Preview
; .'" , From:LUNDGREN/REYNOLDS 5302975077 08/^/2009 . 16J54 #02? P .002/006 • ; • * • . -
1i . . -.. _. • . . 9- .j ' -....-• - ' •'•'.•- -"—-'-•- ••-•••
•. • ' ORIGINAL ! ' • • • ' " '
.'••.. - -
*' ' ' ' FILED/ENDORSED
!••"*• .:•'• v "• .' i CRAIG N. LUNDGREN, State Bar 148842
LUNDGREN & REYNOLDS, LLP
/ !^
' v_ ,^ -. . . . /
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,. • .2 4242ndStteet,SuiteA i AUG 2 4 2009 y £^X
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Davis, CA 9561 6 i ' • -A-S> h,*" f* fif f
. ' . '3 •»
530.792.880( '. ,„ . Bvi A. WOODWAR0//y
f s ' /! -
530.297.507f ^tdJLj ••. j ^-Depijty $W&* / -
' ' . ' . . ' . 4 ;
///'"^
•//''• • •
5 Attorneys for Defendant I " •
RONALD PAUL BRITSCHGI . ' ' , .
: Individually !mddba BRITSCHGI CONSTRUCTION ' '
'.''•'•.-.'
; 6
. •-. , . ' 7
•1-
''••'•' ' •
.':' •' ; 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
-: 9 COUNTY OF SACRAMENTO . . ' * - ': : '-
1 ' ' '* . * *
10
••..•';•'•' • ••i RODNEY Al JBOTT and FLORENTINE ) CASE NO. 07AS04450 - .' •
ABBOTT, ) •
n ) DEFENDANT BRITSCHGFS -
. •.
•- Plaint ffs, ) SUPPLEMENTAL
12 ) MEMORANDUM OF POINTS AND
Ii .•-, ' - •... ; -
v. ) AUTHORITIES IN OPPOSITION
-):.' 13 ) TO PLAINTIFFS' MOTION FOR
-. ; RONALD ?A UL BRITSCHGI, individually ) LEAVE TO REOPEN DISCOVERY
14 and doing business as BRITSCHGI ) '
CONSTRUCTION, RICHARD KIRK ) DATE: 8/27/09
15 RUYBALID, individually and doing business ) TIME: 9:00 A.M.
„, as CA CONSTRUCTION, SURETY ) DEPT: 54
16 COMPANY OF THE PACIFIC, WESTERN ) TRIAL DATE: 6/7/10 ' " X
17 SURETY COMPANY and DOES 1 through 20,) >P
.-••; \. •
.: .„
inclusive, 1
I
) ,
•
•••••
~ ' • .~
l i
^^
18 Defendants. ) " V "
' ' ^) • ; . • - . . . - : . >-•
19
:
- 1 . AND RELATED CROSS-ACTIONS. ) \. ' ".'. "^
.; 20 ) - - • ' .
i " •• - . • ,
:•; ' : 21 1
i
• - •"
- ' • ' . '
. •
"i •;!'.' •' , . 22 i. ' ' ! • - • ' - : '•..-"':'•/''
::.:. :.' 23 PROCEDURAL fflSTORY
i . • , »"
; 24 On Au gust 13, 2009, this court issued its tentative ruling agreeing with Defendant
'-.; i- ' '
25 Britschgi that Plaintiffs' motion to reopen discovery was vague as to the specific relief
-, ' '
26 requested. While Plaintiffs had clarified their request in their reply papers, defendant
! (
27 Britschgi was not afforded an adequate opportunity to address these clarifications.. Therefore,
28 rather than den ying Plaintiffs' motion outright, and in anticipation of a renewed motion on
1 DEFENDANT BRTTSCHGI'S SUPP. OPPOSITlONTO
:;', . •
Froin:LUNDGREN/REYNOLDS 5302975077 08/^1/2009 16:54 #029 P.003/006
1 their part, th; court continued the hearing on this matter until August 27,2009, and afforded
2 Defendants the opportunity to file and serve supplemental reply briefs specifically responding
i to the scope of discovery as identified by Plaintiffs in their reply papers.
4 II.
5 EXTENT OF DISCOVERY SOUGHT BY PLAINTIFFS
6 A. BRIT ^SCHGI AGRESS TO ALLOW FURTHER TESTING UNDER CERTAIN
7 CONDITIONS. •.
' i ' " . '
8 Defendant Britschgi does not object to the reopening of discovery for the limited
9 purpose of testing of plaintiffs' home provided certain conditions are placed on such
10 discovery. To the extent that this Court allows discovery to be reopened, the discovery needs
11 to be reciprocal with both sides being allowed to conduct said discovery, for purposes of
12 inspections and testing of Plaintiffs' home.
13 To the extent that this Court authorizes additional discovery, Britschgi requests that
1
. ' " ••
14 Defendants be allowed to redepose any expert witness of Plaintiffs, previously identified,1
15 who will rely on any new inspections or testing in reaching his or her conclusions and
16 opinions.
17 Further, since the new report from the insurance company engineer is the alleged -
! .
*. • • ' *~• •
18 cause of plaintiffs realizing they have newly discovered problems' with the house, and since
19 the engineer h as never before been deposed or even identified, defendant Britschgi believes it
20 would be appropriate to allow his deposition to be noticed via subpoena.
21 B. BRITSCHGI OBJECTS TO THE REOPENING OF DISCOVERY FOR
22 PURPOSES OF ISSUING NEW SUBPOENAS TO THIRD PARTIES
23 REGARDING GRADING AND GRAVEL.
24 Defendant Britschgi specifically objects to the reopening of discovery to allow
25 Plaintiffs to subpoena documents from third parties. As set forth more fully in defendants'
26 prior opposition papers, Plaintiffs were fully aware of any issues pertaining to compaction-'
27
• . ' ' I • ' • ' • : • . ' • • ' .
28 Plaintiffs have not requested and no basis exists for allowing Plaintiffs to designate any new
experts at this tune. '; . - ' • ' '• ,- _ .
DEFENDANT DKUSCHGl'S SUPP. OPPOSITION TO
FromlLUNDGREN/REYNOLDS 5302975077 08/^2009
}/M\ 16:55#029 P.004/006
long before the discovery cutoff and could have completed this discovery at that time.
Plaintiffs have not shown good cause to reopen discovery in this regard. .
! ' ' * • ' - • ' . • '
C. BRITSCHGI OBJECTS TO FURTHER PjMK DEPOSITIONS WITHOUT A
t . ' • ' * * ,
SHOWING OF GOOD CAUSE. |
Britschgi believes that no good cause has been shown for the reopening of depositions
of persons most knowledgeable from the various parties, and on; that basis asks that the
v . • . •' i •
motion be denied. .
8 D. DISCOVERY BY ALL PARTIES AS TO NEW ISSUES RAISED BY THE
9 FIRST AMENDED COMPLAINT.
10 The first amended complaint alleges a number of new issues, some of which are the
11 subject of demurrer, and some of which are not. As to the items that are the subject of
12 demurrer, including licensing and workers compensation insurance issues, defendants believe
13 it is premature to fashion an order at this time.. t ' .
14 However, it is appropriate to reopen discovery as to new items that are not the subject"
15 of demurrer. Specifically, defendants should be allowed to perform discovery as to issues
16 related to mold and to personal issues resulting therefrom. These are new issues and
17 defendants should be allowed to investigate these allegations. ', .
18
19
20 CONCLUSION
21 Based tin the foregoing, Defendant Britschgi requests that this Court deny-Plaintiffs'
22 request to re-open discovery to the extent that they seek discovery into soil compaction issues,
23 which issues were known prior to the close of discovery. Defendant Britschgi further requests
24
25
26
27
28
DEFENDANT BRITSCHGr'S SUPP. OPPOSITION TO
Frotn:LUNDGREN/REYNOLD.S 5302975077 }/M\
08^4/2003 16:55 #029 P.005/006
1 that any granting of new discovery be specifically limited and the topics and extent of said
2 discovery be specifically delineated as set out above.
3 Dated: August 24,2009 LUNDGREN & REYNOLDS, LLP .
4
5
6 CRAIG N, LUNDGREN >
Attorneys for defendant, cross-complainant
7 and cross-defendant
RONALD PAUL BRITSCHGI,
8 .Individually and dba . -•
BRITSCHGI CONSTRUCTION
9
10
11
12
13
14
15
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DEFENDANT BRITSCHGI'S SUPP: OPPOSITION T.O
FromlLUNDGREN/REYNOLDS 5302975077 ;/w:
08/24/2009.16:55 #028 P.006/006
1 Rodney Abbott, etaL V. Ronald Paul Britschgi, etal
Sacramento County Superior Court No. 07AS04450
2
DECLARATION OF SERVICE
.1
l a m a citizen of the United States, over the age of 18 years, and not a party to or
4 interested in this action. I am an employee of Lundgren and Reynolds, LLP and my business
address is 424 2nd Street, Suite A, Davis, California. On this day I caused ta be served the
5 following document(s): r
6 DEFENDANT BRITSCHGI'S SUPPLEMENTAL MEMORANDUM OF ,
POINTS AND ATHORITIES IN OPPOSITION TO PLAINTIFFS' MOTION
7 FOR LEAVE TO REOPEN DISCOVERY * .
8 By placing a true copy, in a sealed envelope, with postage "fully prepaid, in the United
States Post Office mail at Davis, California, addressed as set forth below. lam
9 familiar1 with this firm's practice whereby the mail, after being placed in^a designated
area, is given the appropriate postage and is deposited in a U.S. mail box after the
10 close of the day's business.
11 D By personal delivery of a true copy to the person indicated and at the address set-forth
:
below.]i '
:• "
12 • i . • ; • . ' . ' •
D By Federal Express Mail to the person and at the address set forth below.
13
By transmitting a true copy by facsimile to the person and at the facsimile number set
14 forth below. , ,
15 Stephanie J. Finelli Attorney for Plaintiffs •'''.
Law Office of Stephanie J. Finelli Rodney Abbott, Florentine Abbott
16 1007 Seventh Street, Suite 500
Sacramento, CA 95814
17 FAX (916) 443-1511
18 Gregory K. Federico Attorney for defendant, cross*- - -
Archer Norris Defendant and cross-complainant-
19 655 University Avenue, #225 Richard Kirk Ruybalid, individually"
Sacramento, CA 95825 and dba CA-Consiruction .
20 FAX (916) 646-5695
21 Richard D. Sopp Attorney for cross-defendant and
Wheatley Sopp, LLP cross-complainant
22 1004 River Rock Drive, Suite 245 Cadre Design Group, Inc.
7
Folsom, CA 95630
2J FAX (916) 988^296 ~^
24 1 declare under penalty of penury under the laws of the State of California thut the
25 foregoing is true and correct.
26 Executed on August.Py. 2009, at Davis, California: .
27
PATCHETT
•
28
l:\craig's client files\bntschgi (abbott v)\pleadings\pser.doc
PROOF OH SERVICE
Preview
; .'" , From:LUNDGREN/REYNOLDS 5302975077 08/^/2009 . 16J54 #02? P .002/006 • ; • * • . - 1i . . -.. _. • . . 9- .j ' -....-• - ' •'•'.•- -"—-'-•- ••-••• •. • ' ORIGINAL ! ' • • • ' " ' .'••.. - - *' ' ' ' FILED/ENDORSED !••"*• .:•'• v "• .' i CRAIG N. LUNDGREN, State Bar 148842 LUNDGREN & REYNOLDS, LLP / !^ ' v_ ,^ -. . . . / ' / i ,. • .2 4242ndStteet,SuiteA i AUG 2 4 2009 y £^X : Davis, CA 9561 6 i ' • -A-S> h,*" f* fif f . ' . '3 •» 530.792.880( '. ,„ . Bvi A. WOODWAR0//y f s ' /! - 530.297.507f ^tdJLj ••. j ^-Depijty $W&* / - ' ' . ' . . ' . 4 ; ///'"^ •//''• • • 5 Attorneys for Defendant I " • RONALD PAUL BRITSCHGI . ' ' , . : Individually !mddba BRITSCHGI CONSTRUCTION ' ' '.''•'•.-.' ; 6 . •-. , . ' 7 •1- ''••'•' ' • .':' •' ; 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA -: 9 COUNTY OF SACRAMENTO . . ' * - ': : '- 1 ' ' '* . * * 10 ••..•';•'•' • ••i RODNEY Al JBOTT and FLORENTINE ) CASE NO. 07AS04450 - .' • ABBOTT, ) • n ) DEFENDANT BRITSCHGFS - . •. •- Plaint ffs, ) SUPPLEMENTAL 12 ) MEMORANDUM OF POINTS AND Ii .•-, ' - •... ; - v. ) AUTHORITIES IN OPPOSITION -):.' 13 ) TO PLAINTIFFS' MOTION FOR -. ; RONALD ?A UL BRITSCHGI, individually ) LEAVE TO REOPEN DISCOVERY 14 and doing business as BRITSCHGI ) ' CONSTRUCTION, RICHARD KIRK ) DATE: 8/27/09 15 RUYBALID, individually and doing business ) TIME: 9:00 A.M. „, as CA CONSTRUCTION, SURETY ) DEPT: 54 16 COMPANY OF THE PACIFIC, WESTERN ) TRIAL DATE: 6/7/10 ' " X 17 SURETY COMPANY and DOES 1 through 20,) >P .-••; \. • .: .„ inclusive, 1 I ) , • ••••• ~ ' • .~ l i ^^ 18 Defendants. ) " V " ' ' ^) • ; . • - . . . - : . >-• 19 : - 1 . AND RELATED CROSS-ACTIONS. ) \. ' ".'. "^ .; 20 ) - - • ' . i " •• - . • , :•; ' : 21 1 i • - •" - ' • ' . ' . • "i •;!'.' •' , . 22 i. ' ' ! • - • ' - : '•..-"':'•/'' ::.:. :.' 23 PROCEDURAL fflSTORY i . • , »" ; 24 On Au gust 13, 2009, this court issued its tentative ruling agreeing with Defendant '-.; i- ' ' 25 Britschgi that Plaintiffs' motion to reopen discovery was vague as to the specific relief -, ' ' 26 requested. While Plaintiffs had clarified their request in their reply papers, defendant ! ( 27 Britschgi was not afforded an adequate opportunity to address these clarifications.. Therefore, 28 rather than den ying Plaintiffs' motion outright, and in anticipation of a renewed motion on 1 DEFENDANT BRTTSCHGI'S SUPP. OPPOSITlONTO :;', . • Froin:LUNDGREN/REYNOLDS 5302975077 08/^1/2009 16:54 #029 P.003/006 1 their part, th; court continued the hearing on this matter until August 27,2009, and afforded 2 Defendants the opportunity to file and serve supplemental reply briefs specifically responding i to the scope of discovery as identified by Plaintiffs in their reply papers. 4 II. 5 EXTENT OF DISCOVERY SOUGHT BY PLAINTIFFS 6 A. BRIT ^SCHGI AGRESS TO ALLOW FURTHER TESTING UNDER CERTAIN 7 CONDITIONS. •. ' i ' " . ' 8 Defendant Britschgi does not object to the reopening of discovery for the limited 9 purpose of testing of plaintiffs' home provided certain conditions are placed on such 10 discovery. To the extent that this Court allows discovery to be reopened, the discovery needs 11 to be reciprocal with both sides being allowed to conduct said discovery, for purposes of 12 inspections and testing of Plaintiffs' home. 13 To the extent that this Court authorizes additional discovery, Britschgi requests that 1 . ' " •• 14 Defendants be allowed to redepose any expert witness of Plaintiffs, previously identified,1 15 who will rely on any new inspections or testing in reaching his or her conclusions and 16 opinions. 17 Further, since the new report from the insurance company engineer is the alleged - ! . *. • • ' *~• • 18 cause of plaintiffs realizing they have newly discovered problems' with the house, and since 19 the engineer h as never before been deposed or even identified, defendant Britschgi believes it 20 would be appropriate to allow his deposition to be noticed via subpoena. 21 B. BRITSCHGI OBJECTS TO THE REOPENING OF DISCOVERY FOR 22 PURPOSES OF ISSUING NEW SUBPOENAS TO THIRD PARTIES 23 REGARDING GRADING AND GRAVEL. 24 Defendant Britschgi specifically objects to the reopening of discovery to allow 25 Plaintiffs to subpoena documents from third parties. As set forth more fully in defendants' 26 prior opposition papers, Plaintiffs were fully aware of any issues pertaining to compaction-' 27 • . ' ' I • ' • ' • : • . ' • • ' . 28 Plaintiffs have not requested and no basis exists for allowing Plaintiffs to designate any new experts at this tune. '; . - ' • ' '• ,- _ . DEFENDANT DKUSCHGl'S SUPP. OPPOSITION TO FromlLUNDGREN/REYNOLDS 5302975077 08/^2009 }/M\ 16:55#029 P.004/006 long before the discovery cutoff and could have completed this discovery at that time. Plaintiffs have not shown good cause to reopen discovery in this regard. . ! ' ' * • ' - • ' . • ' C. BRITSCHGI OBJECTS TO FURTHER PjMK DEPOSITIONS WITHOUT A t . ' • ' * * , SHOWING OF GOOD CAUSE. | Britschgi believes that no good cause has been shown for the reopening of depositions of persons most knowledgeable from the various parties, and on; that basis asks that the v . • . •' i • motion be denied. . 8 D. DISCOVERY BY ALL PARTIES AS TO NEW ISSUES RAISED BY THE 9 FIRST AMENDED COMPLAINT. 10 The first amended complaint alleges a number of new issues, some of which are the 11 subject of demurrer, and some of which are not. As to the items that are the subject of 12 demurrer, including licensing and workers compensation insurance issues, defendants believe 13 it is premature to fashion an order at this time.. t ' . 14 However, it is appropriate to reopen discovery as to new items that are not the subject" 15 of demurrer. Specifically, defendants should be allowed to perform discovery as to issues 16 related to mold and to personal issues resulting therefrom. These are new issues and 17 defendants should be allowed to investigate these allegations. ', . 18 19 20 CONCLUSION 21 Based tin the foregoing, Defendant Britschgi requests that this Court deny-Plaintiffs' 22 request to re-open discovery to the extent that they seek discovery into soil compaction issues, 23 which issues were known prior to the close of discovery. Defendant Britschgi further requests 24 25 26 27 28 DEFENDANT BRITSCHGr'S SUPP. OPPOSITION TO Frotn:LUNDGREN/REYNOLD.S 5302975077 }/M\ 08^4/2003 16:55 #029 P.005/006 1 that any granting of new discovery be specifically limited and the topics and extent of said 2 discovery be specifically delineated as set out above. 3 Dated: August 24,2009 LUNDGREN & REYNOLDS, LLP . 4 5 6 CRAIG N, LUNDGREN > Attorneys for defendant, cross-complainant 7 and cross-defendant RONALD PAUL BRITSCHGI, 8 .Individually and dba . -• BRITSCHGI CONSTRUCTION 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT BRITSCHGI'S SUPP: OPPOSITION T.O FromlLUNDGREN/REYNOLDS 5302975077 ;/w: 08/24/2009.16:55 #028 P.006/006 1 Rodney Abbott, etaL V. Ronald Paul Britschgi, etal Sacramento County Superior Court No. 07AS04450 2 DECLARATION OF SERVICE .1 l a m a citizen of the United States, over the age of 18 years, and not a party to or 4 interested in this action. I am an employee of Lundgren and Reynolds, LLP and my business address is 424 2nd Street, Suite A, Davis, California. On this day I caused ta be served the 5 following document(s): r 6 DEFENDANT BRITSCHGI'S SUPPLEMENTAL MEMORANDUM OF , POINTS AND ATHORITIES IN OPPOSITION TO PLAINTIFFS' MOTION 7 FOR LEAVE TO REOPEN DISCOVERY * . 8 By placing a true copy, in a sealed envelope, with postage "fully prepaid, in the United States Post Office mail at Davis, California, addressed as set forth below. lam 9 familiar1 with this firm's practice whereby the mail, after being placed in^a designated area, is given the appropriate postage and is deposited in a U.S. mail box after the 10 close of the day's business. 11 D By personal delivery of a true copy to the person indicated and at the address set-forth : below.]i ' :• " 12 • i . • ; • . ' . ' • D By Federal Express Mail to the person and at the address set forth below. 13 By transmitting a true copy by facsimile to the person and at the facsimile number set 14 forth below. , , 15 Stephanie J. Finelli Attorney for Plaintiffs •'''. Law Office of Stephanie J. Finelli Rodney Abbott, Florentine Abbott 16 1007 Seventh Street, Suite 500 Sacramento, CA 95814 17 FAX (916) 443-1511 18 Gregory K. Federico Attorney for defendant, cross*- - - Archer Norris Defendant and cross-complainant- 19 655 University Avenue, #225 Richard Kirk Ruybalid, individually" Sacramento, CA 95825 and dba CA-Consiruction . 20 FAX (916) 646-5695 21 Richard D. Sopp Attorney for cross-defendant and Wheatley Sopp, LLP cross-complainant 22 1004 River Rock Drive, Suite 245 Cadre Design Group, Inc. 7 Folsom, CA 95630 2J FAX (916) 988^296 ~^ 24 1 declare under penalty of penury under the laws of the State of California thut the 25 foregoing is true and correct. 26 Executed on August.Py. 2009, at Davis, California: . 27 PATCHETT • 28 l:\craig's client files\bntschgi (abbott v)\pleadings\pser.doc PROOF OH SERVICE