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1 Todd A. Jones (Bar No. 198024)
Gregory K. Federico (Bar No. 242184)
2 ARCHER NORRIS
A Professional Law Corporation
3 301 University Avenue, Suite UO
Sacramento, Califomia 95825
4 Telephone: 916.646.2480
Facsimile: 916 646.5696
5
Attomeys for Defendants
6 RICHARD KIRK RUYBALID, individualty and
dba CA CONSTRUCTION
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8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SACRAMENTO
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11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
ABBOTT,
12 OPPOSITION TQ PLAINTIFFS' MOTION
Plaintiffs, IN LIMINE NO. 1 TO EXCLUDE EXPERT
13 TESTIMONY
14 Action Filed: September 24,2007
RONALD PAUL BRITSCHGI, et al..
15 Hearing Date: January 7, 2011
Defendants Trial Date- January 18, 2011
16 Time: 8.30 a.m.
Location- Department 43
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AND ALL RELATED CROSS-ACTIONS.
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20 Defendant RICHARD KIRK RUYBALID, individualty and dba CA CONSTRUCTION
21 ("CA CONSTRUCTION") hereby files tiiis opposhion to Plaintiffs FLORENTINE and
22 RODNEY ABBOTT'S ("Plaintiffs") Motion in Lraiine No. 1 to Exclude Expert Testimony.
23 I.
PERTINENT FACTS
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Plaintiffs recitation ofthe facts in support ofthis motion are completely false at times,
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generally misleading and do not represent the entire history related to expert discovery in this
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case. Plaintiffs' motion fails to address Plaintiffs and their counsel's utter lack of diligence in
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pursuing all avenues for expert discovery to support their claims in this matter,
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NIC341/1067081-1
OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO 1 TO EXCLUDE EXPERT TESTIMONY
1 Plaintiffs' counsel states that none ofthe experts inspected the home until April 15, 2009.
2 This is entirely false. Mrs. Finelli substituted into the case in November 2008, and she is
3 Plaintiffs' third attomey in this matter. As such, she appears to be unaware of, and her motion
4 fails to address any ofthe activities that occurred prior to her representation of Plaintiffs.
5 On November 15, 2007, Plaintiffs' first attomey, John Britton wrote Todd Jones, counsel
6 for CA CONSTRUCTION, and proposed that the parties conduct informal discovery involving
7 among other things, an inspection of the property. (See Exhibit "A" to the Declaration of Greg
8 Federico filed concurrentiy herewith). On November 26,2007, Mr. Jones proposed a meeting at
9 the site with Plaintiffs, coimsel for all parties, and experts to discuss the issues. (See Exhibit "B"
10 to the Declaration of Greg Federico filed concurrentiy herevwth). On November 28, 2007, CA
11 CONSTRUCTION retained expert Dave Heryet. On November 29, 2007, Mr. Britton agreed to
12 the inspection protocol recommended by Mr. Jones. He also mdicated that due to a family crisis,
13 Plaintiffs were not available for the inspection for some time, (See Exhibit "C" to the Declaration
14 of Greg Federico filed concurrentiy herewith). Mr. Britton substituted out on December 20, 2007'
15 and gave CA CONSTRUCTION permission to coordinate the inspection directly with Plaintiffs.
16 On March 3, 2008, counsel for CA CONSTRUCTION, CA CONSTRUCTION'S expert
17 Dave Heryet, and Plaintiffs' met at the property, discussed the issues, and Mr. Heryet conducted
18 an inspection. As early as March 3,2008, if not before, Mr. Heryet was analyzing the issues
19 and developing opinions as to Plaintiffs' claims. Plaintiffs' chronology is simply wrong.
20 On March 23,2009, Plaintiffs disclosed their experts. Thereafter, CA CONSTRUCTION
21 timely noticed the depositions ofeach of Plaintiffs' three (3) experts - Weahunt, Lee and
22 Dillingham. The depositions took place on April 24, and April 27, 2009, respectively, before the
23 expert cut-off date. On April 17, 2009, Defendant BRITSCHGI timely noticed flie deposition of
24 Plaintiffs' expert Molinari.
25 On March 26, 2009 and April 10,2009, CA CONSTRUCTION timely disclosed its expert
26 witnesses. (See Exhibit "D" to the Declaration of Greg Fedenco filed concurrently herewith).
27 NIC341/1067081-1
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OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. 1 TO EXCLUDE EXPERT TESTIMONY
1 No party issued a notice of depositton of CA CONSTRUCTION'S expert Heryet prior to the
2 deadline to notice expert depositions.
3 On April 15,2009, CADRE DESIGN GROUP, INC. (hereinafter "CADRE"), who has
4 since settled from the case, timely noticed the deposition of expert Newlin only. The notice was
5 withdrawn on April 18, 2009. Plaintiffs failed to join in the deposition notice of expert Newlin to
6 preserve her rights to depose the expert
7 On April 21, 2009, Plaintiffs noticed the depositions of various defense experts, including
8 Heryet Plaintiffs' noticed the deposition for April 28, 2009 and it was served on April 21, 2009
9 via facsimile Plaintiffs did not notice the deposition of expert Newlin
10 On April 23, 2009, CA CONSTRUCTION objected to Plaintiffs' deposition notice of
11 Heryet because it was served in violation of Code of Civil Procedure §2025.270(a). (See Exhibit
12 "E" to the Declaration of Greg Federico filed concunentiy herewith) It was not scheduled for a
13 date at least 10 days after proper service of the deposition notice. Also, the notice violated Code
14 of Civil Procedure §2024 030. The notice was served beyond the Apnl 17, 2009 deadline for
15 parties to personally serve expert deposition notices by hand, and the deposition was scheduled
16 for April 28, 2009, which was beyond tiie staratonly prescribed expert cut off date.
17 Until Plaintiffs served their untimely deposition notice on April 21, 2009, CA
18 CONSTRUCTION was under the impression that Plaintiffs had elected to forego the depositions
19 ofany defense experts. As stated in Plaintiffs' own papers, the notices were served beyond the
20 deadline to notice expert depositions and they failed to provide the requisite notice period.
21 Plaintiffs' counsel references an April 17, 2009 email suggesting a stipulation to extend
22 expert discovery. Plaintiffs' counsel failed to respond to the request for a stipulation With no
23 stipulation in place, CA CONSTRUCTION issued its April 23, 2009 objection to the untimely
24 notice issued by Plaintiffs.
25 Plaintiffs' lack of diligence is clear On April 23,2009, she -writes all counsel and asks
26 whether she wih be required to file a motion to compel expert deposition ofthe defense experts.
27 NIC341/1067081-1
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OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO 1 TO EXCLUDE EXPERT TESTIMONY
1 Upon receipt ofthe defense objections, it should have become clear that a motion to compel was
2 required. Thereafter, Plaintiffs failed to file a motion to compel.
3 The parties appeared for ttial call on May 11,2009, at which time the ttial date was
4 continued. Thereafter, Plaintiffs filed a Motion for Leave to File an Amended Complaint, which
5 was granted in part and denied in part. Plaintiffs were permitted to file an amended complaint,
6 The Court also granted a request to re-open discovery for CA CONSTRUCTION onlv and for the
7 limited purpose of conducting discovery on new issues raised by the amended complaint. The
8 Court's July 20,2009, minute order also states "As discovery remains closed othenvise,
9 plaintiff may not take the depositions of defendant's experts without obtaining leave of
10 court to re-open discovery for that purpose." (See Exhibit "F" to the Declaration of Greg
11 Federico filed concurrently herewhh). Thus, as of July 20, 2009, the Court put Plaintiffs on
12 notice ofthe proper remedy to seek expert discovery. Since the Court issued this order, Plaintiffs
13 failed to heed the Court's advice and seek leave to re-open discovery to depose the defense
14 experts.
15 Since Plaintiffs failed to timely pursue expert depositions in the first instance, and tiien
16 failed to seek leave per the Court's order, they now throw a proverbial "Hail Mary" and seek to
17 exclude all expert testimony from CA CONSTRUCTION as a result of their own lack of
18 diligence. The motion should be denied in its entirety for the following reasons.
II.
19 ARGUMENT
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A. CA Construction Has Acted Reasonable With Respect To Expert Discovery
21 Defendant CA CONSTRUCTION has acted reasonably through the course of expert
22 discovery in this case. Code ofCivil Procedure §2034.300 states
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Except as provided in Section 2034 310 and in Articles 4
24 (commencing with Section 2034.610) and 5 (commencing with
Section 2034.710), on objection ofany party who has made a
25 complete and timely compliance with Section 2034,260,tiiettial
court shall exclude from evidence the expert opinion ofany witness
26 that is offered by any party who has urueasonably failed to do any
ofthe following:
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NIC34i/1067081-l
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OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. 1 TO EXCLUDE EXPERT TESTIMONY
1 (a) List that witness as an expert under Section 2034 260,
2 (b) Submit an expert vwtness declaratton
3 (c) Produce reports and writings of expert witnesses under
Section 2034 270
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(d) Make that expert available for a deposition under Article 3.
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First, CA CONSTRUCTION timely submitted an expert witness list and declaration to all
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parties pursuant to Code ofCivil Procedure §2034.300(a) and (b). CA CONSTRUCTION issued
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its list and declaration on March 26, 2009. Plaintiffs waited until after the expert discovery
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deadline to serve deposition notices and failed to timely join in notices issued by other parties.
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Second, CA CONSTRUCTION issued a demand for exchange of expert information,
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which did not include a request for reports and writings pursuant to Code ofCivil Procedure
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§2034.270. It did not receive a demand from any ofthe other parties This Code section
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specifically requires a demand for said reports and -writings. CA CONSTRUCTION'S experts
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have created drawings, calculations, and correspondence, but CA CONSTRUCTION'S counsel
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has not asked them to create reports.
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Third, Code of Civil Procedure §2034 300(d) presumes tiiat CA CONSTRUCTION was
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served vwth a timely and proper deposition notice for both expert Newlin and Heryet. Code of
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Civil Procedure §2034.410 et seq. requires that the party wishing to depose an expert issue a
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proper and timely deposition notice. Code ofCivil Procedure §2034.460 further elaborates that
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no party is required to produce its experts without "service of a proper deposition notice
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accompanied by the tender ofthe expert witness fee...". Plamtiffs issued on untimely notice for
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expert Heryet on April 21,2009. Plaintiffs never joined in the deposition notice of expert Newlin
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as issued by CADRE, a remedy that was available to Plaintiffs. Thereafter, Plaintiffs never issued
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a deposition notice for expert Newlin. Based on Plaintiffs' actions, h was reasonable for CA
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CONSTRUCTION to proceed under the assumption that Plaintiffs were foregoing the depositions
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ofthe defense experts and were not prepared to tender the expert fees for the defense experts
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Finally, Plaintiffs trial subpoenas to expert Newlin and Heryet became invalid once the
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OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO 1 TO EXCLUDE EXPERT TESTIMONY
1 May 11,2009 trial date was vacated by the Court. Once vacated, there was no trial to appear,
2 produce and testify at. It is clear that Plaintiffs were attempting to use a trial subpoena as a
3 discovery tool based on the fact tiiat the depositions were not timely noticed by Plaintiffs, In the
4 last sentence of Section B to the moving papers, Plaintiffs appear to argue that their objections
5 would be withdra-wn so long as the trial subpoenas are comphed with at the January 18, 2011
6 ttial. Assuming proper trial subpoenas are issued by Plaintiffs, CA CONSTRUCTION will
7 produce its experts at trial, as well as their expert files.
8 CA CONSTRUCTION has not acted unreasonably. Plaintiffs now attempt to categorize
9 their own lack of diligence as collusion and sandbagging by the defense. Based on the foregoing,
10 the Court should deny this motion in its entirety.
11 B. Plaintiffs Have Failed To Act Diligently In Conducting Any Required Expert
12 Discovery In This Matter
.- Plaintiffs' actions were unreasonable. First, as of March 26, 2009, Plaintiffs had the right
.. to notice any ofthe defense expert depositions. However, Plaintiffs elected to take the "wait and
., see" approach instead of proactively pursuing expert discovery. They issued untimely notices
.^ and failed tojoin in the nottces of other parties. As Plaintiffs have the burden of proof on all
.„ issues in tiiis case, diligence in pursuing expert discovery is required. Plaintiffs were simply not
. J, diligent in this regard.
J^ Second, as stated in Exhibit "C" to Plaintiffs' moving papers, CA CONSTRUCTION
,y^ proposed a stipulation to extend expert discovery. The purpose ofthis stipulation was to discuss
_. the parameters for limiting discovery after the discovery cutoff. As ofthe April 17, 2009 email,
,y,y Plaintiffs were intimately aware of the expert discovery cutoff and need for a stipulation.
_. Plaintiffs failed to respond to this proposed stipulation. Since it received no response fi-om
,y. Plaintiffs on the proposed stipulation, CA CONSTRUCTION proceeded under the assumption
„^ they were not willing to stipulate to extend any ofthe timelines to complete expert discovery.
„^ Based on this understanding, CA CONSTRUCTION reasonably issued the objection to Plaintiffs'
.-- untimely deposition notice of expert Heryet.
NIC341/I067081-I 6
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OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO 1 TO EXCLUDE EXPERT TESTIMONY
1 Third, Plaintiffs failed to file a motion to compel the depositions ofthe defense experts,
2 another remedy available to them As evidenced by Exhibit "C" to the moving papers, on April
3 23, 2009, Plaintiffs' counsel asks whether a motion to compel the expert depositions of defense
4 experts is necessary Once Plaintiffs received the defense objections on the same day, it was clear
5 that a motion to compel would be required to compel the expert depositions Plaintiffs have had
6 approximately 20 months to file such a motion To date, Plaintiffs have not filed a motion to
7 compel the expert depositions.
8 , Finally, the Court's disposition of Plaintiffs' Motion for Leave to File an Amended
9 Complaint provided Plaintiffs with yet another potential remedy for compelling the depositions of
10 the defense experts. The Court's July 20, 2009, minute order stated "As discovery remains closed
11 otherwise, plaintiff may not take the depositions of defendant's experts without obtaining leave of
12 court to re-open discovery for that purpose " The Court explicitiy notifies Plamtiffs ofthe proper
13 remedy to seek expert discovery, should they so choose. Plaintiffs have had approximately 17
14 months to file such a motion. To date, Plaintiffs have not sought leave of Court to re-open
15 discovery to depose tiie defense experts.
16 Plaintiffs now cry foul based on a clear record of errors on their part. The Court has
17 acknowledged that Plaintiffs' notices were issued late and that they were not permitted to depose
18 the defense experts until a proper motion was filed. It is clear Plaintiffs want to depose the
19 defense experts based on the fact they are now seeking to exclude their testimony at ttial.
20 However, Plaintiffs disregarded the Court's explicit direction. CA CONSTRUCTION should not
21 be penalized for Plaintiffs' errors. The motion should be denied in its enttrety
22 C. CA Construction's Experts Had Opinions Well Before April 20,2009, And
23 They Should Not Be Lunited In Any Way At Trial
Plamtiffs state tiiat CA CONSTRUCTION'S experts had no opinions unttl April 20, 2009,
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or until Skip Weahunt was deposed by the defense. Notwitiistanding that Plaintiffs' counsel has
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no basis for this statement, it is false and unreasonable based on the history ofthe case,
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First CA CONSTRUCTION'S experts inspected the property on March 3, 2008, April 15,
27 N1C341/I067081-I 7
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OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO 1 TO EXCLUDE EXPERT TESTIMONY
1 2009, and May 18, 2009. Thus, its experts began formulating and refining their opinions upon
2 retention, after tiiey reviewed various sets of plans and documents, and after mspection on March
3 3,2008, and April 15, 2009 The history of inspections is also revealed in letters between
4 Plaintiffs' former counsel and Mr Jones where inspections were discussed and scheduled.
5 The obvious purpose of defense experts is to respond to Plaintiffs' experts' opinions, as
6 well as to provide their own independent analysis and opinions CA CONSTRUCTION'S experts
7 had opinions on Plaintiffs' claims well before April 20, 2009 based on their 2008 and 2009
8 inspections, plan analysis, and review of case documents Its experts were prepared to provide
9 opinions if Plaintiffs had properly and timely issued a deposition notice. Plaintiffs failed to do so.
10 Second, Plaintiffs' spend a great deal of time attributing statements made by Defendant
11 Ronald Britschgi and his counsel to the remaining parties. These were not the statements ofthe
12 only remaining and relevant Defendant in this matter - CA CONSTRUCTION. As such, they are
13 misleading, not relevant and should not be considered by the Court.
14 Finally, Plaintiffs indicate that".. .it would have been a waste of time for plaintiffs to have
15 deposed the experts before then." Again, Plaintlffs have the burden of proof in this case. As such,
16 it was their responsibility to properly seek expert discovery to establish their claims. Proactively
17 seeking depositions of key defense experts is part and parcel ofthis responsibility and would not
18 "have been a waste of time." Again, Plaintiffs' counsel's own lack of diligence and failure to
19 pursue their claims is the real issue.
20 III
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N1C341/106708I-1 8
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OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. 1 TO EXCLUDE EXPERT TESTIMONY
1 m.
2 CONCLUSION
3 Based on the foregoing arguments, Plaintiffs' Motion in Limine No. 1 to exclude defense
4 expert testimony should be demed in its entirety.
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Dated: December 23,2010 ARCHER NORRIS
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4*c^
8 Gregory K. Federico
Attomeys for Defendants RICHARD KIRK
9 RUYBALID, individually and dba CA
CONSTRUCTION
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OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO 1 TO EXCLUDE EXPERT TESTIMONY
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 tiiis
4 action or proceedmg. My business address is 301 University Avenue, Suite 110, Sacramento,
Califomia 95825. On December 23,2010,1 caused the following document(s) to be served:
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OPPOSITION TQ PLAINTIFFS' MOTION IN LIMINE NO. 1 TQ EXCLUDE
6 EXPERT TESTIMONY
7 I I By placing a tme 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
address shown above following our ordinary business practices. I am readily familiar
Q with this business' practice for collection and processing of conespondence for
mailing with the United States Postal Service On the same day that a sealed envelope
10 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.
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I I By having a tme copy ofthe document(s) listed above transmitted by facsimile to the
^2 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.
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VIA OVERNIGHT MAIL by placing a true copy ofthe document(s) listed above, in a
15 ' ' box or other facility regularly maintained by UPS, an express service carrier, or
delivered to a courier or driver authorized by the express service carrier to receive
16 documents, in an envelope designated by the express service carrier, vsath delivery fees
paid or provided for, addressed as set forth below.
18 • by havmg personal deliverv bv FIRST LEGAL SUPPORT SERVICES a tme copv of
the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the
19 address(es) set forth below.
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[SEE ATTACHED SERVICE LIST]
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I declare under penalty ofperjury that the foregoing is tme and correct. Executed on
22 December 23, 2010, at Sacramento, Califoraia.
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N1C341/608293-1
PROOF OF SER-VICE
1 Service 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- sfinetli700@yahoo 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@mwsblaw.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 R4CORP
11 Scott S. Brooks
WOOD SMITH HENNING & BERMAN LLP Te|- (925) 356-8200
12 1401 Willow Pass Road, Suite 700 Fax: (925) 356-8250
Concord, CA 94520-7982
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N1C341/608293-1 2
SERVICE LIST
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1 Todd A. Jones (Bar No. 198024) Gregory K. Federico (Bar No. 242184) 2 ARCHER NORRIS A Professional Law Corporation 3 301 University Avenue, Suite UO Sacramento, Califomia 95825 4 Telephone: 916.646.2480 Facsimile: 916 646.5696 5 Attomeys for Defendants 6 RICHARD KIRK RUYBALID, individualty and dba CA CONSTRUCTION 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 ABBOTT, 12 OPPOSITION TQ PLAINTIFFS' MOTION Plaintiffs, IN LIMINE NO. 1 TO EXCLUDE EXPERT 13 TESTIMONY 14 Action Filed: September 24,2007 RONALD PAUL BRITSCHGI, et al.. 15 Hearing Date: January 7, 2011 Defendants Trial Date- January 18, 2011 16 Time: 8.30 a.m. Location- Department 43 17 AND ALL RELATED CROSS-ACTIONS. 18 19 20 Defendant RICHARD KIRK RUYBALID, individualty and dba CA CONSTRUCTION 21 ("CA CONSTRUCTION") hereby files tiiis opposhion to Plaintiffs FLORENTINE and 22 RODNEY ABBOTT'S ("Plaintiffs") Motion in Lraiine No. 1 to Exclude Expert Testimony. 23 I. PERTINENT FACTS 24 Plaintiffs recitation ofthe facts in support ofthis motion are completely false at times, 25 generally misleading and do not represent the entire history related to expert discovery in this 26 case. Plaintiffs' motion fails to address Plaintiffs and their counsel's utter lack of diligence in 27 pursuing all avenues for expert discovery to support their claims in this matter, 28 NIC341/1067081-1 OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO 1 TO EXCLUDE EXPERT TESTIMONY 1 Plaintiffs' counsel states that none ofthe experts inspected the home until April 15, 2009. 2 This is entirely false. Mrs. Finelli substituted into the case in November 2008, and she is 3 Plaintiffs' third attomey in this matter. As such, she appears to be unaware of, and her motion 4 fails to address any ofthe activities that occurred prior to her representation of Plaintiffs. 5 On November 15, 2007, Plaintiffs' first attomey, John Britton wrote Todd Jones, counsel 6 for CA CONSTRUCTION, and proposed that the parties conduct informal discovery involving 7 among other things, an inspection of the property. (See Exhibit "A" to the Declaration of Greg 8 Federico filed concurrentiy herewith). On November 26,2007, Mr. Jones proposed a meeting at 9 the site with Plaintiffs, coimsel for all parties, and experts to discuss the issues. (See Exhibit "B" 10 to the Declaration of Greg Federico filed concurrentiy herevwth). On November 28, 2007, CA 11 CONSTRUCTION retained expert Dave Heryet. On November 29, 2007, Mr. Britton agreed to 12 the inspection protocol recommended by Mr. Jones. He also mdicated that due to a family crisis, 13 Plaintiffs were not available for the inspection for some time, (See Exhibit "C" to the Declaration 14 of Greg Federico filed concurrentiy herewith). Mr. Britton substituted out on December 20, 2007' 15 and gave CA CONSTRUCTION permission to coordinate the inspection directly with Plaintiffs. 16 On March 3, 2008, counsel for CA CONSTRUCTION, CA CONSTRUCTION'S expert 17 Dave Heryet, and Plaintiffs' met at the property, discussed the issues, and Mr. Heryet conducted 18 an inspection. As early as March 3,2008, if not before, Mr. Heryet was analyzing the issues 19 and developing opinions as to Plaintiffs' claims. Plaintiffs' chronology is simply wrong. 20 On March 23,2009, Plaintiffs disclosed their experts. Thereafter, CA CONSTRUCTION 21 timely noticed the depositions ofeach of Plaintiffs' three (3) experts - Weahunt, Lee and 22 Dillingham. The depositions took place on April 24, and April 27, 2009, respectively, before the 23 expert cut-off date. On April 17, 2009, Defendant BRITSCHGI timely noticed flie deposition of 24 Plaintiffs' expert Molinari. 25 On March 26, 2009 and April 10,2009, CA CONSTRUCTION timely disclosed its expert 26 witnesses. (See Exhibit "D" to the Declaration of Greg Fedenco filed concurrently herewith). 27 NIC341/1067081-1 28 OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. 1 TO EXCLUDE EXPERT TESTIMONY 1 No party issued a notice of depositton of CA CONSTRUCTION'S expert Heryet prior to the 2 deadline to notice expert depositions. 3 On April 15,2009, CADRE DESIGN GROUP, INC. (hereinafter "CADRE"), who has 4 since settled from the case, timely noticed the deposition of expert Newlin only. The notice was 5 withdrawn on April 18, 2009. Plaintiffs failed to join in the deposition notice of expert Newlin to 6 preserve her rights to depose the expert 7 On April 21, 2009, Plaintiffs noticed the depositions of various defense experts, including 8 Heryet Plaintiffs' noticed the deposition for April 28, 2009 and it was served on April 21, 2009 9 via facsimile Plaintiffs did not notice the deposition of expert Newlin 10 On April 23, 2009, CA CONSTRUCTION objected to Plaintiffs' deposition notice of 11 Heryet because it was served in violation of Code of Civil Procedure §2025.270(a). (See Exhibit 12 "E" to the Declaration of Greg Federico filed concunentiy herewith) It was not scheduled for a 13 date at least 10 days after proper service of the deposition notice. Also, the notice violated Code 14 of Civil Procedure §2024 030. The notice was served beyond the Apnl 17, 2009 deadline for 15 parties to personally serve expert deposition notices by hand, and the deposition was scheduled 16 for April 28, 2009, which was beyond tiie staratonly prescribed expert cut off date. 17 Until Plaintiffs served their untimely deposition notice on April 21, 2009, CA 18 CONSTRUCTION was under the impression that Plaintiffs had elected to forego the depositions 19 ofany defense experts. As stated in Plaintiffs' own papers, the notices were served beyond the 20 deadline to notice expert depositions and they failed to provide the requisite notice period. 21 Plaintiffs' counsel references an April 17, 2009 email suggesting a stipulation to extend 22 expert discovery. Plaintiffs' counsel failed to respond to the request for a stipulation With no 23 stipulation in place, CA CONSTRUCTION issued its April 23, 2009 objection to the untimely 24 notice issued by Plaintiffs. 25 Plaintiffs' lack of diligence is clear On April 23,2009, she -writes all counsel and asks 26 whether she wih be required to file a motion to compel expert deposition ofthe defense experts. 27 NIC341/1067081-1 28 OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO 1 TO EXCLUDE EXPERT TESTIMONY 1 Upon receipt ofthe defense objections, it should have become clear that a motion to compel was 2 required. Thereafter, Plaintiffs failed to file a motion to compel. 3 The parties appeared for ttial call on May 11,2009, at which time the ttial date was 4 continued. Thereafter, Plaintiffs filed a Motion for Leave to File an Amended Complaint, which 5 was granted in part and denied in part. Plaintiffs were permitted to file an amended complaint, 6 The Court also granted a request to re-open discovery for CA CONSTRUCTION onlv and for the 7 limited purpose of conducting discovery on new issues raised by the amended complaint. The 8 Court's July 20,2009, minute order also states "As discovery remains closed othenvise, 9 plaintiff may not take the depositions of defendant's experts without obtaining leave of 10 court to re-open discovery for that purpose." (See Exhibit "F" to the Declaration of Greg 11 Federico filed concurrently herewhh). Thus, as of July 20, 2009, the Court put Plaintiffs on 12 notice ofthe proper remedy to seek expert discovery. Since the Court issued this order, Plaintiffs 13 failed to heed the Court's advice and seek leave to re-open discovery to depose the defense 14 experts. 15 Since Plaintiffs failed to timely pursue expert depositions in the first instance, and tiien 16 failed to seek leave per the Court's order, they now throw a proverbial "Hail Mary" and seek to 17 exclude all expert testimony from CA CONSTRUCTION as a result of their own lack of 18 diligence. The motion should be denied in its entirety for the following reasons. II. 19 ARGUMENT 20 A. CA Construction Has Acted Reasonable With Respect To Expert Discovery 21 Defendant CA CONSTRUCTION has acted reasonably through the course of expert 22 discovery in this case. Code ofCivil Procedure §2034.300 states 23 Except as provided in Section 2034 310 and in Articles 4 24 (commencing with Section 2034.610) and 5 (commencing with Section 2034.710), on objection ofany party who has made a 25 complete and timely compliance with Section 2034,260,tiiettial court shall exclude from evidence the expert opinion ofany witness 26 that is offered by any party who has urueasonably failed to do any ofthe following: 27 NIC34i/1067081-l 28 OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. 1 TO EXCLUDE EXPERT TESTIMONY 1 (a) List that witness as an expert under Section 2034 260, 2 (b) Submit an expert vwtness declaratton 3 (c) Produce reports and writings of expert witnesses under Section 2034 270 4 (d) Make that expert available for a deposition under Article 3. 5 First, CA CONSTRUCTION timely submitted an expert witness list and declaration to all 6 parties pursuant to Code ofCivil Procedure §2034.300(a) and (b). CA CONSTRUCTION issued 7 its list and declaration on March 26, 2009. Plaintiffs waited until after the expert discovery 8 deadline to serve deposition notices and failed to timely join in notices issued by other parties. 9 Second, CA CONSTRUCTION issued a demand for exchange of expert information, 10 which did not include a request for reports and writings pursuant to Code ofCivil Procedure 11 §2034.270. It did not receive a demand from any ofthe other parties This Code section 12 specifically requires a demand for said reports and -writings. CA CONSTRUCTION'S experts 13 have created drawings, calculations, and correspondence, but CA CONSTRUCTION'S counsel 14 has not asked them to create reports. 15 Third, Code of Civil Procedure §2034 300(d) presumes tiiat CA CONSTRUCTION was 16 served vwth a timely and proper deposition notice for both expert Newlin and Heryet. Code of 17 Civil Procedure §2034.410 et seq. requires that the party wishing to depose an expert issue a 18 proper and timely deposition notice. Code ofCivil Procedure §2034.460 further elaborates that 19 no party is required to produce its experts without "service of a proper deposition notice 20 accompanied by the tender ofthe expert witness fee...". Plamtiffs issued on untimely notice for 21 expert Heryet on April 21,2009. Plaintiffs never joined in the deposition notice of expert Newlin 22 as issued by CADRE, a remedy that was available to Plaintiffs. Thereafter, Plaintiffs never issued 23 a deposition notice for expert Newlin. Based on Plaintiffs' actions, h was reasonable for CA 24 CONSTRUCTION to proceed under the assumption that Plaintiffs were foregoing the depositions 25 ofthe defense experts and were not prepared to tender the expert fees for the defense experts 26 Finally, Plaintiffs trial subpoenas to expert Newlin and Heryet became invalid once the 27 NIC341/1067081-1 5 28 OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO 1 TO EXCLUDE EXPERT TESTIMONY 1 May 11,2009 trial date was vacated by the Court. Once vacated, there was no trial to appear, 2 produce and testify at. It is clear that Plaintiffs were attempting to use a trial subpoena as a 3 discovery tool based on the fact tiiat the depositions were not timely noticed by Plaintiffs, In the 4 last sentence of Section B to the moving papers, Plaintiffs appear to argue that their objections 5 would be withdra-wn so long as the trial subpoenas are comphed with at the January 18, 2011 6 ttial. Assuming proper trial subpoenas are issued by Plaintiffs, CA CONSTRUCTION will 7 produce its experts at trial, as well as their expert files. 8 CA CONSTRUCTION has not acted unreasonably. Plaintiffs now attempt to categorize 9 their own lack of diligence as collusion and sandbagging by the defense. Based on the foregoing, 10 the Court should deny this motion in its entirety. 11 B. Plaintiffs Have Failed To Act Diligently In Conducting Any Required Expert 12 Discovery In This Matter .- Plaintiffs' actions were unreasonable. First, as of March 26, 2009, Plaintiffs had the right .. to notice any ofthe defense expert depositions. However, Plaintiffs elected to take the "wait and ., see" approach instead of proactively pursuing expert discovery. They issued untimely notices .^ and failed tojoin in the nottces of other parties. As Plaintiffs have the burden of proof on all .„ issues in tiiis case, diligence in pursuing expert discovery is required. Plaintiffs were simply not . J, diligent in this regard. J^ Second, as stated in Exhibit "C" to Plaintiffs' moving papers, CA CONSTRUCTION ,y^ proposed a stipulation to extend expert discovery. The purpose ofthis stipulation was to discuss _. the parameters for limiting discovery after the discovery cutoff. As ofthe April 17, 2009 email, ,y,y Plaintiffs were intimately aware of the expert discovery cutoff and need for a stipulation. _. Plaintiffs failed to respond to this proposed stipulation. Since it received no response fi-om ,y. Plaintiffs on the proposed stipulation, CA CONSTRUCTION proceeded under the assumption „^ they were not willing to stipulate to extend any ofthe timelines to complete expert discovery. „^ Based on this understanding, CA CONSTRUCTION reasonably issued the objection to Plaintiffs' .-- untimely deposition notice of expert Heryet. NIC341/I067081-I 6 28 OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO 1 TO EXCLUDE EXPERT TESTIMONY 1 Third, Plaintiffs failed to file a motion to compel the depositions ofthe defense experts, 2 another remedy available to them As evidenced by Exhibit "C" to the moving papers, on April 3 23, 2009, Plaintiffs' counsel asks whether a motion to compel the expert depositions of defense 4 experts is necessary Once Plaintiffs received the defense objections on the same day, it was clear 5 that a motion to compel would be required to compel the expert depositions Plaintiffs have had 6 approximately 20 months to file such a motion To date, Plaintiffs have not filed a motion to 7 compel the expert depositions. 8 , Finally, the Court's disposition of Plaintiffs' Motion for Leave to File an Amended 9 Complaint provided Plaintiffs with yet another potential remedy for compelling the depositions of 10 the defense experts. The Court's July 20, 2009, minute order stated "As discovery remains closed 11 otherwise, plaintiff may not take the depositions of defendant's experts without obtaining leave of 12 court to re-open discovery for that purpose " The Court explicitiy notifies Plamtiffs ofthe proper 13 remedy to seek expert discovery, should they so choose. Plaintiffs have had approximately 17 14 months to file such a motion. To date, Plaintiffs have not sought leave of Court to re-open 15 discovery to depose tiie defense experts. 16 Plaintiffs now cry foul based on a clear record of errors on their part. The Court has 17 acknowledged that Plaintiffs' notices were issued late and that they were not permitted to depose 18 the defense experts until a proper motion was filed. It is clear Plaintiffs want to depose the 19 defense experts based on the fact they are now seeking to exclude their testimony at ttial. 20 However, Plaintiffs disregarded the Court's explicit direction. CA CONSTRUCTION should not 21 be penalized for Plaintiffs' errors. The motion should be denied in its enttrety 22 C. CA Construction's Experts Had Opinions Well Before April 20,2009, And 23 They Should Not Be Lunited In Any Way At Trial Plamtiffs state tiiat CA CONSTRUCTION'S experts had no opinions unttl April 20, 2009, 24 or until Skip Weahunt was deposed by the defense. Notwitiistanding that Plaintiffs' counsel has 25 no basis for this statement, it is false and unreasonable based on the history ofthe case, 26 First CA CONSTRUCTION'S experts inspected the property on March 3, 2008, April 15, 27 N1C341/I067081-I 7 28 OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO 1 TO EXCLUDE EXPERT TESTIMONY 1 2009, and May 18, 2009. Thus, its experts began formulating and refining their opinions upon 2 retention, after tiiey reviewed various sets of plans and documents, and after mspection on March 3 3,2008, and April 15, 2009 The history of inspections is also revealed in letters between 4 Plaintiffs' former counsel and Mr Jones where inspections were discussed and scheduled. 5 The obvious purpose of defense experts is to respond to Plaintiffs' experts' opinions, as 6 well as to provide their own independent analysis and opinions CA CONSTRUCTION'S experts 7 had opinions on Plaintiffs' claims well before April 20, 2009 based on their 2008 and 2009 8 inspections, plan analysis, and review of case documents Its experts were prepared to provide 9 opinions if Plaintiffs had properly and timely issued a deposition notice. Plaintiffs failed to do so. 10 Second, Plaintiffs' spend a great deal of time attributing statements made by Defendant 11 Ronald Britschgi and his counsel to the remaining parties. These were not the statements ofthe 12 only remaining and relevant Defendant in this matter - CA CONSTRUCTION. As such, they are 13 misleading, not relevant and should not be considered by the Court. 14 Finally, Plaintiffs indicate that".. .it would have been a waste of time for plaintiffs to have 15 deposed the experts before then." Again, Plaintlffs have the burden of proof in this case. As such, 16 it was their responsibility to properly seek expert discovery to establish their claims. Proactively 17 seeking depositions of key defense experts is part and parcel ofthis responsibility and would not 18 "have been a waste of time." Again, Plaintiffs' counsel's own lack of diligence and failure to 19 pursue their claims is the real issue. 20 III 21 /// 22 /// 23 /// 24 /// 25 /// 26 27 N1C341/106708I-1 8 28 OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. 1 TO EXCLUDE EXPERT TESTIMONY 1 m. 2 CONCLUSION 3 Based on the foregoing arguments, Plaintiffs' Motion in Limine No. 1 to exclude defense 4 expert testimony should be demed in its entirety. 5 Dated: December 23,2010 ARCHER NORRIS 6 7 4*c^ 8 Gregory K. Federico Attomeys for Defendants RICHARD KIRK 9 RUYBALID, individually and dba CA CONSTRUCTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 NIC341/1067081-1 28 OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO 1 TO EXCLUDE EXPERT TESTIMONY 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 tiiis 4 action or proceedmg. My business address is 301 University Avenue, Suite 110, Sacramento, Califomia 95825. On December 23,2010,1 caused the following document(s) to be served: 5 OPPOSITION TQ PLAINTIFFS' MOTION IN LIMINE NO. 1 TQ EXCLUDE 6 EXPERT TESTIMONY 7 I I By placing a tme 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 address shown above following our ordinary business practices. I am readily familiar Q with this business' practice for collection and processing of conespondence for mailing with the United States Postal Service On the same day that a sealed envelope 10 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. 11 I I By having a tme copy ofthe document(s) listed above transmitted by facsimile to the ^2 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. 14 VIA OVERNIGHT MAIL by placing a true copy ofthe document(s) listed above, in a 15 ' ' box or other facility regularly maintained by UPS, an express service carrier, or delivered to a courier or driver authorized by the express service carrier to receive 16 documents, in an envelope designated by the express service carrier, vsath delivery fees paid or provided for, addressed as set forth below. 18 • by havmg personal deliverv bv FIRST LEGAL SUPPORT SERVICES a tme copv of the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the 19 address(es) set forth below. 20 [SEE ATTACHED SERVICE LIST] 21 I declare under penalty ofperjury that the foregoing is tme and correct. Executed on 22 December 23, 2010, at Sacramento, Califoraia. 23 24 25 26 27 28 N1C341/608293-1 PROOF OF SER-VICE 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- sfinetli700@yahoo 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@mwsblaw.com 8 Mark Smith In Pro Per 9 8549 Willow Valley Place Granite Bay, CA 95746 10 Richard W. Freeman Counsel for R4CORP 11 Scott S. Brooks WOOD SMITH HENNING & BERMAN LLP Te|- (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 N1C341/608293-1 2 SERVICE LIST