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1 STEPHANIE J. FINELLI, SBN 173462
Law Office of Stephanie J. Finelli FfLED
2 1007-7th Street, Suite 500 Superior Court Of CaHi^ornia,
Sacramento, CA 95814 Sacramento
3 tel 916-443-2144
fax 916-443-1511 12/22/2010
4
l^whitfield
Attorney for Plaintiffs, By_ Deputy
5
FLORENTINE and RODNEY ABBOTT C a s a Mumbur:
6
7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 IN AND FOR THE COUNTY OF SACRAMENTO
9
10 FLORENTINE AND RODNEY ABBOTT, CaseNo.:07AS04450
11 Plaintiffs, PLAINTIFFS' OPPOSITION TO
DEFENDANT'S MOTION IN LIMINE 8 TO
12 vs. EXCLUDE EXPERTS FROM TESTIFYING
AS TO POST-DEPOSITION WORK OR
13 RONALD BRITSCHGI, et. al.. OPINIONS
14 Defendants Hearing on Motion: January 7, 2011
Time: 10:00 a.m.
15 Trial Date: January 18, 2011
Judge: Brian Van Camp
16 Dept: 43
17
A. This Court Specifically Allowed CA Construction to Conduct Discovery as to the
18
New Claims; Their Failure to Do so Does not Mean Plaintiffs' Evidence Should Be
19 Excluded
20 During their depositions, plaintiffs experts Weahunt and Lee both opined that the house,
21 and particularly the garage slab, was on uncompacted soil. Each of them stated that they may
22 conduct further investigation into this issue.
23 On May 12, 2009, plaintiffs' counsel wrote to defendants' and cross-defendants' counsel
24 and informed them that plaintiffs had excavated the land to the right of the garage to expose the
25 footings. A true and correct copy of this letter is attached hereto as Exhibit A. The next day
26 counsel for CA Constmction wrote back, objecting to the proposed testing. A tme and correct
27 copy of this letter is attached hereto as Exhibit B. On May 14, 2009, plaintiffs responded to that
28 letter, stating that discovery did not need to be reopened for plaintiffs to conduct testing on their
Opposition to Motion in Limine - 1
own property, but that defendants were welcome to view the excavated portions of the yard
2 and/or conduct testing on that area until May 19, 2009. A tme and correct copy of this letter is
3 attached hereto as Exhibit C. This predated this Court's May 28, 2009 order, denying
4 defendants' mofion to preclude such tesfing.
5 On July 20, 2009, this Court granted plaintiffs' motion to amend the complaint. A true
6 and correct copy of this order is attached hereto as Exhibit D. Therein, the court granted CA
7 Constmction's request to reopen discovery as to the new claims asserted against him. (Exh D.)
8 These new claims included compaction and soils issues and the claim that the house was on
9 uncompacted and improper soil.
10 Thus, over a year and a half ago, defendants have not only been aware of the compaction
11 and soils issue; they have had the ability to conduct discovery as to those issues, including the
12 ability to inspect plaintiffs' property following the excavation ofthe footings. In fact, defendants
13 have served interrogatories to plaintiffs and on December 21, 2010 are deposing Bryan Hill, an
14 expert who has opined on the issue of compaction.
15 Defendants assert that each of plaintiffs' experts indicated back in April 2009 "that he
16 may conduct post-deposition work that could potentially alter the testimony he provided during
17 the deposition." (MOL 8 at p. 3:7-9.) Nevertheless, defendants have not sought to re-depose
18 either Skip Weahunt or Robin Lee on any new issues, or on any post-deposition work, despite
19 the fact that they have every reason to expect such work has taken place and they were
20 specifically afforded the opportunity a year and a half ago by the court.
21 In response to CA Construction's recent supplemental interrogatory, plaintiffs disclosed
22 the fact that photographs had been taken of the excavation, and informed defendants they were
23 welcome to have copies on a DVD as long as they were willing to pay for the copies. To date,
24 defendants have not taken plaintiffs up on this offer.
25 Additionally, each of plaintiffs experts testified that there were compaction issues
26 Precluding them from so testifying at trial would actually preclude them from giving opinions
27 they had at their depositions, which is not proper under any law. Once again, defendants are
28
Opposition to Motion in Limine - 2
1 improperly seeking to exclude relevant, admissible testimony that is harmful to defendants' case
2 and are seeking to try this case in the form of in limine motions.
3 B. Defendants Misstate Plaintiffs' Experts' Testimony
4 Defendants' motions in limine conceming expert testimony should be denied in their
5 entirety based on defendants' unwillingness to accurately reflect plaintiffs' experts' testimony
6 and their persistence in misstating their testimony. In their efforts to exclude plaintiffs' experts
7 relevant but harmful testimony and to prevent the jury from hearing what really happened at
8 plaintiffs' house, defendants have misstated, misconstrued, and taken out of context the
9 testimony plaintiffs' experts provided at deposition. This should not be countenanced by this
10 Court.
11 Defendants state that each of plaintiffs' experts stated they had "done no testing, taken no
12 measurements, or researched local building codes or standards of practice to support their alleged
13 'expert' opinions regarding the 'damage' they claimed to have observed at Plaintiffs' home.
14 (MOL 8 at p. 3 4-7.) They further state, "it is abundanfiy clear that Plainfiffs' experts failed to
15 do the minimal level of work that is necessary to establish a foundation for their alleged 'expert
16 opinions." (MOL 8 at p. 3:10-11.) Thus, they completely disregard the numerous elevations
17 Robin Lee took of the entire property, including the driveway; the fact that each of them has
18 been to and inspected plaintiffs' home; the fact that each of them has reviewed the plans; all of
19 the other work each of the experts testified they had done prior to deposition; and the fact that
20 each of them is eminently qualified to render opinions, especially as to the standard of care,
21 without having to "research" such standard anywhere.
22 This motion should be denied, along with the other motions defendants have brought
23 seeking to improperly exclude relevant expert testimony that defendants do not like.
24
25
26
Dated: December 2 (,2010
Stephanie TrTine
27 Attomey for Plaintiffs
28
Opposition to Motion in Limine - 3
"1 1
La. Office of Stephanie J. Finelli
1007 Seventh Street, Suite 500
Sacramento, California 95814
Tel (916) 443-2144
Fax (916) 443-1511
May 12, 2009
Craig Lundgren
424 2nd Street, Suite A
Davis, CA 95616
via fax only 530-297-5077
Gregory Federico
Archer Norris
655 University Ave , Suite 225
Sacramento, CA 95825
via fax only 916-646-5696
Richard Sopp
Maloney, Wheatley, Sopp & Brooks
1004 Moon River Rock Drive, Suite 245
Folsom, CA 95630
via fax only 916-988-5296
Re. Abbott v. Britschgi. et. al., Sacramento County case no. 07AS04450
Dear Gentlemen:
I write to inform you that the Abbotts have excavated the land to the right of the
garage in order to expose the footings. The property is available and open to inspection
by you and your experts Please let me know when you would like to inspect the
property.
Additionally, the Abbotts intend to perform some destractive testing to determine
the compaction under the slab. I will let you know the results of that testing once I obtain
them
a^4
n^T • ^
•iNSMISSION VERIFICATION REPORT
TIME 05/12/2009 14:21
NAME LAW OFFICES
FAX 9164431511
TEL 9164431504
SER.tt BRQL7J729626
DATE,TIME 05/12 14:21
FAX NO./NAME 15302975077
DURATION 00:00:14
PAGE(S) 01
RESULT OK
MODE STANDARD
ECM
Law Office of Stephanie J, Finelli
1007 Seventh Street, Suite 500
Sacramento, Califomia 95814
Tel (916) 443*2144
Fax (916) 443-1511
May 12,2009
Craig Lundgren
424 2nd Street, Suite A
Davis, CA 95616
via fax only 530-297-5077
Gregory Federico
Archer Norris
655 University Ave., Suite 225
Sacramento, CA 95825
via fax only 916-646-5696
Richard Sopp
Maloney, Wheatley, Sopp & Brooks
1004 Moon River Rock Drive, Suite 245
Folsom, CA 95630
via fax only 916-988-5296
Re: Abbott v. Britschei. et. al, Sacramento County case no. 07AS04450
Dear Gentlemen;
I write to inform you that the Abbotts have excavated the land to the right ofthe
garage in order to expose the footings. The property is available and open to inspection
by you and your experts. Please let mo know when you would like to inspect the
.1 . "^
,NSMISSION VERIFICATION REPORT
TIME 05/12/2009 14:22
NAME LAW OFFICES
FAX 9164431511
TEL 9164431504
SER.tt BR0L7J729626
DATE,TIME 05/12 14:22
FAX NO./NAME 6465696
DURATION 00:00:16
PAGE(S) 01
RESULT OK
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ECM
Law Office of Stephanie J. Finelli
1007 Seventli Street, Suite 500
Sacramento, Califotnia 95814
Tel (916) 443-2144
Fax (9116) 443-1511
May 12, 2009
Craig Lundgren
424 2nd Sti-eet, Suite A
Davis, CA 95616
via fax only 530-297-5077
Gregory Federico
Archer Norris
655 University Ave., Suite 225
Sacramento, CA 95825
via/ox: onfy 916-646-5696
Richard Sopp
Maloney, Wheatley, Sopp & Brooks
1004 Moon River Rock Drive, Suite 245
Folsom, CA 95630
via fax only 916-988-5296
Re: Abbott v Britschgi. et. al,, Sacramento County case no. 07AS04450
Dear Gentlemen;
I write to inform you that the Abbotts have excavated the land to the right ofthe
garage in order to expose the footings. Ttie property is available and open to inspection
by you and your experts. Please let m«: Icnow when you would like to inspect the
^NSMISSION VERIFICATION REPORT
TIME 05/12/2009 14:23
NAME LAW OFFICES
FAX 9164431511
TEL 9164431504
SER.tt BR0L7J729626
DATE,TIME 05/12 14:23
FAX NO./NAME 9885295
DURATION 00:00:20
PAGE(S) 01
RESULT OK
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ECM
Law Office of Slephanie J. Finelli
1007 Seventh Street, Suite 500
Sacramento, Clalifomia 95814
Tel (916) 443-2144
Fax (916.) 443-1511
May 12,2009
Craig Lundgren
424 2nd Street Suite A
Davis, CA 95616
via fax only 530-297-5077
Gregory Federico
Archer Norris
655 University Ave., Suite 225
Sacramento, CA 95825
via fax only 916-646-5696
Richai-d Sopp
Maloney, Wheatley, Sopp & Brooks
1004 Moon River Rock Drive, Siiite 245
Folsom, CA 95630
via fax only 916-988-5296
Re: Ahhntt v. Britschgi, et. al., Sacramento County case no. 07AS04450
Dear Gentlemen:
I write to inform you that the Abbotts have excavated the land to the right ofthe
garage in order to expose tlic footings. The property is available arid open to mspection
hv vou and vour experts. Please let me know when you would Uke to mspect the
T q i RRaR'iFqB ARCHtK I N U K K I D A
ARCHERNORRIS
A PROFESSIONAL LAW CORPORATION
6S5 Unlversltv Avenue, Suite "OS GREGORY K. FEDERICO
sacramento, CA 95825-6747 5lfi6defl06<|^a^chemo^rts.aml
916,M6 2480 9t«.64G.?'(80
916.646.5696 (Fax)
^w«w.a rchemoms.com
May 13,2009
VIA FACSIMILE ONLY
Stephanie Finelli, Esq.
Law Offices of Stephanie J. Finelli
1007 Seventh Street, Suite 500
Sacramento, CA 95814
Re: Rodney and Florentine Abbott v. Ronald Paul Britschgi, et aL
Sacramento County Superior Court Case No. 07AS04450
My Client; CA Constmction
Our File No.: NIC-341
Dear Ms. Finelli;
We are in receipt of your letter dated May 12, 2009 wherein you inform the parties that
Plaintiffs have excavated the land to the right ofthe garage and are in the process of performing
destmctive testing to determine the compaction under the slab. The purpose of this letter is to
advise you of CA Constmction's objecfion to Plaintiffs' proposed testing.
As you know, the initial trial date was set for May 11,2009. You infoimed the defense
one day after the initial trial date that testing was underway. Discovery closed in this matter on
April 13,2009. Under Code of Civi! Procedure §2024.020, a postponement ofthe trial date does
not re-open discovery proceedings. Further, expert discovery closed on April 27,2009. You
aheady offered the opinions of your experts and they are now foreclosed from conducting new
investigations to support the opinions they offered.
During the May 13, 2009 conference with Judge Brian R. Van Camp, the defense advised
the Judge that discovery was closed and that Plaintiffs were conducting testing beyond thc
discovery cutoff You agreed with thc .Tudge that discovery was closed. Judge Van Camp's
order was clear - Plaintiffs are required to bring a formal motion to determine whether they are
permitted to conduct this testing. After the conference, you indicated to me that Plaintiffs will
proceed with the testing.
W A L M U T CREEK SACRAMENIO NEWPORT BEACH
&fl^B
LOS A N G E L E S
^^,1^-, J. jxDOMOjajo HKLjI-ltK INUKKib rwuc ua/Mm
'^ 1
Stephanie Finelli, Esq.
Law Offices of Stephanie J. Finelli
May 13,2009
Page 2
Thus, if Mr. and Mrs. Abbott proceed with their testing, they do so at their own risk.
Discovery is closed in this matter, and it has been for sometime now. Testing at the 1 Itb hour is
improper and violates the provisions ofthe Discovery Act. We will seek to exclude any and all
results of this testing, including any data or opinions generated therefrom, at the time oftrial.
Furtherraore, such testing will be perfomiied in direct contravention to Judge Van Camp's order
of May 13,2009. If there is any doubt on your part that Judge Van Camp was requiring
Plaintiffs to seek leave of Court prior to conducting ihe testing, please so advise. I will be
happy to seek clarification from the Judge.
Thank you for your attention to this matter.
Very truly yours,
ARCHERNORRIS
/s/ Gregory K. Federico
Gregory K. Federico
GKF/sm
cc; All Counsel
Nrc341/796539-1
_^.^.^ i^iOD^DObyO AKUntR nuiM^x^
L W » ft.'JW J ^
1 Service List
2
Stephanie Finelli PLAINTIFFS
3 Law Offices of Stephanie J. Finelli
1007 Seventh Street, Suite 500 Tel; (916) 443-2144
4 Sacramento, CA 95814 Fax; (916) 443-1511
E-mail: sfinelli700@yahoo.com
5
Craig N. Lundgren Counsel for RONALD PAUL BRITSCHGI,
6 LUNDGREN & REYNOLDS, LLP INDIVIDUALLY AND DBA BRITSCHGI
424 Second Street, Suite A CORPORATION
7 Davis, CA 95616
Tel: (530)297-5030
8 Fax: (530) 297-5077
E-mail: clundgr6n@lr-law.net
9
Richard D. Sopp Counsel for CADRE DESIGN GROUP, INC.
10 Maloney, Wheatley, Sopp & Brooks
1004 River Rock Drive, Suite 245 Tel: (916) 988-3857
n Folsom, CA 95630 Fax: (916) 988-S296
Email: rds@mwsblaw.com
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NIC341/608293-1
SERVICE LIST
L^ w Office of Stephanie J. Finehx
1007 Seventh Street, Suite 500
Sacramento, California 95814
Tel (916) 443-2144
Fax (916) 443-1511
May 14, 2009
Craig Lundgren
424 2nd Street, Suite A
Davis, CA 95616
via fax only 530-297-5077
Gregory Federico
Archer Norris
655 University Ave., Suite 225
Sacramento, CA 95825
via fax only 916-646-5696
Richard Sopp
Maloney, Wheatley, Sopp & Brooks
1004 Moon River Rock Drive, Suite 245
Folsom, CA 95630
via fax only 916-988-5296
Re Abbott V Britschgi. et. al., Sacramento County case no. 07AS04450
Dear Gentlemen.
1 write in response to a May 13, 2009 fax from Mr. Federico.
First, there was no "order" from Judge Van Camp at yesterday's conference; the
purpose of the conference was to set a trial date. As I understood the judge's comments,
I would need to bring a motion ifl wanted to reopen discovery. That is a given.
Second, I do not need to reopen discovety in order for my client to conduct testing
on her own property (See, e.g. Pullin v. Superior Court (2000) 81 Cal App 4th 1161,
1162, 1164-1165 ["We publish this opinion to confirm that, as the plaintiff in this case
claims, there is nothing in the Civil Discovety Act (Code Civ. Proc, § 2016 et seq.) to
prevent a party from conducting a unilateral investigation without resort to any statutory
discovety device, provided only that the investigation is lawful"]) In Pullin, the
"discovery" was an investigation by plaintiffs' expert of a portion of defendants' floor
conducted while defendants' store was open to the public. The Second District held that
this was "investigation" rather than formal "discovery" and that the results of the testing
were thus not inadmissible as a result of failure to abide by discovery rules. (Id at p.
1165 ["If it IS a lawfial investigation, it is not 'discovery' within the meaning of the
Discovety Act, and it is immaterial that the discovery cut-off date may have come and
E^C
-2- May 14,2009
gone."]) My clients have evety right to perform testing on their own property, regardless
of whether discovery is open or closed.
Which brings me to my third point- the discovery your clients may wish to do on
the Abbott property. As you mentioned in your opposition to the motion to continue the
trial date, you were aware in December 2008 that Ms. Abbott was complaining of soils
violations. She did not understand what she meant by that, but apparently you and your
clients did Additionally, your clients have actual knowledge as to the following facts that
my clients are seeking to determine via the excavation and any future testing: (1) whether
any part of the foundation was placed on uncompacted soil; (2) the amount of fill placed
under the house and garage slabs, (3) the amount of gravel placed under the house and
garage slabs; and (4) the actual depth of the footings and the amount of backfill placed
against the retaining wall in the garage. These are facts of which your clients are aware
without you conducting any discovery on my clients' property. Thus, I do not see how
you can claim that you were somehow "unaware" of the need to do discovery as to the
condition ofthe soil under the foundation
Nevertheless, my clients will give you and your experts the opportunity to inspect
the excavated portion of their property. This excavation has created a hole that is a
hazard in the Abbotts' yard, especially since they have a small child. They will leave the
hole open through May 19, 2009, at which time they will fill it back up. Ifyour experts
wish to inspect the excavation, take samples of the soil, take photos, or do other testing
on that area, they have until May 19, 2009 to do so. Ifyou decide not to take advantage
of this opportunity, you do so at your own peril I will seek to admit photographs of the
excavation, the results of any testing done, and any expert testimony or other evidence
based upon this excavation. Given that your clients are already aware of the condition of
the soil (and the amount of trash—^yes, literally trash) they used as backfill against the
garage, I can understand that you may not even need to inspect the excavation. But it is
available for inspection up through May 19.
Given that trial is more than a year away, I do not see how you can argue any
prejudice as a result ofthe recent excavation or any testing that may or will be conducted
in the near future Let me know when your experts would like to view the Abbotts'
property.
Sincerely,
Stephanie J. Finelli
^NSMISSION VERIFICATION REPORT
TIME 05/14/2009 11:43
NAME LAW OFFICES
FAX 9164431511
TEL 9164431504
SER.« BR0L7J729626
DATE,TIME 05/14 11:42
FAX NO./NAME 15302975077
DURATION 00:00:28
PAGE(S) 02
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Law Office of Stephanie J, Finelli
1007 Seventh Street, Suite 500
Sacramento, California 95814
Tel (ANSMISSION VERIFICATION REPORT
TIME 05/14/2009 11:44
NAME LAW OFFICES
FAX 9164431511
TEL 9164431504
SER.tt BRGL7J729626
DATE,TIME 05/14 11:44
FAX NO./NAME 6465696
DURATION 00:00:32
PAGECS) 02
RESULT OK
MODE STANDARD
ECM
Law Office of Stephanie J. Finelli
1007 Seventh Street, Suite 500
Sacramento, California 95814
Tel (916) 443-2144
Fax (916) 443-1511
May 14,2009
Craig Lundgren
424 2nd Street, Suite A
Davis, CA 95616
via fax only 530-297-5077
Gregoty Federico
Archer Norris
655 University Ave., Suile 225
Sacramento, CA 95825
via fax onfy 916-646-5696
Richard Sopp
Maloney, Wheatiey, Sopp & Brooks
1004 Moon River Rock Drive, Suite 245
Folsom, CA 95630
via fax only 916-988-5296
Re: Abbott v. Britschei. et. al., SacraiTiento County case no. 07AS04450
Dear Gentlemen;
I write in response to a May 13,2C09 fax from Mr. Federico.
First, there was no "order" from .Fudge Van Camp at yesterday's conference; the
' ">^
^
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Preview
1 STEPHANIE J. FINELLI, SBN 173462 Law Office of Stephanie J. Finelli FfLED 2 1007-7th Street, Suite 500 Superior Court Of CaHi^ornia, Sacramento, CA 95814 Sacramento 3 tel 916-443-2144 fax 916-443-1511 12/22/2010 4 l^whitfield Attorney for Plaintiffs, By_ Deputy 5 FLORENTINE and RODNEY ABBOTT C a s a Mumbur: 6 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SACRAMENTO 9 10 FLORENTINE AND RODNEY ABBOTT, CaseNo.:07AS04450 11 Plaintiffs, PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION IN LIMINE 8 TO 12 vs. EXCLUDE EXPERTS FROM TESTIFYING AS TO POST-DEPOSITION WORK OR 13 RONALD BRITSCHGI, et. al.. OPINIONS 14 Defendants Hearing on Motion: January 7, 2011 Time: 10:00 a.m. 15 Trial Date: January 18, 2011 Judge: Brian Van Camp 16 Dept: 43 17 A. This Court Specifically Allowed CA Construction to Conduct Discovery as to the 18 New Claims; Their Failure to Do so Does not Mean Plaintiffs' Evidence Should Be 19 Excluded 20 During their depositions, plaintiffs experts Weahunt and Lee both opined that the house, 21 and particularly the garage slab, was on uncompacted soil. Each of them stated that they may 22 conduct further investigation into this issue. 23 On May 12, 2009, plaintiffs' counsel wrote to defendants' and cross-defendants' counsel 24 and informed them that plaintiffs had excavated the land to the right of the garage to expose the 25 footings. A true and correct copy of this letter is attached hereto as Exhibit A. The next day 26 counsel for CA Constmction wrote back, objecting to the proposed testing. A tme and correct 27 copy of this letter is attached hereto as Exhibit B. On May 14, 2009, plaintiffs responded to that 28 letter, stating that discovery did not need to be reopened for plaintiffs to conduct testing on their Opposition to Motion in Limine - 1 own property, but that defendants were welcome to view the excavated portions of the yard 2 and/or conduct testing on that area until May 19, 2009. A tme and correct copy of this letter is 3 attached hereto as Exhibit C. This predated this Court's May 28, 2009 order, denying 4 defendants' mofion to preclude such tesfing. 5 On July 20, 2009, this Court granted plaintiffs' motion to amend the complaint. A true 6 and correct copy of this order is attached hereto as Exhibit D. Therein, the court granted CA 7 Constmction's request to reopen discovery as to the new claims asserted against him. (Exh D.) 8 These new claims included compaction and soils issues and the claim that the house was on 9 uncompacted and improper soil. 10 Thus, over a year and a half ago, defendants have not only been aware of the compaction 11 and soils issue; they have had the ability to conduct discovery as to those issues, including the 12 ability to inspect plaintiffs' property following the excavation ofthe footings. In fact, defendants 13 have served interrogatories to plaintiffs and on December 21, 2010 are deposing Bryan Hill, an 14 expert who has opined on the issue of compaction. 15 Defendants assert that each of plaintiffs' experts indicated back in April 2009 "that he 16 may conduct post-deposition work that could potentially alter the testimony he provided during 17 the deposition." (MOL 8 at p. 3:7-9.) Nevertheless, defendants have not sought to re-depose 18 either Skip Weahunt or Robin Lee on any new issues, or on any post-deposition work, despite 19 the fact that they have every reason to expect such work has taken place and they were 20 specifically afforded the opportunity a year and a half ago by the court. 21 In response to CA Construction's recent supplemental interrogatory, plaintiffs disclosed 22 the fact that photographs had been taken of the excavation, and informed defendants they were 23 welcome to have copies on a DVD as long as they were willing to pay for the copies. To date, 24 defendants have not taken plaintiffs up on this offer. 25 Additionally, each of plaintiffs experts testified that there were compaction issues 26 Precluding them from so testifying at trial would actually preclude them from giving opinions 27 they had at their depositions, which is not proper under any law. Once again, defendants are 28 Opposition to Motion in Limine - 2 1 improperly seeking to exclude relevant, admissible testimony that is harmful to defendants' case 2 and are seeking to try this case in the form of in limine motions. 3 B. Defendants Misstate Plaintiffs' Experts' Testimony 4 Defendants' motions in limine conceming expert testimony should be denied in their 5 entirety based on defendants' unwillingness to accurately reflect plaintiffs' experts' testimony 6 and their persistence in misstating their testimony. In their efforts to exclude plaintiffs' experts 7 relevant but harmful testimony and to prevent the jury from hearing what really happened at 8 plaintiffs' house, defendants have misstated, misconstrued, and taken out of context the 9 testimony plaintiffs' experts provided at deposition. This should not be countenanced by this 10 Court. 11 Defendants state that each of plaintiffs' experts stated they had "done no testing, taken no 12 measurements, or researched local building codes or standards of practice to support their alleged 13 'expert' opinions regarding the 'damage' they claimed to have observed at Plaintiffs' home. 14 (MOL 8 at p. 3 4-7.) They further state, "it is abundanfiy clear that Plainfiffs' experts failed to 15 do the minimal level of work that is necessary to establish a foundation for their alleged 'expert 16 opinions." (MOL 8 at p. 3:10-11.) Thus, they completely disregard the numerous elevations 17 Robin Lee took of the entire property, including the driveway; the fact that each of them has 18 been to and inspected plaintiffs' home; the fact that each of them has reviewed the plans; all of 19 the other work each of the experts testified they had done prior to deposition; and the fact that 20 each of them is eminently qualified to render opinions, especially as to the standard of care, 21 without having to "research" such standard anywhere. 22 This motion should be denied, along with the other motions defendants have brought 23 seeking to improperly exclude relevant expert testimony that defendants do not like. 24 25 26 Dated: December 2 (,2010 Stephanie TrTine 27 Attomey for Plaintiffs 28 Opposition to Motion in Limine - 3 "1 1 La. Office of Stephanie J. Finelli 1007 Seventh Street, Suite 500 Sacramento, California 95814 Tel (916) 443-2144 Fax (916) 443-1511 May 12, 2009 Craig Lundgren 424 2nd Street, Suite A Davis, CA 95616 via fax only 530-297-5077 Gregory Federico Archer Norris 655 University Ave , Suite 225 Sacramento, CA 95825 via fax only 916-646-5696 Richard Sopp Maloney, Wheatley, Sopp & Brooks 1004 Moon River Rock Drive, Suite 245 Folsom, CA 95630 via fax only 916-988-5296 Re. Abbott v. Britschgi. et. al., Sacramento County case no. 07AS04450 Dear Gentlemen: I write to inform you that the Abbotts have excavated the land to the right of the garage in order to expose the footings. The property is available and open to inspection by you and your experts Please let me know when you would like to inspect the property. Additionally, the Abbotts intend to perform some destractive testing to determine the compaction under the slab. I will let you know the results of that testing once I obtain them a^4 n^T • ^ •iNSMISSION VERIFICATION REPORT TIME 05/12/2009 14:21 NAME LAW OFFICES FAX 9164431511 TEL 9164431504 SER.tt BRQL7J729626 DATE,TIME 05/12 14:21 FAX NO./NAME 15302975077 DURATION 00:00:14 PAGE(S) 01 RESULT OK MODE STANDARD ECM Law Office of Stephanie J, Finelli 1007 Seventh Street, Suite 500 Sacramento, Califomia 95814 Tel (916) 443*2144 Fax (916) 443-1511 May 12,2009 Craig Lundgren 424 2nd Street, Suite A Davis, CA 95616 via fax only 530-297-5077 Gregory Federico Archer Norris 655 University Ave., Suite 225 Sacramento, CA 95825 via fax only 916-646-5696 Richard Sopp Maloney, Wheatley, Sopp & Brooks 1004 Moon River Rock Drive, Suite 245 Folsom, CA 95630 via fax only 916-988-5296 Re: Abbott v. Britschei. et. al, Sacramento County case no. 07AS04450 Dear Gentlemen; I write to inform you that the Abbotts have excavated the land to the right ofthe garage in order to expose the footings. The property is available and open to inspection by you and your experts. Please let mo know when you would like to inspect the .1 . "^ ,NSMISSION VERIFICATION REPORT TIME 05/12/2009 14:22 NAME LAW OFFICES FAX 9164431511 TEL 9164431504 SER.tt BR0L7J729626 DATE,TIME 05/12 14:22 FAX NO./NAME 6465696 DURATION 00:00:16 PAGE(S) 01 RESULT OK MODE STANDARD ECM Law Office of Stephanie J. Finelli 1007 Seventli Street, Suite 500 Sacramento, Califotnia 95814 Tel (916) 443-2144 Fax (9116) 443-1511 May 12, 2009 Craig Lundgren 424 2nd Sti-eet, Suite A Davis, CA 95616 via fax only 530-297-5077 Gregory Federico Archer Norris 655 University Ave., Suite 225 Sacramento, CA 95825 via/ox: onfy 916-646-5696 Richard Sopp Maloney, Wheatley, Sopp & Brooks 1004 Moon River Rock Drive, Suite 245 Folsom, CA 95630 via fax only 916-988-5296 Re: Abbott v Britschgi. et. al,, Sacramento County case no. 07AS04450 Dear Gentlemen; I write to inform you that the Abbotts have excavated the land to the right ofthe garage in order to expose the footings. Ttie property is available and open to inspection by you and your experts. Please let m«: Icnow when you would like to inspect the ^NSMISSION VERIFICATION REPORT TIME 05/12/2009 14:23 NAME LAW OFFICES FAX 9164431511 TEL 9164431504 SER.tt BR0L7J729626 DATE,TIME 05/12 14:23 FAX NO./NAME 9885295 DURATION 00:00:20 PAGE(S) 01 RESULT OK MODE STANDARD ECM Law Office of Slephanie J. Finelli 1007 Seventh Street, Suite 500 Sacramento, Clalifomia 95814 Tel (916) 443-2144 Fax (916.) 443-1511 May 12,2009 Craig Lundgren 424 2nd Street Suite A Davis, CA 95616 via fax only 530-297-5077 Gregory Federico Archer Norris 655 University Ave., Suite 225 Sacramento, CA 95825 via fax only 916-646-5696 Richai-d Sopp Maloney, Wheatley, Sopp & Brooks 1004 Moon River Rock Drive, Siiite 245 Folsom, CA 95630 via fax only 916-988-5296 Re: Ahhntt v. Britschgi, et. al., Sacramento County case no. 07AS04450 Dear Gentlemen: I write to inform you that the Abbotts have excavated the land to the right ofthe garage in order to expose tlic footings. The property is available arid open to mspection hv vou and vour experts. Please let me know when you would Uke to mspect the T q i RRaR'iFqB ARCHtK I N U K K I D A ARCHERNORRIS A PROFESSIONAL LAW CORPORATION 6S5 Unlversltv Avenue, Suite "OS GREGORY K. FEDERICO sacramento, CA 95825-6747 5lfi6defl06<|^a^chemo^rts.aml 916,M6 2480 9t«.64G.?'(80 916.646.5696 (Fax) ^w«w.a rchemoms.com May 13,2009 VIA FACSIMILE ONLY Stephanie Finelli, Esq. Law Offices of Stephanie J. Finelli 1007 Seventh Street, Suite 500 Sacramento, CA 95814 Re: Rodney and Florentine Abbott v. Ronald Paul Britschgi, et aL Sacramento County Superior Court Case No. 07AS04450 My Client; CA Constmction Our File No.: NIC-341 Dear Ms. Finelli; We are in receipt of your letter dated May 12, 2009 wherein you inform the parties that Plaintiffs have excavated the land to the right ofthe garage and are in the process of performing destmctive testing to determine the compaction under the slab. The purpose of this letter is to advise you of CA Constmction's objecfion to Plaintiffs' proposed testing. As you know, the initial trial date was set for May 11,2009. You infoimed the defense one day after the initial trial date that testing was underway. Discovery closed in this matter on April 13,2009. Under Code of Civi! Procedure §2024.020, a postponement ofthe trial date does not re-open discovery proceedings. Further, expert discovery closed on April 27,2009. You aheady offered the opinions of your experts and they are now foreclosed from conducting new investigations to support the opinions they offered. During the May 13, 2009 conference with Judge Brian R. Van Camp, the defense advised the Judge that discovery was closed and that Plaintiffs were conducting testing beyond thc discovery cutoff You agreed with thc .Tudge that discovery was closed. Judge Van Camp's order was clear - Plaintiffs are required to bring a formal motion to determine whether they are permitted to conduct this testing. After the conference, you indicated to me that Plaintiffs will proceed with the testing. W A L M U T CREEK SACRAMENIO NEWPORT BEACH &fl^B LOS A N G E L E S ^^,1^-, J. jxDOMOjajo HKLjI-ltK INUKKib rwuc ua/Mm '^ 1 Stephanie Finelli, Esq. Law Offices of Stephanie J. Finelli May 13,2009 Page 2 Thus, if Mr. and Mrs. Abbott proceed with their testing, they do so at their own risk. Discovery is closed in this matter, and it has been for sometime now. Testing at the 1 Itb hour is improper and violates the provisions ofthe Discovery Act. We will seek to exclude any and all results of this testing, including any data or opinions generated therefrom, at the time oftrial. Furtherraore, such testing will be perfomiied in direct contravention to Judge Van Camp's order of May 13,2009. If there is any doubt on your part that Judge Van Camp was requiring Plaintiffs to seek leave of Court prior to conducting ihe testing, please so advise. I will be happy to seek clarification from the Judge. Thank you for your attention to this matter. Very truly yours, ARCHERNORRIS /s/ Gregory K. Federico Gregory K. Federico GKF/sm cc; All Counsel Nrc341/796539-1 _^.^.^ i^iOD^DObyO AKUntR nuiM^x^ L W » ft.'JW J ^ 1 Service List 2 Stephanie Finelli PLAINTIFFS 3 Law Offices of Stephanie J. Finelli 1007 Seventh Street, Suite 500 Tel; (916) 443-2144 4 Sacramento, CA 95814 Fax; (916) 443-1511 E-mail: sfinelli700@yahoo.com 5 Craig N. Lundgren Counsel for RONALD PAUL BRITSCHGI, 6 LUNDGREN & REYNOLDS, LLP INDIVIDUALLY AND DBA BRITSCHGI 424 Second Street, Suite A CORPORATION 7 Davis, CA 95616 Tel: (530)297-5030 8 Fax: (530) 297-5077 E-mail: clundgr6n@lr-law.net 9 Richard D. Sopp Counsel for CADRE DESIGN GROUP, INC. 10 Maloney, Wheatley, Sopp & Brooks 1004 River Rock Drive, Suite 245 Tel: (916) 988-3857 n Folsom, CA 95630 Fax: (916) 988-S296 Email: rds@mwsblaw.com 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NIC341/608293-1 SERVICE LIST L^ w Office of Stephanie J. Finehx 1007 Seventh Street, Suite 500 Sacramento, California 95814 Tel (916) 443-2144 Fax (916) 443-1511 May 14, 2009 Craig Lundgren 424 2nd Street, Suite A Davis, CA 95616 via fax only 530-297-5077 Gregory Federico Archer Norris 655 University Ave., Suite 225 Sacramento, CA 95825 via fax only 916-646-5696 Richard Sopp Maloney, Wheatley, Sopp & Brooks 1004 Moon River Rock Drive, Suite 245 Folsom, CA 95630 via fax only 916-988-5296 Re Abbott V Britschgi. et. al., Sacramento County case no. 07AS04450 Dear Gentlemen. 1 write in response to a May 13, 2009 fax from Mr. Federico. First, there was no "order" from Judge Van Camp at yesterday's conference; the purpose of the conference was to set a trial date. As I understood the judge's comments, I would need to bring a motion ifl wanted to reopen discovery. That is a given. Second, I do not need to reopen discovety in order for my client to conduct testing on her own property (See, e.g. Pullin v. Superior Court (2000) 81 Cal App 4th 1161, 1162, 1164-1165 ["We publish this opinion to confirm that, as the plaintiff in this case claims, there is nothing in the Civil Discovety Act (Code Civ. Proc, § 2016 et seq.) to prevent a party from conducting a unilateral investigation without resort to any statutory discovety device, provided only that the investigation is lawful"]) In Pullin, the "discovery" was an investigation by plaintiffs' expert of a portion of defendants' floor conducted while defendants' store was open to the public. The Second District held that this was "investigation" rather than formal "discovery" and that the results of the testing were thus not inadmissible as a result of failure to abide by discovery rules. (Id at p. 1165 ["If it IS a lawfial investigation, it is not 'discovery' within the meaning of the Discovety Act, and it is immaterial that the discovery cut-off date may have come and E^C -2- May 14,2009 gone."]) My clients have evety right to perform testing on their own property, regardless of whether discovery is open or closed. Which brings me to my third point- the discovery your clients may wish to do on the Abbott property. As you mentioned in your opposition to the motion to continue the trial date, you were aware in December 2008 that Ms. Abbott was complaining of soils violations. She did not understand what she meant by that, but apparently you and your clients did Additionally, your clients have actual knowledge as to the following facts that my clients are seeking to determine via the excavation and any future testing: (1) whether any part of the foundation was placed on uncompacted soil; (2) the amount of fill placed under the house and garage slabs, (3) the amount of gravel placed under the house and garage slabs; and (4) the actual depth of the footings and the amount of backfill placed against the retaining wall in the garage. These are facts of which your clients are aware without you conducting any discovery on my clients' property. Thus, I do not see how you can claim that you were somehow "unaware" of the need to do discovery as to the condition ofthe soil under the foundation Nevertheless, my clients will give you and your experts the opportunity to inspect the excavated portion of their property. This excavation has created a hole that is a hazard in the Abbotts' yard, especially since they have a small child. They will leave the hole open through May 19, 2009, at which time they will fill it back up. Ifyour experts wish to inspect the excavation, take samples of the soil, take photos, or do other testing on that area, they have until May 19, 2009 to do so. Ifyou decide not to take advantage of this opportunity, you do so at your own peril I will seek to admit photographs of the excavation, the results of any testing done, and any expert testimony or other evidence based upon this excavation. Given that your clients are already aware of the condition of the soil (and the amount of trash—^yes, literally trash) they used as backfill against the garage, I can understand that you may not even need to inspect the excavation. But it is available for inspection up through May 19. Given that trial is more than a year away, I do not see how you can argue any prejudice as a result ofthe recent excavation or any testing that may or will be conducted in the near future Let me know when your experts would like to view the Abbotts' property. Sincerely, Stephanie J. Finelli ^NSMISSION VERIFICATION REPORT TIME 05/14/2009 11:43 NAME LAW OFFICES FAX 9164431511 TEL 9164431504 SER.« BR0L7J729626 DATE,TIME 05/14 11:42 FAX NO./NAME 15302975077 DURATION 00:00:28 PAGE(S) 02 RESULT OK MODE STANDARD ECM Law Office of Stephanie J, Finelli 1007 Seventh Street, Suite 500 Sacramento, California 95814 Tel (ANSMISSION VERIFICATION REPORT TIME 05/14/2009 11:44 NAME LAW OFFICES FAX 9164431511 TEL 9164431504 SER.tt BRGL7J729626 DATE,TIME 05/14 11:44 FAX NO./NAME 6465696 DURATION 00:00:32 PAGECS) 02 RESULT OK MODE STANDARD ECM Law Office of Stephanie J. Finelli 1007 Seventh Street, Suite 500 Sacramento, California 95814 Tel (916) 443-2144 Fax (916) 443-1511 May 14,2009 Craig Lundgren 424 2nd Street, Suite A Davis, CA 95616 via fax only 530-297-5077 Gregoty Federico Archer Norris 655 University Ave., Suile 225 Sacramento, CA 95825 via fax onfy 916-646-5696 Richard Sopp Maloney, Wheatiey, Sopp & Brooks 1004 Moon River Rock Drive, Suite 245 Folsom, CA 95630 via fax only 916-988-5296 Re: Abbott v. Britschei. et. al., SacraiTiento County case no. 07AS04450 Dear Gentlemen; I write in response to a May 13,2C09 fax from Mr. Federico. First, there was no "order" from .Fudge Van Camp at yesterday's conference; the ' ">^ ^ M