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1 Todd A. Jones (Bar No. 198024)
Gregory K. Federico (Bar No. 242184) FILED
2 ARCHERNORRIS
A Professional Law Corporation
3 301 University Avenue, Suite 110
Sacramento, Califomia 95825 DEC 3 0 2010
4 Telephone: 916.646 2480
Facsimile: 916.646.5696 B\' f-u;;:
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Attomeys for Defendants
6 RICHARD KIRK RUYBALID, individually and
dba CA CONSTRUCTION
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SACRAMENTO
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11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
ABBOTT,
12 CA CONSTRUCTION'S REPLY IN
Plaintiffs, SUPPORT OF MOTION IN LIMINE NO.
13 11 TO EXCLUDE ANY EVIDENCE OF
DAMAGES BASED ON SPECULATION
14 AND/OR EXTRAPOLATION
RONALD PAUL BRITSCHGI, et al,
15 Action Filed: September 24,2007
Defendants.
16 Hearing Date: January 7, 2011
Trial Date: January 18,2011
17 Time: 8:30 a.m.
Location: Department 43
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AND ALL RELATED CROSS-ACTIONS.
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Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION
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(hereinafter "CA CONSTRUCTION") hereby submits tiiis reply brief in support of its Motion in
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Limine No. 11.
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As stated in its moving papers. Plaintiffs have the burden of proof on each and every
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element of each cause of action. They must establish that each defective element of their home is
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(1) defective, (2) requires repair, (3) the work of CA CONSTRUCTION contnbuted to tiie
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alleged defect; and (4) that those alleged defects have caused legally compensable damages.
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As stated in earlier motions, it is anticipated that Plaintiffs' experts will testify that there
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NICS49/1068659-1
REPLY TO MOTION IN LIMINE NO. 11 TO EXCLUDE ANY EVIDENCE OF DAMAGES BASED ON
SPECULATION AND/OR EXTRAPOLATION
1 was improper or inadequate compaction beneath the garage, and potentially tiie house itself They
2 will also testify that this lack of compaction has led to Plainttffs' claimed damages However,
3 Plaintiffs' experts have not performed the type of testing required to establish these types of
4 claims. It is exttemely prejudicial to CA CONSTRUCTION to allow Plaintiffs' experts to
5 "assume" that defective conditions and resulting damage exist in locations where none has been
6 observed or tested by the experts. Further, such testimony misleads the jury and only serves to
7 confuse the issues. Likewise, it is improper for Plaintiffs' experts to assume that defective
8 conditions exist based on otiiers' statements that have also not been verified through independent
9 and necessary testing methods.
10 CA CONSTRUCTION requests that tiie Court preclude any party from attempting to
11 inttoduce evidence of alleged defects and costs of repair that do not correspond to locations where
12 actual damage has occurred.
13 Dated- December 30, 2010 ARCHER NORRIS
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15
Gregory K. Federico
16 Attomeys for Defendants RICHARD KIRK
RUYBALID, individually and dba CA
17 CONSTRUCTION
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NIC549/I068659-!
REPLY TO MOTION IN LIMINE NO. ! 1 TO EXCLUDE ANY EVIDENCE OF DAMAGES BASED ON
SPECULATION AND/OR EXTRAPOLATION
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,
Califomia 95825. On December 30,2010,1 caused the following document(s) to be served:
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CA CONSTRUCTION'S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 11 TO
6 EXCLUDE ANY EVIDENCE OF DAMAGES BASED ON SPECULATION AND/OR
EXTRAPOLATION
7
I j By placing a true copy of the documents listed above, enclosed in a sealed envelope,
8 addressed as set forth below, for collection and mailing on tiie date and at the business
address shown above following our ordmary business pmctices. I am readily familiar
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with this business' practice for collection and processing of correspondence for
2Q mailing whh the United States Postal Service. On the same day that a sealed envelope
is placed for collection and mailing, it is deposited m the ordinary course of business
11 with the United States Postal Service with postage fully prepaid
12 I ] By having a trae copy of tiie document(s) listed above transmitted by facsimile to tiie
person(s) at the facsimile number(s) set forth below before 5:00 p m The ttansmission
13 was reported as complete without error by a report issued by the transmitting facsimile
machine.
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15 I5cl ^y placing a true copy of the document(s) listed above, in a box or other facility
regularly maintained by UPS, an express service carrier, or delivered to a courier or
16 driver authorized by the express service carrier to receive documents, in an envelope
designated by the express service carrier, with delivery fees paid or provided for,
'' addressed as set forth below.
'^ ri bv having personal delivery by FIRST LEGAL SUPPORT SERVICES a true copy of
ig the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the
address(es) set forth below.
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21 [SEE ATTACHED SERVICE LIST]
22 I declare under penalty of perjury that the foregoing is true and correct. Executed on
December 30, 2010, at Sacramento, Califomia
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24 (. ' U T Y / A M ^
25 - V iCINDY A. INGLAND
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NIC341/608293-1
PROOF OF SERVICE
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; sfinelli700@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 Foisom, 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 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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MC341/608293-1 2
SERVICE LIST
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1 Todd A. Jones (Bar No. 198024) Gregory K. Federico (Bar No. 242184) FILED 2 ARCHERNORRIS A Professional Law Corporation 3 301 University Avenue, Suite 110 Sacramento, Califomia 95825 DEC 3 0 2010 4 Telephone: 916.646 2480 Facsimile: 916.646.5696 B\' f-u;;: 5 Attomeys for Defendants 6 RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 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. 13 11 TO EXCLUDE ANY EVIDENCE OF DAMAGES BASED ON SPECULATION 14 AND/OR EXTRAPOLATION RONALD PAUL BRITSCHGI, et al, 15 Action Filed: September 24,2007 Defendants. 16 Hearing Date: January 7, 2011 Trial Date: January 18,2011 17 Time: 8:30 a.m. Location: Department 43 18 AND ALL RELATED CROSS-ACTIONS. 19 20 Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 21 (hereinafter "CA CONSTRUCTION") hereby submits tiiis reply brief in support of its Motion in 22 Limine No. 11. 23 As stated in its moving papers. Plaintiffs have the burden of proof on each and every 24 element of each cause of action. They must establish that each defective element of their home is 25 (1) defective, (2) requires repair, (3) the work of CA CONSTRUCTION contnbuted to tiie 26 alleged defect; and (4) that those alleged defects have caused legally compensable damages. 27 As stated in earlier motions, it is anticipated that Plaintiffs' experts will testify that there 28 NICS49/1068659-1 REPLY TO MOTION IN LIMINE NO. 11 TO EXCLUDE ANY EVIDENCE OF DAMAGES BASED ON SPECULATION AND/OR EXTRAPOLATION 1 was improper or inadequate compaction beneath the garage, and potentially tiie house itself They 2 will also testify that this lack of compaction has led to Plainttffs' claimed damages However, 3 Plaintiffs' experts have not performed the type of testing required to establish these types of 4 claims. It is exttemely prejudicial to CA CONSTRUCTION to allow Plaintiffs' experts to 5 "assume" that defective conditions and resulting damage exist in locations where none has been 6 observed or tested by the experts. Further, such testimony misleads the jury and only serves to 7 confuse the issues. Likewise, it is improper for Plaintiffs' experts to assume that defective 8 conditions exist based on otiiers' statements that have also not been verified through independent 9 and necessary testing methods. 10 CA CONSTRUCTION requests that tiie Court preclude any party from attempting to 11 inttoduce evidence of alleged defects and costs of repair that do not correspond to locations where 12 actual damage has occurred. 13 Dated- December 30, 2010 ARCHER NORRIS 14 15 Gregory K. Federico 16 Attomeys for Defendants RICHARD KIRK RUYBALID, individually and dba CA 17 CONSTRUCTION 18 19 20 21 22 23 24 25 26 27 28 NIC549/I068659-! REPLY TO MOTION IN LIMINE NO. ! 1 TO EXCLUDE ANY EVIDENCE OF DAMAGES BASED ON SPECULATION AND/OR EXTRAPOLATION 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, Califomia 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. 11 TO 6 EXCLUDE ANY EVIDENCE OF DAMAGES BASED ON SPECULATION AND/OR EXTRAPOLATION 7 I j By placing a true copy of the documents listed above, enclosed in a sealed envelope, 8 addressed as set forth below, for collection and mailing on tiie date and at the business address shown above following our ordmary business pmctices. I am readily familiar 9 with this business' practice for collection and processing of correspondence for 2Q mailing whh the United States Postal Service. On the same day that a sealed envelope is placed for collection and mailing, it is deposited m the ordinary course of business 11 with the United States Postal Service with postage fully prepaid 12 I ] By having a trae copy of tiie document(s) listed above transmitted by facsimile to tiie person(s) at the facsimile number(s) set forth below before 5:00 p m The ttansmission 13 was reported as complete without error by a report issued by the transmitting facsimile machine. 14 15 I5cl ^y placing a true copy of the document(s) listed above, in a box or other facility regularly maintained by UPS, an express service carrier, or delivered to a courier or 16 driver authorized by the express service carrier to receive documents, in an envelope designated by the express service carrier, with delivery fees paid or provided for, '' addressed as set forth below. '^ ri bv having personal delivery by FIRST LEGAL SUPPORT SERVICES a true copy of ig the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the address(es) set forth below. 20 21 [SEE ATTACHED SERVICE LIST] 22 I declare under penalty of perjury that the foregoing is true and correct. Executed on December 30, 2010, at Sacramento, Califomia 23 24 (. ' U T Y / A M ^ 25 - V iCINDY A. INGLAND 26 27 28 NIC341/608293-1 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@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 Foisom, 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 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 MC341/608293-1 2 SERVICE LIST