Preview
F"' '=D/ENDORSEi
1 Todd A. Jones (BarNo. 198024)
tjones(^archemorris.com
2 Gregory K. Federico (BarNo. 242184) FEB 2 8 2011
gfederico@archemorris,com
3 ARCHERNORRIS
By. j,_uj.nFq_RFZ_
A Professional Law Corporation
4 301 University Avenue, Suite 110
Duputy Cierk
Sacramento, Califomia 95825-5537
5 Telephone: 916.646.2480
Facsimile: 916.646.5696
6
Attomeys for Defendants and Cross-Defendants
7 RICHARD KIRK RUYBALID, individually, and
dba CA CONSTRUCTION
8
9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF SACRAMENTO
11
12 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
ABBOTT,
13 MEMORANDUM OF POINTS AND
Plaintiffs, AUTHORITIES IN OPPOSITION TO
14 PLAINTIFFS' MOTION FOR NEW
TRIAL; DECLARATION OF TODD A.
15 JONES IN SUPPORT THEREOF
RONALD PAUL BRITSCHGI, et al..
16 Hearing Date: March 18,2011
Defendants. Time: 10:30 a.m.
17 Dept.: 43
18 Judge: Brian Van Camp
Action Filed: September 24, 2007
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20
AND RELATED CROSS-ACTIONS.
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL
1 TABLE OF CONTENTS
2 Page
3 L INTRODUCTION 2
II. ARGUMENT 4
4
A. Procedural Defects In Plaintiffs' Motion For New Trial - Plaintiffs Have
5 Failed To Support Their Motion For New Trial , 4
6 B. Substantive Defects In Plaintiffs' Motion For New Trial 4
1. Standard OfReview For A Motion For New Trial 4
7 2. There Were No Irregularities Of Proceedings That Warrant A New
8 Trial And Any Delays Were Caused Solely By Plaintiffs' Counsel's
Actions And Purposeful Delay In Preventing The Defense From
Putting On Its Case 5
9
3. There Is Substantial Evidence To Support The Jury's Verdict On
10 All Causes Of Action As To CA Constmction 9
11 4. The Jury's Verdict Is Not Contrary To The Law 12
5. The Judgment Is Not Inconsistent With The Special Verdict 13
12
IIL CONCLUSION 14
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR NEW TRIAL
1 TABLE OF AUTHORITIES
^ Page
3 Cases
4 Byrnev. City and County of San Francisco {inO) 112 Cal. App. 3d 731 4
Fortmanv. Hemco, Inc. (1989) 211 Cal App. 3d. 241 4
5 Hojfman-Haag V. Transamerica lns. Co. (1991) 1 Cal.App. 4th 13
Marriage of Carlsson 5
6 Mercer v. Perez (1968) 68 CaUd 104 4
Musgrove v. Ambrose Properties (1978) 87 Cal. App. 3d 44 13
7 Nestle v. City ofSanta Monica (1972) 6 CaUd 920.925-926 10
Nordon v. Hartman (1952) 111 Cal. App 2d 751 4
8 People v. Taylor (2004) 118 Cal. App. 4th 11 13
Weher, Lipshie & Co v. Christian (1997) 52 Cal App 4th 413 5
9 Wysinger v. Automobile Club ofSo Cal (2007) 157 Cal.App.4th 413 13
10 Constitutional Provisions
11 Califorma Constitution, Anicle Vl, ^13 : 4
12 Other Authorities
13 I Business and Professions Code § 7026 2
Business and Professions Code § 7028 2
14 Business and Professions Code § 7031 2
Business and Professions Code § 7109 2
15 Code of Civil Procedure § 475 4
Code ofCivil Procedure § 657 9
16 Code of Civil Procedure § 659ia) 2,4,5
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR NEW TRIAL
1 Defendants RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION
2 (hereinafter "CA CONSTRUCTION") hereby files this Memorandum of Points and Authorities
3 in Opposition to Plaintiffs RODNEY and FLORENTINE ABBOTT'S (hereinafter "Plaintiffs")
4 Motion for New Trial. Plaintiffs filed their Notice of Intention to Move for a New Trial on
5 Febmary 17,2011, and only submitted the points and authorities and declaration ofcounsel in
6 support thereof. At the time offiling this Memorandum of Points and Authorities in Opposition
7 to Plaintiffs Motion, CA CONSTRUCTION has not been served with any additional supporting
8 affidavits by Plaintiffs pursuant to Code ofCivil Procedure § 659(a).
9
I. INTRODUCTION
10 This case arises out of alleged defects in constmction ofa concrete foundation system at
11 Plaintiffs' home located at 8601 Rolling Green Way in Fair Oaks, Califomia. The contract
12 between the parties was signed on October 25,2005. CA CONSTRUCTION was under contract
13 to supply and install the concrete foundation system for the home and garage pursuant to plans
14 and specifications that were coordinated by the Abbotts and provided by them to the contractors.
15 The Abbotts were simultaneously in charge of building the cul-de-sac directly in front of their
16 home. Mrs. Abbott was the owner-builder, essentially the contractor ofrecord, for both projects
17 and was responsible for all aspects of constraction on both projects. CA CONSTRUCTION
18 presented undisputed evidence ofthese facts at the January 2011 trial ofthis matter.
19 On or about September 24, 2007, Plaintiffs filed their original complaint in this action.
20 The Complaint was amended several times. The Third Amended Complaint ("TAC"), which was
21 filed on November 5,2010, contained three (3) causes ofaction against CA CONSTRUCTION:
22 4th Cause of Action - Breach of Contract; 5th Cause of Action - Negligence; and 6th Cause of
23 Action - Violations of Business and Professions Code § 7109 (willful departure from accepted
24 trade standards), 7026, 7028 and 7031 (perfonning concrete work without a valid C-8
25 contractor's license), and 7160 (knowingly making false orfi-audulentrepresentations regarding
26 ability to perform contracted for services).
27 This matter proceeded to ajury trial on January 18, 2011 on all issues and causes of
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL
1 action. At trial. Plaintiffs sought damages in excess of $750,000 for a complete rebuild ofthe
2 subject home, including the costs of raising the level ofthe house and garage foundations to the
3 level ofthe adjacent cul-de-sac. Plaintiffs also sought disgorgement ofthe contract price
4 ($53,000), treble damages up to $10,000, a $500 penalty, and discretionary attomey's fees from
5 CA CONSTRUCTION for various violations ofthe Business & Professions Code. The total
6 damages sought by Plaintiffs at trial fell in the ballpark of $813,500.00 to $1,000,000.00.
7
The crux of Plaintiffs' Motion relates to certain parts ofthe Special Verdict Form. CA
8 CONSTRUCTION reminds the Court that Plaintiffs provided explicit written consent to
9 the ternis ofthe Special Verdict Form, but now attempt to claim the form may have confiised
10 thejury. A copy ofthe Special Verdict Form as filled out by thejury is attached as Exhibit "A"
11 to the Declaration of Todd Jones, filed concurrently herewith.
12 As demonstrated in Exhibit A, the jury specifically found that Plaintiffs did not perform
13 all of their obligations/duties imder the contract and that Plaintiffs were not excused from
14 performing their obligations/duties under the contract Thus, thejury found that there was a
15 breach ofthe contract that was incurred by the Plaintiffs. Thejury found that while CA
16 CONSTRUCTION was negligent, such negligence was not a substantial factor in causing
17 Plaintiffs' harm. Also, thejury found a willful departure from trade standards (akin to
18 negligence), but did not find that the departure caused any damages to Plaintiffs. Based on the
19 jury's verdict, the Court entered judgment on Febmary 3,2011 in favor of CA CONSTRUCTION
20 on all causes ofaction.
21 CA CONSTRUCTION prevailed on all causes ofaction raised by Plaintiffs. Plaintiffs
22 have now filed a Motion for New Trial in a desperate attempt to have the Court set aside the
23 considerable and reasonable judgment of the jurors and grant Plaintiffs another opportunity to
24 pursue their baseless claims. The motion must fail for the reasons outiined below.
25 ///
26 ///
27 ///
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL
^ II. ARGUMENT
^ A. Procedural Defects In Plaintiffs' Motion For New Trial - Plaintiffs Have Failed
- To Support Their Motion For New Triai
4 Under Code ofCivil Procedure § 659a, Plaintiffs had until Febmary 28,2011 (10 days
^ after service ofthe Motion for New Trial) to submit evidence and affidavits in support of their
^ motion. To date, Plaintiffs have submitted no such evidence (See Jones Declaration, Paragraph
^ 6). Accordingly, the motion should be denied.
8 Under Code ofCivil Procedure § 659a, there is no time limit specified for the filing and
^ serving of an opposition to a motion for new trial in the absence of service of affidavits in support
^^ ofthe motion. Nevertheless, CA CONSTRUCTION respectfully submits this opposition for the
^^ Court's consideration.
^^ B. Substantive Defects In Plaintiffs' Motion For Ncw Trial
^^ 1. Standard Of Review For A Motion For New Trial
14 When a new trial is ordered, the court must have examined the entire case, including the
1^ evidence, and concluded that a miscarriage of justice occurred. California Constitution, Article
1^ VI, § 13. On a motion for new trial, the court reviews the entire case and, if it concludes that a
1^ miscarriage of justice occurred on any ofthe grounds delineated in Code ofCivil Procedure §657,
1^ it must grant a new trial. Mercer v. Perez (1968) 68 Cal.2d 104,111. Code ofCivil Procedure
1^ §475 requires reversal of a judgment only when: (1) there is prejudicial error; (2) the complaining
20 party sustains and suffers substantial injury; and (3) a different result would have been probable if
2^ such error had not occurred or existed. Code ofCivil Procedure §475. The trial court, after
22 independentiy assessing the evidence, must conclude that the trier of fact clearly should have
23 reached a different result. Fortman v. Hemco. Inc. (1989) 211 Cal.App.3d 2 4 1 . A motion for new
24^ trial should be granted "when the preponderance of evidence is opposed to the findings ofthe
25 jury." Byrnev. CityandCounty ofSan Francisco (19S0)U3 Cal. App. 3d 131,739; Norden v.
26 Hartman (1952) 111 Cal. App. 2d 751, 758 ("the weight ofthe evidence appears contrary to the
27 jury's determination"). In these ways, the law preserves its respect for the judgment ofjurors
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL
2. There Were No Irregularities Of Proceedings That Warrant A New
^ Trial And Any Delays Were Caused Solely By Plaintiffs' Counsel's
Actions And Purposeful Delay In Preventing The Defense From
_ Putting On Its Case
4 Plaintiffs assertion that the parties had insufficient time to try the case is absurd because
5 the plaintiffs had more than ample time to try their case. Plaintiffs' wasted valuable trial time on
6 witnesses that added no value to their case, purposefully delayed their cross-examinations, called
7 an excessive number of witnesses as adverse witnesses, and intentionally created delays of their
^ own making. "It is established law that, where a deliberate trial strategy results in an outcome
9 disappointing to the advocate, the lawyer may not use that tactical decision as the basis to claim
10 prejudicial enror." Weber. Lipshie & Co. v Christian (1997) 52 Cal. App. 4th 645, 658.
11 First. Plaintiffs argue that your Honor stated on a number of occasions that if the trial was
12 notconcludedby January 28, 2011, it would result in a mistrial. This is blatantly false. Counsel
13 for CA CONSTRUCTION does not recall even a single statement by the Court remotely close to
1"^ this assertion. (See Jones Declaration, Paragraph - 5) Per Code ofCivil Procedure § 659(a),
15 Plaintiffs have the burden of offering supporting affidavits and evidence to support their request
16 for a new trial. Remarkably, Plaintiffs have not produced any trial transcripts evidencmg the
17 multiple alleged statements by the Court that a mistrial may result if the trial was not completed.
1^ No evidence was produced because no such statements were made. In contradiction to plaintiffs'
19 counsel's assertion, defense coimsel recalls that the Court indicated that ifthe trial was not
20 concluded on Friday, January 28, 2011, then counsel should be prepared to continue with the trial
21 the next day on Saturday, January 29, 2011. (See Jones Declaration, Paragraph - 5)
22 Second. Plaintiffs cite Marriage of Carlsson as their only authority for the assertion that
23 there was an irregularity of proceedings that necessitates a new trial. It is not surprising counsel
24 cites this case as she was counsel for the respondent and she lost on appeal. Notwithstanding this,
25 the case cited by Plaintiffs is fundamentally different than what occurred during the instant trial,
26 The Carlsson case was a family law/dissolution case wherein the appellant sought a new
27 trial because her time was very limited at trial. There was no jury involved, it was a 2 day trial,
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL
1 the judge pressed the appellant's counsel throughout the entire proceeding, the judge did not
2 allow bathroom or lunch breaks, and the claim was that the judge mshed the proceeding because
3 he had another preferenced hearing that would immediately follow the tiial. In Carlsson. the
4 judge cut the trial short in the middle ofthe appellant's direct examinations. In Carlsson.
5 appellant was blatantly and explicitly denied the right to due process. Appellant's counsel
6 requested more time and it was not given.
7 The gross time pressures that existed in the Carlsson matter are vastiy different than what
8 occurred in the instant trial. Plaintiffs presented her case-in-chief from January 19,2011 through
9 January 26,2011 (Plaintiffs rested at approximately 3:00 p.m. and Court concluded for the day at
10 approximately 4:00 p.m.) Witness testimony was provided over the course of 8 days. Plaintiffs
11 used up almost 75% ofthe trial time. CA CONSTRUCTION presented its case in approximately
12 1.5 days and Mr. Smith presented his case in approximately 30 minutes. Together, the defense
13 used up less than the remaining 25% of trial time as any remaining time went to jury instiuctions
14 and closing arguments. The defense used this remaining time despite Plaintiffs overt efforts to
15 use up defense time as recognized by your Honor and referenced in the moving papers. Plaintiffs
16 never requested more time unlike the appellant in Carlsson. nor did they object to time pressures.
17 Plaintiffs' direct examinations were never cut short, nor were any of her cross-examinations.
18 Carlsson was only a 2 day trial whereas this was a 9 day trial with no similar time pressures. It is
19 ludicrous for Plaintiffs to argue they were not given ample time.
20 Plaintiffs' prior counsel and Plaintiffs (while in pro per) estimated that the trial would take
21 3 days. This estimate was provided when 5 parties were involved in the case. Thereafter, Mrs.
22 Finelli advised the Court that she believed this was a 7 day trial in light of Britschgi's settiement
23 from the case. Once Cadre Design Group, Inc. settled from the case just before the trial started,
24 the estimated trial time should have decreased yet again. CA CONSTRUCTION estimated that
25 this was a 7-10 day trial based on the number of anticipated witnesses and evidence. The fact
26 remains that the parties were given 9 Court days, which satisfied everyone's trial estimates.
27 Plaintiffs were fiilly aware ofthe time lunit, yet did not seek to continue the trial at any time.
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL
1 Moreover, your Honor gave the parties the option of finishing trial on Saturday, January 29,2011.
2 Third. Plaintiffs argue that they were never offered an opportunity to put on rebuttal
3 evidence, and if it was provided an opportunity to do, it "may have made" a difference in the
4 outcome. "May have made" is not the standard. The standard is that the claimed error must be
5 (1) prejudicial; (2) it must cause substantial injury; and (3) a different result would have been
6 probable if such error was not committed. Your honor must find that the jury would have clearly
7 reached a different result if Plaintiffs had the opportunity to put on rebuttal evidence. Plaintiffs
8 cannot meet this burden. In her declaration, counsel states she would have called Mrs. Abbott to
9 rebut defense testimony and "to explain certain concepts to thejury". It is unclear what additional
10 benefit Mrs. Abbott's testiraony would have provided and how it would have clearly resulted in a
11 different outcome because counsel fails to explain this in her moving papers. Also, it is unclear
12 why Plaintiffs' counsel did not accomplish this in her case in chief. Finally, it is unclear what
13 concepts Mrs. Abbott would be able to clarify/explain to the jury. During motions in limine, the
14 Court mled that Mrs. Abbott could not provide testimony ofan expert nature on constmction
15 issues. Thus, she would be foreclosed from "explaining certain concepts." Once Mr. Smith
16 rested. Plaintiffs did not inform the Court they had rebuttal evidence, nor did Plaintiffs move to
17 call any rebuttal witnesses, including Flo Abbott, who was present in court the entire time. As
18 such. Plaintiffs waived this right and should now be foreclosed from crying foul.
19 Fourth. Plaintiffs assert that time pressure forced them to not call witnesses they had
20 originally planned on calling during trial, such as Gary Hunt. Mr. Hunt framed the home and as
21 such, was never involved in any aspect of CA CONSTRUCTION'S work. He performed his work
22 well after CA CONSTRUCTION was off the job. Any testimony Gary Hunt would have offered
23 would be irrelevant as it would have wasted further time and have no bearing on issues in the
24 case. Moreover, the moving papers again fail to make any showing of how Mr. Hunt, or any
25 other witness's testimony for that matter, would have been a clear "game changer". Plaintiffs
26 have clearly failed to carry their burden of proof in this matter.
27 Fifth, in her declaration. Plaintiffs' counsel states that she had inadequate time to cross-
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL
1 examine defense expert Jason Newlin. Again, this was Plaintiffs' own fault based on the
2 following:
3
• During discovery, Plaintiffs counsel failed to take the deposition of expert Newlin, and
4 then failed to seek leave from the Court to re-open discovery for this purpose despite the
Court telling her to do so. This issue was heavily briefed during pre-trial motions, and the
5 Court explicitiy denied Plaintiffs' request to exclude expert Newlin on this ground. Had
6 Plaintiffs made an effort to move to depose Mr. Newlin back in May, 2009 and had
subsequently deposed him, it would have narrowed issues for trial and resulted in a more
7 efficient cross-examination of him during trial. This is not grounds for a new trial.
8 • During pre-trial motions, the Court specifically advised counsel that it would favorably
view any additional motions in limine from Plaintiffs to allow them to depose the defense
9
experts prior to trial. Plaintiffs did not avail themselves ofthis course ofaction. See Jones
10 Declaration, Paragraph - 3)
11 • Expert Newlin's job file was produced to Plaintiffs' counsel on the first day of frial,
January 18,2011, as required by the trial subpoena issued to Mr. Newlin. Mr. Newlin took
12 the stand on January 28,2011. (See Jones Declaration, Paragraph - 4) Plaintiffs' counsel
had 10 days, including a weekend, to review this file and prepare an efficient and
13
thorough cross-examination of Mr. Newlin, She obviously failed to do so. Her failure to
14 prepare is not grounds for a new trial.
15 • Counsel again fails to show how further examination of Mr. Newlin regarding concrete
cracks would have clearly made a difference. At least expert Newlin took photos of
16 garage cracks. Plaintiffs' lead expert only took photos of irrelevant cracks that were
17 outside ofthe garage for which Plaintiffs' counsel spent a good portion offrialtime
showing to the jury in an apparent attempt to mislead and confuse the jury. Again,
18 Plaintiffs have not met their burden of proof.
19
Sixth, Plaintiffs' indicate they did not fiilly cross-examine defense v^itiiesses, and
20
plaintiffs counsel specifically cites witness Dynan Keller as an example. Based on the amount of
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time Plaintiffs took during trial, it is hard to see how this is possible. Mr. Keller was produced on
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January 26 and Plaintiffs' counsel did not finish questioning him. Your honor instmcted Mr.
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Keller to retum the next day, which defense counsel was ultimately able to secure despite Mr.
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Keller's work consfraints. Mr. Keller appeared at trial on January 27 and Plaintiffs voluntarily let
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him go without further questioning. No one forced Plaintiffs to move on. Moreover, Plaintiffs yet
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again fail to show what further testimony from Mr. Keller would have resulted in a different
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result.
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL
I Seventh. Plaintiffs' counsel states that Mr. Atchison "was unnecessarily long-winded and
2 kept changing his answers". Plaintiffs' counsel confrols the witness by the questions she asks.
3 She has now blamed her inefficiency in crafting examinations on testimony she elicited from Mr.
4 Atchison that was unfavorable to her client. Her remedy would be to sfrike the testimony of Mr.
5 Atchison which was non-responsive to her questions and seek assistance from the Court to
6 admonish the witness to answer the questions as phrased. She failed to do both. Again, this is
7 not grounds for a new trial.
8 Eighth. Plaintiffs spent over 2 hours reading Bryan Hill's deposition testimony into the
9 record. She used her clerk to help her and he made repeated pronunciation errors. The process
10 was confusing, and it undoubtedly took up valuable time that could have been better spent.
11 Plaintiffs' counsel's inability to try the case in the time allotted as well as her misguided
12 self-imposed belief that a "threat of a mistrial was constantly hanging over her head" provides
13 inadequate and unfounded justification for the extraordinary relief of granting a new trial. Code of
14 Civil Procedure § 657 states that the court must weigh all the evidence and be convinced from the
15 entire record that thejury clearly should have reached a different verdict. Plaintiffs have put forth
16 no specific evidence whatsoever that their time was insufficient, that the conduct ofthe trial was
17 prejudicial to the Plaintiffs or that thejury would have clearly reached a different result.
18
3. There Is Substantial Evidence To Support The Jury's Verdict On All
19 Causes Of Action As To CA Construction
20 The evidence in this lengthy trial was in dispute on virtually every material issue and the
21 defense provided substantial evidence in the form of witness and written documents as to many
22 contested issues. Thejury considered the conflicting evidence and as such, there is no basis for
23 this Court to find that the jury's verdict is not based on competent evidence. It was the jury's
24 duty to detennine the weight and sufficiency ofthe evidence, including the credibility of
25 witnesses. Thejury went about its business in a very attentive manner as evidenced by its
26 numerous questions and the fact that it deliberated for nearly three (3) full days before reaching
27 its decision. In reviewing a challenge to the sufficiency ofthe evidence, the Court is bound by
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL
1 the substantial evidence rule. All factual matters must be viewed in favor ofthe prevailing party
2 and in support ofthejudgment. All conflicts in the evidence must be resolved in favor ofthe
3 judgment. Nestle v. City ofSanta Monica (1972) 6 Cal.3d 920,925-926.
4 As to the breach of contract cause ofaction, thejury was provided CACI Instmction
5 303, which lays out the essential factual elements for a breach of confract cause ofaction. The
6 second element requires Plaintiffs to show: "That Rodney and Florentine Abbott did all, or
7 substantially all, ofthe significant things that the contract required them to do or that they were
8 excused from doing those things". On January 31,2011, thejury requested additional copies of
9 Exhibit 89 - the contract between the parties. On Febmary 1, 2011, the jury requested
10 I clarification on each parties responsibilities under the contract. On the same date, both Plaintiffs'
11 counsel and defense counsel agreed to provide the jury with the follov/ing definition of
12 substantial performance: "Substantial performance means that there has been no willful departure
13 from the terms ofthe confract, and no omission ofany of its essential parts, and that tiie party has
14 in good faith performed all of its substantive terms."
15 As is clearly evidenced by the jury's questions, thejury weighed all the evidence and gave
16 thorough consideration to each party's duties under the confract. A prerequisite to arriving at a
17 breach analysis required ajury finding that Plaintiffs first fulfilled all of their duties under the
18 confract or that they were excused from doing so. The jury answered "No" to these 2 questions,
19 which ended the breach of confract analysis. There was ample evidence in the form ofthe
20 confract (Exhibit 89) as well as Mr. Britschgi and Mr. Ruybalid's testimony that Plaintiffs had
21 certain obligations under the contract and that they failed to fulfill them.
22 Also, Plaintiffs' counsel is incorrect in her statement that the only obligation Plaintiffs
23 held under the contract was to pay the contract price. Paragraph 2 of Exhibit 89 states: "Builders
24 or builders agent shall specify previous to excavation and verify previous to pour, location and
25 elevation of finished floor, garage slabs and piers." As correctiy pointed out by Plaintiffs in their
26 moving papers, expert Heryet testified that elevation detennination was Mrs. Abbott's duty under
27 the contract by virtue of her role as owner-builder. Mrs. Abbott was the owner-builder and the
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL
1 de-facto general contractor on this job and she bore the duties and obligations ofthis role.
Furthermore, a great deal of testimony from Pete Atchison, Richard Ruybalid, Florentine
3 Abbott, Rodney Abbott, Ronald Britschgi and AI Sanchez centered on the determination of
elevations for this project. These witnesses testified on various subjects, including but not limited
to (1) the placement of elevation strings; (2) how long the stiings were up on the job site; (3) how
apparent they were to people at the job site; (3) the Abbott's frequent visits to the job site; (4) the
Abbott's approval and/or non-approval ofthese strings; (5) whether the Abbott's approved the
o
elevations based on their visual observations ofthe sfrings and/or the foundation form boards; (6)
how the plans contained variable heights for the stem wall based on Plaintiffs' unwillingness to
have tiie property surveyed and/or have a grading plan prepared; and (7) Mrs. Abbott's consent
11
given to Britschgi for him to sign the "Elevation and Layout Approval" (Exhibit 27). To state
19
that there was absolutely no evidence to support the jury's breach of confract decision is false and
13 essentially insults the jury's efforts in this case.
14 As to the negligence cause ofaction, there is abundant evidence to support the verdict.
15 Plaintiffs ignore the fundamental law of negligence, which requires Plaintiffs to establish each of
16 the following elements: (1) duty; (2) breach; (3) causation; and (4) damages. As the party who
17 bears the burden of proof on all elements, Plaintiffs must prove all elements by a preponderance
1o
ofthe evidence. They failed to do so in this case.
^^ The jury found that CA CONSTRUCTION was negligent as it pertains to tiie constmction
20
of Plaintiffs' home. The jury also found that CA CONSTRUCTION departed from accepted
21
trade standards, which is akin to a finding of negligence. However, an affirmative finding on both
22
ofthese issues does not necessarily guarantee that such negligence caused harm to the Plaintiffs.
23
In fact, it is not uncommon for a trier of fact to find that a party was negligent, yet find that the
24
negligence did not cause actionable damages or that another, intervening act substantially caused
25
the harm. Here, Plaintiffs failed to prove that CA CONSTRUCTION'S negligence was a
26
substantial factor in causing harm to the Plaintiffs. Also, perhaps the jury simply concluded that
27
Mrs. Abbott's own actions as the owner-builder, or lack ofactions, caused her own harm.
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL
and the testimony referred to by Plaintiffs' counsel was in response to incomplete hypotheticals
that were based on facts Plaintiffs ultimately failed to establish at tiial. As discussed immediately
above, there was substantial evidence offered by each party, which thejury carefully weighed and
utilized in arriving at the verdict.
Finally, Plaintiffs cling to the evidence that the retaining wall at the far end ofthe garage
was not 7.5 feet tall, that this violated the plans, and it caused damage. Essentially, Plaintiffs
attempt to argue that the evidence was insufficient to support the jury's finding. However,
Plaintiffs do not discuss the several hours of testimony provided by Al Sanchez, the drafter ofthe
plans, and they fail to mention it for good reason. Mr. Sanchez testified at length that he provided
for variable heights on the plans at this location because it was impossible to determine finished
floor elevations. It was impossible to determine finished floor elevations because Plaintiffs would
not survey the lot or perform the necessary grading to bring the level ofthe lot up, despite being
16
told by Mr. Sanchez to do so three (3) separate times. Thejury weighed all the evidence, and
17 obviously concluded that the defense presented more convincing evidence on this issue.
18 As to the Business and Professions Code claims, there was more than sufficient
19
evidence to support the verdict. On February 2,2011, the jury requested a definition for the term
20
"harm" as it relates to Special Verdict Question 18. As counsel could not agree on a definition,
21
the Court advised the jury to use the term in its usual and customary sense and apply it to the
22
evidence it heard on the alleged harm at issue in the case. Again, it is reasonable, after a thorough
23
examination ofall evidence, for thejury to conclude that Plaintiffs suffered no harm despite a
24
departure from trade standards by CA CONSTRUCTION. A departure from trade standards and
25
the issue of damages are separate considerations.
26
4. The Jury's Verdict Is Not Contrary To The Law
27
The granting of a new trial on the ground that the verdict is against law is authorized only
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL
1 where there is no substantial evidence to sustain the verdict." Musgrove v. Ambrose Properties
2 (1978) 87 Cal. App. 3d 44 (emphasis added). Stated otiierwise, a decision is "against the law"
3 where the evidence is insufficient in law and without conflict on any material point. Hoffman-
4 Haag V Transamerica Ins. Co. (1991) 1 Cal. App. 4tii 10,14-15. (Emphasis added).
5 As stated above, Plaintiffs had obligations under the contract, which the jury concluded
6 they failed to fulfill after carefully weighing the Ievidence. Thejury received this instmction in
7 CACI 303 and was required to make this determination on the contract cause ofaction. It was
8 resolved in favor of CA CONSTRUCTION. As stated above, the basic elements for a negligence
9 cause ofaction requires Plaintiffs to establish both causation and damages, Thejury, after careful
10 consideration ofall ofthe evidence and after receiving CACI instmctions on negligence law,
I
11 determined that Plaintiffs again failed to establish each element in their negligence cause of
12 action. Plaintiffs did not object to thejury instmctions on either cause ofaction, and are now
13 foreclosed from doing so. There was substantial, evidence sufficient to sustain the verdict and it
14 was not 'against the law'.
15
5. The Judgment Is Not Inconsistent With The Special Verdict
16 A verdict must be interpreted so as to uphold it, and "where special verdicts appear
17 inconsistent, ifany conclusions could be drawn which would explain the apparent conflict, the
18 jury will be deemed to have drawn them." Wysinger v. Automobile Club ofSo. Cal (2007) 157
19 Cal.App.4th 413, 424. "A jury's findings will be freated as inconsistent only if they are clearly
20 antagonistic and absolutely irreconcilable with each other under any rational view ofthe
21 evidence." People v. Taylor (2004) 118 Cal. App. 4th 11, 24.
22 i
23 Plaintiffs complain that thejudgment is inconsistent with the Special Verdict based on two
24 (2) reasons: (1) CA CONSTRUCTION was negligent, but its negligence was not a substantial
25 factor in causing Plaintiffs' harm; and (2) It depalrted from accepted trade standards, but this
26 departure caused no harm to Plaintiffs.
27 First, the parties spent several hours meeting and conferring on the Special Verdict Form.
Some ofthis time was spent in chambers with your Honor himself, hammering out tiie terms of
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL
1 the Special Verdict Form. After a series of revisions and input from all interested parties.
2 Plaintiffs' counsel provided written consent to the Special Verdict Form and at no point objected
3 I
to the use ofthe form. She should be foreclosed from doing so now and cannot now possibly
4 claim it as a basis for a new frial.
5 Second, for the reasons enumerated aboye, the jury's findings on the negligence and
6 Business and Professions Code claims are not inconsistent with the Special Verdict. Ajury can
7 find negligence, but no causation or no damages Plaintiffs dislike ofthe verdict is not a valid
8 basis for overtuming the reasoned judgment of 12 jurors. The motion should be denied.
9
m. CONCLUSION
I
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Based on the above arguments, CA CONSTRUCTION respectfiilly requests that the
11
Court deny this baseless and frivolous motion filed by Plaintiffs. The purported frial delays were
12 of Plaintiffs own making, and the jury's verdict is reasonable, consistent with the evidence put on
13 by all parties, and is consistent with all applicable law and the Special Verdict.
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15 Dated: Febmary 28, 2011 ARCHERNORRIS
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fi^ K -fe>v/ -v^di^Soivei
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Todd A. Jones
18 Gregory K. Federico
Attoraeys for Defendants and Cross-
19 Defendants RICHARD KIRK RUYBALID,
individually, and dba CA CONSTRUCTION
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRL\L
Preview
F"' '=D/ENDORSEi 1 Todd A. Jones (BarNo. 198024) tjones(^archemorris.com 2 Gregory K. Federico (BarNo. 242184) FEB 2 8 2011 gfederico@archemorris,com 3 ARCHERNORRIS By. j,_uj.nFq_RFZ_ A Professional Law Corporation 4 301 University Avenue, Suite 110 Duputy Cierk Sacramento, Califomia 95825-5537 5 Telephone: 916.646.2480 Facsimile: 916.646.5696 6 Attomeys for Defendants and Cross-Defendants 7 RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 12 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 ABBOTT, 13 MEMORANDUM OF POINTS AND Plaintiffs, AUTHORITIES IN OPPOSITION TO 14 PLAINTIFFS' MOTION FOR NEW TRIAL; DECLARATION OF TODD A. 15 JONES IN SUPPORT THEREOF RONALD PAUL BRITSCHGI, et al.. 16 Hearing Date: March 18,2011 Defendants. Time: 10:30 a.m. 17 Dept.: 43 18 Judge: Brian Van Camp Action Filed: September 24, 2007 19 20 AND RELATED CROSS-ACTIONS. 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL 1 TABLE OF CONTENTS 2 Page 3 L INTRODUCTION 2 II. ARGUMENT 4 4 A. Procedural Defects In Plaintiffs' Motion For New Trial - Plaintiffs Have 5 Failed To Support Their Motion For New Trial , 4 6 B. Substantive Defects In Plaintiffs' Motion For New Trial 4 1. Standard OfReview For A Motion For New Trial 4 7 2. There Were No Irregularities Of Proceedings That Warrant A New 8 Trial And Any Delays Were Caused Solely By Plaintiffs' Counsel's Actions And Purposeful Delay In Preventing The Defense From Putting On Its Case 5 9 3. There Is Substantial Evidence To Support The Jury's Verdict On 10 All Causes Of Action As To CA Constmction 9 11 4. The Jury's Verdict Is Not Contrary To The Law 12 5. The Judgment Is Not Inconsistent With The Special Verdict 13 12 IIL CONCLUSION 14 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR NEW TRIAL 1 TABLE OF AUTHORITIES ^ Page 3 Cases 4 Byrnev. City and County of San Francisco {inO) 112 Cal. App. 3d 731 4 Fortmanv. Hemco, Inc. (1989) 211 Cal App. 3d. 241 4 5 Hojfman-Haag V. Transamerica lns. Co. (1991) 1 Cal.App. 4th 13 Marriage of Carlsson 5 6 Mercer v. Perez (1968) 68 CaUd 104 4 Musgrove v. Ambrose Properties (1978) 87 Cal. App. 3d 44 13 7 Nestle v. City ofSanta Monica (1972) 6 CaUd 920.925-926 10 Nordon v. Hartman (1952) 111 Cal. App 2d 751 4 8 People v. Taylor (2004) 118 Cal. App. 4th 11 13 Weher, Lipshie & Co v. Christian (1997) 52 Cal App 4th 413 5 9 Wysinger v. Automobile Club ofSo Cal (2007) 157 Cal.App.4th 413 13 10 Constitutional Provisions 11 Califorma Constitution, Anicle Vl, ^13 : 4 12 Other Authorities 13 I Business and Professions Code § 7026 2 Business and Professions Code § 7028 2 14 Business and Professions Code § 7031 2 Business and Professions Code § 7109 2 15 Code of Civil Procedure § 475 4 Code ofCivil Procedure § 657 9 16 Code of Civil Procedure § 659ia) 2,4,5 17 18 19 20 21 22 23 24 25 26 27 28 11 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR NEW TRIAL 1 Defendants RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 2 (hereinafter "CA CONSTRUCTION") hereby files this Memorandum of Points and Authorities 3 in Opposition to Plaintiffs RODNEY and FLORENTINE ABBOTT'S (hereinafter "Plaintiffs") 4 Motion for New Trial. Plaintiffs filed their Notice of Intention to Move for a New Trial on 5 Febmary 17,2011, and only submitted the points and authorities and declaration ofcounsel in 6 support thereof. At the time offiling this Memorandum of Points and Authorities in Opposition 7 to Plaintiffs Motion, CA CONSTRUCTION has not been served with any additional supporting 8 affidavits by Plaintiffs pursuant to Code ofCivil Procedure § 659(a). 9 I. INTRODUCTION 10 This case arises out of alleged defects in constmction ofa concrete foundation system at 11 Plaintiffs' home located at 8601 Rolling Green Way in Fair Oaks, Califomia. The contract 12 between the parties was signed on October 25,2005. CA CONSTRUCTION was under contract 13 to supply and install the concrete foundation system for the home and garage pursuant to plans 14 and specifications that were coordinated by the Abbotts and provided by them to the contractors. 15 The Abbotts were simultaneously in charge of building the cul-de-sac directly in front of their 16 home. Mrs. Abbott was the owner-builder, essentially the contractor ofrecord, for both projects 17 and was responsible for all aspects of constraction on both projects. CA CONSTRUCTION 18 presented undisputed evidence ofthese facts at the January 2011 trial ofthis matter. 19 On or about September 24, 2007, Plaintiffs filed their original complaint in this action. 20 The Complaint was amended several times. The Third Amended Complaint ("TAC"), which was 21 filed on November 5,2010, contained three (3) causes ofaction against CA CONSTRUCTION: 22 4th Cause of Action - Breach of Contract; 5th Cause of Action - Negligence; and 6th Cause of 23 Action - Violations of Business and Professions Code § 7109 (willful departure from accepted 24 trade standards), 7026, 7028 and 7031 (perfonning concrete work without a valid C-8 25 contractor's license), and 7160 (knowingly making false orfi-audulentrepresentations regarding 26 ability to perform contracted for services). 27 This matter proceeded to ajury trial on January 18, 2011 on all issues and causes of 28 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL 1 action. At trial. Plaintiffs sought damages in excess of $750,000 for a complete rebuild ofthe 2 subject home, including the costs of raising the level ofthe house and garage foundations to the 3 level ofthe adjacent cul-de-sac. Plaintiffs also sought disgorgement ofthe contract price 4 ($53,000), treble damages up to $10,000, a $500 penalty, and discretionary attomey's fees from 5 CA CONSTRUCTION for various violations ofthe Business & Professions Code. The total 6 damages sought by Plaintiffs at trial fell in the ballpark of $813,500.00 to $1,000,000.00. 7 The crux of Plaintiffs' Motion relates to certain parts ofthe Special Verdict Form. CA 8 CONSTRUCTION reminds the Court that Plaintiffs provided explicit written consent to 9 the ternis ofthe Special Verdict Form, but now attempt to claim the form may have confiised 10 thejury. A copy ofthe Special Verdict Form as filled out by thejury is attached as Exhibit "A" 11 to the Declaration of Todd Jones, filed concurrently herewith. 12 As demonstrated in Exhibit A, the jury specifically found that Plaintiffs did not perform 13 all of their obligations/duties imder the contract and that Plaintiffs were not excused from 14 performing their obligations/duties under the contract Thus, thejury found that there was a 15 breach ofthe contract that was incurred by the Plaintiffs. Thejury found that while CA 16 CONSTRUCTION was negligent, such negligence was not a substantial factor in causing 17 Plaintiffs' harm. Also, thejury found a willful departure from trade standards (akin to 18 negligence), but did not find that the departure caused any damages to Plaintiffs. Based on the 19 jury's verdict, the Court entered judgment on Febmary 3,2011 in favor of CA CONSTRUCTION 20 on all causes ofaction. 21 CA CONSTRUCTION prevailed on all causes ofaction raised by Plaintiffs. Plaintiffs 22 have now filed a Motion for New Trial in a desperate attempt to have the Court set aside the 23 considerable and reasonable judgment of the jurors and grant Plaintiffs another opportunity to 24 pursue their baseless claims. The motion must fail for the reasons outiined below. 25 /// 26 /// 27 /// 28 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL ^ II. ARGUMENT ^ A. Procedural Defects In Plaintiffs' Motion For New Trial - Plaintiffs Have Failed - To Support Their Motion For New Triai 4 Under Code ofCivil Procedure § 659a, Plaintiffs had until Febmary 28,2011 (10 days ^ after service ofthe Motion for New Trial) to submit evidence and affidavits in support of their ^ motion. To date, Plaintiffs have submitted no such evidence (See Jones Declaration, Paragraph ^ 6). Accordingly, the motion should be denied. 8 Under Code ofCivil Procedure § 659a, there is no time limit specified for the filing and ^ serving of an opposition to a motion for new trial in the absence of service of affidavits in support ^^ ofthe motion. Nevertheless, CA CONSTRUCTION respectfully submits this opposition for the ^^ Court's consideration. ^^ B. Substantive Defects In Plaintiffs' Motion For Ncw Trial ^^ 1. Standard Of Review For A Motion For New Trial 14 When a new trial is ordered, the court must have examined the entire case, including the 1^ evidence, and concluded that a miscarriage of justice occurred. California Constitution, Article 1^ VI, § 13. On a motion for new trial, the court reviews the entire case and, if it concludes that a 1^ miscarriage of justice occurred on any ofthe grounds delineated in Code ofCivil Procedure §657, 1^ it must grant a new trial. Mercer v. Perez (1968) 68 Cal.2d 104,111. Code ofCivil Procedure 1^ §475 requires reversal of a judgment only when: (1) there is prejudicial error; (2) the complaining 20 party sustains and suffers substantial injury; and (3) a different result would have been probable if 2^ such error had not occurred or existed. Code ofCivil Procedure §475. The trial court, after 22 independentiy assessing the evidence, must conclude that the trier of fact clearly should have 23 reached a different result. Fortman v. Hemco. Inc. (1989) 211 Cal.App.3d 2 4 1 . A motion for new 24^ trial should be granted "when the preponderance of evidence is opposed to the findings ofthe 25 jury." Byrnev. CityandCounty ofSan Francisco (19S0)U3 Cal. App. 3d 131,739; Norden v. 26 Hartman (1952) 111 Cal. App. 2d 751, 758 ("the weight ofthe evidence appears contrary to the 27 jury's determination"). In these ways, the law preserves its respect for the judgment ofjurors 28 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL 2. There Were No Irregularities Of Proceedings That Warrant A New ^ Trial And Any Delays Were Caused Solely By Plaintiffs' Counsel's Actions And Purposeful Delay In Preventing The Defense From _ Putting On Its Case 4 Plaintiffs assertion that the parties had insufficient time to try the case is absurd because 5 the plaintiffs had more than ample time to try their case. Plaintiffs' wasted valuable trial time on 6 witnesses that added no value to their case, purposefully delayed their cross-examinations, called 7 an excessive number of witnesses as adverse witnesses, and intentionally created delays of their ^ own making. "It is established law that, where a deliberate trial strategy results in an outcome 9 disappointing to the advocate, the lawyer may not use that tactical decision as the basis to claim 10 prejudicial enror." Weber. Lipshie & Co. v Christian (1997) 52 Cal. App. 4th 645, 658. 11 First. Plaintiffs argue that your Honor stated on a number of occasions that if the trial was 12 notconcludedby January 28, 2011, it would result in a mistrial. This is blatantly false. Counsel 13 for CA CONSTRUCTION does not recall even a single statement by the Court remotely close to 1"^ this assertion. (See Jones Declaration, Paragraph - 5) Per Code ofCivil Procedure § 659(a), 15 Plaintiffs have the burden of offering supporting affidavits and evidence to support their request 16 for a new trial. Remarkably, Plaintiffs have not produced any trial transcripts evidencmg the 17 multiple alleged statements by the Court that a mistrial may result if the trial was not completed. 1^ No evidence was produced because no such statements were made. In contradiction to plaintiffs' 19 counsel's assertion, defense coimsel recalls that the Court indicated that ifthe trial was not 20 concluded on Friday, January 28, 2011, then counsel should be prepared to continue with the trial 21 the next day on Saturday, January 29, 2011. (See Jones Declaration, Paragraph - 5) 22 Second. Plaintiffs cite Marriage of Carlsson as their only authority for the assertion that 23 there was an irregularity of proceedings that necessitates a new trial. It is not surprising counsel 24 cites this case as she was counsel for the respondent and she lost on appeal. Notwithstanding this, 25 the case cited by Plaintiffs is fundamentally different than what occurred during the instant trial, 26 The Carlsson case was a family law/dissolution case wherein the appellant sought a new 27 trial because her time was very limited at trial. There was no jury involved, it was a 2 day trial, 28 5 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL 1 the judge pressed the appellant's counsel throughout the entire proceeding, the judge did not 2 allow bathroom or lunch breaks, and the claim was that the judge mshed the proceeding because 3 he had another preferenced hearing that would immediately follow the tiial. In Carlsson. the 4 judge cut the trial short in the middle ofthe appellant's direct examinations. In Carlsson. 5 appellant was blatantly and explicitly denied the right to due process. Appellant's counsel 6 requested more time and it was not given. 7 The gross time pressures that existed in the Carlsson matter are vastiy different than what 8 occurred in the instant trial. Plaintiffs presented her case-in-chief from January 19,2011 through 9 January 26,2011 (Plaintiffs rested at approximately 3:00 p.m. and Court concluded for the day at 10 approximately 4:00 p.m.) Witness testimony was provided over the course of 8 days. Plaintiffs 11 used up almost 75% ofthe trial time. CA CONSTRUCTION presented its case in approximately 12 1.5 days and Mr. Smith presented his case in approximately 30 minutes. Together, the defense 13 used up less than the remaining 25% of trial time as any remaining time went to jury instiuctions 14 and closing arguments. The defense used this remaining time despite Plaintiffs overt efforts to 15 use up defense time as recognized by your Honor and referenced in the moving papers. Plaintiffs 16 never requested more time unlike the appellant in Carlsson. nor did they object to time pressures. 17 Plaintiffs' direct examinations were never cut short, nor were any of her cross-examinations. 18 Carlsson was only a 2 day trial whereas this was a 9 day trial with no similar time pressures. It is 19 ludicrous for Plaintiffs to argue they were not given ample time. 20 Plaintiffs' prior counsel and Plaintiffs (while in pro per) estimated that the trial would take 21 3 days. This estimate was provided when 5 parties were involved in the case. Thereafter, Mrs. 22 Finelli advised the Court that she believed this was a 7 day trial in light of Britschgi's settiement 23 from the case. Once Cadre Design Group, Inc. settled from the case just before the trial started, 24 the estimated trial time should have decreased yet again. CA CONSTRUCTION estimated that 25 this was a 7-10 day trial based on the number of anticipated witnesses and evidence. The fact 26 remains that the parties were given 9 Court days, which satisfied everyone's trial estimates. 27 Plaintiffs were fiilly aware ofthe time lunit, yet did not seek to continue the trial at any time. 28 6 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL 1 Moreover, your Honor gave the parties the option of finishing trial on Saturday, January 29,2011. 2 Third. Plaintiffs argue that they were never offered an opportunity to put on rebuttal 3 evidence, and if it was provided an opportunity to do, it "may have made" a difference in the 4 outcome. "May have made" is not the standard. The standard is that the claimed error must be 5 (1) prejudicial; (2) it must cause substantial injury; and (3) a different result would have been 6 probable if such error was not committed. Your honor must find that the jury would have clearly 7 reached a different result if Plaintiffs had the opportunity to put on rebuttal evidence. Plaintiffs 8 cannot meet this burden. In her declaration, counsel states she would have called Mrs. Abbott to 9 rebut defense testimony and "to explain certain concepts to thejury". It is unclear what additional 10 benefit Mrs. Abbott's testiraony would have provided and how it would have clearly resulted in a 11 different outcome because counsel fails to explain this in her moving papers. Also, it is unclear 12 why Plaintiffs' counsel did not accomplish this in her case in chief. Finally, it is unclear what 13 concepts Mrs. Abbott would be able to clarify/explain to the jury. During motions in limine, the 14 Court mled that Mrs. Abbott could not provide testimony ofan expert nature on constmction 15 issues. Thus, she would be foreclosed from "explaining certain concepts." Once Mr. Smith 16 rested. Plaintiffs did not inform the Court they had rebuttal evidence, nor did Plaintiffs move to 17 call any rebuttal witnesses, including Flo Abbott, who was present in court the entire time. As 18 such. Plaintiffs waived this right and should now be foreclosed from crying foul. 19 Fourth. Plaintiffs assert that time pressure forced them to not call witnesses they had 20 originally planned on calling during trial, such as Gary Hunt. Mr. Hunt framed the home and as 21 such, was never involved in any aspect of CA CONSTRUCTION'S work. He performed his work 22 well after CA CONSTRUCTION was off the job. Any testimony Gary Hunt would have offered 23 would be irrelevant as it would have wasted further time and have no bearing on issues in the 24 case. Moreover, the moving papers again fail to make any showing of how Mr. Hunt, or any 25 other witness's testimony for that matter, would have been a clear "game changer". Plaintiffs 26 have clearly failed to carry their burden of proof in this matter. 27 Fifth, in her declaration. Plaintiffs' counsel states that she had inadequate time to cross- 28 7 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL 1 examine defense expert Jason Newlin. Again, this was Plaintiffs' own fault based on the 2 following: 3 • During discovery, Plaintiffs counsel failed to take the deposition of expert Newlin, and 4 then failed to seek leave from the Court to re-open discovery for this purpose despite the Court telling her to do so. This issue was heavily briefed during pre-trial motions, and the 5 Court explicitiy denied Plaintiffs' request to exclude expert Newlin on this ground. Had 6 Plaintiffs made an effort to move to depose Mr. Newlin back in May, 2009 and had subsequently deposed him, it would have narrowed issues for trial and resulted in a more 7 efficient cross-examination of him during trial. This is not grounds for a new trial. 8 • During pre-trial motions, the Court specifically advised counsel that it would favorably view any additional motions in limine from Plaintiffs to allow them to depose the defense 9 experts prior to trial. Plaintiffs did not avail themselves ofthis course ofaction. See Jones 10 Declaration, Paragraph - 3) 11 • Expert Newlin's job file was produced to Plaintiffs' counsel on the first day of frial, January 18,2011, as required by the trial subpoena issued to Mr. Newlin. Mr. Newlin took 12 the stand on January 28,2011. (See Jones Declaration, Paragraph - 4) Plaintiffs' counsel had 10 days, including a weekend, to review this file and prepare an efficient and 13 thorough cross-examination of Mr. Newlin, She obviously failed to do so. Her failure to 14 prepare is not grounds for a new trial. 15 • Counsel again fails to show how further examination of Mr. Newlin regarding concrete cracks would have clearly made a difference. At least expert Newlin took photos of 16 garage cracks. Plaintiffs' lead expert only took photos of irrelevant cracks that were 17 outside ofthe garage for which Plaintiffs' counsel spent a good portion offrialtime showing to the jury in an apparent attempt to mislead and confuse the jury. Again, 18 Plaintiffs have not met their burden of proof. 19 Sixth, Plaintiffs' indicate they did not fiilly cross-examine defense v^itiiesses, and 20 plaintiffs counsel specifically cites witness Dynan Keller as an example. Based on the amount of 21 time Plaintiffs took during trial, it is hard to see how this is possible. Mr. Keller was produced on 22 January 26 and Plaintiffs' counsel did not finish questioning him. Your honor instmcted Mr. 23 Keller to retum the next day, which defense counsel was ultimately able to secure despite Mr. 24 Keller's work consfraints. Mr. Keller appeared at trial on January 27 and Plaintiffs voluntarily let 25 him go without further questioning. No one forced Plaintiffs to move on. Moreover, Plaintiffs yet 26 again fail to show what further testimony from Mr. Keller would have resulted in a different 27 result. 28 8 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL I Seventh. Plaintiffs' counsel states that Mr. Atchison "was unnecessarily long-winded and 2 kept changing his answers". Plaintiffs' counsel confrols the witness by the questions she asks. 3 She has now blamed her inefficiency in crafting examinations on testimony she elicited from Mr. 4 Atchison that was unfavorable to her client. Her remedy would be to sfrike the testimony of Mr. 5 Atchison which was non-responsive to her questions and seek assistance from the Court to 6 admonish the witness to answer the questions as phrased. She failed to do both. Again, this is 7 not grounds for a new trial. 8 Eighth. Plaintiffs spent over 2 hours reading Bryan Hill's deposition testimony into the 9 record. She used her clerk to help her and he made repeated pronunciation errors. The process 10 was confusing, and it undoubtedly took up valuable time that could have been better spent. 11 Plaintiffs' counsel's inability to try the case in the time allotted as well as her misguided 12 self-imposed belief that a "threat of a mistrial was constantly hanging over her head" provides 13 inadequate and unfounded justification for the extraordinary relief of granting a new trial. Code of 14 Civil Procedure § 657 states that the court must weigh all the evidence and be convinced from the 15 entire record that thejury clearly should have reached a different verdict. Plaintiffs have put forth 16 no specific evidence whatsoever that their time was insufficient, that the conduct ofthe trial was 17 prejudicial to the Plaintiffs or that thejury would have clearly reached a different result. 18 3. There Is Substantial Evidence To Support The Jury's Verdict On All 19 Causes Of Action As To CA Construction 20 The evidence in this lengthy trial was in dispute on virtually every material issue and the 21 defense provided substantial evidence in the form of witness and written documents as to many 22 contested issues. Thejury considered the conflicting evidence and as such, there is no basis for 23 this Court to find that the jury's verdict is not based on competent evidence. It was the jury's 24 duty to detennine the weight and sufficiency ofthe evidence, including the credibility of 25 witnesses. Thejury went about its business in a very attentive manner as evidenced by its 26 numerous questions and the fact that it deliberated for nearly three (3) full days before reaching 27 its decision. In reviewing a challenge to the sufficiency ofthe evidence, the Court is bound by 28 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL 1 the substantial evidence rule. All factual matters must be viewed in favor ofthe prevailing party 2 and in support ofthejudgment. All conflicts in the evidence must be resolved in favor ofthe 3 judgment. Nestle v. City ofSanta Monica (1972) 6 Cal.3d 920,925-926. 4 As to the breach of contract cause ofaction, thejury was provided CACI Instmction 5 303, which lays out the essential factual elements for a breach of confract cause ofaction. The 6 second element requires Plaintiffs to show: "That Rodney and Florentine Abbott did all, or 7 substantially all, ofthe significant things that the contract required them to do or that they were 8 excused from doing those things". On January 31,2011, thejury requested additional copies of 9 Exhibit 89 - the contract between the parties. On Febmary 1, 2011, the jury requested 10 I clarification on each parties responsibilities under the contract. On the same date, both Plaintiffs' 11 counsel and defense counsel agreed to provide the jury with the follov/ing definition of 12 substantial performance: "Substantial performance means that there has been no willful departure 13 from the terms ofthe confract, and no omission ofany of its essential parts, and that tiie party has 14 in good faith performed all of its substantive terms." 15 As is clearly evidenced by the jury's questions, thejury weighed all the evidence and gave 16 thorough consideration to each party's duties under the confract. A prerequisite to arriving at a 17 breach analysis required ajury finding that Plaintiffs first fulfilled all of their duties under the 18 confract or that they were excused from doing so. The jury answered "No" to these 2 questions, 19 which ended the breach of confract analysis. There was ample evidence in the form ofthe 20 confract (Exhibit 89) as well as Mr. Britschgi and Mr. Ruybalid's testimony that Plaintiffs had 21 certain obligations under the contract and that they failed to fulfill them. 22 Also, Plaintiffs' counsel is incorrect in her statement that the only obligation Plaintiffs 23 held under the contract was to pay the contract price. Paragraph 2 of Exhibit 89 states: "Builders 24 or builders agent shall specify previous to excavation and verify previous to pour, location and 25 elevation of finished floor, garage slabs and piers." As correctiy pointed out by Plaintiffs in their 26 moving papers, expert Heryet testified that elevation detennination was Mrs. Abbott's duty under 27 the contract by virtue of her role as owner-builder. Mrs. Abbott was the owner-builder and the 28 10 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL 1 de-facto general contractor on this job and she bore the duties and obligations ofthis role. Furthermore, a great deal of testimony from Pete Atchison, Richard Ruybalid, Florentine 3 Abbott, Rodney Abbott, Ronald Britschgi and AI Sanchez centered on the determination of elevations for this project. These witnesses testified on various subjects, including but not limited to (1) the placement of elevation strings; (2) how long the stiings were up on the job site; (3) how apparent they were to people at the job site; (3) the Abbott's frequent visits to the job site; (4) the Abbott's approval and/or non-approval ofthese strings; (5) whether the Abbott's approved the o elevations based on their visual observations ofthe sfrings and/or the foundation form boards; (6) how the plans contained variable heights for the stem wall based on Plaintiffs' unwillingness to have tiie property surveyed and/or have a grading plan prepared; and (7) Mrs. Abbott's consent 11 given to Britschgi for him to sign the "Elevation and Layout Approval" (Exhibit 27). To state 19 that there was absolutely no evidence to support the jury's breach of confract decision is false and 13 essentially insults the jury's efforts in this case. 14 As to the negligence cause ofaction, there is abundant evidence to support the verdict. 15 Plaintiffs ignore the fundamental law of negligence, which requires Plaintiffs to establish each of 16 the following elements: (1) duty; (2) breach; (3) causation; and (4) damages. As the party who 17 bears the burden of proof on all elements, Plaintiffs must prove all elements by a preponderance 1o ofthe evidence. They failed to do so in this case. ^^ The jury found that CA CONSTRUCTION was negligent as it pertains to tiie constmction 20 of Plaintiffs' home. The jury also found that CA CONSTRUCTION departed from accepted 21 trade standards, which is akin to a finding of negligence. However, an affirmative finding on both 22 ofthese issues does not necessarily guarantee that such negligence caused harm to the Plaintiffs. 23 In fact, it is not uncommon for a trier of fact to find that a party was negligent, yet find that the 24 negligence did not cause actionable damages or that another, intervening act substantially caused 25 the harm. Here, Plaintiffs failed to prove that CA CONSTRUCTION'S negligence was a 26 substantial factor in causing harm to the Plaintiffs. Also, perhaps the jury simply concluded that 27 Mrs. Abbott's own actions as the owner-builder, or lack ofactions, caused her own harm. 28 11 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL and the testimony referred to by Plaintiffs' counsel was in response to incomplete hypotheticals that were based on facts Plaintiffs ultimately failed to establish at tiial. As discussed immediately above, there was substantial evidence offered by each party, which thejury carefully weighed and utilized in arriving at the verdict. Finally, Plaintiffs cling to the evidence that the retaining wall at the far end ofthe garage was not 7.5 feet tall, that this violated the plans, and it caused damage. Essentially, Plaintiffs attempt to argue that the evidence was insufficient to support the jury's finding. However, Plaintiffs do not discuss the several hours of testimony provided by Al Sanchez, the drafter ofthe plans, and they fail to mention it for good reason. Mr. Sanchez testified at length that he provided for variable heights on the plans at this location because it was impossible to determine finished floor elevations. It was impossible to determine finished floor elevations because Plaintiffs would not survey the lot or perform the necessary grading to bring the level ofthe lot up, despite being 16 told by Mr. Sanchez to do so three (3) separate times. Thejury weighed all the evidence, and 17 obviously concluded that the defense presented more convincing evidence on this issue. 18 As to the Business and Professions Code claims, there was more than sufficient 19 evidence to support the verdict. On February 2,2011, the jury requested a definition for the term 20 "harm" as it relates to Special Verdict Question 18. As counsel could not agree on a definition, 21 the Court advised the jury to use the term in its usual and customary sense and apply it to the 22 evidence it heard on the alleged harm at issue in the case. Again, it is reasonable, after a thorough 23 examination ofall evidence, for thejury to conclude that Plaintiffs suffered no harm despite a 24 departure from trade standards by CA CONSTRUCTION. A departure from trade standards and 25 the issue of damages are separate considerations. 26 4. The Jury's Verdict Is Not Contrary To The Law 27 The granting of a new trial on the ground that the verdict is against law is authorized only 28 12 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL 1 where there is no substantial evidence to sustain the verdict." Musgrove v. Ambrose Properties 2 (1978) 87 Cal. App. 3d 44 (emphasis added). Stated otiierwise, a decision is "against the law" 3 where the evidence is insufficient in law and without conflict on any material point. Hoffman- 4 Haag V Transamerica Ins. Co. (1991) 1 Cal. App. 4tii 10,14-15. (Emphasis added). 5 As stated above, Plaintiffs had obligations under the contract, which the jury concluded 6 they failed to fulfill after carefully weighing the Ievidence. Thejury received this instmction in 7 CACI 303 and was required to make this determination on the contract cause ofaction. It was 8 resolved in favor of CA CONSTRUCTION. As stated above, the basic elements for a negligence 9 cause ofaction requires Plaintiffs to establish both causation and damages, Thejury, after careful 10 consideration ofall ofthe evidence and after receiving CACI instmctions on negligence law, I 11 determined that Plaintiffs again failed to establish each element in their negligence cause of 12 action. Plaintiffs did not object to thejury instmctions on either cause ofaction, and are now 13 foreclosed from doing so. There was substantial, evidence sufficient to sustain the verdict and it 14 was not 'against the law'. 15 5. The Judgment Is Not Inconsistent With The Special Verdict 16 A verdict must be interpreted so as to uphold it, and "where special verdicts appear 17 inconsistent, ifany conclusions could be drawn which would explain the apparent conflict, the 18 jury will be deemed to have drawn them." Wysinger v. Automobile Club ofSo. Cal (2007) 157 19 Cal.App.4th 413, 424. "A jury's findings will be freated as inconsistent only if they are clearly 20 antagonistic and absolutely irreconcilable with each other under any rational view ofthe 21 evidence." People v. Taylor (2004) 118 Cal. App. 4th 11, 24. 22 i 23 Plaintiffs complain that thejudgment is inconsistent with the Special Verdict based on two 24 (2) reasons: (1) CA CONSTRUCTION was negligent, but its negligence was not a substantial 25 factor in causing Plaintiffs' harm; and (2) It depalrted from accepted trade standards, but this 26 departure caused no harm to Plaintiffs. 27 First, the parties spent several hours meeting and conferring on the Special Verdict Form. Some ofthis time was spent in chambers with your Honor himself, hammering out tiie terms of 28 13 I MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRIAL 1 the Special Verdict Form. After a series of revisions and input from all interested parties. 2 Plaintiffs' counsel provided written consent to the Special Verdict Form and at no point objected 3 I to the use ofthe form. She should be foreclosed from doing so now and cannot now possibly 4 claim it as a basis for a new frial. 5 Second, for the reasons enumerated aboye, the jury's findings on the negligence and 6 Business and Professions Code claims are not inconsistent with the Special Verdict. Ajury can 7 find negligence, but no causation or no damages Plaintiffs dislike ofthe verdict is not a valid 8 basis for overtuming the reasoned judgment of 12 jurors. The motion should be denied. 9 m. CONCLUSION I 10 Based on the above arguments, CA CONSTRUCTION respectfiilly requests that the 11 Court deny this baseless and frivolous motion filed by Plaintiffs. The purported frial delays were 12 of Plaintiffs own making, and the jury's verdict is reasonable, consistent with the evidence put on 13 by all parties, and is consistent with all applicable law and the Special Verdict. 14 15 Dated: Febmary 28, 2011 ARCHERNORRIS 16 fi^ K -fe>v/ -v^di^Soivei 17 Todd A. Jones 18 Gregory K. Federico Attoraeys for Defendants and Cross- 19 Defendants RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 20 21 22 23 24 25 26 27 28 14 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO NEW TRL\L