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1 CRAIG N. LUNDGREN (State Bar # 148842)
LUNDGREN & REYNOLDS, LLP
2 424 - 2nd Street, Suite A MAY 28 2009
Davis, CA 95616
3 (530) 297-5030
(530) 297-5077 FAX
4
Attorneys for Defendant
5 RONALD PAUL BRITSCHGI
Individually and dba BRITSCHGI
6 CONSTRUCTION
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10 RODNEY ABBOTT and FLORENTINE ) CASE NO. 07AS04450
ABBOTT,
11 ) DEFENDANT RONALD
Plaintiffs, ) BRITSCHGI'S EX PARTE
12 ) APPLICATION FOR AN ORDER
v. ) CONFIRMING THAT THE
13 ) ABBOTTS MUST MOVE TO
RONALD PAUL BRITSCHGI, et al., ) REOPEN DISCOVERY TO USE
14 ) TESTING PERFORMED AFTER
Defendants. ) THE CLOSE OF DISCOVERY;
15 ) DECLARATION OF CRAIG N.
) LUNDGREN; POINTS AND
16 AND RELATED CROSS-ACTIONS. ) AUTHORITIES
17 DATE: 5/28/09
TIME: 9:00 A.M.
18 DEPT: 58
Hon. Brian R. Van Camp
19 TRIAL: 6/7/10
20
21 Defendant RONALD BRITSCHGI hereby makes the following Ex Parte Application
22 for an order confirming that plaintiffs RODNEY ABBOTT and FLORENTINE ABBOTT
23 must move to reopen discovery to use testing performed after the close of discovery.
24 DECLARATION OF CRAIG N. LUNDGREN
25 I, Craig N. Lundgren declare as follows:
26 1. I am counsel of record for defendant Ron Britschgi and am licensed to practice
27 law before all the courts of the State of California.
28
BRITSCHGI'S EX PARTE APPLICATION FOR AN ORDER
CONFIRMING ABBOTT'S MUST REOPEN DISCOVERY
1 2.1 met and conferred with opposing counsel regarding this ex parte application
2 and gave her and all other counsel notice of this hearing via letter sent via fax and first class
3 mail on May 22, 2009. A copy of the letter is attached hereto.
4 3. The issued address herein first came before this court at the trial setting
5 conference on May 13, 2009. This application seeks to obtain a formal order memorializing a
6 verbal order the court made at the trial setting conference.
7 4. Trial in this matter was originally scheduled to begin on May 11, 2009. On or
8 about April 27, 2009, expert witness discovery officially closed. The parties worked together
9 to allow one further deposition, the deposition of plaintiffs' expert Ms. Molinari on May 8,
10 2009, but by and large all scheduled expert witness depositions were taken on or before the
11 April 27, 2009 pre-trial cutoff.
12 5. Plaintiffs failed to take the depositions of any of defendant's expert witnesses.
13 6. On or about May 7, 2009, counsel for plaintiff brought an ex-parte motion to
14 continue the trial to perform additional testing of her client's home. The motion to continue
15 was denied. After the hearing, counsel for plaintiffs indicated that her clients would go ahead
16 with the testing anyway.
17 7. On May 13, 2009, at the trial setting hearing in the above matter, I, as counsel
18 for defendant Ron Britschgi, raised a concern that plaintiffs were seeking to perform
19 additional destructive testing of their home after the discovery cutoff in this matter. In
20 particular, I was concerned that any additional testing will be used by plaintiffs as a vehicle to
21 either have their experts testify as to new matters they were unprepared to testify to at their
22 depositions or that they will use any new information they produce from testing as a means to
23 re-open discovery of defendant's experts, after the discovery cutoff.
24 8. I asked for an order of the court compelling plaintiffs to seek leave of court to
25 reopen discovery if plaintiffs do testing that they intend to use at trial. The court agreed and
26 made this order verbally to counsel for plaintiffs.
27 9. After the hearing, Stephanie Finelli, counsel for plaintiffs indicated to me that
28 there was no order in place preventing her from performing further destructive testing.
2 BRITSCHGI'S EX PARTE APPLICATION FOR AN ORDER
CONFIRMING ABBOTT'S MUST REOPEN DISCOVERY
1 10. My concern is that if further testing is allowed, it could be done in a way that
2 prejudices my ability to defend the case. If it is allowed, it should not be allowed into
3 evidence unless it is done in a manner that is fair to defendants.
4 11. My purpose here is to obtain a formal written order directing that if additional
5 destructive testing is performed on the house, that evidence of the testing not be allowed into
6 evidence unless the testing is done pursuant to an order regarding discovery issued after a
7 properly noticed motion.
8 I declare under penalty of perjury that the foregoing is true and correct and that if
9 called as a witness, I could testify competently thereto.
10 Executed this 27th day of May, 2009, at Davis, California.
11
_
12 CRAICTN/LUNDGREN
13 POINTS AND AUTHORITIES
14 The trial court has an inherent power to exercise reasonable control over all
15 proceedings connected with the litigation before it to insure the orderly administration of
16 justice. (People v. Kronemyer (1987) 189 Cal.App.3d 314, 352.) Ultimately, the issue before
17 the court has to do with its powers related to the admission of evidence in trial. Without an
18 order directing plaintiff to seek leave of court to reopen discovery, this matter will return to
19 the court in the form of a motion in limine to exclude evidence obtained between now and
20 trial. That notice will have to be made about a year from now, and the outcome of such a
21 motion cannot be known. Defendants should be allowed to know the rules of the game
22 between now and trial. A motion by plaintiff to reopen discovery, will allow defendants to
23 oppose the motion and to, in the alternative, ask the court to place reasonable limits on the
24 reopening of discovery. Absent such a motion, litigation tactics between now and the trial
25 will resemble nothing more than a game with unknown rules.
26 Counsel for plaintiffs has indicated that her clients are entitled to perform whatever
27 destructive testing they desire between now and trial. While this may be true as a matter of
28 property rights, it does not resolve the question of the admissibility of any evidence derived
3 BRITSCHGI'S EX PARTE APPLICATION FOR AN ORDER
CONFIRMING ABBOTT'S MUST REOPEN DISCOVERY
1 from such testing.
2 In correspondence with counsel, Ms. Finelli has indicated that she believes that her
3 clients are entitled to perform tests after discovery cut off and to have the test results admitted
4 into evidence based on the case of Pullin v. Superior Court (200) 8 1 CalApp.4th 1 1 6 1 , 1 1 62,
5 1 164-1 165. In a letter, counsel for plaintiff has cited the case for its statement that "We
6 publish this opinion to confirm that, as the plaintiff in this case claims, there is nothing in the
7 Civil Discovery Act (Code Civ. Proc section 2016, et seq.) to prevent a party from conducting
8 a unilateral investigation without resort to any statutory discovery device, provided only that
9 the investigation is lawful." While the holding in Pullin is interesting, it is inapposite and
10 does not address the issues before the court. Specifically, in Pullin, plaintiff performed tests
11 on the coefficient of friction on a defendant's grocery store floor. The court found the grocery
12 store to be open to the public. Plaintiffs expert was not ordered off the premises. The tests
13 were therefore legal and properly used by plaintiffs experts in his testimony.
14 The key distinguishing factor here is that the tests in Pullin were performed prior to
15 expert witness discovery cutoff, and plaintiffs expert was examined on the test results during
16 his deposition. (Pullin at 1 163.) This is not the case here, as discovery has already cut off.
17 There was no surprise in Pullin. In the current case, plaintiffs essentially threaten to use their
18 results without reopening discovery. Pullin never addressed this issue and the case does not
19 therefore support plaintiffs position.
20 CONCLUSION
21 Discovery is cut off. New destructive testing by plaintiffs threatens the fairness of this
22 case. This court was correct when it ordered plaintiffs to obtain leave of court before it began
23 destructive testing for purposes of obtaining evidence for trial. Defendant BRITSCHGI
24 respectfully requests that the court issue a written order to that effect.
25
26 Dated: May 27, 2009 LUNDGREN & REYNOLDS, ,LLP
27
By I .. .
28 CRAIG N.LUNDGREN
BRITSCHGI'S EX PARTE APPLICATION FOR AN ORDER
CONFIRMING ABBOT! 'S MUST REOPEN DISCOVERY
Lundgren & Reynolds, LLP
Craig N. Lundgren Stephen M. Reynolds
clundgren@lr-law.net sreynolds@lr-law.net
VIA FACSIMILE AND FIRST CLASS MAIL
May 22,2009
Gregory K. Federico
Archer Morris
655 University Avenue, Suite #225
Sacramento, CA 95825
Stephanie J. Finelli
Attorney at Law
1007 Seventh Street, Suite 500
Sacramento, CA 95814
Richard D. Sopp
Maloney, Wheatley, Sopp & Brooks, LLP
1004 River Rock Drive, Suite 245
Folsom, CA 95630
Re: Abbott v. Britschgi
Ex Parte Hearing: 5/22/09,9:00 a.m., Dept. 58
Dear Counsel:
This will confirm defendant Ron Britschgi's Ex Parte Application for an order
confirming that the Abbotts must move to reopen discovery to use testing performed after
the close of discovery. The hearing is scheduled for Thursday, May 28, 2009, 9:00 a.m.,
in Department 58, 520 Ninth Street, Sacramento before the Honorable Brian R. Van
Camp.
Very truly yours,
CRAIG N. LUNDGREN
sp
cc: Client
424 2nd Street, Suite A Tel ( 5 3 0 ) 2 9 7 - 5 0 3 0
Davis, CA 9561 6 Fax. (530) 297-5077
www.lr-law.net
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1 CRAIG N. LUNDGREN (State Bar # 148842) LUNDGREN & REYNOLDS, LLP 2 424 - 2nd Street, Suite A MAY 28 2009 Davis, CA 95616 3 (530) 297-5030 (530) 297-5077 FAX 4 Attorneys for Defendant 5 RONALD PAUL BRITSCHGI Individually and dba BRITSCHGI 6 CONSTRUCTION 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 RODNEY ABBOTT and FLORENTINE ) CASE NO. 07AS04450 ABBOTT, 11 ) DEFENDANT RONALD Plaintiffs, ) BRITSCHGI'S EX PARTE 12 ) APPLICATION FOR AN ORDER v. ) CONFIRMING THAT THE 13 ) ABBOTTS MUST MOVE TO RONALD PAUL BRITSCHGI, et al., ) REOPEN DISCOVERY TO USE 14 ) TESTING PERFORMED AFTER Defendants. ) THE CLOSE OF DISCOVERY; 15 ) DECLARATION OF CRAIG N. ) LUNDGREN; POINTS AND 16 AND RELATED CROSS-ACTIONS. ) AUTHORITIES 17 DATE: 5/28/09 TIME: 9:00 A.M. 18 DEPT: 58 Hon. Brian R. Van Camp 19 TRIAL: 6/7/10 20 21 Defendant RONALD BRITSCHGI hereby makes the following Ex Parte Application 22 for an order confirming that plaintiffs RODNEY ABBOTT and FLORENTINE ABBOTT 23 must move to reopen discovery to use testing performed after the close of discovery. 24 DECLARATION OF CRAIG N. LUNDGREN 25 I, Craig N. Lundgren declare as follows: 26 1. I am counsel of record for defendant Ron Britschgi and am licensed to practice 27 law before all the courts of the State of California. 28 BRITSCHGI'S EX PARTE APPLICATION FOR AN ORDER CONFIRMING ABBOTT'S MUST REOPEN DISCOVERY 1 2.1 met and conferred with opposing counsel regarding this ex parte application 2 and gave her and all other counsel notice of this hearing via letter sent via fax and first class 3 mail on May 22, 2009. A copy of the letter is attached hereto. 4 3. The issued address herein first came before this court at the trial setting 5 conference on May 13, 2009. This application seeks to obtain a formal order memorializing a 6 verbal order the court made at the trial setting conference. 7 4. Trial in this matter was originally scheduled to begin on May 11, 2009. On or 8 about April 27, 2009, expert witness discovery officially closed. The parties worked together 9 to allow one further deposition, the deposition of plaintiffs' expert Ms. Molinari on May 8, 10 2009, but by and large all scheduled expert witness depositions were taken on or before the 11 April 27, 2009 pre-trial cutoff. 12 5. Plaintiffs failed to take the depositions of any of defendant's expert witnesses. 13 6. On or about May 7, 2009, counsel for plaintiff brought an ex-parte motion to 14 continue the trial to perform additional testing of her client's home. The motion to continue 15 was denied. After the hearing, counsel for plaintiffs indicated that her clients would go ahead 16 with the testing anyway. 17 7. On May 13, 2009, at the trial setting hearing in the above matter, I, as counsel 18 for defendant Ron Britschgi, raised a concern that plaintiffs were seeking to perform 19 additional destructive testing of their home after the discovery cutoff in this matter. In 20 particular, I was concerned that any additional testing will be used by plaintiffs as a vehicle to 21 either have their experts testify as to new matters they were unprepared to testify to at their 22 depositions or that they will use any new information they produce from testing as a means to 23 re-open discovery of defendant's experts, after the discovery cutoff. 24 8. I asked for an order of the court compelling plaintiffs to seek leave of court to 25 reopen discovery if plaintiffs do testing that they intend to use at trial. The court agreed and 26 made this order verbally to counsel for plaintiffs. 27 9. After the hearing, Stephanie Finelli, counsel for plaintiffs indicated to me that 28 there was no order in place preventing her from performing further destructive testing. 2 BRITSCHGI'S EX PARTE APPLICATION FOR AN ORDER CONFIRMING ABBOTT'S MUST REOPEN DISCOVERY 1 10. My concern is that if further testing is allowed, it could be done in a way that 2 prejudices my ability to defend the case. If it is allowed, it should not be allowed into 3 evidence unless it is done in a manner that is fair to defendants. 4 11. My purpose here is to obtain a formal written order directing that if additional 5 destructive testing is performed on the house, that evidence of the testing not be allowed into 6 evidence unless the testing is done pursuant to an order regarding discovery issued after a 7 properly noticed motion. 8 I declare under penalty of perjury that the foregoing is true and correct and that if 9 called as a witness, I could testify competently thereto. 10 Executed this 27th day of May, 2009, at Davis, California. 11 _ 12 CRAICTN/LUNDGREN 13 POINTS AND AUTHORITIES 14 The trial court has an inherent power to exercise reasonable control over all 15 proceedings connected with the litigation before it to insure the orderly administration of 16 justice. (People v. Kronemyer (1987) 189 Cal.App.3d 314, 352.) Ultimately, the issue before 17 the court has to do with its powers related to the admission of evidence in trial. Without an 18 order directing plaintiff to seek leave of court to reopen discovery, this matter will return to 19 the court in the form of a motion in limine to exclude evidence obtained between now and 20 trial. That notice will have to be made about a year from now, and the outcome of such a 21 motion cannot be known. Defendants should be allowed to know the rules of the game 22 between now and trial. A motion by plaintiff to reopen discovery, will allow defendants to 23 oppose the motion and to, in the alternative, ask the court to place reasonable limits on the 24 reopening of discovery. Absent such a motion, litigation tactics between now and the trial 25 will resemble nothing more than a game with unknown rules. 26 Counsel for plaintiffs has indicated that her clients are entitled to perform whatever 27 destructive testing they desire between now and trial. While this may be true as a matter of 28 property rights, it does not resolve the question of the admissibility of any evidence derived 3 BRITSCHGI'S EX PARTE APPLICATION FOR AN ORDER CONFIRMING ABBOTT'S MUST REOPEN DISCOVERY 1 from such testing. 2 In correspondence with counsel, Ms. Finelli has indicated that she believes that her 3 clients are entitled to perform tests after discovery cut off and to have the test results admitted 4 into evidence based on the case of Pullin v. Superior Court (200) 8 1 CalApp.4th 1 1 6 1 , 1 1 62, 5 1 164-1 165. In a letter, counsel for plaintiff has cited the case for its statement that "We 6 publish this opinion to confirm that, as the plaintiff in this case claims, there is nothing in the 7 Civil Discovery Act (Code Civ. Proc section 2016, et seq.) to prevent a party from conducting 8 a unilateral investigation without resort to any statutory discovery device, provided only that 9 the investigation is lawful." While the holding in Pullin is interesting, it is inapposite and 10 does not address the issues before the court. Specifically, in Pullin, plaintiff performed tests 11 on the coefficient of friction on a defendant's grocery store floor. The court found the grocery 12 store to be open to the public. Plaintiffs expert was not ordered off the premises. The tests 13 were therefore legal and properly used by plaintiffs experts in his testimony. 14 The key distinguishing factor here is that the tests in Pullin were performed prior to 15 expert witness discovery cutoff, and plaintiffs expert was examined on the test results during 16 his deposition. (Pullin at 1 163.) This is not the case here, as discovery has already cut off. 17 There was no surprise in Pullin. In the current case, plaintiffs essentially threaten to use their 18 results without reopening discovery. Pullin never addressed this issue and the case does not 19 therefore support plaintiffs position. 20 CONCLUSION 21 Discovery is cut off. New destructive testing by plaintiffs threatens the fairness of this 22 case. This court was correct when it ordered plaintiffs to obtain leave of court before it began 23 destructive testing for purposes of obtaining evidence for trial. Defendant BRITSCHGI 24 respectfully requests that the court issue a written order to that effect. 25 26 Dated: May 27, 2009 LUNDGREN & REYNOLDS, ,LLP 27 By I .. . 28 CRAIG N.LUNDGREN BRITSCHGI'S EX PARTE APPLICATION FOR AN ORDER CONFIRMING ABBOT! 'S MUST REOPEN DISCOVERY Lundgren & Reynolds, LLP Craig N. Lundgren Stephen M. Reynolds clundgren@lr-law.net sreynolds@lr-law.net VIA FACSIMILE AND FIRST CLASS MAIL May 22,2009 Gregory K. Federico Archer Morris 655 University Avenue, Suite #225 Sacramento, CA 95825 Stephanie J. Finelli Attorney at Law 1007 Seventh Street, Suite 500 Sacramento, CA 95814 Richard D. Sopp Maloney, Wheatley, Sopp & Brooks, LLP 1004 River Rock Drive, Suite 245 Folsom, CA 95630 Re: Abbott v. Britschgi Ex Parte Hearing: 5/22/09,9:00 a.m., Dept. 58 Dear Counsel: This will confirm defendant Ron Britschgi's Ex Parte Application for an order confirming that the Abbotts must move to reopen discovery to use testing performed after the close of discovery. The hearing is scheduled for Thursday, May 28, 2009, 9:00 a.m., in Department 58, 520 Ninth Street, Sacramento before the Honorable Brian R. Van Camp. Very truly yours, CRAIG N. LUNDGREN sp cc: Client 424 2nd Street, Suite A Tel ( 5 3 0 ) 2 9 7 - 5 0 3 0 Davis, CA 9561 6 Fax. (530) 297-5077 www.lr-law.net