Motion in Limine Evidentiary in Rodney Abbott, et al vs. Ronald Paul Britschgi, et al| Trellis.Law

On September 24, 2007 a Party Discovery was filed involving a dispute between and for (Breach of Contract/Warranty) in the District Court of Sacramento County.

Preview
H/»'''...

1 Todd A. Jones (BarNo. 198024)
Gregory K. Federico (Bar No. 242184)
2 ARCHER NORRIS
A Professional Law Corporation
E-NDORSED
3 301 University Avenue, Suite 110
Sacramento, Califomia 95825
4 Telephone: 916.646.2480 itC^i PROCESS//?
Facsimile: 916.646.5696
5
Attomeys for Defendants
6 RICHARD KIRK RUYBALID, individually and
dba CA CONSTRUCTION; and R4C0RP., INC
7

8 SUPERIOR COURT OF CALIFORNIA

9 COUNTY OF SACRAMENTO

11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
ABBOTT,
12 DECLARATION OF GREGORY K.
Plaintiffs, FEDERICO IN SUPPORT OF
13 DEFENDANTS' MOTION IN LIMINE NO.
2 TO EXCLUDE TESTIMONY OF
14 PLAINTIFFS' EXPERT ROBERT
RONALD PAUL BRITSCHGI, et al.. WEAHUNT REhATWG TO THE
15 EXISTENCE OF DEFECTS NOT
Defendants. PERSONALLY OBSERVED OR TESTED
16
Action Filed: September 24,2007
17
Trial Date: January 17, 201
18 Time: 8:30 a.m.
Location- Department 43
19
AND ALL RELATED CROSS-ACTIONS.
20

21
1, Gregory K. Federico, hereby declare as follows;
22
1. At all times relevant, I have been an attomey licensed to practice law in the State
23
ofCalifomia and I am an associate with the law firm of Archer Norris, counsel of record for
24
Defendants RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION
25
(heremafter "CA CONSTRUCTION") and Defendant R4C0RP., INC. (hereinafter "R4C0RP")
26
(hereinafter collectively "Defendants") As such, I am personally familiar with the files in this
27
matter and all the documents contained therein. I have personal knowledge ofthe matters stated
28
N1C549/I058671-1

DECLARATION OF GREGORY K FEDERICO IN SUPPORT OF DEFENDANTS' IVIOTION IN LIIVIINE NO 2
1 herein and, if called as a witness, could and would competently testify thereto.

2 2. Attached hereto as Exhibit-A to this declaration are true and correct copies as

3 maintained in our office files in this matter ofthe excerpts ofthe deposition testimony of

4 Plaintiffs' expert, Robert Weahunt taken April 24, 2009, in this matter.

I declare under penalty ofperjury under the laws ofthe State ofCalifomia that the

foregoing is true and correct and that this declaration was executed in Sacramento, Califomia,

on December 6, 2010.

I^ Gregory K. Federico

U
12

28
NIC549/105867 l-l 2

DECLARATION OF GREGORY K. FEDERICO FN SUPPORT OF DEFENDANTS' MOTION IN LIMINE NO 2
1 PROOF OF SERVICE

2 Nameof Action: Rodney Abbott, et al. v. Ronald Paul Britschgi, et al.
Court and Action No: Sacramento County Superior No. 07AS04450
3
I, Cindy A. Ingland, declare that I am over the age of 18 years and not a party to this
4 action or proceeding. My business address is 301 University Avenue, Suite 110, Sacramento,
Califomia 95825. On December 6, 2010,1 caused the following document(s) to be served:
5
DECLARATION OF GREGORY K. FEDERICO IN SUPPORT OF DEFENDANTS'
6 MOTION IN LIMINE NO. 2 TO EXCLUDE TESTIMONY OF PLAINTIFFS'
EXPERT ROBERT WEAHUNT RYA^MmG TO THE EXISTENCE OF DEFECTS
7 NOT PERSONALLY OBSERVED OR TESTED

8 n^ By placing a true copy ofthe documents listed above, enclosed in a sealed envelope,
addressed as set forth below, for collection and mailing on the date and at the business
address shown above following our ordinary business practices. 1 am readily familiar
10 with this business' practice for collection and processing of correspondence for
mailing with the United States Postal Service. On the same day that a sealed envelope
11 is placed for collection and mailing, it is deposited in the ordinary course ofbusiness
with the United States Postal Service with postage fully prepaid.
12
I I By having a true copy ofthe document(s) listed above transmitted by facsimile to the
'•^ person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission
. . was reported as complete without error by a report issued by the transmitting facsimile
machine
15
I I By placing a true copy ofthe document(s) listed above, in a box or other facility
16 regularly maintained by UPS, an express service carrier, or delivered to a courier or
driver authorized by the express service carrier to receive documents, in an envelope
17 designated by the express service carrier, with delivery fees paid or provided for,
addressed as set forth below.
lo
19 n bv having personal deliverv bv FIRST LEGAL SUPPORT SERVICES a true copy of
the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the
20 address(es) set forth below.
21
[SEE ATTACHED SERVICE LIST]
22
I dejjfete under penalty ofperjury that the foregoing is true and correct. Executed on
23 December5<|!D10, at Sacramento, Califomia.

25
mv
CJNDY A. INGLAND
26

28
N1C341/608293-1

PROOF OF SERVICE
1 Service List

2
Stephanie Finelli PLAINTIFFS
3 Law Offices of Stephanie J Finelli
1007 Seventh Street, Suite 500 Tel (916)443-2144
4 Sacramento, CA 95814 Fax:(916)443-1511
E-mail sfinelli700(gyahoo com
5
Richard D Sopp Counsel for CADRE DESIGN GROUP, INC.
6 Wheatley Sopp LLP
1004 River Rock Drive, Suite 245 Tel (916)988-3857
7 Folsom, CA 95630 Fax:(916)988-5296
Email rds(gmwsblaw com
8
Mark Smith In Pro Per
9 8549 Willow Valley Place
Granite Bay, CA 95746
10
Richard W Freeman Counsel for R4C0RP
11 Scotts Brooks
WOOD SMITH HENNING & BERMAN LLP Tel (925)356-8200
12 1401 Willow Pass Road, Suite 700 Fax: (925) 356-8250
Concord, CA 94520-7982
13

28
NiC341/608293-1 2
SERVICE LIST 1
EXHIBIT A
EXHIBIT A
Robert Donald Weahunt, Jr. A p r i l 24, 2009
1 3
SUPERIOR COURT OT THE STATE O f CAIIFORIIIA
COUHTY o r SACRAMENTO
1 INDEX OF EXAMINATION
RODNEY ABBOTT, FIOREITIIHE 2
ABBOTT,
3 WITNESS: ROBERT DONALD WEAHUNT. JR. |
Mointlffs, 4 EXAMINATION PAGE
CASE NO 07AS044SO
vs. 5 By Mr. Federico 6
ROI^e demolition of<6teti 12 THE WITNESS Dkl I take ttiat into account?
13 walls- 13 BY MR LUNDGREN.
14 A Yes. 14 0 Do you know if the engineer took ttiat into
15 Q - I n t h e g e r a g e ? Does rt involve demolition 15 accounf?
16 of the enbre garagevStrudure itself? 16 A No, I d o n i know Ihat I'd say it's possible
17 A. Yes 17 there's another solution. I d o n i know what It Is
18 Q Do you have a\understanding of ^ y it's 18 though. I'm jusl giving you a solution so you have
19 ssary lo demolish s W i vralls in the garage itself? 19 somettiing to talk aboul.
20 i f s my understandmA - and like I say,^ 20 Q. And your esti'mate for that vrouid be $204,000
21 Milhout«pecific engineering arid without spedfic 21 to raise the slab four feef'
22 architedoral drawings. I'm onl^fipeculating on this • 22 A Yeah l l involves adually quite a bit more
23 Dut It's my Viderstanding Robin bee spoke with a 23 than ttial If you look at the quantities Ihere Robin
24 strudural guVand said - because we talked about cfeuM 24 wrote dovm - 1 d o n i know why cubic feel Instead of
25 ve. in fact, extend Ihose walls up Could we Ihen, y lu 25 cubic yards, but he wrote down ttie gross volume of cubic

202 204

1 know, pour, you know, encapsulated anolher slab, you 1 yardage that you would have to excavate II was like
2 know, to minimize the cost 2 25,000 and change. And then the material thai was on
3 And the sboidural guy said "No, you really 3 site left a balance of like 600 and something cubic
4 have to go down to the ground and start over." 4 yards you would have to import in order to obtain ttial
5 Q Do you have an understanding ofwhy Ihat IS? 5 end result
6 A Well, It has to do with the viridlh of a 6 O Was this solution, to your knowledge,
7 footing versus the height and amounl of load that ifs 7 acceptable to the Abbotts?
8 carrying You know, when you see the set of drawings it 8 A I d o n i know Ihal for a f a d . In f a d , I
9 will say that "If H is ttils, then W needs to be this 9 never even really discussed this, that plan
10 And if H is this, then W needs to be that" (indicating). 10 (indicating), with Flo I only discussed it witti Robin
11 So they give you, you know, like kind of a 11 Lee. /Uld his - he jusl said "Here is a solution."
12 design according to the site options on the height and 12 Ifs nol necessarily the solution, bul it's a solution
13 widtti of the footings and the foundation. W e thought 13 that would make it woric.
14 that, in speculating - neither of us are stiuctural 14 You have a ramp which wouM meet ADA
15 engineers - but it seemed to us that we could tie a 15 requirements whidi is vi/hat she had expressed to
16 slab to the stem wall ttiat would then be lied lo ttie 16 everybody apparently. You know, it's critical to her
17 existing stem vralls, bul all kind of be encapsulated. 17 because of her mother being in a wheelchair, handicapped
18 W e could do that vi/ilhout demoing the whole 18 situation And il gives you a driveway with a roll out
19 thing. But like I say, we would have lo gel a 19 al Ihe bottom so you could get a car into a reasonabls
20 stmcfajral guy out Uiere to give us an absolute 20 position before you go into the garage
21 definition If ttiat would happen. So I went on Ihe basis 21 Q Do you have an underslandlng why she did not
22 of what my understanding is from my conversations with 22 build a ramp at the Ilme that she did the constmction
23 engineers and Robin Lee 23 of the staira in firont of her house?
24 Q The engineer being Mr. Dillingham? 24 A. I d o n i think she understood how lo do Ihat
25 A No, Mr Dillingham was not the consulting 25 or what vras possible Because you could see. you know.
Robert Donald^Weahunt, Jr. April 24, 2009
217 219
1 0. And dnvevrays that exceed those standards 1 A. Yes, 1 do have an opinion
2 would require a grading pennit? Is that your under- 2 Q Okay.
3 standing? 3 A. The CA Constmdion was woricing outside of
4 MS. FINELLI. 1 thmk - sorry, go ahead and 4 the scope of Uieir license.
5 answer the question. 5 Q. Do you know of any damages that occurred as a
6 THE WITNESS. Thafs whal rt says on the 6 result of that?
7 documenl 7 A Yes
8 BY MR LUNDGREN 8 Q. What damage occurred?
9 Q So apparentty the Counly of El Dorado 9 A A foundation thafs built at a level Ihat was
10 provides on a case-by-case basis an exception to the 10 not intended by ttie homeowner and not depicted by Ihe
11 standards that are sel oul here? 11 architectural rendenngs
12 MS FINELLI- Calls for speculation. 12 Q What is It that CA Constmction did that made
13 THE WITNESS: Adually, no. Having built 13 it so ttial their wortc was oulside ttie scope of Uieir
14 homes in El Dorado County for a number of years, what 14 licensure?
15 they require is that you somehow modify your plan to 15 , A As a general contrador you cannol perfomi
16 meet those standards. They're nol going to allow you to 16 Uie duties of a spedalty contrador unless you are
17 exceed that twenty percent mle. 17 perfomiing two or more different trades If they were
18 BY MR. LUNDGREN 18 framing the house, they coukl build the foundation, tf
19 Q. Thafs your understanding? 19 they were building the foundation, Ihey could have
20 A Yeah Wefl, that's - really thafs how 20 painted the house But as a general contrador, you
21 t h e y - you know, because you can obviously, like in 21 cannot take a conlracl Jusl lo paint a house. You jusl
22 /Vbbotf s case, even if you had started Uie driveway at 22 cam
23 ttie ottier comer of the property and. you know, then 23 Q. The f a d that they built this house '
24 sloped rt across and c a m e - you could get from here to 24 perfomning building, a single spedalized fi-ade. instead
25 there (indicating). It's possible. They could have 25 of throwing in other speaalized tildes as painting.

218 220
1 done that Of course it would have looked hideous, but 1 stuccoing, how has that caused damage to the Abbotts?
2 you know, you can serpentine a road like you do when you 2 A. You didnl ask me if It caused damage. You
3 go up mountains Public streets only have usually like 3 asked rf ll was a violaUon of their Iicense. And 1
4 six or seven percent maximum grade 4 said "yes."
5 MR. LUNDGREN. Lef s go off Ihe record 5 Q 1 d o n i want to argue. What 1 want to get at
6 [Discussion off record ] 6 is what damage resulted from Uiat violation ofthe Code,
7 BY MR. LUNDGREN: 7 rfany?
8 Q. Let me ask you this: Have we gotten all of 8 A. In my opinion Ihey were grossly negligent in
9 your opinions wiUi resped lo the standard of care for 9 not eslabiishing the desired finished elevattons for the
10 licensed building contradors on this projed of any 10 floor and for the driveways and for the garage slab.
11 violations? 11 That they dtd not seek thai information out from ttie
12 A Have 1 given afl my opinions aboul Ihe 12 owners. That they did not seek that Infomnaiion oul
13 standard of care? 13 from the archited or some ottier professional person.
14 Q. About - as it applies to this case Are 14 0 1 just vrant lo Iry one more time because I'm
15 Uiere any other opinions Uiat you hold ttiat indicates 15 specifically focussed like a laser on the -
16 that Uiere were violations of ttie standard ol care by 16 A I'm trying to answer you.
17 licensed contractors on this projed ttiat have not been 17 Q - question of what hami came oul, if any, of
18 previously discussed? > 18 CA Constmction's failure to work more than one
19 A. No. 1 doni think so 1 think we pretty much 19 specially trade during their woric on this projed?
20 covered everything. 20 MS. FINELLI Calls for a legal conclusion
21 Q. Da you have any opinions wrth resped to 21 BY MR. LUNDGREN-
22 whettier or nol Defendants were woricing with valid 22 0 Thaf s a violation They needed to wortc on
23 licenses? 23 at leasl two specially trades?
24 A. Were vrortcing with valid licenses? 24 A. Yes.
25 Q. Yes 25 Q. And they only woriced on one specialty trade?
Rojjert Donald Weahunt, Jr. A p r i r - ^ 4 , 2009
221 223
1 A Yes. 1 Q. Would you like to look al the plans?
2 Q. Whal damage, if any, occurred from Uiat 2 A Yeah, I would Speafically the SD pages
3 speafic violation^ 3 which were -
4 . _ MS. FINELLI- Asked and answered. 4 0. Lel me bring your attention to Exhibrt 1 Page
5 THE WTTNESS: 1 mean, I assume rf Uiey were a 5 11 which is SD1 We're looking here al Section B.
6 licensed C8 contrador which Is a concrete contiador. 6 A. This is the draviring I did not have. And here
7 they would have understood how to buikl ttie foundation 7 they allow a maximum height of seven feel, sbc in"ches
8 conecUy And Uiey didn't That seems lo me to be ttie 8 So il' in f a d , the photograph that you showed me
9 damage Oiat ocxxjrred because Uiey were - 1 mean, I'm 9 represented is this vrail and if that is, in fact, sevep
10 assuming Uiat a C8 contiador vrouid have ttiat knowledge. 10 feet high, then yeah, that's fine I f s in compliance.
11 Everyone I know does. 11 Q So assuming thai the wall is in compliance
12 BY MR LUNDGREN- 12 and ttie footing was placed on undisturt>ed soil as
13 Q Leims just ask. Had Uiey performed another 13 required by the plans, would you say ttiat Uie heighi of
14 b'ade - had they painted here - ttiey would not have 14 ttie garage slab is placed al the highest that rt could
15 beenin violation of ttiis sedion. Is Uial con^cf? 15 have been pursuant lo the engineenng for the stem
16 A Thafs true. 16 walls?
17 Q So do you think that Uiere was any damage lo 17 MS FINELLI- Incomplete hypolhetfeal
18 ttie Abbotts because of Uie fod Oial Uiey dkl not 18 THE WITNESS No The reason is Uial the
19 perfomi a differentta-adeon this prcqecf? 19 starting point, thafs what gol these guys - Ihey
20 MS FINELLI. Calls for a legal condusion. 20 started at the wrong point They started here, and then
21 THEWrrNESS: No,ldon1UiinkUiallhe 21 you build and the thing gets taller. As you travel, as
22 Abbotts were somehow hurtmore Oian they already were by 22 the ground drops off underneath you, the foundation
23 Uie fad Uiat they violated Oie ConbBdors License Law. 23 keeps getting taller and taller.
24 That is not what their damages are. The ContiBClors 24 But the problem they had is they started too
25 License Law vioiation is not the Abbotts' damage. 25 low here (indicating). They needed - 1 mean, tme this

222 224
1 BY MR LUNDGREN 1 would have been taller and, you know, it should have
2 Q Did not cause damage to the Abbotts? 2 been taller. It should have been four foot higher
3 A. Right 3 This should have been possibly an eleven foot high wall
4 Q Right You say that the Defendants failed to 4 BY MR LUNCK3REN
5 comply vintti ttie plans, bul you have an understanding ttie y5 Q You're pointing to Secbon B5, and you're
6 stem walls were of the appropriate height; is Ihal 6 indicabng Uial in order lo have adequate heighi lo ttie
7 correci? ^ 7 garage slab, ttial stem wall should have been engineered
8 MS FINELLI. Calls for speculation. 8 to have been an eleven foot wall instead of a seven foot
9 BY MR. LUNDGREN. 9 tall stem wall?
10 0 Do you have any evidenca that ttie stem walls 10 A. I'm speculating that rt could have been done
11 were not of the appropnate height? 11 differently and that, in f a d . probably should have been
12 A. I have neiUier evidence one vray or other 12 done differently. Thafs where bolh the general
13 Q. Let's assume for a moment that Uie far 13 contrador consultant and the foundation contrador made
14 northeastern comer of ttie garage is the highest part of 14 their big mistake vras not addressing what options ttiey
15 Ihe stem wall 15 had available to ttiem. and Instead made the dedsion to
16 A Uh-huh. 16 lower ttie house even lower than it needed to be
1? Q Does ttial comport with your understanding? 17 Because Ihe heighi separation between the garage floor
18 A Probably, yes 18 and ttie existing house was going to be two fool higher
19 Q. /\nd assuming it was seven feet, is ttial your 19 it would have been eight fool above the height of the
20 understanding of the maximum height that that stem wall 20 garage slab
21 could be placed al, consistent witti the plans? 21 0. I have to purge this out There's a lol of
22 MS FINELLI- /\sked and answered. 22 vanables here I'm Just looking at the plans here, ttie
23 THE WITNESS: No, I'm nol sure of Ihat My 23 permltied plan This is a pemiitted plan, is Uiat
24 - 24 conBct?
25 BY MR LUNDGREN. 25 A I assume rt ts
Robert Donald Weahunt, Jr. April 24, 2009

225 227
1 Q. W e have a stamp there from ttie engineer. 1 thickness of foobngs, and what hava you, according to
2 Mr. Moreno, is that corred? ^' 2 ttiis plan Ves, I would susp^t VM\ mars B t l f
3 A. Yes. 3 BY MR. LUNDGRBN-
4 Q. It provides a maximum height of a stem vrail 4 Q Andttiat'sa standard of care for contiadors
5 of seven feet? 5 tiiat are consbudmg a home for a dienl, Is to follow
6 A Correct 6 the approved pennitted set of plans Uiat hava been
7 Q And the foundation footing is supposed to be 7 stamped by Uie engineer, is Uiat correcf?
8 set in undisturbed soil, is that corred? 8 A. No.
9 A Corred 9 O. ifs your opimon ttiat ttiese conbBdors had
10 Q. Given ali those parameters, rf CA 10 an obligabon to deviate from these stamped-approvgd
11 Constmdion went to the maximum height allowed by 11 penmitted plans?
12 Mr Moreno's plans with that stem wall, they could not 12 A. Yes.
13 have raised the garage floor higher and still have built 13 Q. Is n your understanding ttiat ttiese
14 in accordance with the approved plans; Isn't that 14 contradors vrare hired to provide an additional
15 conred? 15 different design for Ms Abbott?
16 MS. FINELLL Incomplete hypothetical 16 A No
17 THE WITNESS They didnl buiW in accordance 17 Q. Who was rt that was responsible for providing
18 with Ihe approved plan to begin with They took and 18 the plans for ttiis project?
19 modified the plan. They went from a raised foundation 19 MS FINELLI Calls for speculation.
20 lo a slab foundation. Why did they do that? They were 20 THE WITNESS. Welt I mean, ultimately
21 ttying lo accommodate somettiing Who knows what It 21 Ms. Abbott vras supposed lo supply Uie plans for the
22 vras a bad dedsion, but thafs what they did. They knew 22 projec;t She hired an archited or designer, ifyou
23 they had the option to modify the plan as needed to meet 23 ' will, and a stiuctural engineer And they created a
24 whatever standards they needed lo meet 24 drawing to reflect what her desire was for mostly how
25 BY MR. LUNDGREN: 25 many bedrooms, how many baUirooms, how big the kitchen.

226 228

1 Q Bul they. Ms.^bott's designer and 1 and all the things that consumers typically are
2 Ms. At)botfs designer'sbqglneer, crecrt^ a set of plans 2 concerned about
3 that hawsObligation 6 that correcf?
7 of CA Constmdion anbsBnlschgi to c o m p t ^ t h those 7 MS FINELLI Assumes fads nol in evidence,
8 p{ans; isnl that correct? 3 calls for speculation
9 "MS FINELLI. I n c o m ^ I ^ hypothetical 9 THE WITNESS. Yeah. see. thafs the problem.
10 ; WITNESS. N o l r f c ^ l y m g with these" 10 No, they modified i t that's tme. And I think the
11 plans violdt^ the intent of Uie \ 11 reason Ihey modified it - I'm not exadly sure rf It
12 BYMR.LUl5bqREN: 12 vras self-serving because of financial self-serving or
13 Q Weil, MsNMibott submitted these plaits for 13 for whal reason I mean Bntschgi was getting paid by
14 approval lo the County, isnl that con-ed? 14 the hour. What difference did rt make to him?
15 MS FINELLI MHsforspeculation 15 Why would he make those decisions to excavate
16 THE WITNESS- I urtderstand that to be 16 and to place finish floor elevations, and what have you?
17 corre 17 1 mean, rt makes no sense at all what they dkl. But
18 BY MR."bUNDGREN: 18 what they did do was demonstrate that they understood
19 0. Anoltje constiuction that you i 19 ttial the plans could in f a d be modrfied ifrtwas
20 consistent wrth me plans at least in respecKo this 20 necessary, in their mind
21 stem wall, is that cOTred? 21 BY MR LUNDGREN
22 MS. FINELLI Incomplete hypothetical 22 Q. Right And Ms Abbott -
23 THE WITNESS. I d b i j l know that for a fad 23 A And they're not designers. They're not
24 I assuirts^hat, yes, that's correlsL that there's a 24 supposed to be designing, you're adually right
25 con'ed number of bars of steel amKhe corred 25 Q. Right The design was provided by Cadre -

X
Robert Donald Weahunt, Jr. April 24, 2009

229 231
1 A. Right 1 do this You need lo do that"
2 Q - Constmdion & Bay Engineer 2 Q. You're saying that Ms /\bbon has been
3 A, And through Ms Abbott. 3 damaged because the Defendants did not buiW the house
4 Q. Right. Ihrough Ms Abbott. And they followed 4 set out in the initial sel of plans?
5 the plans that were permitted? 5 A I'm saying ttiat they did not gel the house
6 A. Right, 6 that ttiey actually vranted lo bund, ttiat Uiey asked to
7 MS. FINELLI: Would you read - Uie last 7 have built for them.
8 question is "ttiey followed the plans that were 8 Q. Which was ttie ones set out in thefirstset
9 pemnitted." I'm going to objed it's vague, calls 9 of plans?
10 for speculation, overtjroad, and misstates testimony. 10 A Tme
11 Dkl you understand your answer to the lasl 11 0. Where ail thefloorssat on -
12 quesfion? 12 A Same heighi
13 THE WITNESS- My answer to the last quesllon 13 Q. Everything was ttia same heighi Thai would
14 was that they deviated from the plan because they knew 14 have required a massive grading plan: corred?
15 that they could, and that they coukl in fad have sought 15 MS. FINELLI Objedion, vague.
16 out professional opinions to deviate again to make H so 16 THE WITNESS: How massive of a grading plan
17 ttiat ttie house would have been livable. 17 rt woukl be has nol been detennined. Mr. Lee when he
18 BY MR. LUNDGREN 18 testifies will talk aboul ttial in some detaU, butrtIs
19 Q. The answer to your last question though is 19 possible you couM have built a house vritti some
20 that they ultimately buitt In accordance with the plans 20 retaining walls that could hava basically giventtiema
21 ttiat were permitted and provided by Ms. Abbott, and you 21 street level entrance, no steps, a littlerampto Oie
22 agreed with that, isnl that corred? 22 house and a worical>le driveway
23 A. They built - yes The/re wrong in doing 23 BY MR. LUNDGREN:
24 that but they dWrt 24 Q But the deslg n for thai was never provided to
25 Q. Now, what damages have the Plaintiffs 25 Defendants.

230 232

1 sustained as aresuRof Defendants' actions above and 1 A Right, that's tme
2 beyond this calculation that you have here of $204,000 2 Q The design for that was not provided to any
3 that WB were looking at eariier? Do you have any 3 of the Defendants.
4 testimony as to any additional damages they sustained? 4 A Thafs Ime
5 A 1 doni know how to quantify the damages ttiat 5 Q ll was not in any plans ttial the Abbotts gave
6 they have sustained. The loss of the intended purpose 6 either CA Constmdion or Britschgi
7 for ttie constmdion of the home is a significant 7 A 1 believe that Abbott's thought that Ihey
8 damage. 1 don1 know 1 cani tell you how much it is 8 gave that plan to them People ttiink that you under-
9 per cubic yard or per, you know, heartbreak or vi/hatever 9 stand what they want. This is the source of trouble all
10 Bul that seems lo me to be a significant 10 the time It's a source of constmction litigation aU
11 problem. They took the Abbott's house awayfi-omthem 11 the time of v^at one's expectations are as opposed to
12 and gave them their house They designed the house 12 what IS actually expressed, those two things But the
13 instead of giving Uie Abbott's what they had asked for 13 Abbotts thought they were adually going to gel tttat
14 and thought Ihey were going to gel And evenrfthat 14 house
15 seems absurd and crazy to you, as it appears to be to 15 Q But there's nolhing in the contiacts ttiat
16 me, ttiat house plan that shows Uiis perfedly flat lot, 16 were entered into thai required the Defendants to build
17 1 agree that is - 1 doni know how m the hell anybody 17 the house in that way, is ttiat right?
18 could look al that and think that you're going to get 18 MS FINELLI: Objedion Calls for a legal
19 from here to there, given the scenano 19 conclusion, calls for speculation.
20 But people - you know, I've been in lhis 20 THE WITNESS No, 1 believe that an expressed
21 business so long. 1 consulted with so many people 1 21 contrad expressed in any different number of ways is
22 have people walk into my office all tha time who have 22 StiU-1 mean, they expressed what ttiey wanted They
23 drawings thai are "You cannol build this house. Doni 23 expressedrtto everybody They wanted as few steps as
24 you understand there's thirty foot of fall here?" You 24 possible or no steps
25 know, "You need to go back lo square one You need lo 25 Then if you read the depositions, they at one
Robert Donald Weahunt, Jr. April 24, 2009

249 251

1 Onginally, Flo had proposed Uiat she vranted to have the 1 We have a plan room similar lo like Platsr County
2 garage on the left side of the house, and that Cadre 2 BuiMers Exchange, El Dorado County Builders Exchange,
3 said "Well, rfyou do Uial, all you're going to see is 3 Sacramento County Builders Fxchange - plan room vuhere
4 garage. And so you really should put rt on the righl 4 Ihe ovmer can bring their plans in We advertise by
5 side of the house." 5 email, fax to all of our assodates. contiadors and
6 BY MR. SOPP. 6 suppliers ttiat they can come in and dieck out Uie plans
7 Q Would relocating the garage to the left hand 7 and bid on ttie job.
8 sido of the house have prevented many of the - most of 8 Q Are you Uie owner of the Owner Builder
9 ttie problems that you're complaining of in this case? 9 Center?
10 MS. FINELLI Vague. 10 A. Yes. i am. 1 have a partner
11 THE WITNESS- In my opinion rt would 11 Q Maybe 1 can short drcurt this. Who hava you
12 definitely have mrtigated all these issues that we're 12 talked to in conjundion wiOi your assignment on Oils
13 having 13 case? Who provided you vntti infonnation on which you
14 BY MR. SOPP. 14 relied In forming your opinions?
15 Q Who all have you spoken to in connedion wilh 15 A. Sacramento County, Ihat printout thai 1 gave
16 whal youVe been asked to do on this case? 16 you. Sacramento County AssodaUon of Building
17 A Who ail have 1 spoken to? 17 Offiaals. 1 spoke with architeds, AEC Seivices,
18 Q Yes 18 architects, engineers - mostly tiylng to g e t - I'm
19 A Just in casual conversation or technically? 19 trying to get a substantiation for what 1 know to be ttie
20 Q Botti. 20 standards
21 A 1 talked to several people. Ualkedto 21 But getting the documentation, 1 talked to
22 Predsion Concrete, a fimi that does a lot of constmc- 22 Sacramento - 1 provided that printout from Jody ttie
23 tion wortc for me, and.proposed hypothetically to them 23 engineer for Land Development of Sacramento County 1
24 the srtuallon and. you know. "What woukl you do?" You 24 spoke witti the fimn that came out and did ttie obser-
25 know. "What do you thmk?" 1 talked vmth - lef s see. 25 vation of the placement of the cmsh rock in the garage

250 252
1 who else have 1 talked to aboul lhis? 1 1 spoke with the technician who adually wrote the
2 1 talked wdth - vraH. 1 had a long conversa- 2 report 1 spoke vwth his sujjeivisor, somebody named
3 tion yesterday witti Stephanie Fineni And she and 1 3 Terry 1 spoke wiUi D&2 Engineering 1 think there's
4 vras laughing about rt because there was a plumber 4 maybe more, but rt will come lo mind.
5 sitting ttiere across my desk from me, meeting me for 5 Q Who did you speak lo at D&Z Engineering?
6 some other reason And he, you know, was mde enough to 6 A Jim. whatever his last name Is. I d o n i
7 sit Uiere and listen in on my whole conversation. 7 know. 1 spoke extensively with Robin Lee.
8 But when t was talking about cximpadion 8 Q. How long have you known Robin Lee?
9 issues and virhat have you. 1 remarked to Ms. Finelli 9 A. Twenty years, so -
10 that you know, even a plumber- plumbers are stupW 10 Q Do you have a professional relationship witti
11 Even they know you cani build on compaded fill. So 11 Robin Lee?
12 there's been several of the contiadors who are part of 12 A. Yes
13 our assodation who cxime and go from the office. 1 13 Q. What is that relationship''
14 posed a question to them: What do ttiey think? Who do 14 A We've vroriced together. When somebody hires
15 you think has liability here? What do you Uilnk about 15 me either as a consultant or project manager or
16 what's happened? 16 contractor. 1 recommend that Uiey in tum hire Robin to
17 Q Ate you relying on those people that you 17 do the site design vroric, the grading plan o r - ifs not
18 talked to lo forni the opinions that you fonned in this 18 alvrays a grading plan A lol of fimes n's just simply
19 case? 19 a site design
20 A. No. I'm relying on my own expertise and 20 MR. SOPP: 1 d o n i have anything else
21 experience from being a contrador for many years, as 1 21 MR FEDERICO: 1 have a few more.
22 have been. 22 EXAMINATION
23 Q You mentioned an assodation that you belong 23 BY MR. FEDERICO:
24 to with ottier contradors? 24 Q Mr Weahunt, are you a licensed architect
25 A The Owner Builder Center has an assoaation. 25 A. No
r
Robert Donald Weahunt, Jr. April 24, 2009
253 255
1 Q Have you perfonned any testing at the Abbott 1 test you're talkmg about would be done outside of the
2 residence'' 2 contours of Uie foundation of lhe house?
3 A No 3 A. Right, because when you - when you place
4 "TOI5~FINELLI- Vague 4 soil you typk^lly go a minimum of flve foot outside of
5 MR FEDERICO. Sony. 1 d i d n l gel that 5 the footpnnt of the building ll doesnl just drive in
6 THE WITNESS The answer would be " n o " 6 and then drop off It goes out at least five foot
7 BY MR FEDERICO. 7 beyond Uiat So ttiat soil woukl have ttia same relative
8 Q. Do you plan on perfomiing testing pnor to 8 compadion as the soil that was under Ihe house, loo.
9 trial? 9 Q So ttie testing that's contemplated vrouid lake
10 A Personally? 10 place within that five fool range?
11 Q. Personally 11 A Exactly
12 A No. 12 Q. Corred me if I'm viffong. bul 1 think you
13 Q Do you know whether any other individuals 13 testified eariier Ihat you vrareni sure whelher that
14 plan on conducting any tesfing pnor to tnal? 14 soil that would be within that five foot range is as it
15 A. Absolutely? No. 15 existed at ttie time the foundation was poured, is ttiat
16 Q. You d o n i know? 16 corred'
17 A. 1 mean, 1 think, yes, but 1 d o n i have any 17 A. 1 d o n i know that for a fact You're right,
18 evidence So 1 c a n i tell you any dales or any 18 correct
19 necessary person. Bul ifs possible thai there witt be 19 Q So a test that essentially extrapolates from
20 some geotechnical wortc done on the job 20 Uiat area to Ihe adual slab over the foundation might
21 Q When you say "geotechnical work," what do you 21 nol be reliable''
22 mean? 22' A Thafs what a tesfing engineer would be used
23, A. Testing the compadion of the soils and 23 for because you're asking me something that's out ofthe
24 subsoils. 24 scope of my expertise.
25 Q. How do you test thai? 25 Q. And then in the documenls you brought loday.

254 256
1 A. Different ways that can be done You can 1 is Ihere any documentation aboul the billings that you
2 probe. They can drive a probe down into ttie ground 2 have submitted to Ms. FmelU for your woric on this
3 They put a radioactive probe in the ground, and then you 3 case?
4 measure how much of ttial energy comes up ttirough the 4 A. You know, no, 1 d i d n l i neglected to
5 ground. It gives you a sense of the density of the 5 provide that Sorry.
6 soil 6 Q. To dale, do you know how much you have
7 Now, it's difficxilt to do It forensicaliy 7 incurred in your fees for your consurting seivices on
8 because we cani test - vraU, we can lesl ttie native 8 the case?
9 sort, but not dirediy under ttie existing house. 9 A Somewhere jusl south of $2,0001 believe. 1
10 Probably around the house and Ihen make the assumption 10 haveni billed In a while, so -
11 that if It's Nke Uiat here, it probably was like that 11 Q. As you srt here loday, is there any way for
12 here (indicating) 12 you to estimate rf this case were to proceed lo tnai
13 Q. (}o you agree wittt making that assumption ,13 the addrtional fees you would incur of providing
14 without - 14 services?
15 A. Yeah 15 A. Adually, 1 d o n i know how much more I vrouid
16 Q - perfomiing actually any destmctive 16 be asked to do
17 tesfing on ttie slab of the garage let's say or in ttie 17 0. It would depend on the scope of addrtional
18 house? 18 assignments?
19 A. 1 doni know about doing any deslmclive 19 A Sure.
20 testing it's possible to core Ihe garage floor and 20 Q You charge differenl rates for trial
21 probe That would be possible to do. 21 testimony versus deposrtion testimony versus consulting
22 Q. Is ttiat contemplated? 22 woric?
23 A. It's been discussed, but it's not - there's 23 A Yeah 1 believe I'm charging 150 f

Case Info

Judge

Kevin J. McCormick Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

December 07, 2010

Case Filing Date

September 24, 2007

County

Parties

Stephanie Finelli Attorneys for Plaintiffs
Todd Jones Attorneys for Defendants
Gregory Federico Attorneys for Defendants
Harold Wright Attorneys for Plaintiffs
Craig Lundgren Attorney
Rachel Anderson Attorneys for Defendants
Nicholas Banko Attorney
James Tenero Attorneys for Plaintiffs
Linda Moin Attorney
Robert DeLong Attorney
Albert Sanchez Attorney
John Britton Attorney
Richard Freeman Attorneys for Defendants
Carmenella Roussos Attorneys for Plaintiffs
Stephanie Jenks Attorneys for Plaintiffs
Razi Shah Attorney
Richard Sopp Attorney
Scott Brooks Attorneys for Defendants
Jasun Molinelli Attorneys for Defendants
Sean Schwerdtfeger Attorneys for Defendants
Richard Dear Attorney
Steven Nimoy Attorney
Randal Barnum Attorneys for Plaintiffs
Elizabeth Boca Attorneys for Plaintiffs
Michael Loewen Attorneys for Plaintiffs
Bradley Larson Attorneys for Defendants
George Rudloff Attorney
Jennifer Wahlgren Attorney
Stephanie Fleming Attorney
John Arguelles Attorney
Alexander Cho Attorney

For full print and download access, please subscribe at https://www.trellis.law/.

Party Discovery: Rodney Abbott, et al vs. Ronald Paul Britschgi, et al

Preview

Case Info

Parties