Preview
1 Todd A. Jones (Bar No. 198024)
Gregory K. Federico (Bar No. 242184)
2 ARCHER NORRIS
A Professional Law Corporation FILED
ENDORSED
3 655 University Avenue, Suite 225
Sacramento, California 95825-6747
4 Telephone: 916.646.2480 JUL -7 2009
Facsimile: 916.646.5696
5
Attorneys for Defendants and Cross-Defendants By
-tor^
-TlJ
A. O'Donnell
6 RICHARD KIRK RUYBALID, individually, and
dba CA CONSTRUCTION
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10
11 RODNEY ABBOTT and FLORENTINE Case No. 07AS04450
ABBOTT,
12 DECLARATION OF GREGORY K.
Plaintiffs, FEDERICO IN SUPPORT OF CA
13 CONSTRUCTION'S OPPOSITION TO
v. PLAINTIFFS' MOTION FOR LEAVE TO
14 FILE FIRST AMENDED COMPLAINT
RONALD PAUL BRITSCHGI, et al.,
15 Date: July 20,2009
Defendants. Time: 9:00 a.m.
16 Dept: 54
17
18
BY FAX
AND ALL RELATED CROSS-ACTIONS.
19
20
21 I, Gregory K. Federico, declare as follows:
22 1. I am an attorney duly licensed to practice before all the Courts in the State of
23 California and I am an associate with Archer Norris, attorneys of record for Defendant and Cross-
24 Complainant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION
25 (hereinafter "CA CONSTRUCTION"). I have personal knowledge of the matters set forth herein
26 except where stated on information and belief. If called upon as a witness in this matter, I could
27 and would competently testify thereto.
28 2. This case involves allegations of construction defects at a custom single-family
NIC341/8I9325-1
DECLARATION OF GREGORY K. FEDERICO IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO
PLAINTIFFS' MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
1 home located at 8601 Rolling Green Way in Fair Oaks, California. The PLAINTIFFS are the
2 owners of the home. Florence Abbott acted as the owner/builder for all phases of construction of
3 the subject home.
4 3. PLAINTIFFS hired Defendant Ronald Paul Britschgi (hereinafter "BRITSCHGI")
5 as the general contractor for the construction of the home through the framing stage.
6 4. PLAINTIFFS hired CA CONSTRUCTION to supply and install the concrete
7 foundation and garage slab per plans and specifications.
8 5. Cross-Defendant CADRE DESIGN GROUP, INC. (hereinafter "CADRE")
j
9 designed the home with substantial input from PLAINTIFFS.
10 6. PLAINTIFFS hired Defendant Mark Smith, an individual doing business as
11 Groundbreakers (hereinafter "SMITH") to provide grading and earth movement for the subject
12 property. CA CONSTRUCTION was not involved with hiring or coordinating the work of
13 SMITH.
14 7. CONSTRUCTION TESTING & ENGINEERING, INC. (hereinafter "CTE") was
15 the entity that PLAINTIFFS' ultimately hired and paid to perform the soils/compaction testing on
16 the subject property. CTE conducted an inspection of PLAINTIFFS' property on or about
17 January 28,2006 and issued its soils/compaction testing report thereafter. See Exhibit "A"
18 attached hereto.
19 8. During Mrs. Abbott's deposition, she indicated that the compaction beneath her
20 house was an issue she was concerned about. Mrs. Abbott's deposition was completed in
21 December 2008 and January 2009. See Exhibit "B" attached hereto.
22 9. PLAINTIFFS conducted limited written and oral discovery. PLAINTIFFS
23 deposed the parties and percipient witnesses with knowledge of PLAINTIFFS' claims.
24 PLAINTIFFS failed to timely notice and take the depositions of any defense experts.
25 10. PL AINTIFFS' retained consultants maintained that it was their belief that the fill
26 beneath the garage slab and the house foundation were improperly compacted or not compacted
27 at all. Upon questioning, however, they failed to offer any evidence in support of these claims
28 and indicated they had done no investigation into this issue.
NIC34I/819325-1 2
DECLARATION OF GREGORY K. FEDERICO IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO
PLAINTIFFS' EX-PARTE APPLICATION FOR A MOTION TO CONTINUE THE TRIAL DATE
1 11. On or about May 6,2009, PLAINTIFFS unsuccessfully sought to continue the
2 initial trial date in order to provide their experts additional time to substantiate their compaction
3 claims. The Court denied PLAINTIFFS'motion.
4 12. The case was set to proceed to trial on May 11,2009. Upon reporting to the Court,
5 the parties were advised that no courtrooms were available. The parties thereafter met with the
6 Honorable Brian Van Camp and were given a new trial date of June 7,2010.
7 13. Discovery proceedings in this matter are closed. PLAINTIFFS have filed a motion
8 to re-open discovery that is set for hearing on August 7,2009.
9 14. PLAINTIFFS have filed a claim under their homeowner's insurance policy.
10 During deposition, Mrs. Abbott responded that she had filed no claims under the homeowner's
11 policy for the home. An investigation occurred and a report was prepared. It was provided to
12 defense counsel after the initial trial date. I am informed and believe that no destructive testing
13 has occurred at the subject property.
14 15. PLAINTIFFS seek leave to file an amendment to the complaint adding, among
15 other things, personal injury claims due to alleged mold exposure, additional factual allegations
16 against existing defendants, additional causes of action against existing defendants, and two new
17 causes of action against two new parties, SMITH and CTE.
18 16. CA CONSTRUCTION does not oppose the new causes of action against the two
19 new parties SMITH and CTE.
20 17. C A CONSTRUCTION opposes the addition of new facts and causes of action
21 against CA CONSTRUCTION.
22
23 I declare under penalty of perjury under the laws of the State of California that the
24 foregoing is true and correct. Executed this 6th day of July, 2009, at Sacramento, California.
25
26
2? GREGORY K. FEDERICO
28
NIC341/819325-1 3
DECLARATION OF GREGORY K. FEDERICO IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO
PLAINTIFFS' EX-PARTE APPLICATION FOR A MOTION TO CONTINUE THE TRIAL DATE
ty-0315
E,
CONSTRUCTION A ESTING&H/NGI PEERING, INC.
ESCONDIDO « TRACV * CORONA • OXTURD • LANCASTER SACRAMENTO
INSPECTION REPORT PAGE y OP A
PROIKCT
ADDRESS:
INSPECTION DATE: L —
PLANHLE;
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( ) CONCRETE ( ) MORTAR ( ) GROUT ( ) FIREPROOFJNG ( )MASONIC BLOCK ( >REBAR
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CONSTRUCTION TESTING& ENGPERING,ING
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1 7 jjk,_
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OJ.M3MHaOBS 3-813
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12785
Page 45 of 53
7" ~1 Madison Avenue, Suite 22
\ . jghlands.C
Jghlands.CA 95660
Jj 331-6030
BILL TO: JOB NAME:
Fto Abbot RESIDENCE
8601 ROLLING GREEN WAY
8601 Rolling Green Way FAIR OAKS CA
FAIR OAKS, CA
CTEJOBNO. INV. DATE
4.00 1/27/2006 Soils Technician $55.00 $220.00
Invoice Total ^=*
$220.00
c )
TOTAL
THANK YOU
PLEASE REMIT TO: 3628 MADISON AVENUE, SUITE 22, N. HIGHLANDS, CA 95660
A FINANCE CHARGE OF 1 !4 PERCENT PER MONTH (APR OF 18%) MAY BE ASSESSED ON ALL INVOICES OVER 30 DAYS OLD.
GEOTECHNICAL AND CONSTRUCTION ENGINEERING TESTING ANS> INSPECTION
ABB-0560
1. • ./'
Condensed Transcrip
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SACRAMENTO
RODNEY ABBOTT and FLORENTINE
ABBOTT,
Plaintiffs,
CASE NO.
vs. 07AS04450
RONALD PAUL BRITSCHG1, individually
and dba BRTTSCHGI CONSTRCTUION,
RICHARD KIRK RUYBALJD, individually
and dba CA CONSTRUCTION, SURETY
COMPANY OF THE PACIFIC, WESTERN
SURETY COMPANY, and DOES 1 through
20, inclusive,
Defendants.
DEPOSITION OF
FLORENTINE ABBOTT
December 15, 2008
2151 River Plaza Drive, Suite 300
Sacramento, California
Teni Tavita, CSR No. 1 1962
Toil Free: 800300.1214
Facsimile: 916.4463777
ESQUIRE
D E P O S I T I O N SERVICES*
TP A tJ L S O
• LIT16ATIOM SiRflCES, U.C Suite 300
2151 River Plaza Drive
Sacramento, CA 95833
www.oaul
\ ExWWt
Florentine December 15, 2008
1 3
IN THE SUfSKZOK OOORT OF IBB STKTB Or OOJTOtaJIA 1
IK NO FOB THE COOHTT OF SXCRXHOfTO APPEARANCES OF COUNSEL (Continued)
2
SCOOT ABBOTT ami
3 For Cadre Design, Defendant
Plaintiffs, 4
5 MALONEY WHEATLEY SOPP & BROOKS, HP
T3. OSS MO. OT>SO*«50
6 RICHARD D.SOPP,I=SQ.
ROtMD PWJL BRTTSCBOI,
IndiritJuoUy and dba 7 1004 River Rock Drive, Suite 241
BIUTSCHQX ooHSTRCTOHSf,
MCK&RD XXHK ROOTOID, 8 Fotsorn, California 95630
Individually and dba 9 (916)968-3857
C& GOMiXUDCFiOfl. MJWill
ooHEwr OP THB mane, 10
H)j
Preview
1 Todd A. Jones (Bar No. 198024) Gregory K. Federico (Bar No. 242184) 2 ARCHER NORRIS A Professional Law Corporation FILED ENDORSED 3 655 University Avenue, Suite 225 Sacramento, California 95825-6747 4 Telephone: 916.646.2480 JUL -7 2009 Facsimile: 916.646.5696 5 Attorneys for Defendants and Cross-Defendants By -tor^ -TlJ A. O'Donnell 6 RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 RODNEY ABBOTT and FLORENTINE Case No. 07AS04450 ABBOTT, 12 DECLARATION OF GREGORY K. Plaintiffs, FEDERICO IN SUPPORT OF CA 13 CONSTRUCTION'S OPPOSITION TO v. PLAINTIFFS' MOTION FOR LEAVE TO 14 FILE FIRST AMENDED COMPLAINT RONALD PAUL BRITSCHGI, et al., 15 Date: July 20,2009 Defendants. Time: 9:00 a.m. 16 Dept: 54 17 18 BY FAX AND ALL RELATED CROSS-ACTIONS. 19 20 21 I, Gregory K. Federico, declare as follows: 22 1. I am an attorney duly licensed to practice before all the Courts in the State of 23 California and I am an associate with Archer Norris, attorneys of record for Defendant and Cross- 24 Complainant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 25 (hereinafter "CA CONSTRUCTION"). I have personal knowledge of the matters set forth herein 26 except where stated on information and belief. If called upon as a witness in this matter, I could 27 and would competently testify thereto. 28 2. This case involves allegations of construction defects at a custom single-family NIC341/8I9325-1 DECLARATION OF GREGORY K. FEDERICO IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT 1 home located at 8601 Rolling Green Way in Fair Oaks, California. The PLAINTIFFS are the 2 owners of the home. Florence Abbott acted as the owner/builder for all phases of construction of 3 the subject home. 4 3. PLAINTIFFS hired Defendant Ronald Paul Britschgi (hereinafter "BRITSCHGI") 5 as the general contractor for the construction of the home through the framing stage. 6 4. PLAINTIFFS hired CA CONSTRUCTION to supply and install the concrete 7 foundation and garage slab per plans and specifications. 8 5. Cross-Defendant CADRE DESIGN GROUP, INC. (hereinafter "CADRE") j 9 designed the home with substantial input from PLAINTIFFS. 10 6. PLAINTIFFS hired Defendant Mark Smith, an individual doing business as 11 Groundbreakers (hereinafter "SMITH") to provide grading and earth movement for the subject 12 property. CA CONSTRUCTION was not involved with hiring or coordinating the work of 13 SMITH. 14 7. CONSTRUCTION TESTING & ENGINEERING, INC. (hereinafter "CTE") was 15 the entity that PLAINTIFFS' ultimately hired and paid to perform the soils/compaction testing on 16 the subject property. CTE conducted an inspection of PLAINTIFFS' property on or about 17 January 28,2006 and issued its soils/compaction testing report thereafter. See Exhibit "A" 18 attached hereto. 19 8. During Mrs. Abbott's deposition, she indicated that the compaction beneath her 20 house was an issue she was concerned about. Mrs. Abbott's deposition was completed in 21 December 2008 and January 2009. See Exhibit "B" attached hereto. 22 9. PLAINTIFFS conducted limited written and oral discovery. PLAINTIFFS 23 deposed the parties and percipient witnesses with knowledge of PLAINTIFFS' claims. 24 PLAINTIFFS failed to timely notice and take the depositions of any defense experts. 25 10. PL AINTIFFS' retained consultants maintained that it was their belief that the fill 26 beneath the garage slab and the house foundation were improperly compacted or not compacted 27 at all. Upon questioning, however, they failed to offer any evidence in support of these claims 28 and indicated they had done no investigation into this issue. NIC34I/819325-1 2 DECLARATION OF GREGORY K. FEDERICO IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO PLAINTIFFS' EX-PARTE APPLICATION FOR A MOTION TO CONTINUE THE TRIAL DATE 1 11. On or about May 6,2009, PLAINTIFFS unsuccessfully sought to continue the 2 initial trial date in order to provide their experts additional time to substantiate their compaction 3 claims. The Court denied PLAINTIFFS'motion. 4 12. The case was set to proceed to trial on May 11,2009. Upon reporting to the Court, 5 the parties were advised that no courtrooms were available. The parties thereafter met with the 6 Honorable Brian Van Camp and were given a new trial date of June 7,2010. 7 13. Discovery proceedings in this matter are closed. PLAINTIFFS have filed a motion 8 to re-open discovery that is set for hearing on August 7,2009. 9 14. PLAINTIFFS have filed a claim under their homeowner's insurance policy. 10 During deposition, Mrs. Abbott responded that she had filed no claims under the homeowner's 11 policy for the home. An investigation occurred and a report was prepared. It was provided to 12 defense counsel after the initial trial date. I am informed and believe that no destructive testing 13 has occurred at the subject property. 14 15. PLAINTIFFS seek leave to file an amendment to the complaint adding, among 15 other things, personal injury claims due to alleged mold exposure, additional factual allegations 16 against existing defendants, additional causes of action against existing defendants, and two new 17 causes of action against two new parties, SMITH and CTE. 18 16. CA CONSTRUCTION does not oppose the new causes of action against the two 19 new parties SMITH and CTE. 20 17. C A CONSTRUCTION opposes the addition of new facts and causes of action 21 against CA CONSTRUCTION. 22 23 I declare under penalty of perjury under the laws of the State of California that the 24 foregoing is true and correct. Executed this 6th day of July, 2009, at Sacramento, California. 25 26 2? GREGORY K. FEDERICO 28 NIC341/819325-1 3 DECLARATION OF GREGORY K. FEDERICO IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO PLAINTIFFS' EX-PARTE APPLICATION FOR A MOTION TO CONTINUE THE TRIAL DATE ty-0315 E, CONSTRUCTION A ESTING&H/NGI PEERING, INC. ESCONDIDO « TRACV * CORONA • OXTURD • LANCASTER SACRAMENTO INSPECTION REPORT PAGE y OP A PROIKCT ADDRESS: INSPECTION DATE: L — PLANHLE; BLDG MATeRtA,LSA,MPl.INC ( ) CONCRETE ( ) MORTAR ( ) GROUT ( ) FIREPROOFJNG ( )MASONIC BLOCK ( >REBAR ^) STRUCTURAL STEEL () BOLTS 2oU-.-ifccV P.VJ ^rr_is...tA3... *S-^Sj~ & 90 01 ABB-0555 t CONSTRUCTION TESTING& ENGPERING,ING ENGINEERING, INC -. SEOTECHNlCAl.- eNVWONMENTM. • CONSTRUCTION INSPECTION ANDTESTING • CIVIL tXGBftKKMG' 1 7 jjk,_ e OJ.M3MHaOBS 3-813 e* 1 12785 Page 45 of 53 7" ~1 Madison Avenue, Suite 22 \ . jghlands.C Jghlands.CA 95660 Jj 331-6030 BILL TO: JOB NAME: Fto Abbot RESIDENCE 8601 ROLLING GREEN WAY 8601 Rolling Green Way FAIR OAKS CA FAIR OAKS, CA CTEJOBNO. INV. DATE 4.00 1/27/2006 Soils Technician $55.00 $220.00 Invoice Total ^=* $220.00 c ) TOTAL THANK YOU PLEASE REMIT TO: 3628 MADISON AVENUE, SUITE 22, N. HIGHLANDS, CA 95660 A FINANCE CHARGE OF 1 !4 PERCENT PER MONTH (APR OF 18%) MAY BE ASSESSED ON ALL INVOICES OVER 30 DAYS OLD. GEOTECHNICAL AND CONSTRUCTION ENGINEERING TESTING ANS> INSPECTION ABB-0560 1. • ./' Condensed Transcrip IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SACRAMENTO RODNEY ABBOTT and FLORENTINE ABBOTT, Plaintiffs, CASE NO. vs. 07AS04450 RONALD PAUL BRITSCHG1, individually and dba BRTTSCHGI CONSTRCTUION, RICHARD KIRK RUYBALJD, individually and dba CA CONSTRUCTION, SURETY COMPANY OF THE PACIFIC, WESTERN SURETY COMPANY, and DOES 1 through 20, inclusive, Defendants. DEPOSITION OF FLORENTINE ABBOTT December 15, 2008 2151 River Plaza Drive, Suite 300 Sacramento, California Teni Tavita, CSR No. 1 1962 Toil Free: 800300.1214 Facsimile: 916.4463777 ESQUIRE D E P O S I T I O N SERVICES* TP A tJ L S O • LIT16ATIOM SiRflCES, U.C Suite 300 2151 River Plaza Drive Sacramento, CA 95833 www.oaul \ ExWWt Florentine December 15, 2008 1 3 IN THE SUfSKZOK OOORT OF IBB STKTB Or OOJTOtaJIA 1 IK NO FOB THE COOHTT OF SXCRXHOfTO APPEARANCES OF COUNSEL (Continued) 2 SCOOT ABBOTT ami 3 For Cadre Design, Defendant Plaintiffs, 4 5 MALONEY WHEATLEY SOPP & BROOKS, HP T3. OSS MO. OT>SO*«50 6 RICHARD D.SOPP,I=SQ. ROtMD PWJL BRTTSCBOI, IndiritJuoUy and dba 7 1004 River Rock Drive, Suite 241 BIUTSCHQX ooHSTRCTOHSf, MCK&RD XXHK ROOTOID, 8 Fotsorn, California 95630 Individually and dba 9 (916)968-3857 C& GOMiXUDCFiOfl. MJWill ooHEwr OP THB mane, 10 H)j