order excluding any 24 reference to each claim until Plaintiffs make an offer of proof upon which a reasonable jury might 25 find that they can establish resultant damage that each defect has caused, with the Court to make a 26 ruling as to whether the evidence is sufficient for a reasonable jury to find that property damage 27 NIC549/I058925-I S 28 DEFEND ANTS' MOTION IN LIMINE NO 15 RE ALLEGED DEFECTS THAT HAVE CAUSED NO DAMAGE 1 has occurred, and requiring that even where there is some evidence ofpersonal injury or property 2 damage, any evidence ofthe cost of making any repairs is excluded other than to address the 3 property damages caused by the alleged defect. 4 Dated: December 6, 2010 ARCHER NORRIS 5 6 7 Gregory K. Federico Attorneys for Defendants RICHARD KIRK 8 RUYBALID, individually and dba CA CONSTRUCTION; and R4C0RP., INC. 9 10 11 IT IS SO ORDERED. 12 13 DATED- 14 15 JUDGE OF THE SUPERIOR COURT 16 17 18 19 20 21 22 23 24 25 26 27 NIC549/1058925-I 28 DEFEND ANTS' MOTION IN LIMFNE NO. 15 RE ALLEGED DEFECTS THAT HAVE CAUSED NO DAMAGE 1 P R O O F O F SERVICE 2 N a m e o f 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 action 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 M O T I O N IN LIMINE NO. 15 F O R AN O R D E R BARRING ANY R E F E R E N C E T O 6 COSTS T O REPAIR DEFECTS THAT HAVE CAUSED NO PHYSICAL DAMAGE P R I O R T O EVIDENCE CODE § 402 HEARING 7 [5^ By placing a tme copy ofthe 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 JQ mailing with the United States Postal Service. On the same day that a sealed envelope is placed for collection and mailing, it is deposited in the ordinary course ofbusiness 11 with the United States Postal Service with postage fully prepaid. 12 I — I B y having a tme 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 1^ was reported as complete without error by a report issued by the transmitting facsimile 14 machine. 15 I—I By placing a tme 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. ^^ rn bv having personal deliverv bv FIRST LEGAL SUPPORT SERVICES a tme copy of Ig 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, California 23 24 SnA^^ 25 (^^CINjbY A. INGLAND 26 27 28 NIC341/608293-1 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 NIC341/608293-1 SERVICE LIST