Preview
1 Todd A. Jones (Bar No. 198024)
tjones@archemorris.com
2 Gregory K. Federico (Bar No. 242184)
gfederico(@archemorris.com
3 J. Michael McGuire (Bar No. 11768)
mmcquire@archemorris.com
4 ARCHER NORRIS
A Professional Law Corporation
5 301 University Avenue, Suite 110
Sacramento, Califomia 95825-5537
6 Telephone: 916.646.2480
Facsimile: 916.646.5696
7
Attomeys for Defendants and Cross-Defendants
8 RICHARD KIRK RUYBALID, individually, and
dba CA CONSTRUCTION
9
10 SUPERIOR COURT OF CALIFORNIA
11 COUNTY OF SACRAMENTO
12
13 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
ABBOTT,
14 DECLARATION OF MIKE MCGUIRE IN
Plaintiffs, SUPPORT OF DEFENDANTS RICHARD
15 KIRK RUYBALID, individually, and dba CA
CONSTRUCTION'S REQUEST FOR
16 EVIDENCE CODE § 402 HEARING
RONALD PAUL BRITSCHGI, et al.. REGARDING FOUNDATION FOR THE
17 OPINIONS OF PLAINTIFFS' EXPERT
Defendants. JAMES ROBERT LEE, JR.
18
Trial: January 18, 2011
19 Time: 8:30 a.m.
Dept: 43
20
21 Action Filed: September 24, 2007
22 AND RELATED CROSS-ACTIONS.
23
24 1, the undersigned, declare as follows;
25 1. At all times relevant hereto, I have been an attomey licensed to practice law in the
26 State ofCalifomia and an attomey in the law offices of Archer Norris, counsel of record for
27 Defendants herein. As such, I have personal knowledge ofthe documents contained in the files
28 ofthis matter in otir offices.
NIC341/1079485-1
DECLARATION OF MIKE MCGUIRE IN SUPPORT OF DEFENDANTS' EVID CODE 402 REQUEST
1 2. Attached hereto as Exhibit-A are tme and correct copies of excerpts ofthe
2 deposition testimony of Plaintiffs' expert James Robert Lee, Jr., taken by our office on April 27,
3 2009 and as maintained by our offices.
4 3. Attached hereto as Exhibit-B is a tme and correct copy ofthe Plaintiffs' Disclosure
5 of Experts and supporting declaration as served upon our offices by the Plaintiffs in this matter.
6 4. Attached hereto as Exhibit-C is a tme and correct copy of an excerpt ofthe expert
7 deposition testimony of Plaintiffs' expert James Robert Lee, Jr., day two, taken January 12, 2011
8 and as maintained in our offices.
9 I declare tmder penalty ofperjury tmder the laws ofthe State ofCalifomia that the
10 foregoing is tme and correct and made upon personal knowledge.
11 Executed this 21 st day of January, 20|i 1 at Sacramento,
13 J. Michael McGuire, Esq.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
NIC341/1079485-1 2
DECLARATION OF MIKE MCGUIRE IN SUPPORT OF DEFENDANTS' EVID CODE 402 REQUEST
EXHIBIT "A"
3
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SACRAMENTO 1 INDEX OF EXAMINATION
RODNEY ABBOTT, FLORENTINE 2
ABBOTT,
3 WITNESS- JAMES ROBERT LEE. JR.
Plaintiffs, 4 EXAMINATION PAGE
CASE NO 07AS04450
vs
5 By Mr. Federico 5
RONALD PAUL BRITSCHGI, e t a l , 6 By Mr. Lundgren 55
Defendants 7 By Mr Sopp 127
AND RELATED CROSS-ACTIONS. 8 By Mr. Federico 146
9 By Mr. Lundgren 147
DEPOSITION OF 10 By Ms Finelli 154
JAMES ROBERT LEE, JR 11
12
A p r i l 27, 2009 13
1 48 p m 14
15
655 U n i v e r s i t y Avenue
S u i t e 225 16
Sacramento, C a l i f o r n i a
17
18
Teresa C. McKinney, CSR-10089 19
20
21
22
23
24
25
2 4
1 APPEARANCES OF COUNSEL 1 INDEX TO EXHIBITS
2 For the Piaintiffs 2
3 LAW OFFICE OF STEPHANIE J FINELLI
3 Exhibit Descnption Page
STEPHANIE J FINELLI, ESQ
4 Suite 500 4
1007 7lh Streel 5 EX 94 Notice of Taking Expert Witness
5 Sacramento, California 95814 Deposition and Request fbr
916 443 2144 6 Production of Docunnents 9
6 916443 1511 Fax 7 EX 95 Model (Retained by Deponent) 17
7 8 EX96A Plan 17
For CA Construction
g 9 EX96B Plan 17
ARCHER NORRIS 10 EX96C Plan 17
9 GREGORY K FEDERICO, ESQ 11 EX96D Plan 17
and 12 EX 97 Resume of James Robert Lee, Jr 34
10 TODD A. JONES, ESQ 13 EX 98 Plaintiffs'Expert Witness
Suite 225 Disclosure and Expert Witness
11 655 University Avenue 14 Declaration 42
Sacramento, California 95825
15 EX 99 Email chain between James Lee
12 916 646 2480
916 646 5696 Fax and Skip Weahunt 133
13 16
14 For Ronald Bntschgl EX 100 Email chain between James Lee
15 LUNDGREN & REYNOLDS, LLP 17 and Skip Weahunt 134
CRAIG N LUNDGREN, ESQ 18 EX 101 Email chain between James Lee
16 Suite A and Skip Weahunt 137
424 2nd Street
17 Davis, California 95616 19
530 297 5030 EX 102 Email chain between James Lee
18 530 297 5077 Fax 20 and Skip Weahunt with attached
19 plans 137
For Cadre Design, Inc 21
20 EX 103 March 16, 2009 proposal
MALONEY, WHEATLEY. SOPP & BROOKS, LLP 22 addressed to "Abbott Residence"
21 RICHARD D SOPP, ESQ
Suite 245 from James Lee, and attached
22 1004 River Rock Dnve 23 ertiail from Skip Weahunt to
Folsom, California 95630 James Lee 138
23 916 988 3857 24
24 EX 104 Email chain between James Lee
Also Present 25 and Skip Weahunt 139
25 Flo Abbott
1 35
1 like I say, legal beagle type of thing, that no one 1 Q Handing you what's been marked 97, is this a
2 would need to see the model until maybe later 2 copy of your currentCV or professional resume"?
3 Stephanie thought rt might be an advantage 3 A Looks like ths one I typed up
4 for everybody to see it So this is the first time Flo 4 Q When did you type this up?
5 has ever seen the model So I hustled up and got the 5 A I was requested to type it up - oh, if I
6 model done by Fnday because I presumed that I might be 6 spoke with Skip in February, some time in March
7 in here, so everybody can take advantage of the visual 7 Q So I notice here there's a lot of expenence
8 aid 8 in and the common theme is site mapping And you
9 MS FINELLI His question was whether you're 9 referenced that a second ago"?
10 going to do more work after today 10 A Yes
11 THE WITNESS The only addltional work that 11 Q What particular course work do you have that
12 IS in my proposal, but no one has requested that I do, 12 gave you the foundation for site mapping?
13 beyond what I've done so far which is the as built and 13 A Seven years of college, engineering classes,
14 the model, is basically an embellishment of a feasi- 14 part landscape architecture And outside of that ~ and
15 bility of what I would have done had I arrived at the 15 to make a long boring story short - 1 was doing - when
16 site and being aware that there was a cul-de-sac, that 16 I was doing landscape irrigation plans, I was finding
17 at least was in the plan and had been intended to be 17 that when I was using surveyors that while the
18 installed at some point, how would I have approached 18 boundaries in curb and gutters were quite accurate,
19 that in terms of creating a grading plan or determining 19 where the exact locations of trees, rocks and that sort
20 whether a grading plan would have been necessary for a 20 of thing weren't necessanly consistent
21 County agency, and to fit within the cntena of the 21 And plans that I had slaved over and made a
22 onginal plans that I was aware of which was the ones 22 lot of design decisions with clients, I end up getting
23 that Skip sent me So the fix-it plan is my cunosity 23 heated phone calls that things were wrong And I kept
24 The only other plan I have that I provided a proposal 24 thinking "What did I do now"?" I'd go out and physically
25 for IS actually to do a plan m retrospect 25 check "Well, wait a minute The plan's correct It's
34 36
1 BY MR FEDERICO 1 ~ this rock really isn't here The tree is off by four
2 Q Meaning what should have been done'' 2 feet And all these stairways and things we planned are
3 A A possible solution to what could have been 3 not working The elevation is wrong. Now we've got too
4 done And it actually is represented a little brt by 4 many steps " It was coming back at me a lol
5 those thought plans t o - what was it - 96A and B, but 5 So I met somebody named Wally Link, who
6 much more complete because they would have represented a 6 unfortunately is no longer alive, and I said "I'll go
7 permit for an agency. So they would have had required 7 out for free if you'll show me how you make these site
8 notes in terms of soils engineenng and compaction, 8 plans" because I had seen some of them, and they were
9 erosion control, cut and fill calculations, specific 9 typically accurate So when he'd go out in the field I
10 points around the building, flow lines that slopes, flow 10 would go out for free and do it
11 lines to drainage locations, where the toe of the slopes 11 And then because I realized I was spending so
12 were, the tops of slopes and all those elevations along 12 much time mapping and checking it, I should be doing
13 the setting of the finished floors 13 this map myself People saw the maps I was doing, and
14 Q Have you drafted plans in the pasf 14 It graduated from there along with the quality of
15 A This IS what I do for a living My-I'm a 15 equipment for the ease of being efficient And that's
16 landscape architect with the State of Califomia, 16 how the site mapping, physical feature mapping came
17 Registration Number 1528 And pnmanly my business has 17 about It was stnctly circumstantial And from there
18 little or nothing to do with landscape I don't 18 I was already doing grading plans for pemnrt and
19 typically do trees, shrubs, imgation I do site 19 feasibility studies and site plans
20 planning, site feasibilities, physical site mapping and 20 Q So do you have to have a particular license
21 grading plans for pemnits 21 to do site mapping'
22 MR FEDERICO I'm going to mark this here as 22 A No, not site mapping per se I can't do
23 next in order 2 3 anything relating or to be construed as survey So I
24 [Exhibit 97 was marked for identification] 24 can't define a boundary I can't define a property
25 BY MR FEDERICO 25 corner I can drape a legally descnbed boundary over
43
Ja- V 1 their area of-expertise j ' '>.t 1 at the very bottom the consolting part which is if -
2 Q Now, are you able to put a percentage on the 2 beyond the three things 1 mentioned which was the as.
3 number of your plans that go through approval with the 3 built, the model and that plan, as though 1 were seeing
4 County or the agency involved, without comment? 4 It from Day One, then 1 have a consulting part m there
5 A Without commenf At least well over eighty 5 So should they ask me for additional things, 1 could
6 percent Typical comment is the one where you feel like 6 give them a number if they said "Well, could you do a
7 pulling your shirt over your head because you're 7 different kind of plan or build another model or just
8 embarrassed It's an oversight You forgot it Put 8 come and consult'" 1 have rates, hourly rates listed
9 somebody else's address on it like the title block here 9 for that But other than that, there's nothing
10 that we were pointing to before where it doesn't match 10 BY MR FEDERICO
11 You're so hyper focused on doing a good job on the plan 11 Q That's contained on your proposal'
12 you can over look something 12 A Yes, It IS
13 Q Have you gotten any feedback from the County 13 Q I've handed you what's been marked Exhibit
14 on these plans that you - 14 98 It's entitled Plaintiffs' Expert Wrtness Disclosure
15 A 1 haven't spoken to the County at all 15 and Expert Witness Declaration Have you ever seen this
16 Q Just as a remainder, it's important for me to 16 document before?
17 get all my question out You're doing a good job so 17 A 1 don't know that I've seen this one The
18 far, but just keep that in mind So you said "no"? 18 only one 1 have seen that is in this format is the one
19 A (Witness gives nonverbal response) 19 lhat 1 gave back to you which is the one sent to me
20 Q And again, 1 just noticed that you nodded 20 asking me for- no, I'm almost positive because 1 don't
21 there 21 see- most of this appears to be new to me
22 A Yeah, 1 said "no" 1 haven't had any contact 22 Q Bottom of Page 1 and then going over on Page
23 with the County 23 2 there's a descnption of items that you plan to
24 Q Did Ms Finelli provide you with infonmation 24 testify to at time of trial I'll give you second to
25_ as to your scope of retention on this project? 25 read that
42 44
1 A No, 1 provided a proposal to them 1 [Witness reviews document ]
2 Q So as far as you know, there's no limits on 2 THE WITNESS That's basically what my
3 the Items you're going to testify to at trial? 3 proposal IS A n d t h e -
4 MS FINELLI Vague 4 MS FINELLI He hasn't asked you a question
5 THE WITNESS As far as 1 know, the only 5 yet
6 thing I'm attesting to is whether or not it appears that 6 THE WITNESS Oh, I'm sorry
7 the intent of the plans was fulfilled And as a - I'm 7 BY MR FEDERICO
8 not sure how - 1 think 1 backed myself into a verbal 8 Q Are you prepared to render opinions on the
9 corner, but essentially what 1 would be doing is 9 different options available to the parties to build the
10 evaluating the project as though 1 were standing out 10 house according to the plans and the approximate cost of
11 there prior to its actual construction 11 such options'
12 And had Flo or someone contacted me and said 12 A Not at this time
13 "Okay, what do you think 1 should do? How would 1 13 MS FINELLI Objection, compound
14 handle this"? These are my cntena," just like 1 had 14 BY MR FEDERICO
15 mentioned forthe grading plan, the permanent, "What 15 Q Not at this time with respect to both aspects
16 should 1 do'? What's the height of my elevations here or 16 of that statement or just with the cost versus the
17 my finished floor relative to - so 1 could have a nice 17 options'
18 dnveway or a nice walk or 1 want to do this in the back 18 A 1 haven't been requested to or authonzed to
19 and 1 have - you know, I've only got a budget of a 19 actually create this grading plan for pemnit as though 1
20 certain amount," so - but 1 didn't - that's what that 20 were seeing the site as a raw earth unbuilt project
21 last part of my proposal represents, is a plan from that 21 And without being able to do that, 1 have no way to
22 focus 22 calculate yardage, walls, anything that would be
23 MR FEDERICO Let's mark this as 98 23 involved or get numbers from professionals who could get
24 [Exhibit 98 was marked for identification] 24 me that kind of specific information relating to that
25 THE WITNESS 1 also, just following up, have 25 plan So there are steps that are missing
47
«3>!|W •1 Q So can you provide an opinion - will you be 1 have wetwJay in a 'bag As you squeeze this side to fix hsrct
. 2 prepared to provide opinionsron the different options 2 that, the pressure changes the solution over here So
3 available to the parties to build the house according to 3 what works over here now no longer works because of what
4 the plans' 4 you did over here (indicating) It's 3-D It's not
5 A Not without doing that plan Doing a grading 5 just honzontal
6 plan isn't like putting together a paint by the numbers 6 Q You said you hadn't had a chance to discuss
7 It's a fluid 3-D puzzle So as you can see, 1 had two 7 any of these options by Ms Abbott'
8 options on that g6A and gSB 1 had two options that 8 A 1 have not been retained to actually - in
9 came to my mind off the top of my head 9 other words, 1 gave her a proposal and I've only had two
10 They don't necessanly fit the critena of 10 parts of that proposal actually been authorized to do
11 the owner because I've never met with the owner m temis 11 One, of the model, through Stephanie, and the as built
12 of to get that ongmal information, to get the 12 indirectly through Flo because of the fact the check was
13 specifics of what she was trying to do - from her, 1 13 passed along 1 hadn't spoken to her, but 1 got the go
14 have heard hearsay - or secondhand of what she was 14 ahead
15 trying to do, but 1 don't know that that was a good 15 Q Going on to the next sentence, it says "he
16 interpretation of what her direction was or what her 16 will also provide an as built site map showing the house
17 pnontiesare 17 and property as it is cun-ently built" And that's
18 And the grading being dynamic means that if 18 represented on which of those' 96 -
19 you change the elevation say half a foot, you can change 19 A It's probably 96C 1 think It's 96C
20 the dynamics severely of other things that seem totally 20 Q Then the next topography model which is
21 unrelated and create huge problems or can solve problems 21 Exhibit 95, correct?
22 that you didn't see coming So it's a process by which 22 A 95
23 1 have to cut and try, cut and try, and bnng it to Flo, 23 Q And then finally last portion of that
24 have her evaluate it, go "Oh, do you like this? You 24 statement "and a grading plan that could have been used
25 don't like this? Oh, did 1 oversee" - and now the 25 to grade the property so as to build the house according
46 48
1 puzzle's in motion again 1 to plans"'
2 Until it settles and until I've met a good 2 A Correct
3 balance of the cntena and site constraints, at that 3 Q That's represented in 9 6 D '
4 point 1 can go forward and start to give numbers And 4 A No, those are not represented here at all
5 the options are really based on and are grounded in her 5 Q Is that what you haven't been authonzed to
6 preferences and her pnonties And oftentimes those 6 do yet'
7 pnonties wouldn't even come to mind 7 A That's correct The plans - again, to
8 1 have, not a famous saying, but 1 call it 8 clanfy, 96A and 96B and 96D were stnctly out of my own
9 famous because 1 use it all the time Most the time 9 professional cunosity, out of my own pocket 1 never
10 people don't know what they want until they see what 10 intended for anyone to pay me for those 1 never asked
11 they don't want So when you do a feasibility study and 11 anyone to pay me for those 1 don't expect to be paid
12 they go "Oh, my goodness, 1 hate 1 really wanted 12 for those
13 it" - all of a sudden now their real want or the 13 Q Sorry, B, C and D '
14 opposite side is they see you do something, and they go 14 A A, B and D
15 "Wow, if 1 had known you could do that, 1 would have 15 Q Have you reached any opinions with regard to
16 told you about the bowling alley and the shotgun range 16 the work performed by any of the contractors in this
17 and the water slides and all those things But all my 17 action'
18 fnends told me there was no way 1 could do that, and 18 A 1 haven't - 1 don't have a fimn opinion
19 that's what 1 always really wanted" ~ bam, now the plan 19 because 1 lack specific infomiation in terms of many of
20 IS starting again 20 the things that occurred 1 was not pnvy to any of the
21 You may literally start from scratch because 21 conversations directly There are basically recollec-
22 now all the spaces are changing It changes all the 22 tions The only opinion that 1 would have is more of a
23 grades It changes the drainage - just many things 23 question mark in several areas, and they relate to the
2 4 And they have pluses and minuses attached to all of 24 lack of having a geotech on the site during the grading.
2 5 them It is truly - it's like a 3-D puzzle where you 25 why a grading plan wasn't tnggered both through the
67
1 subdivision? WenKtiie/e particulars" - because even 1 'JLook- FJa, this is pretty steep across here We're h s p ^
2 though there might be aiminor subdivision with parti- 2 going to have to do this, this and this What do you lisa
3 culars, were there conditions of approval for that 3 think'"
4 subdivision map, tentative map that said "Oh, you have 4 "Hey, Flo, what's the elevation going to be
5 to do this, this and this for this parcel or we're not 5 at the cul-de-sac'" Or Flo, let's say, has forgotten
6 going to approve it" 6 about the cul-de-sac, and you're standing here "Do you
7 And so for that approval process, those will 7 want the house to be - like the finished floor to be
8 be listed that you have to meet those in addrtion to the 8 like straight across at that dirt'" And everyone's down
9 regulations That would be typical for the County, say 9 on their hands and knees with little handles trying to
10 county-wide You see that a lot especially in closed 10 figure out what does that mean?
11 gate subdivisions or - I'll call them - I won't say 11 Somebody wants to have somebody put a
12 high end, but where they have to meet a lot of cnteria 12 specific elevation, and that way the grading guy could
13 - wetlands, tradeouts, that kind of thing 13 actually meet grades And I also am surprised that the
14 Q But your understanding is that's sort of - 14 grading contractor didn't - just from my expenence of
15 Sacramento County did not require this owner to obtain a 15 a lot of years and a lot of contractors, the days of the
16 grading permit for the work that you did on this 16 Joe Six Pack riding iron and "I know exactly what you
17 property, is that true? 17 want - burp," that's gone
18 MS FINELLI Calls for speculation 18 And most inspectors would come out and see
19 THE WITNESS I wasn't part of any of that 19 the dirt had been manipulated at see cuts, and they
20 process and I don't know what- I saw what I understand 20 wouldn't even allow you to continue on with the founda-
21 to be approved plans showing the house for all intents 21 tion without, one, an as built, and two, a geotechnical
22 and purposes level too through the garage There i s - 22 come out and tell them "So exactly how deep is that fill
23 looks like a minor step down of two, two and a half feet 23 over there in the garage'" They basically would red tag
24 between the house, which didn't seem to meet the 24 the job and wouldn't let it go forward until those
25 critena of what we were talking about of a level, but 25 conditions were met, based on my expenence, because I
66 68
1 that may have been a compromise that was made based on 1 have done a lot of as builts where they tned to do
2 the fact that we have a significant cross slope through 2 that
3 the structure 3 Q I guess you have very long answers, and I
4 And the plan that is shown, the plot plan, 4 guess I'm envisioning my questions to be a little bit
5 with the contours at two foot intervals, that what 1 5 more specific than you're viewing them
6 believe was part of that approved project, sets neither 6 A Okay
7 a finished floor of either the house or the garage and 7 Q I just want to know First of all, you've
8 It does not show any grading that would be required 8 not seen a grading plan for there project, is that
9 And my expenence over the last twenty-five 9 correct'
10 years is that there's no way in the world that that 10 ~~A I have not
11 wouldn't have tnggered a permit because there's no way 11 Q And you would expect an owner putting out a
12 you could get that house that is drawn and approved on 12 set of drawings here for a contractor to provide a
13 that site without having a fill of some kind or 13 grading plan to the contractor, is that correct'
14 exceeding the heights of walls, retaining walls, 14 A No, not necessanly
15 extended stem walls for foundations as shown on the 15 Q Isn't that something that would be part of
16 structural plans There's just - it doesn't conform 16 any standard permitted set' Isn't that what you said'
17 BY MR LUNDGREN 17 You expected to see a permit for the grading plan in
18 Q So you're saying you would expect to see 18 this project'
19 somewhere in Ms Abbott's submittal an approved grading 19 A 1 was surpnsed that the cover sheet didn't
20 plan for this site' 20 have a grading plan when they had contours going through
21 A I don't know how you could put the house on 21 the building Typically a grading permit is a separate
22 this site even winging it 1 myself - and I don't know 22 pemnrt
23 of anybody that 1 run across either as graders or 23 Q Bul you would say that - given the arrange-
2 4 contractors that would not have - even if she didn't 24 ment of this site here you would say that the standard
25 know specifically, backed her into a comer and say 25 that you would expect is that there would be a grading
"i 75
1-couldn't tell you 1 don't know wfieie it actually CP 1 Q Let's-just assume for the moment that the
2 rests Bul from practical expenence you wouldn't take 2 stem wall does netfesl on fill, but there is fill lo
3 lime lo push a l l - lo build a retaining wall like that 3 the east of this building Do you need a geotechnical
4 and then backfill all the way up against rt, and then 4 engineer for the amount of fill lhat you've seen here'
5 still have two and a half feel slicking out of the 5 MS FINELLI Incomplete hypothetical
6 ground, or whatever the exact dimension is, and pul a 6 You can answer
7 slab on lop 7 THE WITNESS The amount of fill involved
8 Q So based on that assumption - you think it's 8 would have triggered a grading pennit To place that on
9 your opinion that the contractor here was doing work on 9 the site vanes from county to county because the depth
10 this building wrthout a geotechnical engineer lo 10 of fill requiring a structural compaction vanes from
11 inspect, and he should have had a geotechnical engineer 11 county to county
12 to inspect? 12 BY MR LUNDGREN
13 A The grading contractor appears lo have been 13 Q What structural compaction is required for
14 doing work relating to the earth wrthout a geotechnical 14 the fill that's not supporting any portion of the
15 report for both the keyway for the grade, for the slopes 15 building?
16 that he put that were new, because all of this grade is 16 A Typically it's at least ninety percent
17 all fill 17 Q You mean ninety percent compaction for soil
18 Q When you said all of this grade is all fill. 18 that's not supporting the flat work or structure?
19 you were moving your hand in an easterly direction- 19 A Yes
20 A And I'm doing rt upside down, so - 20 Q And do you know who placed the fill there?
21 Q Jusl so you understand, this lady here is 21 A 1 have no idea 1 was not - 1 don't know
22 typing a record, and she cannot lype when we talk over 22 the grading contractor, and 1 didn't observe any of rt
23 one another as much as we both understand one another 23 1 only saw it after the fact
24 So let me finish my question, and then you can answer 24 Q Do you know if the landscaping contractor did
25 A Okay 25 any of that work?
74 76
1 Q You indicated that all this area is fill 1 A 1 have no knowledge of a landscaping
2 And when you said that, you moved your hand from the 2 contractor or what work the landscaper did
3 eastern most wall of the garage in an easterly direction 3 Q It's obvious though lhat there was a land-
4 towards the point of the triangle here, is that correct? 4 scaping contractor working on this house, though, isn't
5 A That's correci 5 It'
6 Q So based on this, one of fhe, 1 imaqine. key 6 A There appears lo be landscaping put in
7 cnticisms you have with the contractor here is that 7 Q Have you ever designed a cul-de-sac?
8 they built this house on fill without the assistance of 8 A Myself
9 a geotechnical engineer, is lhat correct' 9 Q Yes
10 A The fill was pul in place withoui the 10 A No, 1 can't design a cul-de-sac
11 requirement of a geotechnical, and it appears that the 11 Q You can't design a cul-de-sac So do you
12 foundation was also laid on fill withoui either the 12 have any understanding as to whether or not this, the
13 recommendation or the certification that the fill was in 13 cul-de-sac itself was properly engineered considenng
14 fact proper 14 the fact that the building was already in place when the
15 Q The foundation was placed on fill without 15 cul-de-sac was installed?
16 adequate compaction and certification- 16 MS FINELLI Objection Exceeds the scope
17 A 1 don't know if the compaction was adequate 17 of the expert retention, calls for expert testimony
18 or nol Bul without the geo-that would be a decision 18 TH E WITN ESS What was the question'
19 MR LUNDGREN could you read rt back?
20 Q Do you need a geotechnical engineer to place 20 [Record read ]
2 1 fill along side a building if it's not providing 2 1 BY MR LUNDGREN
2 2 structural support for the building' 22 Q Do you want me to rephrase the question?
23 MS FINELLI Objection, vague 23 I'll rephrase the question You understand that the
24 THE WITNESS T h e r e ' s - 24 building was in place before this cul-de-sac was
25 BY MR LUNDGREN 25 constructed; is that correct?
95
1 'Calls for speculation -iCfi isiE^then rt went tdCTaised Then it appeared, because tfetese • •iT,r,
2 BY MR LUNDGREN -'.a- 2 weren't any specific elevations, lhat it appeared that
3 Q Are you aware of Mr Bntschgi having a ' 3 there was - 1 was estimating approximately two and a '
4 license lo draw up a grading plan as you drew up? 4 half feet of grade change between the finished floor of
5 A I'm not even refernng to the ~ whether or 5 the garage and the finished floor of the house
6 not he would draw it or prepare it But as a licensed 6 And based on my previous assumption of seeing
7 professional with the expenence lhat he had indicated 7 the house on a raised foundation, I was thinking when
8 that he had, his - it would be reasonable for someone 8 Skip had ongmally said "Oh, well, I think the panel
9 in that profession with his expenence to look at it and 9 elevation is 214 or 214 and a half," I'm thinking "Well,
10 say "I need more infomnation lo built this house the way 10 thirty inches between the finish floor, two and a half
11 It IS drawn Yes, it is doable Whoa, this is not a 11 feet Yep, that works out to about the number of steps
12 flat piece Maybe that's why Flo hired m e " 12 you can use between there and the garage And yeah,
13 1 don't know what brought him on the project, 13 they just cut a pad all the way cross al 214, raised
14 but as his professionalism would say, "I need more 14 foundation" And that's where I did my first feasi-
15 infomnation to find out if 1 can do that And if I 15 bility as to whether rt seemed reasonable or nol that
16 can't, what are the implications? I need to go to Flo 16 these kinds of problems would be occurnng
17 because there may need to be choices to be made" 17 Q I guess my question -
18 Q Do you have any reason to believe that 18 MR LUNDGREN Could I have my question read
19 Mr Britschgi did not bnng this attention to Ms Abbott 19 back, please
20 and her designer ~ this condition that we just saw on 20 [Record read]
21 Exhibit 2 where we have a house on a flat surface? 21 THE WITNESS And I did I saw that there
22 MS FINELLI Objection, compound 22 was a slab or part of rt raised, part of rt in the
23 THE WITNESS Would you say that again? 23 garage, and steps going down onto the slab And there
24 BY MR LUNDGREN 24 appears to be aboul two and a half feet of difference
25 Q Do you have any reason to believe lhat 25 BY MR LUNDGREN
94 96
1 Mr Bntschgi did nol bnng lo Ms Abbott's attention 1 Q That's a signiflcant change in the foundation
2 the fact that the house that's shown on Exhibrt 2 would 2 of this house from the original permitted set, is that
3 not flt on the slope that's shown on your Exhibrt 95? 3 tme?
4 MS FINELLI Assumes facts nol in evidence 4 A Well -
5 THE WITNESS 1 was nol a part of any 5 MS FINELLI Calls for speculation
6 conversations, so 1 don't know what their conversations 6 THE WITNESS - I don't know why they went
7 were 1 don't know exactly when he was brought in I 7 to the slab part and raised part But rt was at one
8 don't know exactly what his delineated duties were How 8 time all raised foundation, and now it's fifty/fifty or
9 he was acting on her behalf, what those limits were 1 9 sixty/forty, whatever the actual part of rt turned out
10 have no knowledge of lhat at all 10 tobe
11 BY MR LUNDGREN 11 BY MR LUNDGREN
12 Q So you don't even know the scope of his work? 12 Q Just so we're clear, we're looking here at a
13 A I don't know the scope of his work 13 plan. Sheet Number 10, and there's no revisions listed
14 Q You don't know what responsibihties he had 14 here in the revision section And that assumes it's, 1
15 on this project? 15 guess, post and beam construction on a flat surface, do
16 A I do not know the specifics of any of that 16 you see that?
17 Q Why don't we look at Exhibrt Number 1 Have 17 A Yes, I do
18 you ever seen a set of plans similar to what's shown 18 Q And now Sheet Number 5 has a foundation floor
19 here in Exhibrt Number 1 ' 19 framing plan, and this shows a significantly different
20 A I may have seen pieces of rt because I do 2 0 concept in three different portions of this house, is
21 recall seeing this sheet. Number 3, which shows contours 21 that correct?
22 going through the house 22 A No, rt shows a significant change on one side
23 Q Then you saw also that there was a change in 23 of the house, and that's where it's slab The rest of
24 the foundation plan for the house, is that correct' 24 rt appears to be fairly similar other than the elevation
25 A I saw rt went from slab part of the house. 25 change between the garage and the finished floor
99
Tar.?* ,I6";TQ So just two thirds of rt are changed instead t ji' 1 that if I were to have to bring SQ*in;Ht-would have •
2 of all of.rt The third is on slab and the garage^is" 2 represented less soil >"i'-
3 .changed' 3 Q So you're saying you probably would have cut
4 A The garage has apparently been lowered, looks 4 a little brt- first of all, you understand that there
5 like about two and a half feet 5 was a cut that was perfomned in a portion of this slab
6 Q And in your interpretation of these plans, 6 area, is that correct'
7 which you already testified to, that you saw a two and a 7 A Correct There's a cut showing an exposed
8 half foot change? 8 cut on the left side of the house Then rt goes flat
9 A I estimated that that possibly what had 9 Then you have a slab And then at some point it appears
10 occurred based on the email I got from Skip as to what 10 to go to natural grade underneath the house And then
11 the pad elevation was 11 rt also appears based on the as built to have been some
12 Q Well, we're just looking at the plans right 12 level of flll at least on the outside which is apparent,
13 now Have you looked at these plans before. Sheet 5 ' 13 because I don't know what occurred underneath the slab
14 A I've seen a pdf of this plan 14 And then a stream of fill soil continued on out, as you
15 Q You said looking at Sheet 5 you said there 15 said, to the east out toward the point of the property
16 was a two and a half foot change in the elevation from 16 Q Do you know, do you have an idea where rt was
17 the floor of the house to the finished floor of the slab 17 that they put the cut underneath - looking at Sheet 5
18 - 18 or looking at the slab here, do you have any under-
19 A Correct 19 standing of where the cut began and where the cut ended
20 Q - in the garage' 20 underneath the slab?
21 A I'm pointing to the plan and showing that I 21 A That's referred to as a "daylight line," and
22 have a slab and a raised foundation, and you need two 22 based on my as built, which I'll use this plan which has
23 and a half feet from the finished floor to the bottom of 23 the same information as 96D, the house has a finished
24 the crawl space with a clear area of the soil under- 24 floor of 216 Let's just for easy math call rt 215 It
25 neath And so if you took the slab and you had steps 25 would be the subgrade underneath the slab - eight
98 100
1 down for an advantage perhaps on a slo
Preview
1 Todd A. Jones (Bar No. 198024) tjones@archemorris.com 2 Gregory K. Federico (Bar No. 242184) gfederico(@archemorris.com 3 J. Michael McGuire (Bar No. 11768) mmcquire@archemorris.com 4 ARCHER NORRIS A Professional Law Corporation 5 301 University Avenue, Suite 110 Sacramento, Califomia 95825-5537 6 Telephone: 916.646.2480 Facsimile: 916.646.5696 7 Attomeys for Defendants and Cross-Defendants 8 RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 9 10 SUPERIOR COURT OF CALIFORNIA 11 COUNTY OF SACRAMENTO 12 13 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 ABBOTT, 14 DECLARATION OF MIKE MCGUIRE IN Plaintiffs, SUPPORT OF DEFENDANTS RICHARD 15 KIRK RUYBALID, individually, and dba CA CONSTRUCTION'S REQUEST FOR 16 EVIDENCE CODE § 402 HEARING RONALD PAUL BRITSCHGI, et al.. REGARDING FOUNDATION FOR THE 17 OPINIONS OF PLAINTIFFS' EXPERT Defendants. JAMES ROBERT LEE, JR. 18 Trial: January 18, 2011 19 Time: 8:30 a.m. Dept: 43 20 21 Action Filed: September 24, 2007 22 AND RELATED CROSS-ACTIONS. 23 24 1, the undersigned, declare as follows; 25 1. At all times relevant hereto, I have been an attomey licensed to practice law in the 26 State ofCalifomia and an attomey in the law offices of Archer Norris, counsel of record for 27 Defendants herein. As such, I have personal knowledge ofthe documents contained in the files 28 ofthis matter in otir offices. NIC341/1079485-1 DECLARATION OF MIKE MCGUIRE IN SUPPORT OF DEFENDANTS' EVID CODE 402 REQUEST 1 2. Attached hereto as Exhibit-A are tme and correct copies of excerpts ofthe 2 deposition testimony of Plaintiffs' expert James Robert Lee, Jr., taken by our office on April 27, 3 2009 and as maintained by our offices. 4 3. Attached hereto as Exhibit-B is a tme and correct copy ofthe Plaintiffs' Disclosure 5 of Experts and supporting declaration as served upon our offices by the Plaintiffs in this matter. 6 4. Attached hereto as Exhibit-C is a tme and correct copy of an excerpt ofthe expert 7 deposition testimony of Plaintiffs' expert James Robert Lee, Jr., day two, taken January 12, 2011 8 and as maintained in our offices. 9 I declare tmder penalty ofperjury tmder the laws ofthe State ofCalifomia that the 10 foregoing is tme and correct and made upon personal knowledge. 11 Executed this 21 st day of January, 20|i 1 at Sacramento, 13 J. Michael McGuire, Esq. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NIC341/1079485-1 2 DECLARATION OF MIKE MCGUIRE IN SUPPORT OF DEFENDANTS' EVID CODE 402 REQUEST EXHIBIT "A" 3 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SACRAMENTO 1 INDEX OF EXAMINATION RODNEY ABBOTT, FLORENTINE 2 ABBOTT, 3 WITNESS- JAMES ROBERT LEE. JR. Plaintiffs, 4 EXAMINATION PAGE CASE NO 07AS04450 vs 5 By Mr. Federico 5 RONALD PAUL BRITSCHGI, e t a l , 6 By Mr. Lundgren 55 Defendants 7 By Mr Sopp 127 AND RELATED CROSS-ACTIONS. 8 By Mr. Federico 146 9 By Mr. Lundgren 147 DEPOSITION OF 10 By Ms Finelli 154 JAMES ROBERT LEE, JR 11 12 A p r i l 27, 2009 13 1 48 p m 14 15 655 U n i v e r s i t y Avenue S u i t e 225 16 Sacramento, C a l i f o r n i a 17 18 Teresa C. McKinney, CSR-10089 19 20 21 22 23 24 25 2 4 1 APPEARANCES OF COUNSEL 1 INDEX TO EXHIBITS 2 For the Piaintiffs 2 3 LAW OFFICE OF STEPHANIE J FINELLI 3 Exhibit Descnption Page STEPHANIE J FINELLI, ESQ 4 Suite 500 4 1007 7lh Streel 5 EX 94 Notice of Taking Expert Witness 5 Sacramento, California 95814 Deposition and Request fbr 916 443 2144 6 Production of Docunnents 9 6 916443 1511 Fax 7 EX 95 Model (Retained by Deponent) 17 7 8 EX96A Plan 17 For CA Construction g 9 EX96B Plan 17 ARCHER NORRIS 10 EX96C Plan 17 9 GREGORY K FEDERICO, ESQ 11 EX96D Plan 17 and 12 EX 97 Resume of James Robert Lee, Jr 34 10 TODD A. JONES, ESQ 13 EX 98 Plaintiffs'Expert Witness Suite 225 Disclosure and Expert Witness 11 655 University Avenue 14 Declaration 42 Sacramento, California 95825 15 EX 99 Email chain between James Lee 12 916 646 2480 916 646 5696 Fax and Skip Weahunt 133 13 16 14 For Ronald Bntschgl EX 100 Email chain between James Lee 15 LUNDGREN & REYNOLDS, LLP 17 and Skip Weahunt 134 CRAIG N LUNDGREN, ESQ 18 EX 101 Email chain between James Lee 16 Suite A and Skip Weahunt 137 424 2nd Street 17 Davis, California 95616 19 530 297 5030 EX 102 Email chain between James Lee 18 530 297 5077 Fax 20 and Skip Weahunt with attached 19 plans 137 For Cadre Design, Inc 21 20 EX 103 March 16, 2009 proposal MALONEY, WHEATLEY. SOPP & BROOKS, LLP 22 addressed to "Abbott Residence" 21 RICHARD D SOPP, ESQ Suite 245 from James Lee, and attached 22 1004 River Rock Dnve 23 ertiail from Skip Weahunt to Folsom, California 95630 James Lee 138 23 916 988 3857 24 24 EX 104 Email chain between James Lee Also Present 25 and Skip Weahunt 139 25 Flo Abbott 1 35 1 like I say, legal beagle type of thing, that no one 1 Q Handing you what's been marked 97, is this a 2 would need to see the model until maybe later 2 copy of your currentCV or professional resume"? 3 Stephanie thought rt might be an advantage 3 A Looks like ths one I typed up 4 for everybody to see it So this is the first time Flo 4 Q When did you type this up? 5 has ever seen the model So I hustled up and got the 5 A I was requested to type it up - oh, if I 6 model done by Fnday because I presumed that I might be 6 spoke with Skip in February, some time in March 7 in here, so everybody can take advantage of the visual 7 Q So I notice here there's a lot of expenence 8 aid 8 in and the common theme is site mapping And you 9 MS FINELLI His question was whether you're 9 referenced that a second ago"? 10 going to do more work after today 10 A Yes 11 THE WITNESS The only addltional work that 11 Q What particular course work do you have that 12 IS in my proposal, but no one has requested that I do, 12 gave you the foundation for site mapping? 13 beyond what I've done so far which is the as built and 13 A Seven years of college, engineering classes, 14 the model, is basically an embellishment of a feasi- 14 part landscape architecture And outside of that ~ and 15 bility of what I would have done had I arrived at the 15 to make a long boring story short - 1 was doing - when 16 site and being aware that there was a cul-de-sac, that 16 I was doing landscape irrigation plans, I was finding 17 at least was in the plan and had been intended to be 17 that when I was using surveyors that while the 18 installed at some point, how would I have approached 18 boundaries in curb and gutters were quite accurate, 19 that in terms of creating a grading plan or determining 19 where the exact locations of trees, rocks and that sort 20 whether a grading plan would have been necessary for a 20 of thing weren't necessanly consistent 21 County agency, and to fit within the cntena of the 21 And plans that I had slaved over and made a 22 onginal plans that I was aware of which was the ones 22 lot of design decisions with clients, I end up getting 23 that Skip sent me So the fix-it plan is my cunosity 23 heated phone calls that things were wrong And I kept 24 The only other plan I have that I provided a proposal 24 thinking "What did I do now"?" I'd go out and physically 25 for IS actually to do a plan m retrospect 25 check "Well, wait a minute The plan's correct It's 34 36 1 BY MR FEDERICO 1 ~ this rock really isn't here The tree is off by four 2 Q Meaning what should have been done'' 2 feet And all these stairways and things we planned are 3 A A possible solution to what could have been 3 not working The elevation is wrong. Now we've got too 4 done And it actually is represented a little brt by 4 many steps " It was coming back at me a lol 5 those thought plans t o - what was it - 96A and B, but 5 So I met somebody named Wally Link, who 6 much more complete because they would have represented a 6 unfortunately is no longer alive, and I said "I'll go 7 permit for an agency. So they would have had required 7 out for free if you'll show me how you make these site 8 notes in terms of soils engineenng and compaction, 8 plans" because I had seen some of them, and they were 9 erosion control, cut and fill calculations, specific 9 typically accurate So when he'd go out in the field I 10 points around the building, flow lines that slopes, flow 10 would go out for free and do it 11 lines to drainage locations, where the toe of the slopes 11 And then because I realized I was spending so 12 were, the tops of slopes and all those elevations along 12 much time mapping and checking it, I should be doing 13 the setting of the finished floors 13 this map myself People saw the maps I was doing, and 14 Q Have you drafted plans in the pasf 14 It graduated from there along with the quality of 15 A This IS what I do for a living My-I'm a 15 equipment for the ease of being efficient And that's 16 landscape architect with the State of Califomia, 16 how the site mapping, physical feature mapping came 17 Registration Number 1528 And pnmanly my business has 17 about It was stnctly circumstantial And from there 18 little or nothing to do with landscape I don't 18 I was already doing grading plans for pemnrt and 19 typically do trees, shrubs, imgation I do site 19 feasibility studies and site plans 20 planning, site feasibilities, physical site mapping and 20 Q So do you have to have a particular license 21 grading plans for pemnits 21 to do site mapping' 22 MR FEDERICO I'm going to mark this here as 22 A No, not site mapping per se I can't do 23 next in order 2 3 anything relating or to be construed as survey So I 24 [Exhibit 97 was marked for identification] 24 can't define a boundary I can't define a property 25 BY MR FEDERICO 25 corner I can drape a legally descnbed boundary over 43 Ja- V 1 their area of-expertise j ' '>.t 1 at the very bottom the consolting part which is if - 2 Q Now, are you able to put a percentage on the 2 beyond the three things 1 mentioned which was the as. 3 number of your plans that go through approval with the 3 built, the model and that plan, as though 1 were seeing 4 County or the agency involved, without comment? 4 It from Day One, then 1 have a consulting part m there 5 A Without commenf At least well over eighty 5 So should they ask me for additional things, 1 could 6 percent Typical comment is the one where you feel like 6 give them a number if they said "Well, could you do a 7 pulling your shirt over your head because you're 7 different kind of plan or build another model or just 8 embarrassed It's an oversight You forgot it Put 8 come and consult'" 1 have rates, hourly rates listed 9 somebody else's address on it like the title block here 9 for that But other than that, there's nothing 10 that we were pointing to before where it doesn't match 10 BY MR FEDERICO 11 You're so hyper focused on doing a good job on the plan 11 Q That's contained on your proposal' 12 you can over look something 12 A Yes, It IS 13 Q Have you gotten any feedback from the County 13 Q I've handed you what's been marked Exhibit 14 on these plans that you - 14 98 It's entitled Plaintiffs' Expert Wrtness Disclosure 15 A 1 haven't spoken to the County at all 15 and Expert Witness Declaration Have you ever seen this 16 Q Just as a remainder, it's important for me to 16 document before? 17 get all my question out You're doing a good job so 17 A 1 don't know that I've seen this one The 18 far, but just keep that in mind So you said "no"? 18 only one 1 have seen that is in this format is the one 19 A (Witness gives nonverbal response) 19 lhat 1 gave back to you which is the one sent to me 20 Q And again, 1 just noticed that you nodded 20 asking me for- no, I'm almost positive because 1 don't 21 there 21 see- most of this appears to be new to me 22 A Yeah, 1 said "no" 1 haven't had any contact 22 Q Bottom of Page 1 and then going over on Page 23 with the County 23 2 there's a descnption of items that you plan to 24 Q Did Ms Finelli provide you with infonmation 24 testify to at time of trial I'll give you second to 25_ as to your scope of retention on this project? 25 read that 42 44 1 A No, 1 provided a proposal to them 1 [Witness reviews document ] 2 Q So as far as you know, there's no limits on 2 THE WITNESS That's basically what my 3 the Items you're going to testify to at trial? 3 proposal IS A n d t h e - 4 MS FINELLI Vague 4 MS FINELLI He hasn't asked you a question 5 THE WITNESS As far as 1 know, the only 5 yet 6 thing I'm attesting to is whether or not it appears that 6 THE WITNESS Oh, I'm sorry 7 the intent of the plans was fulfilled And as a - I'm 7 BY MR FEDERICO 8 not sure how - 1 think 1 backed myself into a verbal 8 Q Are you prepared to render opinions on the 9 corner, but essentially what 1 would be doing is 9 different options available to the parties to build the 10 evaluating the project as though 1 were standing out 10 house according to the plans and the approximate cost of 11 there prior to its actual construction 11 such options' 12 And had Flo or someone contacted me and said 12 A Not at this time 13 "Okay, what do you think 1 should do? How would 1 13 MS FINELLI Objection, compound 14 handle this"? These are my cntena," just like 1 had 14 BY MR FEDERICO 15 mentioned forthe grading plan, the permanent, "What 15 Q Not at this time with respect to both aspects 16 should 1 do'? What's the height of my elevations here or 16 of that statement or just with the cost versus the 17 my finished floor relative to - so 1 could have a nice 17 options' 18 dnveway or a nice walk or 1 want to do this in the back 18 A 1 haven't been requested to or authonzed to 19 and 1 have - you know, I've only got a budget of a 19 actually create this grading plan for pemnit as though 1 20 certain amount," so - but 1 didn't - that's what that 20 were seeing the site as a raw earth unbuilt project 21 last part of my proposal represents, is a plan from that 21 And without being able to do that, 1 have no way to 22 focus 22 calculate yardage, walls, anything that would be 23 MR FEDERICO Let's mark this as 98 23 involved or get numbers from professionals who could get 24 [Exhibit 98 was marked for identification] 24 me that kind of specific information relating to that 25 THE WITNESS 1 also, just following up, have 25 plan So there are steps that are missing 47 «3>!|W •1 Q So can you provide an opinion - will you be 1 have wetwJay in a 'bag As you squeeze this side to fix hsrct . 2 prepared to provide opinionsron the different options 2 that, the pressure changes the solution over here So 3 available to the parties to build the house according to 3 what works over here now no longer works because of what 4 the plans' 4 you did over here (indicating) It's 3-D It's not 5 A Not without doing that plan Doing a grading 5 just honzontal 6 plan isn't like putting together a paint by the numbers 6 Q You said you hadn't had a chance to discuss 7 It's a fluid 3-D puzzle So as you can see, 1 had two 7 any of these options by Ms Abbott' 8 options on that g6A and gSB 1 had two options that 8 A 1 have not been retained to actually - in 9 came to my mind off the top of my head 9 other words, 1 gave her a proposal and I've only had two 10 They don't necessanly fit the critena of 10 parts of that proposal actually been authorized to do 11 the owner because I've never met with the owner m temis 11 One, of the model, through Stephanie, and the as built 12 of to get that ongmal information, to get the 12 indirectly through Flo because of the fact the check was 13 specifics of what she was trying to do - from her, 1 13 passed along 1 hadn't spoken to her, but 1 got the go 14 have heard hearsay - or secondhand of what she was 14 ahead 15 trying to do, but 1 don't know that that was a good 15 Q Going on to the next sentence, it says "he 16 interpretation of what her direction was or what her 16 will also provide an as built site map showing the house 17 pnontiesare 17 and property as it is cun-ently built" And that's 18 And the grading being dynamic means that if 18 represented on which of those' 96 - 19 you change the elevation say half a foot, you can change 19 A It's probably 96C 1 think It's 96C 20 the dynamics severely of other things that seem totally 20 Q Then the next topography model which is 21 unrelated and create huge problems or can solve problems 21 Exhibit 95, correct? 22 that you didn't see coming So it's a process by which 22 A 95 23 1 have to cut and try, cut and try, and bnng it to Flo, 23 Q And then finally last portion of that 24 have her evaluate it, go "Oh, do you like this? You 24 statement "and a grading plan that could have been used 25 don't like this? Oh, did 1 oversee" - and now the 25 to grade the property so as to build the house according 46 48 1 puzzle's in motion again 1 to plans"' 2 Until it settles and until I've met a good 2 A Correct 3 balance of the cntena and site constraints, at that 3 Q That's represented in 9 6 D ' 4 point 1 can go forward and start to give numbers And 4 A No, those are not represented here at all 5 the options are really based on and are grounded in her 5 Q Is that what you haven't been authonzed to 6 preferences and her pnonties And oftentimes those 6 do yet' 7 pnonties wouldn't even come to mind 7 A That's correct The plans - again, to 8 1 have, not a famous saying, but 1 call it 8 clanfy, 96A and 96B and 96D were stnctly out of my own 9 famous because 1 use it all the time Most the time 9 professional cunosity, out of my own pocket 1 never 10 people don't know what they want until they see what 10 intended for anyone to pay me for those 1 never asked 11 they don't want So when you do a feasibility study and 11 anyone to pay me for those 1 don't expect to be paid 12 they go "Oh, my goodness, 1 hate 1 really wanted 12 for those 13 it" - all of a sudden now their real want or the 13 Q Sorry, B, C and D ' 14 opposite side is they see you do something, and they go 14 A A, B and D 15 "Wow, if 1 had known you could do that, 1 would have 15 Q Have you reached any opinions with regard to 16 told you about the bowling alley and the shotgun range 16 the work performed by any of the contractors in this 17 and the water slides and all those things But all my 17 action' 18 fnends told me there was no way 1 could do that, and 18 A 1 haven't - 1 don't have a fimn opinion 19 that's what 1 always really wanted" ~ bam, now the plan 19 because 1 lack specific infomiation in terms of many of 20 IS starting again 20 the things that occurred 1 was not pnvy to any of the 21 You may literally start from scratch because 21 conversations directly There are basically recollec- 22 now all the spaces are changing It changes all the 22 tions The only opinion that 1 would have is more of a 23 grades It changes the drainage - just many things 23 question mark in several areas, and they relate to the 2 4 And they have pluses and minuses attached to all of 24 lack of having a geotech on the site during the grading. 2 5 them It is truly - it's like a 3-D puzzle where you 25 why a grading plan wasn't tnggered both through the 67 1 subdivision? WenKtiie/e particulars" - because even 1 'JLook- FJa, this is pretty steep across here We're h s p ^ 2 though there might be aiminor subdivision with parti- 2 going to have to do this, this and this What do you lisa 3 culars, were there conditions of approval for that 3 think'" 4 subdivision map, tentative map that said "Oh, you have 4 "Hey, Flo, what's the elevation going to be 5 to do this, this and this for this parcel or we're not 5 at the cul-de-sac'" Or Flo, let's say, has forgotten 6 going to approve it" 6 about the cul-de-sac, and you're standing here "Do you 7 And so for that approval process, those will 7 want the house to be - like the finished floor to be 8 be listed that you have to meet those in addrtion to the 8 like straight across at that dirt'" And everyone's down 9 regulations That would be typical for the County, say 9 on their hands and knees with little handles trying to 10 county-wide You see that a lot especially in closed 10 figure out what does that mean? 11 gate subdivisions or - I'll call them - I won't say 11 Somebody wants to have somebody put a 12 high end, but where they have to meet a lot of cnteria 12 specific elevation, and that way the grading guy could 13 - wetlands, tradeouts, that kind of thing 13 actually meet grades And I also am surprised that the 14 Q But your understanding is that's sort of - 14 grading contractor didn't - just from my expenence of 15 Sacramento County did not require this owner to obtain a 15 a lot of years and a lot of contractors, the days of the 16 grading permit for the work that you did on this 16 Joe Six Pack riding iron and "I know exactly what you 17 property, is that true? 17 want - burp," that's gone 18 MS FINELLI Calls for speculation 18 And most inspectors would come out and see 19 THE WITNESS I wasn't part of any of that 19 the dirt had been manipulated at see cuts, and they 20 process and I don't know what- I saw what I understand 20 wouldn't even allow you to continue on with the founda- 21 to be approved plans showing the house for all intents 21 tion without, one, an as built, and two, a geotechnical 22 and purposes level too through the garage There i s - 22 come out and tell them "So exactly how deep is that fill 23 looks like a minor step down of two, two and a half feet 23 over there in the garage'" They basically would red tag 24 between the house, which didn't seem to meet the 24 the job and wouldn't let it go forward until those 25 critena of what we were talking about of a level, but 25 conditions were met, based on my expenence, because I 66 68 1 that may have been a compromise that was made based on 1 have done a lot of as builts where they tned to do 2 the fact that we have a significant cross slope through 2 that 3 the structure 3 Q I guess you have very long answers, and I 4 And the plan that is shown, the plot plan, 4 guess I'm envisioning my questions to be a little bit 5 with the contours at two foot intervals, that what 1 5 more specific than you're viewing them 6 believe was part of that approved project, sets neither 6 A Okay 7 a finished floor of either the house or the garage and 7 Q I just want to know First of all, you've 8 It does not show any grading that would be required 8 not seen a grading plan for there project, is that 9 And my expenence over the last twenty-five 9 correct' 10 years is that there's no way in the world that that 10 ~~A I have not 11 wouldn't have tnggered a permit because there's no way 11 Q And you would expect an owner putting out a 12 you could get that house that is drawn and approved on 12 set of drawings here for a contractor to provide a 13 that site without having a fill of some kind or 13 grading plan to the contractor, is that correct' 14 exceeding the heights of walls, retaining walls, 14 A No, not necessanly 15 extended stem walls for foundations as shown on the 15 Q Isn't that something that would be part of 16 structural plans There's just - it doesn't conform 16 any standard permitted set' Isn't that what you said' 17 BY MR LUNDGREN 17 You expected to see a permit for the grading plan in 18 Q So you're saying you would expect to see 18 this project' 19 somewhere in Ms Abbott's submittal an approved grading 19 A 1 was surpnsed that the cover sheet didn't 20 plan for this site' 20 have a grading plan when they had contours going through 21 A I don't know how you could put the house on 21 the building Typically a grading permit is a separate 22 this site even winging it 1 myself - and I don't know 22 pemnrt 23 of anybody that 1 run across either as graders or 23 Q Bul you would say that - given the arrange- 2 4 contractors that would not have - even if she didn't 24 ment of this site here you would say that the standard 25 know specifically, backed her into a comer and say 25 that you would expect is that there would be a grading "i 75 1-couldn't tell you 1 don't know wfieie it actually CP 1 Q Let's-just assume for the moment that the 2 rests Bul from practical expenence you wouldn't take 2 stem wall does netfesl on fill, but there is fill lo 3 lime lo push a l l - lo build a retaining wall like that 3 the east of this building Do you need a geotechnical 4 and then backfill all the way up against rt, and then 4 engineer for the amount of fill lhat you've seen here' 5 still have two and a half feel slicking out of the 5 MS FINELLI Incomplete hypothetical 6 ground, or whatever the exact dimension is, and pul a 6 You can answer 7 slab on lop 7 THE WITNESS The amount of fill involved 8 Q So based on that assumption - you think it's 8 would have triggered a grading pennit To place that on 9 your opinion that the contractor here was doing work on 9 the site vanes from county to county because the depth 10 this building wrthout a geotechnical engineer lo 10 of fill requiring a structural compaction vanes from 11 inspect, and he should have had a geotechnical engineer 11 county to county 12 to inspect? 12 BY MR LUNDGREN 13 A The grading contractor appears lo have been 13 Q What structural compaction is required for 14 doing work relating to the earth wrthout a geotechnical 14 the fill that's not supporting any portion of the 15 report for both the keyway for the grade, for the slopes 15 building? 16 that he put that were new, because all of this grade is 16 A Typically it's at least ninety percent 17 all fill 17 Q You mean ninety percent compaction for soil 18 Q When you said all of this grade is all fill. 18 that's not supporting the flat work or structure? 19 you were moving your hand in an easterly direction- 19 A Yes 20 A And I'm doing rt upside down, so - 20 Q And do you know who placed the fill there? 21 Q Jusl so you understand, this lady here is 21 A 1 have no idea 1 was not - 1 don't know 22 typing a record, and she cannot lype when we talk over 22 the grading contractor, and 1 didn't observe any of rt 23 one another as much as we both understand one another 23 1 only saw it after the fact 24 So let me finish my question, and then you can answer 24 Q Do you know if the landscaping contractor did 25 A Okay 25 any of that work? 74 76 1 Q You indicated that all this area is fill 1 A 1 have no knowledge of a landscaping 2 And when you said that, you moved your hand from the 2 contractor or what work the landscaper did 3 eastern most wall of the garage in an easterly direction 3 Q It's obvious though lhat there was a land- 4 towards the point of the triangle here, is that correct? 4 scaping contractor working on this house, though, isn't 5 A That's correci 5 It' 6 Q So based on this, one of fhe, 1 imaqine. key 6 A There appears lo be landscaping put in 7 cnticisms you have with the contractor here is that 7 Q Have you ever designed a cul-de-sac? 8 they built this house on fill without the assistance of 8 A Myself 9 a geotechnical engineer, is lhat correct' 9 Q Yes 10 A The fill was pul in place withoui the 10 A No, 1 can't design a cul-de-sac 11 requirement of a geotechnical, and it appears that the 11 Q You can't design a cul-de-sac So do you 12 foundation was also laid on fill withoui either the 12 have any understanding as to whether or not this, the 13 recommendation or the certification that the fill was in 13 cul-de-sac itself was properly engineered considenng 14 fact proper 14 the fact that the building was already in place when the 15 Q The foundation was placed on fill without 15 cul-de-sac was installed? 16 adequate compaction and certification- 16 MS FINELLI Objection Exceeds the scope 17 A 1 don't know if the compaction was adequate 17 of the expert retention, calls for expert testimony 18 or nol Bul without the geo-that would be a decision 18 TH E WITN ESS What was the question' 19 MR LUNDGREN could you read rt back? 20 Q Do you need a geotechnical engineer to place 20 [Record read ] 2 1 fill along side a building if it's not providing 2 1 BY MR LUNDGREN 2 2 structural support for the building' 22 Q Do you want me to rephrase the question? 23 MS FINELLI Objection, vague 23 I'll rephrase the question You understand that the 24 THE WITNESS T h e r e ' s - 24 building was in place before this cul-de-sac was 25 BY MR LUNDGREN 25 constructed; is that correct? 95 1 'Calls for speculation -iCfi isiE^then rt went tdCTaised Then it appeared, because tfetese • •iT,r, 2 BY MR LUNDGREN -'.a- 2 weren't any specific elevations, lhat it appeared that 3 Q Are you aware of Mr Bntschgi having a ' 3 there was - 1 was estimating approximately two and a ' 4 license lo draw up a grading plan as you drew up? 4 half feet of grade change between the finished floor of 5 A I'm not even refernng to the ~ whether or 5 the garage and the finished floor of the house 6 not he would draw it or prepare it But as a licensed 6 And based on my previous assumption of seeing 7 professional with the expenence lhat he had indicated 7 the house on a raised foundation, I was thinking when 8 that he had, his - it would be reasonable for someone 8 Skip had ongmally said "Oh, well, I think the panel 9 in that profession with his expenence to look at it and 9 elevation is 214 or 214 and a half," I'm thinking "Well, 10 say "I need more infomnation lo built this house the way 10 thirty inches between the finish floor, two and a half 11 It IS drawn Yes, it is doable Whoa, this is not a 11 feet Yep, that works out to about the number of steps 12 flat piece Maybe that's why Flo hired m e " 12 you can use between there and the garage And yeah, 13 1 don't know what brought him on the project, 13 they just cut a pad all the way cross al 214, raised 14 but as his professionalism would say, "I need more 14 foundation" And that's where I did my first feasi- 15 infomnation to find out if 1 can do that And if I 15 bility as to whether rt seemed reasonable or nol that 16 can't, what are the implications? I need to go to Flo 16 these kinds of problems would be occurnng 17 because there may need to be choices to be made" 17 Q I guess my question - 18 Q Do you have any reason to believe that 18 MR LUNDGREN Could I have my question read 19 Mr Britschgi did not bnng this attention to Ms Abbott 19 back, please 20 and her designer ~ this condition that we just saw on 20 [Record read] 21 Exhibit 2 where we have a house on a flat surface? 21 THE WITNESS And I did I saw that there 22 MS FINELLI Objection, compound 22 was a slab or part of rt raised, part of rt in the 23 THE WITNESS Would you say that again? 23 garage, and steps going down onto the slab And there 24 BY MR LUNDGREN 24 appears to be aboul two and a half feet of difference 25 Q Do you have any reason to believe lhat 25 BY MR LUNDGREN 94 96 1 Mr Bntschgi did nol bnng lo Ms Abbott's attention 1 Q That's a signiflcant change in the foundation 2 the fact that the house that's shown on Exhibrt 2 would 2 of this house from the original permitted set, is that 3 not flt on the slope that's shown on your Exhibrt 95? 3 tme? 4 MS FINELLI Assumes facts nol in evidence 4 A Well - 5 THE WITNESS 1 was nol a part of any 5 MS FINELLI Calls for speculation 6 conversations, so 1 don't know what their conversations 6 THE WITNESS - I don't know why they went 7 were 1 don't know exactly when he was brought in I 7 to the slab part and raised part But rt was at one 8 don't know exactly what his delineated duties were How 8 time all raised foundation, and now it's fifty/fifty or 9 he was acting on her behalf, what those limits were 1 9 sixty/forty, whatever the actual part of rt turned out 10 have no knowledge of lhat at all 10 tobe 11 BY MR LUNDGREN 11 BY MR LUNDGREN 12 Q So you don't even know the scope of his work? 12 Q Just so we're clear, we're looking here at a 13 A I don't know the scope of his work 13 plan. Sheet Number 10, and there's no revisions listed 14 Q You don't know what responsibihties he had 14 here in the revision section And that assumes it's, 1 15 on this project? 15 guess, post and beam construction on a flat surface, do 16 A I do not know the specifics of any of that 16 you see that? 17 Q Why don't we look at Exhibrt Number 1 Have 17 A Yes, I do 18 you ever seen a set of plans similar to what's shown 18 Q And now Sheet Number 5 has a foundation floor 19 here in Exhibrt Number 1 ' 19 framing plan, and this shows a significantly different 20 A I may have seen pieces of rt because I do 2 0 concept in three different portions of this house, is 21 recall seeing this sheet. Number 3, which shows contours 21 that correct? 22 going through the house 22 A No, rt shows a significant change on one side 23 Q Then you saw also that there was a change in 23 of the house, and that's where it's slab The rest of 24 the foundation plan for the house, is that correct' 24 rt appears to be fairly similar other than the elevation 25 A I saw rt went from slab part of the house. 25 change between the garage and the finished floor 99 Tar.?* ,I6";TQ So just two thirds of rt are changed instead t ji' 1 that if I were to have to bring SQ*in;Ht-would have • 2 of all of.rt The third is on slab and the garage^is" 2 represented less soil >"i'- 3 .changed' 3 Q So you're saying you probably would have cut 4 A The garage has apparently been lowered, looks 4 a little brt- first of all, you understand that there 5 like about two and a half feet 5 was a cut that was perfomned in a portion of this slab 6 Q And in your interpretation of these plans, 6 area, is that correct' 7 which you already testified to, that you saw a two and a 7 A Correct There's a cut showing an exposed 8 half foot change? 8 cut on the left side of the house Then rt goes flat 9 A I estimated that that possibly what had 9 Then you have a slab And then at some point it appears 10 occurred based on the email I got from Skip as to what 10 to go to natural grade underneath the house And then 11 the pad elevation was 11 rt also appears based on the as built to have been some 12 Q Well, we're just looking at the plans right 12 level of flll at least on the outside which is apparent, 13 now Have you looked at these plans before. Sheet 5 ' 13 because I don't know what occurred underneath the slab 14 A I've seen a pdf of this plan 14 And then a stream of fill soil continued on out, as you 15 Q You said looking at Sheet 5 you said there 15 said, to the east out toward the point of the property 16 was a two and a half foot change in the elevation from 16 Q Do you know, do you have an idea where rt was 17 the floor of the house to the finished floor of the slab 17 that they put the cut underneath - looking at Sheet 5 18 - 18 or looking at the slab here, do you have any under- 19 A Correct 19 standing of where the cut began and where the cut ended 20 Q - in the garage' 20 underneath the slab? 21 A I'm pointing to the plan and showing that I 21 A That's referred to as a "daylight line," and 22 have a slab and a raised foundation, and you need two 22 based on my as built, which I'll use this plan which has 23 and a half feet from the finished floor to the bottom of 23 the same information as 96D, the house has a finished 24 the crawl space with a clear area of the soil under- 24 floor of 216 Let's just for easy math call rt 215 It 25 neath And so if you took the slab and you had steps 25 would be the subgrade underneath the slab - eight 98 100 1 down for an advantage perhaps on a slo