Preview
STEPHANIE J. FINELLI, SBN 173462
Law Office of Stephanie J Finelli
f ' i L} ^:^jr4\^n(\m
' J m i ^•Lit^
2 1007-7th Street, Suite 500
Sacramento, CA 95814
3 tel 916-443-2144 FEB 1 7 2011
fax 916-443-1511
4
By L Whitf'&ld
Attorney for Plaintiffs, Deputy Clerk
5
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, NOTICE OF MOTION AND MOTION FOR
JUDGMENT NOTWITHSTANDING THE
12 vs VERDICT, MEMORANDUM OF POINTS &
AUTHORITIES IN SUPPORT
13 RONALD BRITSCHGI, et. al..
Trial Date: January 18, 2011
14 Defendants Judgment- February 3, 2011
15 Dept: 43
Judge Brian Van Camp
16 and related cross-actions
17
18 NOTICE OF MOTION
19 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD
20 PLEASE TAKE NOTICE THAT Plaintiffs Florenfine and Rodney Abbott will move this
21 Court to set aside the Judgment entered on February 3, 2011 and to enter Judgment in favor of
22 Plaintiffs and against defendant Richard Ruybalid individually and doing business as CA
23 Construction, notwithstanding the verdict rendered by the jury on February 2, 2011
24 This motion will be made at a time and place to be set by the Court for hearing on a
25 motion for new trial to be made concunently with this motion.
26 This motion is made on the grounds that (1) there was no evidence, substantial oi
27 otherwise, upon which the jury could have found that plainfiffs did not do all or substantially all
28 of the significant things the contract required them to do, (2) there was no evidence, substantial
Motion in Limine - 1
or otherwise, upon which the jury could have found that defendant's negligence was not a
substanfial factor in causing plaintiffs' harm; (3) as a matter of law, defendant CA Construction's
departure from accepted trade standards for good and workmanlike construction—which the jury
specifically found—caused plaintiffs harm; and (4) as a matter of law, CA Construction needed a
C-8 license to install the foundation, which it admittedly did not have at the time it performed the
work on plaintiffs' property
This motion is made pursuant to Code of Civil Procedure secfion 629 and is based upon
this notice; the evidence presented at trial; all pleadings, papers and records ofthis Court; and the
9 memorandum of points & authorities attached hereto.
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11
12
Dated: February li,
[ T ,2011
Stephanie J Finelli,
Attorney for Plaintiffs,
13 Florentine & Rodney Abbott
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Motion in Limine - 2
MEMORANDUM OF POINTS AND AUTHORITIES
2 I INTRODUCTION
3 In jury trials, the judge essenfially acts as "thirteenth juror" and is enfitled to weigh and
4 evaluate evidence despite the factual resolufions by the jury. (Norden v. Hartman (1952) 111
5 Cal.App.2d 751, 758, Candido v Huitt (1984) 151 Cal.App 3d 918, 923 ) This Court may and
6 should re-evaluate the evidence presented at trial, and make its own determination as to whethei
7 plaintiffs proved their case, and even set aside the jury's verdict and enter its own judgment
8 consistent with the court's own review ofthe evidence presented. (Ibid )
9 Upon weighing the evidence and reviewing the entire record, this Court can only
10 conclude that the jury clearly should have reached a different verdict or decision on each of the
11 three causes of action before it, as set forth below.
12
13 II. LEGAL ARGUMENT
14 A. The Court Should Enter Judgment in Plaintiffs' Favor on the Business «&
Professions Code Violations
15
16 At the outset of trial, plaintiffs moved to bifurcate the issue of whether CA Construction
17 violated Business & Professions Code sections 7028 and 7031 from the main phase ofthe trial
18 and decided by the court (not the jury) at the beginning of the trial Plaintiffs argued that as a
19 matter of law, CA Construction needed a C-8 license to install the foundation, which it
20 admittedly did not have at the time it performed the work on plaintiffs' property
21 The court did not bifurcate, stating that the facts should be presented to the court and the
22 jury at the same time, and that certain issues might be jury factual issues The jury found that
23 CA Construction willfully departed from accepted trade practices. This alone is sufficient foi
24 this Court to make the legal determination that CA Construction violated the Business &
25 Professions Code and is required to refund to plaintiffs the sums they paid under the contract
26 This Court may and should enter judgment in plaintiffs' favor on this issue, notwithstanding the
27 jury's verdict
28
Motion in Limine - 3
Additionally, the issue of whether defendant Ruybalid dba CA Construction violated
2 Business & Professions Code sections 7028 and 7031 is a legal one that should not have been
3 presented to thejury, but should have been—and still should be—made by the Court
4 Business & Professions Code section 7057 provides in relevant part as follows-
5 A general building contractor may take a prime contract or a subcontract for a
framing or carpentry project. However, a general building contractor shall not
6
take a prime contract for any project involving trades other than frammg or
7 carpentry unless the prime contract requires at least two unrelated building
trades or crafts other than framing or carpentry, or unless the general building
8 contractor holds the appropriate license classification or subcontracts with an
appropriately licensed contractor to perform the work A general building
9
contractor shall not take a subcontract involving trades other than framing or
10 carpentry, unless the subcontract requires at least two unrelated trades or crafts
other than framing or carpentry, or unless the general building contractor holds
11 the appropriate license classification. The general building contractor may not
count framing or carpentry in calculating the two unrelated trades necessary in
12
order for the general building contractor to be able to take a prime contract or
13 subcontract for a project involving other trades.
14
(Bus & Prof Code §7057(b), emphasis added )
15
Here, CA Construction had a contract with plaintlffs to install the foundation of theii
16
home Regardless of whether this contract is deemed a prime contract or a subcontract, undei
17
section 7057(b), CA Construction could only enter into such contract ifit involved two unrelated
18
building trades or crafts other than framing or carpentry or CA held the appropriate license
19 classification At trial Richard Ruybalid testified that CA Construction did not have a C-8
20 certification for concrete until well after its work on the Abbott house was completed. As such,
21 CA did not hold the appropriate license classification at the time ofthe job. And the construction
22 of the foundation did not involve two unrelated trades other than framing or carpentry, it
23 involved only one trade concrete foundation work
24 Evidence was offered on this issue Even defendants' expert Donn Marinovich testified
25 that the reason he obtained a C-8 license in addifion to his B license was so he could do concrete
26 work like install foundations
27 And according to the CSLB classifications, a C-8 Concrete classification is as follows:
28 A concrete contractor forms, pours, places, finishes and installs specified mass,
pavement, flat and other concrete work; and places and sets screeds for pavements
Motion in Limine - 4
1 or flatwork. This class shall not include contractors whose sole contracting
business is the application of plaster coatings or the placmg and erecting of steel
2
or bars for the reinforcing of mass, pavement, flat and other concrete work
3
(California Code of Regulafions Tifie 16, Division 8, Article 3. Classificafions )
4
This is precisely what CA Construcfion did for the Abbotts, and what its contract with the
5
Abbotts specifies as its scope of work
6
The Abbotts having asserted that CA Construction was not properly licensed to act solely
7
as the foundation contractor means that CA has the burden of provmg that it was so licensed
8
(Bus & Prof Code §7031(d) ["When licensure or proper licensure is controverted, the burden oi
9
proof to establish licensure or proper licensure shall be on the licensee "])
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The issue of whether CA Construction was properly licensed to perform the foundation
11
work is a legal issue that should not have been put to the jury but should be resolved by the
12
court Given the evidence presented, the burden of proof on this issue, and the jury's finding that
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CA Construction willfully departed from accepted trade standards, this Court should make a
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legal determmation that CA Construction violated the Business & Professions Codes. It should
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further order that the Abbotts are entitled to a refund of all sums paid to CA. (Bus &Prof Code
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§7031(b) ["Except as provided in subdivision (e), a person who utilizes the services of an
17
unlicensed contractor may bring an action in any court of competent jurisdiction in this state to
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recover all compensation paid to the unlicensed contractor for performance of any act oi
19
contract"]) And it may and should award the Abbotts their attorney fees. (Code Civ Proc
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§1029 8)
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B. The Court Should Enter Judgment in Plaintiffs' Favor on the Action for Breach of
23 Contract
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The jury found there was a contract between plaintiffs and defendant CA Construction,
25
yet found that plaintlffs did not do all or substantially all of the significant things the contract
26 required them to do. However, there was no evidence, substantial or otherwise, upon which the
27 jury could have made this finding The only obligation the Abbotts had under the contract was to
28 pay CA Construction It was undisputed that the Abbotts paid CA Construction $53,206 undei
the contract There was no evidence presented at trial that the Abbotts owed any additional
Motion in Limine - 5
funds. Richard Ruybalid testified that CA Construcfion was paid in full by the Abbotts. 11
anything, the Abbotts overpaid CA Construction
Because the evidence was insufficient—in fact non-existent—to support the jury's
verdict on the breach of contract acfion, not only may a new trial be ordered as to that cause of
action, this Court has the power and the authority to set aside the verdict as to that cause of
action and determine that CA Construction did breach the contract with the Abbotts, and entei
judgment in favor of plaintiffs on that cause of action. That is precisely what the Court should
do here.
C. The Court Should Enter Judgment in Plaintiffs Favor on the Negligence Action
10
There was no evidence, substantial or otherwise, upon which the jury could have found
11 that defendant's negligence was not a substantial factor in causmg plaintiffs' harm. Notably, not
12 only did the jury find CA Construction was negligent; it found that CA Construction willfully
13 departed from accepted trade standards for good and workmanlike construction. The "sticking
14 pomt" was apparently whether such negligence and departure from accepted trade standards
caused plaintiffs harm However, given these findings by the jury, and the evidence at trial that
15
plaintlffs were, in fact, harmed by CA Construction's negligence and willful departure from
16
accepted trade standards, this Court may and should reverse thejudgment in favor of defendant
17
CA Construction on that issue, and enter judgment in favor of plaintiffs on that negligence cause
18
of action
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The evidence at trial was that CA Construction did not determine the relative elevation ot
20
the foundation in relation to the sunounding area or the eventual cul-de-sac before building the
21
foundation Even defendants' expert Donn Marinovich testified that this is below the standard of
22
care for a foundation contractor. The only expert who did not so testify was David Heryet,
23
defendants' retained expert, who stated that such was not below the standard of care "in this
24
case" because he thought determining the elevations was something the Abbotts should have
25
done. However, it was the failure to specify the elevafions prior to building the foundation that
26
led to plaintiffs' harm of having the house well below street level Having concluded that CA
27
Construction was negligent and even willfully departed from accepted trade standards, the jury
28
could not have found, based upon the evidence at trial, that this was not a substantial factor in
Motion in Limine - 6
1 causing plaintiffs harm The jury was obviously confused. This Court may and should rectify
2 this obvious confusion by setting aside the verdict and entering judgment in favor of plaintiffs.
3 Additionally, the evidence was clear at trial—by defendants' own admission—that the
4 retaining wall at the far end ofthe garage was not IVi feet tall, as shown on the plans, but only 5
5 feet tall This is a clear departure form the plans themselves which is not only negligent, but
6 which quite obviously caused plaintiffs damage The garage is 10 feet lower than the street, thus
7 rendering it virtually unusable Had it been 2'/2 or even 2 feet higher, the garage might actually
8 be usable Given that the contract specified that CA Construction was to perform the concrete
9 work "as per plans and specifications" (Exh 89) and given the undisputed evidence that they did
10 not follow the portion ofthe plans calling for a 7'/2 foot retaining wall, but only built the wall 5
11 feet tall, such is an undisputed departure from the plans that is not only a breach of contract, but
12 which IS negligent and a substantial factor on causing plaintiffs' harm The jury ened as a mattei
13 of law in deteimining that CA Constructions' negligence was not a substantial factor in causing
14 plaintiffs' harm. This Court may and should rectify this enor by setting aside the verdict and
15 entering judgment in favor of plaintiffs.
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18 Dated- February 17, 2011 _
Stephanie J. PiTiSfi,
19 Attorney for Plaintiffs
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Motion in Limine - 7
PROOF OF SERVICE BY MAIL
CASENAME. Abbottv 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 California and
not a party to the above-entitled cause. My business address is 1007 Seventh Street, Suite
500, Sacramento, Califomia 95814
On Febmary 17, 2011, pursuant to CCP §1013A(2), I served the following
NOTICE OF MOTION AND MOTION FOR JUDGMENT NOTWITHSTANDING
THE VERDICT; MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT
BY MAIL by depositing a copy of said document in the United States mail in Sacramento,
Cahfomia, in a sealed envelope, with postage fully prepaid, addressed as follows-
Gregory Federico
Archer Noms
301 University Ave , Suite 110
Sacramento, CA 95825
Mark Smith
8549 Willow Valley Place
Granite Bay, CA 95746
Richard W. Freeman, Jr.
Wood, Smith, Henning & Berman
1401 Willow Pass Road, Suite 700
Concord, CA 94520-7982
I declare under penalty of perjury under the laws of ^he StatCy^f Qalifomia the
foregoing is tme and conect.
Dated Febmary 17,2011
•^Stephanie J^"Rnelli
Preview
STEPHANIE J. FINELLI, SBN 173462 Law Office of Stephanie J Finelli f ' i L} ^:^jr4\^n(\m ' J m i ^•Lit^ 2 1007-7th Street, Suite 500 Sacramento, CA 95814 3 tel 916-443-2144 FEB 1 7 2011 fax 916-443-1511 4 By L Whitf'&ld Attorney for Plaintiffs, Deputy Clerk 5 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, NOTICE OF MOTION AND MOTION FOR JUDGMENT NOTWITHSTANDING THE 12 vs VERDICT, MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT 13 RONALD BRITSCHGI, et. al.. Trial Date: January 18, 2011 14 Defendants Judgment- February 3, 2011 15 Dept: 43 Judge Brian Van Camp 16 and related cross-actions 17 18 NOTICE OF MOTION 19 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD 20 PLEASE TAKE NOTICE THAT Plaintiffs Florenfine and Rodney Abbott will move this 21 Court to set aside the Judgment entered on February 3, 2011 and to enter Judgment in favor of 22 Plaintiffs and against defendant Richard Ruybalid individually and doing business as CA 23 Construction, notwithstanding the verdict rendered by the jury on February 2, 2011 24 This motion will be made at a time and place to be set by the Court for hearing on a 25 motion for new trial to be made concunently with this motion. 26 This motion is made on the grounds that (1) there was no evidence, substantial oi 27 otherwise, upon which the jury could have found that plainfiffs did not do all or substantially all 28 of the significant things the contract required them to do, (2) there was no evidence, substantial Motion in Limine - 1 or otherwise, upon which the jury could have found that defendant's negligence was not a substanfial factor in causing plaintiffs' harm; (3) as a matter of law, defendant CA Construction's departure from accepted trade standards for good and workmanlike construction—which the jury specifically found—caused plaintiffs harm; and (4) as a matter of law, CA Construction needed a C-8 license to install the foundation, which it admittedly did not have at the time it performed the work on plaintiffs' property This motion is made pursuant to Code of Civil Procedure secfion 629 and is based upon this notice; the evidence presented at trial; all pleadings, papers and records ofthis Court; and the 9 memorandum of points & authorities attached hereto. 10 11 12 Dated: February li, [ T ,2011 Stephanie J Finelli, Attorney for Plaintiffs, 13 Florentine & Rodney Abbott 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion in Limine - 2 MEMORANDUM OF POINTS AND AUTHORITIES 2 I INTRODUCTION 3 In jury trials, the judge essenfially acts as "thirteenth juror" and is enfitled to weigh and 4 evaluate evidence despite the factual resolufions by the jury. (Norden v. Hartman (1952) 111 5 Cal.App.2d 751, 758, Candido v Huitt (1984) 151 Cal.App 3d 918, 923 ) This Court may and 6 should re-evaluate the evidence presented at trial, and make its own determination as to whethei 7 plaintiffs proved their case, and even set aside the jury's verdict and enter its own judgment 8 consistent with the court's own review ofthe evidence presented. (Ibid ) 9 Upon weighing the evidence and reviewing the entire record, this Court can only 10 conclude that the jury clearly should have reached a different verdict or decision on each of the 11 three causes of action before it, as set forth below. 12 13 II. LEGAL ARGUMENT 14 A. The Court Should Enter Judgment in Plaintiffs' Favor on the Business «& Professions Code Violations 15 16 At the outset of trial, plaintiffs moved to bifurcate the issue of whether CA Construction 17 violated Business & Professions Code sections 7028 and 7031 from the main phase ofthe trial 18 and decided by the court (not the jury) at the beginning of the trial Plaintiffs argued that as a 19 matter of law, CA Construction needed a C-8 license to install the foundation, which it 20 admittedly did not have at the time it performed the work on plaintiffs' property 21 The court did not bifurcate, stating that the facts should be presented to the court and the 22 jury at the same time, and that certain issues might be jury factual issues The jury found that 23 CA Construction willfully departed from accepted trade practices. This alone is sufficient foi 24 this Court to make the legal determination that CA Construction violated the Business & 25 Professions Code and is required to refund to plaintiffs the sums they paid under the contract 26 This Court may and should enter judgment in plaintiffs' favor on this issue, notwithstanding the 27 jury's verdict 28 Motion in Limine - 3 Additionally, the issue of whether defendant Ruybalid dba CA Construction violated 2 Business & Professions Code sections 7028 and 7031 is a legal one that should not have been 3 presented to thejury, but should have been—and still should be—made by the Court 4 Business & Professions Code section 7057 provides in relevant part as follows- 5 A general building contractor may take a prime contract or a subcontract for a framing or carpentry project. However, a general building contractor shall not 6 take a prime contract for any project involving trades other than frammg or 7 carpentry unless the prime contract requires at least two unrelated building trades or crafts other than framing or carpentry, or unless the general building 8 contractor holds the appropriate license classification or subcontracts with an appropriately licensed contractor to perform the work A general building 9 contractor shall not take a subcontract involving trades other than framing or 10 carpentry, unless the subcontract requires at least two unrelated trades or crafts other than framing or carpentry, or unless the general building contractor holds 11 the appropriate license classification. The general building contractor may not count framing or carpentry in calculating the two unrelated trades necessary in 12 order for the general building contractor to be able to take a prime contract or 13 subcontract for a project involving other trades. 14 (Bus & Prof Code §7057(b), emphasis added ) 15 Here, CA Construction had a contract with plaintlffs to install the foundation of theii 16 home Regardless of whether this contract is deemed a prime contract or a subcontract, undei 17 section 7057(b), CA Construction could only enter into such contract ifit involved two unrelated 18 building trades or crafts other than framing or carpentry or CA held the appropriate license 19 classification At trial Richard Ruybalid testified that CA Construction did not have a C-8 20 certification for concrete until well after its work on the Abbott house was completed. As such, 21 CA did not hold the appropriate license classification at the time ofthe job. And the construction 22 of the foundation did not involve two unrelated trades other than framing or carpentry, it 23 involved only one trade concrete foundation work 24 Evidence was offered on this issue Even defendants' expert Donn Marinovich testified 25 that the reason he obtained a C-8 license in addifion to his B license was so he could do concrete 26 work like install foundations 27 And according to the CSLB classifications, a C-8 Concrete classification is as follows: 28 A concrete contractor forms, pours, places, finishes and installs specified mass, pavement, flat and other concrete work; and places and sets screeds for pavements Motion in Limine - 4 1 or flatwork. This class shall not include contractors whose sole contracting business is the application of plaster coatings or the placmg and erecting of steel 2 or bars for the reinforcing of mass, pavement, flat and other concrete work 3 (California Code of Regulafions Tifie 16, Division 8, Article 3. Classificafions ) 4 This is precisely what CA Construcfion did for the Abbotts, and what its contract with the 5 Abbotts specifies as its scope of work 6 The Abbotts having asserted that CA Construction was not properly licensed to act solely 7 as the foundation contractor means that CA has the burden of provmg that it was so licensed 8 (Bus & Prof Code §7031(d) ["When licensure or proper licensure is controverted, the burden oi 9 proof to establish licensure or proper licensure shall be on the licensee "]) 10 The issue of whether CA Construction was properly licensed to perform the foundation 11 work is a legal issue that should not have been put to the jury but should be resolved by the 12 court Given the evidence presented, the burden of proof on this issue, and the jury's finding that 13 CA Construction willfully departed from accepted trade standards, this Court should make a 14 legal determmation that CA Construction violated the Business & Professions Codes. It should 15 further order that the Abbotts are entitled to a refund of all sums paid to CA. (Bus &Prof Code 16 §7031(b) ["Except as provided in subdivision (e), a person who utilizes the services of an 17 unlicensed contractor may bring an action in any court of competent jurisdiction in this state to 18 recover all compensation paid to the unlicensed contractor for performance of any act oi 19 contract"]) And it may and should award the Abbotts their attorney fees. (Code Civ Proc 20 §1029 8) 21 22 B. The Court Should Enter Judgment in Plaintiffs' Favor on the Action for Breach of 23 Contract 24 The jury found there was a contract between plaintiffs and defendant CA Construction, 25 yet found that plaintlffs did not do all or substantially all of the significant things the contract 26 required them to do. However, there was no evidence, substantial or otherwise, upon which the 27 jury could have made this finding The only obligation the Abbotts had under the contract was to 28 pay CA Construction It was undisputed that the Abbotts paid CA Construction $53,206 undei the contract There was no evidence presented at trial that the Abbotts owed any additional Motion in Limine - 5 funds. Richard Ruybalid testified that CA Construcfion was paid in full by the Abbotts. 11 anything, the Abbotts overpaid CA Construction Because the evidence was insufficient—in fact non-existent—to support the jury's verdict on the breach of contract acfion, not only may a new trial be ordered as to that cause of action, this Court has the power and the authority to set aside the verdict as to that cause of action and determine that CA Construction did breach the contract with the Abbotts, and entei judgment in favor of plaintiffs on that cause of action. That is precisely what the Court should do here. C. The Court Should Enter Judgment in Plaintiffs Favor on the Negligence Action 10 There was no evidence, substantial or otherwise, upon which the jury could have found 11 that defendant's negligence was not a substantial factor in causmg plaintiffs' harm. Notably, not 12 only did the jury find CA Construction was negligent; it found that CA Construction willfully 13 departed from accepted trade standards for good and workmanlike construction. The "sticking 14 pomt" was apparently whether such negligence and departure from accepted trade standards caused plaintiffs harm However, given these findings by the jury, and the evidence at trial that 15 plaintlffs were, in fact, harmed by CA Construction's negligence and willful departure from 16 accepted trade standards, this Court may and should reverse thejudgment in favor of defendant 17 CA Construction on that issue, and enter judgment in favor of plaintiffs on that negligence cause 18 of action 19 The evidence at trial was that CA Construction did not determine the relative elevation ot 20 the foundation in relation to the sunounding area or the eventual cul-de-sac before building the 21 foundation Even defendants' expert Donn Marinovich testified that this is below the standard of 22 care for a foundation contractor. The only expert who did not so testify was David Heryet, 23 defendants' retained expert, who stated that such was not below the standard of care "in this 24 case" because he thought determining the elevations was something the Abbotts should have 25 done. However, it was the failure to specify the elevafions prior to building the foundation that 26 led to plaintiffs' harm of having the house well below street level Having concluded that CA 27 Construction was negligent and even willfully departed from accepted trade standards, the jury 28 could not have found, based upon the evidence at trial, that this was not a substantial factor in Motion in Limine - 6 1 causing plaintiffs harm The jury was obviously confused. This Court may and should rectify 2 this obvious confusion by setting aside the verdict and entering judgment in favor of plaintiffs. 3 Additionally, the evidence was clear at trial—by defendants' own admission—that the 4 retaining wall at the far end ofthe garage was not IVi feet tall, as shown on the plans, but only 5 5 feet tall This is a clear departure form the plans themselves which is not only negligent, but 6 which quite obviously caused plaintiffs damage The garage is 10 feet lower than the street, thus 7 rendering it virtually unusable Had it been 2'/2 or even 2 feet higher, the garage might actually 8 be usable Given that the contract specified that CA Construction was to perform the concrete 9 work "as per plans and specifications" (Exh 89) and given the undisputed evidence that they did 10 not follow the portion ofthe plans calling for a 7'/2 foot retaining wall, but only built the wall 5 11 feet tall, such is an undisputed departure from the plans that is not only a breach of contract, but 12 which IS negligent and a substantial factor on causing plaintiffs' harm The jury ened as a mattei 13 of law in deteimining that CA Constructions' negligence was not a substantial factor in causing 14 plaintiffs' harm. This Court may and should rectify this enor by setting aside the verdict and 15 entering judgment in favor of plaintiffs. 16 17 18 Dated- February 17, 2011 _ Stephanie J. PiTiSfi, 19 Attorney for Plaintiffs 20 21 22 23 24 25 26 27 28 Motion in Limine - 7 PROOF OF SERVICE BY MAIL CASENAME. Abbottv 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 California and not a party to the above-entitled cause. My business address is 1007 Seventh Street, Suite 500, Sacramento, Califomia 95814 On Febmary 17, 2011, pursuant to CCP §1013A(2), I served the following NOTICE OF MOTION AND MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT; MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT BY MAIL by depositing a copy of said document in the United States mail in Sacramento, Cahfomia, in a sealed envelope, with postage fully prepaid, addressed as follows- Gregory Federico Archer Noms 301 University Ave , Suite 110 Sacramento, CA 95825 Mark Smith 8549 Willow Valley Place Granite Bay, CA 95746 Richard W. Freeman, Jr. Wood, Smith, Henning & Berman 1401 Willow Pass Road, Suite 700 Concord, CA 94520-7982 I declare under penalty of perjury under the laws of ^he StatCy^f Qalifomia the foregoing is tme and conect. Dated Febmary 17,2011 •^Stephanie J^"Rnelli