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1 Todd A. Jones (Bar No. 198024) •FILED
Gregory K Federico (Bar No. 242184)
2 ARCHERNORRIS
A Professional Law Corporation
301 University Avenue, Suite 110 DEC 3 0 2010
3
Sacramento, Califomia 95825
4 Telephone: 916.646.2480
Facsimile. 916.646.5696 Bv.
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
10
11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
ABBOTT,
12 CA CONSTRUCTION'S REPLY IN
Plaintiffs, SUPPORT OF MOTION IN LIMINE NO. 2
13 TO EXCLUDE TESTIMONY OF
PLAINTIFFS' EXPERT ROBERT
14 WEAHUNTREhKimG TO THE
RONALD PAUL BRITSCHGI, et al.. EXISTENCE OF DEFECTS NOT
15 PERSONALLY OBSERVED OR TESTED
Defendants,
16 Action Filed: September 24,2007
17 Hearing Date: January 7, 2011
Trial Date: January 18, 2011
18 Time: 8:30 am.
Location: Department 43
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AND ALL RELATED CROSS-ACTIONS.
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21 I.
INTRODUCTION
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Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION
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(hereinafter "CA CONSTRUCTION") hereby files this Reply Brief in Support of its Motion in
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Limine No. 2. The matters discussed in this reply are identical to the issues discussed in CA
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CONSTRUCTION'S reply in support of Motion in Limine No. 1. Thus, to avoid repetition, CA
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CONSTRUCTION hereby incorporates the arguments contained in its reply to Motion in Limine
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No. 1 by reference herein.
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N1C549/1068653-1
MOTION IN LIMINE NO 2 - REPLY (WEAHUNT)
1 Further, with respect to Mr. Weahunt, his own testimony supports the purpose behind this
2 motion. As discussed in the moving papers, Mr. Weahunt states that CA CONSTRUCTION built
3 the foundation on uncompacted soils but admits that he has no evidence to support this opinion
4 (See Weahunt, p. 58:14-24), At the time of his deposition, Mr. Weahunt could only state that he
5 believed, but was not certain, that evidence in support of his opinion would be "forthcoming"
6 This does not pass the standard because he did not perceive or have this personal knowledge and
7 he was not prepared to render final opinions on several issues, mcluding compaction, at the time
8 of his deposition. As such, his testimony should be excluded.
9 In the altemative, CA CONSTRUCTION requests that the Court set aside at least a half
10 day to conduct Evidence Code §402 hearings to determine to what extent, plaintifPs experts
11 opinions are based on the existence or non-existence, of preliminary facts.
12 Dated: December 30, 2010 ARCHER NORRIS
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14
Gregory K. Federico
15 Attomeys for Defendants RICHARD KIRK
RUYBALID, individually and dba CA
16 CONSTRUCTION
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NTC549/1068653-1 2
MOTION IN LIMINE NO. 2 - REPLY (WEAHUNT)
1 PROOF OF SERVICE
2 Name of 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,
Cahfomia 95825. On December 30,2010,1 caused the following document(s) to be served:
5
CA CONSTRUCTION'S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 2 TO
6 EXCLUDE TESTIMONY OF PLAINTIFFS' EXPERT ROBERT WEAHUNT
RELATING TO THE EXISTENCE OF DEFECTS NOT PERSONALLY OBSERVED
7 OR TESTED
8 I—I By placing a true copy of the documents listed above, enclosed in a sealed envelope,
addressed as set forth below, for collection and mailing on the date and at the business
9 address shown above following our ordinary busmess practices I am readily familiar
with this business' practice for collection and processing of correspondence for
10
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 of business
with the United States Postal Service with postage fully prepaid.
12
I—I By having a true copy of the document(s) listed above transmitted by facsimile to the
13 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 thetiransmittingfacsimile
14 machine.
15
\7\ 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
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rn by having personal delivery by FIRST LEGAL SUPPORT SERVICES a ti^e copy of
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the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the
20 address(es) set forth below.
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[SEE ATTACHED SERVICE LIST]
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I declare under penalty of perjury tiiat the foregoing is true and correct. Executed on
23 December 30,2010, at Sacramento, Califomia.
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M~^
Y A. INGLAND
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NIC341/608293-
PROOF OF SERVICE
1 Seryice List
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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
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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
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Mark Smith In Pro Per
9 8549 Willow Valley Place
Granite Bay, CA 95746
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Richard W Freeman Counsel for R4C0RP
11 Scott S 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
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NIC341/608293-1
SERVICE LIST
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1 Todd A. Jones (Bar No. 198024) •FILED Gregory K Federico (Bar No. 242184) 2 ARCHERNORRIS A Professional Law Corporation 301 University Avenue, Suite 110 DEC 3 0 2010 3 Sacramento, Califomia 95825 4 Telephone: 916.646.2480 Facsimile. 916.646.5696 Bv. 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 10 11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 ABBOTT, 12 CA CONSTRUCTION'S REPLY IN Plaintiffs, SUPPORT OF MOTION IN LIMINE NO. 2 13 TO EXCLUDE TESTIMONY OF PLAINTIFFS' EXPERT ROBERT 14 WEAHUNTREhKimG TO THE RONALD PAUL BRITSCHGI, et al.. EXISTENCE OF DEFECTS NOT 15 PERSONALLY OBSERVED OR TESTED Defendants, 16 Action Filed: September 24,2007 17 Hearing Date: January 7, 2011 Trial Date: January 18, 2011 18 Time: 8:30 am. Location: Department 43 19 AND ALL RELATED CROSS-ACTIONS. 20 21 I. INTRODUCTION 22 Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 23 (hereinafter "CA CONSTRUCTION") hereby files this Reply Brief in Support of its Motion in 24 Limine No. 2. The matters discussed in this reply are identical to the issues discussed in CA 25 CONSTRUCTION'S reply in support of Motion in Limine No. 1. Thus, to avoid repetition, CA 26 CONSTRUCTION hereby incorporates the arguments contained in its reply to Motion in Limine 27 No. 1 by reference herein. 28 N1C549/1068653-1 MOTION IN LIMINE NO 2 - REPLY (WEAHUNT) 1 Further, with respect to Mr. Weahunt, his own testimony supports the purpose behind this 2 motion. As discussed in the moving papers, Mr. Weahunt states that CA CONSTRUCTION built 3 the foundation on uncompacted soils but admits that he has no evidence to support this opinion 4 (See Weahunt, p. 58:14-24), At the time of his deposition, Mr. Weahunt could only state that he 5 believed, but was not certain, that evidence in support of his opinion would be "forthcoming" 6 This does not pass the standard because he did not perceive or have this personal knowledge and 7 he was not prepared to render final opinions on several issues, mcluding compaction, at the time 8 of his deposition. As such, his testimony should be excluded. 9 In the altemative, CA CONSTRUCTION requests that the Court set aside at least a half 10 day to conduct Evidence Code §402 hearings to determine to what extent, plaintifPs experts 11 opinions are based on the existence or non-existence, of preliminary facts. 12 Dated: December 30, 2010 ARCHER NORRIS 13 14 Gregory K. Federico 15 Attomeys for Defendants RICHARD KIRK RUYBALID, individually and dba CA 16 CONSTRUCTION 17 18 19 20 21 22 23 24 25 26 27 28 NTC549/1068653-1 2 MOTION IN LIMINE NO. 2 - REPLY (WEAHUNT) 1 PROOF OF SERVICE 2 Name of 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, Cahfomia 95825. On December 30,2010,1 caused the following document(s) to be served: 5 CA CONSTRUCTION'S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 2 TO 6 EXCLUDE TESTIMONY OF PLAINTIFFS' EXPERT ROBERT WEAHUNT RELATING TO THE EXISTENCE OF DEFECTS NOT PERSONALLY OBSERVED 7 OR TESTED 8 I—I By placing a true copy of the documents listed above, enclosed in a sealed envelope, addressed as set forth below, for collection and mailing on the date and at the business 9 address shown above following our ordinary busmess practices I am readily familiar with this business' practice for collection and processing of correspondence for 10 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 of business with the United States Postal Service with postage fully prepaid. 12 I—I By having a true copy of the document(s) listed above transmitted by facsimile to the 13 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 thetiransmittingfacsimile 14 machine. 15 \7\ 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 18 rn by having personal delivery by FIRST LEGAL SUPPORT SERVICES a ti^e copy of 19 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 declare under penalty of perjury tiiat the foregoing is true and correct. Executed on 23 December 30,2010, at Sacramento, Califomia. 24 25 M~^ Y A. INGLAND 26 27 28 NIC341/608293- PROOF OF SERVICE 1 Seryice 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 Scott S 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 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NIC341/608293-1 SERVICE LIST