Preview
1 Todd A. Jones (Bar No. 198024)
Gregory K. Federico (Bar No. 242184)
2 ARCHER NORRIS
A Professional Law Corporation
tNDORSED
3 301 University Avenue, Suite 110 '^^^^-7 AM//:06
Sacramento, Califomia 95825
4 Telephone: 916.646.2480 ^ ^ ^ ^ i PROCESS U7
Facsimile: 916.646.5696
5
Attorneys 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 MOTION IN LIMINE NO. 9 TO EXCLUDE
Plainfiffs, LAY OPINIONS REGARDING
13 PLAINTIFFS' CLAIMS
v.
14 Action Filed: September 24, 2007
RONALD PAUL BRITSCHGI, et al..
15 Trial Date: January 17, 2011
Defendants. Time: 8:30 am
16 Location: Department 43
17 AND ALL RELATED CROSS-ACTIONS.
18
19 I.
INTRODUCTION
20
21 Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION
22 (hereinafter "CA CONSTRUCTION") and Defendant R4C0RP., INC. (hereinafter "R4C0RP")
23 (hereinafter collectively "Defendants") hereby incorporate by reference herein the "Introduction"
24 section set forth in its Mofion in Limine No. 1.
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NIC549/i058455-i
DEFENDANTS' MOTION IN LIMINE NO. 9 TO EXCLUDE LAY OPINIONS
REGARDING PLAINTIFFS' CLAIMS
1 MOTION IN LIMINE NO. 9 TO EXCLUDE LAY OPINIONS
REGARDING PLAINTIFFS' CLAIMS
2
Defendants hereby request that this Court grant this motion in limine and exclude all lay
3
opinion testimony or comments by Plainfiff FLORENTINE and RODNEY ABBOTT, their
4
counsel, or witnesses regarding construction means and methods, construction quality, standards
5
of care for various trades, and causation ofthe alleged damages to Plaintiffs' home.
6
H.
7 ARGUMENT
8 A. The Court Should Exclude Lay Opinion Testimony Related To Plaintiffs'
Claims Regarding Their Home
9
Opinion testimony from laypersons relating to Plaintiffs' claims should be excluded
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because lay witnesses may not give expert opinion. Evidence Code §720(a) sets forth the
11
standards for qualifying witnesses to testify as experts by stating:
12
A person is qualified to testify as an expert if he has special
13 knowledge, skill, experience, training, or education sufficient to
qualify him as an expert on the subject to which his testimony
14 relates. Against the objecfion of aparty, such special knowledge,
skill, experience, training, or education must be shown before the
15 witness may testify as an expert.
16 As a general rule, ". .ifthe matter in issue is one within the knowledge of experts only
17 and not within the common knowledge of laymen, it is necessary for the Plaintiff to introduce
1g expert opinion evidence in order to establish a prima facie case." See Easton v. Strassburger, 152
19 Cal.App.3d 90, 106 (1984) citing to Miller v. Los Angeles County Flood Control Dist.. 8 Cal.3d
20 689, 702 (1973), see also Evidence Code §801(a).
21 It is anticipated that Plaintiffs will offer testimony related to improper compaction of fill
22 beneath the garage slab, and potentially the house foundation. Plaintiffs may also attempt to offer
23 testimony related to construction means and methods, constmction quality, standards of care for
24 various trades, and causation ofthe alleged damages to Plaintiffs' home. We anticipate Plaintiffs
25 will attempt to introduce said evidence through Plaintiff Florentine Abbott based on the fact she
26 subsequently obtained her class "B" general contractor's license after constmction on the subject
27 home was complete.
2g In her application for license, Mrs. Abbott declared under penalty ofperjury that she had the
NIC549/I058455-1 2
DEFENDANTS' MOTION IN LIMINE NO. 9 TO EXCLUDE LAY OPINIONS
REGARDING PLAINTIFFS' CLAIMS
1 required work experience for a general contractor based on the construction ofthe home that is the
2 subject of this action. In her application, she declared that she supervised numerous trades during
3 this proiect, including the foundation contractor. (See Mrs. Abbott's general contractor's
4 application attached as Exhibit "A" to the Request for Judicial Notice). The declaration in her
5 application regarding supervision directly conflicts with her deposition testimony in which she
6 testified that she played no role in decision making and supervision ofthe contractors she hired to
7 construct her home. (See relevant excepts of Mrs. Abbott's deposition attached as Exhibit "A" to the
8 Declaration of Gregory Federico).
9 Although she applied for and was granted her class "B" license, it is currently listed as
10 inactive on the Contractor's State License Board. In fact, Mrs. Abbott's license has been referred to
11 legal action by the California Attorney General's office for violation of Business and Professions
12 Code §7112 - misrepresenting facts on her application. (See the Accusation Against Mrs. Abbott
13 attached as Exhibit "B" to the Request for Judicial Notice).
14 Based on the above facts. Plaintiff Florentine Abbott is not qualified and should not be
15 allowed to provide lay opinion testimony regarding her claims based on her status as an inactive
16 general contractor. These specific issues are matters outside ofthe common knowledge ofa lay
17 witness, and therefore, call for expert opinion. Laypersons should not be permitted to state their
18 opinions as to construction means and methods, construcfion quality, standards of care of various
19 trades and causation of damage to Plaintiffs' home because they have insufficient special
20 knowledge, skill, experience, training or education necessary to qualify them as experts in the
21 constmction industry. See Evidence Code §801(a).
22 B. All Lay Opinions Relating to Plaintiffs' Claims Should Be Excluded As
Irrelevant and Prejudicial To Defendants
23
Furthermore, any testimony or reference to these opinions should be excluded because lay
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opinions on these matters are irrelevant and prejudicial to Defendants. No evidence is admissible
25
unless it is "relevant." Relevant evidence is defined as evidence having any tendency in reason to
26
prove or disprove any disputed fact that is of consequence to the determination ofthe action. See
27
Evidence Code §§210 and 350.
28
N1C549/I058455-I 3
DEFENDANTS' MOTION IN LIMINE NO 9 TO EXCLUDE LAY OPINIONS
REGARDING PLAINTIFFS' CLAIMS
1 Here, the testimony of laypersons regarding their opinions as to construction means and
2 methods, constmcfion quality, standards of care of various trades and causation of damage to
3 Plaintiffs' home is irtelevant since it would have no tendency to prove or disprove any disputed
4 fact that is of consequence to the determination ofthe case. As stated above, such testimony is
5 outside the scope of common experience as lay witnesses. Thus, the opinions of laypersons are
6 irrelevant because they cannot accurately reflect construction means and methods, constmction
7 quality, standards of care of various trades and causafion of damage to Plainfiffs' home.
8 This Court also has broad discretion to exclude evidence that may mislead thejury. See
9 Evidence Code §352. The Court should exercise its discretion and exclude any testimony from
10 laypersons regarding the constmction means and methods, constmction quality, standards of care
11 of various trades and causation of damage to Plaintiffs' home. In addition to being outside the
12 scope of lay witness testimony and being irrelevant, such testimony only serves to prejudice
13 Defendants. If the jury is permitted to hear such testimony, there is significant danger that they
14 will be misled into giving the tesfimony more weight than it deserves. Further, Plaintiffs' have
15 designated specific experts on these issues, and consequently, lay testimony on idenfical subjects
16 would be duplicative, cumuiafive, and would unduly consume the Court's fime.
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NIC549/I058455-I 4
DEFENDANTS' MOTION IN LIMINE NO 9 TO EXCLUDE LAY OPINIONS
REGARDING PLAINTIFFS' CLAIMS
1
IH.
2 CONCLUSION
3 Defendants respectfully request that the Court grant this motion in limine and exclude all
4 lay opinion testimony or comments regarding construction means and methods, construction
5 quality, standards of care for various trades, and causafion of alleged damage to Plaintiffs' home.
6 Defendants further seek an Order from the Court that a hearing should be held under California
7 Evidence Code § 402, before the impaneling of the jury, to determine the relative qualifications of
8 Mrs. Abbott, or any lay witness, before Plaintiffs are allowed to have these individuals testify at
9 trial.
Dated: December 6, 2010 ARCHER NORRIS
10
11
12 Gregory K. Federico
Attomeys for Defendants RICHARD KIRK
13 RUYBALID, individually and dba CA
CONSTRUCTION; and R4C0RP., INC.
14
15
IT IS SO ORDERED.
16
17
DATED:
18
19
20 JUDGE OF THE SUPERIOR COURT
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NIC549/i058455-l
DEFENDANTS' MOTION IN LIMINE NO 9 TO EXCLUDE LAY OPINIONS
REGARDING PLAINTIFFS' CLAIMS
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
1, 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 6, 2010,1 caused the following document(s) to be served:
5
MOTION IN LIMINE NO. 9 TO EXCLUDE LAY OPINIONS REGARDING
6 PLAINTIFFS' CLAIMS
7
8 [xl By placing a true copy ofthe 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 correspondence for
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 ofbusiness
with the United States Postal Service with postage fully prepaid.
12
I I By having a true copy ofthe document(s) listed above transmitted by facsimile to the
'•^ 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
14
machine.
15
I I 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
19 n bv having personal delivery bv FIRST LEGAL SUPPORT SERVICES a tme copy of
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
23
I declare under penalty ofperjury that the foregoing is true and correct. Executed on
24 Decembgt^^r^OlQjjLS^cramento, Califomia
25
26 ir\A
DY A. INGLAND
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NIC34i/608293-l
PROOF OF SERVICE
1 Service List
2
Stephanie Finelli PLAINTIFFS
3 Law Offices of Stephanie J Fmelli
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@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 Scotts 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 2
SERVICE LIST
Preview
1 Todd A. Jones (Bar No. 198024) Gregory K. Federico (Bar No. 242184) 2 ARCHER NORRIS A Professional Law Corporation tNDORSED 3 301 University Avenue, Suite 110 '^^^^-7 AM//:06 Sacramento, Califomia 95825 4 Telephone: 916.646.2480 ^ ^ ^ ^ i PROCESS U7 Facsimile: 916.646.5696 5 Attorneys 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 MOTION IN LIMINE NO. 9 TO EXCLUDE Plainfiffs, LAY OPINIONS REGARDING 13 PLAINTIFFS' CLAIMS v. 14 Action Filed: September 24, 2007 RONALD PAUL BRITSCHGI, et al.. 15 Trial Date: January 17, 2011 Defendants. Time: 8:30 am 16 Location: Department 43 17 AND ALL RELATED CROSS-ACTIONS. 18 19 I. INTRODUCTION 20 21 Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 22 (hereinafter "CA CONSTRUCTION") and Defendant R4C0RP., INC. (hereinafter "R4C0RP") 23 (hereinafter collectively "Defendants") hereby incorporate by reference herein the "Introduction" 24 section set forth in its Mofion in Limine No. 1. 25 /// 26 /// 27 /// 28 /// NIC549/i058455-i DEFENDANTS' MOTION IN LIMINE NO. 9 TO EXCLUDE LAY OPINIONS REGARDING PLAINTIFFS' CLAIMS 1 MOTION IN LIMINE NO. 9 TO EXCLUDE LAY OPINIONS REGARDING PLAINTIFFS' CLAIMS 2 Defendants hereby request that this Court grant this motion in limine and exclude all lay 3 opinion testimony or comments by Plainfiff FLORENTINE and RODNEY ABBOTT, their 4 counsel, or witnesses regarding construction means and methods, construction quality, standards 5 of care for various trades, and causation ofthe alleged damages to Plaintiffs' home. 6 H. 7 ARGUMENT 8 A. The Court Should Exclude Lay Opinion Testimony Related To Plaintiffs' Claims Regarding Their Home 9 Opinion testimony from laypersons relating to Plaintiffs' claims should be excluded 10 because lay witnesses may not give expert opinion. Evidence Code §720(a) sets forth the 11 standards for qualifying witnesses to testify as experts by stating: 12 A person is qualified to testify as an expert if he has special 13 knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony 14 relates. Against the objecfion of aparty, such special knowledge, skill, experience, training, or education must be shown before the 15 witness may testify as an expert. 16 As a general rule, ". .ifthe matter in issue is one within the knowledge of experts only 17 and not within the common knowledge of laymen, it is necessary for the Plaintiff to introduce 1g expert opinion evidence in order to establish a prima facie case." See Easton v. Strassburger, 152 19 Cal.App.3d 90, 106 (1984) citing to Miller v. Los Angeles County Flood Control Dist.. 8 Cal.3d 20 689, 702 (1973), see also Evidence Code §801(a). 21 It is anticipated that Plaintiffs will offer testimony related to improper compaction of fill 22 beneath the garage slab, and potentially the house foundation. Plaintiffs may also attempt to offer 23 testimony related to construction means and methods, constmction quality, standards of care for 24 various trades, and causation ofthe alleged damages to Plaintiffs' home. We anticipate Plaintiffs 25 will attempt to introduce said evidence through Plaintiff Florentine Abbott based on the fact she 26 subsequently obtained her class "B" general contractor's license after constmction on the subject 27 home was complete. 2g In her application for license, Mrs. Abbott declared under penalty ofperjury that she had the NIC549/I058455-1 2 DEFENDANTS' MOTION IN LIMINE NO. 9 TO EXCLUDE LAY OPINIONS REGARDING PLAINTIFFS' CLAIMS 1 required work experience for a general contractor based on the construction ofthe home that is the 2 subject of this action. In her application, she declared that she supervised numerous trades during 3 this proiect, including the foundation contractor. (See Mrs. Abbott's general contractor's 4 application attached as Exhibit "A" to the Request for Judicial Notice). The declaration in her 5 application regarding supervision directly conflicts with her deposition testimony in which she 6 testified that she played no role in decision making and supervision ofthe contractors she hired to 7 construct her home. (See relevant excepts of Mrs. Abbott's deposition attached as Exhibit "A" to the 8 Declaration of Gregory Federico). 9 Although she applied for and was granted her class "B" license, it is currently listed as 10 inactive on the Contractor's State License Board. In fact, Mrs. Abbott's license has been referred to 11 legal action by the California Attorney General's office for violation of Business and Professions 12 Code §7112 - misrepresenting facts on her application. (See the Accusation Against Mrs. Abbott 13 attached as Exhibit "B" to the Request for Judicial Notice). 14 Based on the above facts. Plaintiff Florentine Abbott is not qualified and should not be 15 allowed to provide lay opinion testimony regarding her claims based on her status as an inactive 16 general contractor. These specific issues are matters outside ofthe common knowledge ofa lay 17 witness, and therefore, call for expert opinion. Laypersons should not be permitted to state their 18 opinions as to construction means and methods, construcfion quality, standards of care of various 19 trades and causation of damage to Plaintiffs' home because they have insufficient special 20 knowledge, skill, experience, training or education necessary to qualify them as experts in the 21 constmction industry. See Evidence Code §801(a). 22 B. All Lay Opinions Relating to Plaintiffs' Claims Should Be Excluded As Irrelevant and Prejudicial To Defendants 23 Furthermore, any testimony or reference to these opinions should be excluded because lay 24 opinions on these matters are irrelevant and prejudicial to Defendants. No evidence is admissible 25 unless it is "relevant." Relevant evidence is defined as evidence having any tendency in reason to 26 prove or disprove any disputed fact that is of consequence to the determination ofthe action. See 27 Evidence Code §§210 and 350. 28 N1C549/I058455-I 3 DEFENDANTS' MOTION IN LIMINE NO 9 TO EXCLUDE LAY OPINIONS REGARDING PLAINTIFFS' CLAIMS 1 Here, the testimony of laypersons regarding their opinions as to construction means and 2 methods, constmcfion quality, standards of care of various trades and causation of damage to 3 Plaintiffs' home is irtelevant since it would have no tendency to prove or disprove any disputed 4 fact that is of consequence to the determination ofthe case. As stated above, such testimony is 5 outside the scope of common experience as lay witnesses. Thus, the opinions of laypersons are 6 irrelevant because they cannot accurately reflect construction means and methods, constmction 7 quality, standards of care of various trades and causafion of damage to Plainfiffs' home. 8 This Court also has broad discretion to exclude evidence that may mislead thejury. See 9 Evidence Code §352. The Court should exercise its discretion and exclude any testimony from 10 laypersons regarding the constmction means and methods, constmction quality, standards of care 11 of various trades and causation of damage to Plaintiffs' home. In addition to being outside the 12 scope of lay witness testimony and being irrelevant, such testimony only serves to prejudice 13 Defendants. If the jury is permitted to hear such testimony, there is significant danger that they 14 will be misled into giving the tesfimony more weight than it deserves. Further, Plaintiffs' have 15 designated specific experts on these issues, and consequently, lay testimony on idenfical subjects 16 would be duplicative, cumuiafive, and would unduly consume the Court's fime. 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// NIC549/I058455-I 4 DEFENDANTS' MOTION IN LIMINE NO 9 TO EXCLUDE LAY OPINIONS REGARDING PLAINTIFFS' CLAIMS 1 IH. 2 CONCLUSION 3 Defendants respectfully request that the Court grant this motion in limine and exclude all 4 lay opinion testimony or comments regarding construction means and methods, construction 5 quality, standards of care for various trades, and causafion of alleged damage to Plaintiffs' home. 6 Defendants further seek an Order from the Court that a hearing should be held under California 7 Evidence Code § 402, before the impaneling of the jury, to determine the relative qualifications of 8 Mrs. Abbott, or any lay witness, before Plaintiffs are allowed to have these individuals testify at 9 trial. Dated: December 6, 2010 ARCHER NORRIS 10 11 12 Gregory K. Federico Attomeys for Defendants RICHARD KIRK 13 RUYBALID, individually and dba CA CONSTRUCTION; and R4C0RP., INC. 14 15 IT IS SO ORDERED. 16 17 DATED: 18 19 20 JUDGE OF THE SUPERIOR COURT 21 22 23 24 25 26 27 28 NIC549/i058455-l DEFENDANTS' MOTION IN LIMINE NO 9 TO EXCLUDE LAY OPINIONS REGARDING PLAINTIFFS' CLAIMS 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 1, 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 6, 2010,1 caused the following document(s) to be served: 5 MOTION IN LIMINE NO. 9 TO EXCLUDE LAY OPINIONS REGARDING 6 PLAINTIFFS' CLAIMS 7 8 [xl By placing a true copy ofthe 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 correspondence for 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 ofbusiness with the United States Postal Service with postage fully prepaid. 12 I I By having a true copy ofthe document(s) listed above transmitted by facsimile to the '•^ 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 14 machine. 15 I I 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 19 n bv having personal delivery bv FIRST LEGAL SUPPORT SERVICES a tme copy of 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 23 I declare under penalty ofperjury that the foregoing is true and correct. Executed on 24 Decembgt^^r^OlQjjLS^cramento, Califomia 25 26 ir\A DY A. INGLAND 27 28 NIC34i/608293-l PROOF OF SERVICE 1 Service List 2 Stephanie Finelli PLAINTIFFS 3 Law Offices of Stephanie J Fmelli 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@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 Scotts 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 2 SERVICE LIST