Preview
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1 Todd A. Jones (BarNo. 198024)
2
Gregory K. Federico (Bar No. 242184)
ARCHER NORRIS
ENDORSED
A Professional Law Corporation ' O O E C - 7 AHM: 16
3 301 University Avenue, Suite 110
Sacramento, Califomia 95825 LEGAL PROCESS t t ?
4 Telephone: 916.646.2480
Facsimile: 916.646.5696
5
Attomeys for Defendants
6 RICHARD KIRK RUYBALID, individually and
dba CA CONSTRUCTION; and R4C0RP., INC.
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10
11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
ABBOTT,
12 MOTION IN LIMINE NO. 11 TO
Plaintiffs, EXCLUDE ANY EVIDENCE OF
13 DAMAGES BASED ON SPECULATION
AND/OR EXTRAPOLATION
14
RONALD PAUL BRITSCHGI, et al.. Action Filed: September 24, 2007
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Defendants. Trial Date: January 17, 2011
16 Time: 8-30 am.
Location: Department 43
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AND ALL RELATED CROSS-ACTIONS.
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19
I.
20 INTRODUCTION
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Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION
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(hereinafter "CA CONSTRUCTION") and Defendant R4C0RP., INC. (hereinafter "R4C0RP")
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(hereinafter collectively "Defendants") hereby incorporate by reference herein the "Introduction"
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section set forth in its Motion in Limine No. 1.
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N1C549/1058521-1
DEFENDANTS' MOTION IN LIMINE NO 11 TO EXCLUDE ANY EVIDENCE OF DAMAGES BASED ON
SPECULATION AND/OR EXTRAPOLATION
1 MOTION IN LIMINE NO. 11 TO EXCLUDE ANY EVIDENCE OF DAMAGES BASED
ON SPECULATION AND/OR EXTRAPOLATION BECAUSE IT IS SPECULATIVE,
2 LACKS FOUNDATION, AND IS INHERENTLY PREJUDICIAL
3 Defendants hereby respectfiilly request an order prohibiting Plaintiffs, their attomeys and
4 witnesses from introducing any evidence of, or providing testimony, in the form ofexpert
5 opinions or otherwise, conceming the calculation of damages or the need for repairs to the
6 property based upon extrapolation or speculation.
7 Defendants believe that Plaintiffs will attempt to introduce evidence or offer testimony,
8 either in the form of lay or expert opinion which extrapolates or hypothesizes as to the amount of
9 damages and/or repairs at the subject property. Defendants believe that Plaintiffs will present
10 limited documentation in support oftheir claims and will extrapolate the total amount of defects
11 and/or damages at the property. For instance. Defendants believe that Plaintiffs will present
12 limited evidence regarding the issue of whether the fill beneath the garage slab, and potentially
13 the house foundafion, was properly compacted. Plainfiffs have performed no testing on the
14 compaction issue. Despite this, Plainfiffs are calling for the removal and replacement ofthe
15 garage slab.
16 As set forth herein, evidence ofthis nature must be excluded because it lacks foundation,
17 it is inherently speculative, and is unduly prejudicial.
18 Evidence Code §801 (b) limits the opinions of experts as follows:
19 "If a witness is testifying as an expert, his testimony in the
form ofan opinion is limited to such an opinion as is:
20
21
22 (b) Based on matter (including his special knowledge, skill,
experience, training and education) perceived by or personally
23 known to the witness or made known to him at or before the
hearing, whether or not admissible, that is ofa type that
24 reasonably may be relied upon by an expert in forming an
25 opinion upon the subject to which his testimony relates, unless
an expert is precluded by law from using such matter as a
26 basis for his opinion."
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N1C549/1058521-1
MOTION IN LIMINE NO 11 TO EXCLUDE ANY EVIDENCE OF DAMAGES BASED ON SPECULATION
AND/OR EXTRAPOLATION
1 The Court has authority to exclude evidence when the probative value is substantially
2 outweighed by the prejudice it creates. This Court further has the authority to control the process
3 ofthe case and proceedings before it. Code of Civil Procedure §128. To permit an expert
4 witness, let alone any witness, to extrapolate or hypothesize as to the amount of current and future
5 physical damage to the project, or as to the need for repairs of such physical damage based upon
6 minimal to no damage to only a limited area ofthe property, it would be extremely and unfairly
7 prejudicial. While Defendants may be able to demonstrate that such extrapolation is erroneous, a
8 serious and prejudicial likelihood exists that substantial harm will have already been done and the
9 "proverbial bell carmot be unmng."
10 This type of extrapolation technique is disapproved and in cases where such a technique
11 relies upon conjecture and speculation, it is improper pursuant to Pacific Gas & Electric Co. v.
12 Zuckerman (1987) 189 Cal.App.3d 1113. In Pacific Gas & Electric, the court held:
13 "The value of opinion evidence rests not in the conclusion reached
but in the factors considered and the reasoning employed.
14 (Citations omitted) Where an expert bases his conclusion upon
assumptions which are not supported by the record, upon matters
15 which are not reasonably relied upon by other experts, or upon
factors which are speculafive, remote or conjectural, then his
16 conclusion has no evidentiary value. (Citations omitted.) In those
circumstances the expert's opinion cannot rise to the dignity of
17 substanfial evidence." (Id. atp. 1135.)
18 To the extent that Plaintiffs' experts have not performed any destructive testing or opened
19 any portion ofthe garage slab or house foundation to verify the existence or non-existence of
20 proper compaction, testimony regarding defective conditions that may exist at these locations is
21 speculative, misleading, and lacks foundation.
22 Plaintiffs' expert James Lee, Jr., a landscape architect, gave opinion testimony as a
23 disclosed expert, that the garage slab is built on uncompacted soil. He bases this opinion on a
24 "presumption" only with no supporting scienfific or measurement data. At the same time he
25 testified that (1) he has never seen a set ofthe actual construction plans; (2) he had done no
26 testing of surrounding soils or the soils supporting the garage slab; (3) he does not hold an
27 engineering license. Lee continues to opine as follows:
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N1C549/1058521-1
MOTION IN LIMINE NO. 11 TO EXCLUDE ANY EVIDENCE OF DAMAGES BASED ON SPECULATION
AND/OR EXTRAPOLATION
1 • he does not know why construction decisions were made or why certain elevations in
terms ofthe relationship ofthe house to the garage were made
2
he was not aware he could read other deposition transcripts and none were offered to
3 him
he admits that he is "prone to exaggeration"
4 • h e creates grading plans but he is not licensed to do so
he has no construction licenses
5 he has not been authorized to create a grading plan and he cannot calculate yardage,
5 walls, or obtain information from other professionals
he never met with owners(Plaintiffs) to learn what they wanted to do in constructing
7 the residence; he learned ofplaintiffs' desires for the project via hearsay but can't
confirm that his secondhand information correctly portrayed the wishes ofthe
plaintiffs
g • h e has no opinions about the work ofany ofthe contractors on this job as he lacks
specific information
10 • opines that the driveway is too steep but has no Sacramento County code sections to
point to; has done no research, bases his opinion on speaking with realtors who say
11 that steep driveways are difficult to market; he does not know the maximum allowable
grade for driveway in Sacramento County
12
opines that contractor built the house andfoundation on fill without the assistance of
13 a geotechnical engineer and without certification that fill was properly compacted, but
then testifies that he does not know if compaction was adequate; he presumes that the
14 stem wall ofthe garage would have been built on uncompacted fill, not certified and
does not know ifthe stem wall was built on native ground, not aware ofits true height
15 most counties will not let him design actual retaining walls and perform the
Ig calculations to support the walls
he does not know what occurred under the slab
17
It is abundantly clear that Lee has no personal knowledge to support any of his alleged
18
.g "expert" opinions and that all his opinions are based on pure speculation. He cannot meet the
20 requirements of Evidence Code 801(b) to offer expert tesfimony about any ofthe soils issues for
21 which he has been retained.
James Dillingham, P.E., is also anticipated to give "expert" testimony about the alleged
23
damages to the garage via alleged framing defects However, Dillingham, like Lee, has no
24
personal knowledge ofthe alleged defects nor has he conducted even the most basic testing on
25
site, such as taking measurements ofthe framing he condemns. He testified as an expert that:
26
27 • H e did no testing on his one and only site visit nor was he asked to conduct tests ofany
kind, he took no measurements ofany aspect of plaintiffs' home or home site
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N1C549/1058521-1
MOTION IN LIMINE NO 11 TO EXCLUDE ANY EVIDENCE OF DAMAGES BASED ON SPECULATION
AND/OR EXTRAPOLATION
1 • He has not conducted a review ofany documents pertaining to the construction ofthe
Plaintiffs' home; he has reviewed no deposition transcripts, has not been provided
2
with any documents in this case, saw only the plans given him by the plaintiff at her
3 home and he does not know if those plans are complete; he took no photographs and
none were provided to him
4 • Dillingham's only knowledge about the project was received via telephone call from a
man whose last name he does not recall where he learned ofa "rumor " of
5 uncompacted soil
r • h e does not know the exact height ofthe garage wall but only speculates as 16' tall
"...because it was well over my head"
7 • admits that he has no evidence that the garage slab was built on uncompacted fill yet
calls for the removal ofthe slab; he has relied upon Plaintiffs' expert "Skip " who
8 heardfrom the landscape architect that the soil "might" not be adequately
compacted; has no evidence that the soils underlying the house have been
9 inadequately compacted
10 • will offer opinion that the wall studs are too tall to meet the defection requirements
for stucco and that project engineer was not informed ofthe height-but he does not
11 know where this information came from
during his one-time site inspection he did no investigation into the type of framing
-^ members used in construction yet he is critical of the framing, is not certain what the
,., plans called for as to framing but certain that the garage walls are too tall
he has observed no damage to the stucco waterproofing system on the garage; has no
14 opimon on whether there has been movement in the framing ofthe house itself or
movement in the foundation ofthe house
15
Finally, Plaintiffs' lead construction expert is Robert Weahunt, a general contractor with a
16
J y flair for exaggerafion. Again, like all of Plainfiffs' experts, Weahunt has no personal knowledge
18 as the basis for any of his opinions and relies totally on hearsay or what he defines as the
19 "standard of care". He has indicted the compaction ofthe soils underlying the garage slab and the
20
relationship ofthe garage to the cul-de-sac and calls for the demolition ofthe entire home/garage.
21
He has given expert testimony in this matter in which he opined that:
22
admits he is not an expert on grading lots or preparing sloping lots for construction;
•^ admits that he is not an architect, that he has performed no testing at the residence
24 • admits that he is not an expert in this area [grading] and does not know what would
have been necessary to make the level ofthe home foundation equal to the level ofthe
25 street/cul-de-sac and that to do so would be speculation on his part
opines that CA Construction built foundation on uncompacted soils but admits that he
26 has no evidence to support this opimon
27 • opines that foundation contractor did an "end run " around building inspector's
requestfor compaction report and then admits that his source of information is
28 hearsay from a non-expert
N1C549/1058521-1 5
MOTION IN LIMINE NO 11 TO EXCLUDE ANY EVIDENCE OF DAMAGES BASED ON SPECULATION
AND/OR EXTRAPOLATION
• bases his opinion of lack of compaction on Lee's opinion; then changes his testimony
and states that because he has not seen any compaction reports the fill material inside
the stem wall was uncompacted; admits that he is not a geotechnical engineer; not
aware ofany compaction tests ever bemg performed during or after construction;
opines that the garage slab was placed on footings but does not know ifthe footings
4 were placed on uncompacted fill dirt as he did not observe the placement ofthe
footings
• opines that entire garage slab must be raisedfour (4) feet at a cost of more than
$204,000 and admits that he bases this opinion on speculation and has not spoken
personally with a structural engineer to confirm this position
7 • opines that stem wall was not constructed in accordance with the plans by CA
Construction then changes his testimony claiming he has no evidence either way, then
8 admits that the stem wall was built in accordance with the Sacramento County
approved set of plans submitted by Plaintiff for approval
9
Plaintiffs must prove each and every element of their causes of action at each location to
10
justify the requested repair. It is prejudicial to Defendants and is misleading to the jury to allow
11
experts to assume defective conditions and resultins damage exist where none has been observed.
12
Clearly, none ofthe Plaintiffs' experts have any personal knowledge ofany defects with the
13
construction of Plaintiffs' residence and should be barred from offering expert opinions thereon.
14
Defendants request that the Court preclude any party from attempting to introduce
15
evidence of alleged defects and costs of repair that do not correspond to locations where actual
16
damage has occurred or where the costs of repair are based on extrapolation or speculation.
17
18 CONCLUSION
19 Based on the foregoing. Defendants respectfully request that the Court issue an order
20 excluding any evidence or testimony conceming damages or need for repair, and unsupported
21 personal property loss, based on extrapolation and speculation.
22
Dated: December 6,2010 ARCHER NORRIS
23
24
25 Gregory K. Federico
^. Attomeys for Defendants RICHARD KIRK
^^ RUYBALID, individually and dba CA
CONSTRUCTION, and R4C0RP., INC.
27
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N1C549/1058521-1
MOTION IN LIMINE NO 11 TO EXCLUDE ANY EVIDENCE OF DAMAGES BASED ON SPECULATION
AND/OR EXTRAPOLATION
1
IT IS SO ORDERED.
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DATED:
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6 JUDGE OF THE SUPERIOR COURT
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N1C549/1058521-1 7
MOTION IN LIMINE NO 11 TO EXCLUDE ANY EVIDENCE OF DAMAGES BASED ON SPECULATION
AND/OR EXTRAPOLATION
1 PROOF OF SERVICE
2 Name of Action: Rodney Abbott, et al. v. Ronald Paul Britschgi, et al.
Court and Action No: Sacramento County Superior No. 07AS04450
3
I, Cindy A. Ingland, declare that I am over the age of 18 years and not a party to this
4 action or proceeding. My business address is 301 University Avenue, Suite 110, Sacramento,
California 95825. On December 6, 2010,1 caused the following document(s) to be served:
5
MOTION IN LIMINE NO. 11 TO EXCLUDE ANY EVIDENCE OF DAMAGES
6 BASED ON SPECULATION AND/OR EXTRAPOLATION
7
8 I3cl By placing a tme copy ofthe documents listed above, enclosed in a sealed envelope,
addressed as set forth below, for collection and mailing on the date and at the business
9 address shown above following our ordinary business practices. I am readily familiar
,Q with this business' practice for collection and processing of correspondence for
mailing with the United States Postal Service. On the same day that a sealed envelope
11 is placed for collection and mailing, it is deposited in the ordinary course ofbusiness
with the United States Postal Service with postage fully prepaid.
12
I—I By having a true copy ofthe document(s) listed above transmitted by facsimile to the
13 person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission
was reported as complete without error by a report issued by the transmitting facsimile
14
machine.
15
I I By placing a tme copy ofthe document(s) listed above, in a box or other facility
16 regularly maintained by UPS, an express service carrier, or delivered to a courier or
driver authorized by the express service carrier to receive documents, in an envelope
1.7 designated by the express service carrier, with delivery fees paid or provided for,
addressed as set forth below.
18
19 n bv having personal deliverv bv FIRST LEGAL SUPPORT SERVICES a true copy of
the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the
20 address(es) set forth below.
21
[SEE ATTACHED SERVICE LIST]
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23
I declare under penalty ofperjury that the foregoing is true and correct. Executed on
24 Decemb^p6;;;^l O^t Sacramento, Califomia.
25
26 ^IhJu^
V^CJl^DYA. INGLAND
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NIC341/608293-1
PROOF OF SERVICE
1 Service List
2
Stephanie Finelli PLAINTIFFS
3 Law Offices of Stephanie J Finelli
1007 Seventh Street, Suite 500 Tel (916)443-2144
4 Sacramento, CA 95814 Fax:(916)443-1511
E-mail sfinelli700(gyahoo com
5
Richard D Sopp Counsel for CADRE DESIGN GROUP, INC.
6 Wheatley Sopp LLP
1004 River Rock Drive, Suite 245 Tel (916)988-3857
7 Folsom, CA 95630 Fax:(916)988-5296
Email rds@mwsblaw com
8
Mark Smith In Pro Per
9 8549 Willow Valley Place
Granite Bay, CA 95746
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Richard W Freeman Counsel for R4C0RP
11 Scott S. Brooks
WOOD SMITH HENNING & BERMAN LLP Tel (925) 356-8200
12 1401 Willow Pass Road, Suite 700 Fax: (925) 356-8250
Concord, CA 94520-7982
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N1C341/608293-1 2
SERVICE LIST
Preview
H'\ \ 1 Todd A. Jones (BarNo. 198024) 2 Gregory K. Federico (Bar No. 242184) ARCHER NORRIS ENDORSED A Professional Law Corporation ' O O E C - 7 AHM: 16 3 301 University Avenue, Suite 110 Sacramento, Califomia 95825 LEGAL PROCESS t t ? 4 Telephone: 916.646.2480 Facsimile: 916.646.5696 5 Attomeys for Defendants 6 RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION; and R4C0RP., INC. 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 ABBOTT, 12 MOTION IN LIMINE NO. 11 TO Plaintiffs, EXCLUDE ANY EVIDENCE OF 13 DAMAGES BASED ON SPECULATION AND/OR EXTRAPOLATION 14 RONALD PAUL BRITSCHGI, et al.. Action Filed: September 24, 2007 15 Defendants. Trial Date: January 17, 2011 16 Time: 8-30 am. Location: Department 43 17 AND ALL RELATED CROSS-ACTIONS. 18 19 I. 20 INTRODUCTION 21 Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 22 (hereinafter "CA CONSTRUCTION") and Defendant R4C0RP., INC. (hereinafter "R4C0RP") 23 (hereinafter collectively "Defendants") hereby incorporate by reference herein the "Introduction" 24 section set forth in its Motion in Limine No. 1. 25 /// 26 /// 27 /// 28 N1C549/1058521-1 DEFENDANTS' MOTION IN LIMINE NO 11 TO EXCLUDE ANY EVIDENCE OF DAMAGES BASED ON SPECULATION AND/OR EXTRAPOLATION 1 MOTION IN LIMINE NO. 11 TO EXCLUDE ANY EVIDENCE OF DAMAGES BASED ON SPECULATION AND/OR EXTRAPOLATION BECAUSE IT IS SPECULATIVE, 2 LACKS FOUNDATION, AND IS INHERENTLY PREJUDICIAL 3 Defendants hereby respectfiilly request an order prohibiting Plaintiffs, their attomeys and 4 witnesses from introducing any evidence of, or providing testimony, in the form ofexpert 5 opinions or otherwise, conceming the calculation of damages or the need for repairs to the 6 property based upon extrapolation or speculation. 7 Defendants believe that Plaintiffs will attempt to introduce evidence or offer testimony, 8 either in the form of lay or expert opinion which extrapolates or hypothesizes as to the amount of 9 damages and/or repairs at the subject property. Defendants believe that Plaintiffs will present 10 limited documentation in support oftheir claims and will extrapolate the total amount of defects 11 and/or damages at the property. For instance. Defendants believe that Plaintiffs will present 12 limited evidence regarding the issue of whether the fill beneath the garage slab, and potentially 13 the house foundafion, was properly compacted. Plainfiffs have performed no testing on the 14 compaction issue. Despite this, Plainfiffs are calling for the removal and replacement ofthe 15 garage slab. 16 As set forth herein, evidence ofthis nature must be excluded because it lacks foundation, 17 it is inherently speculative, and is unduly prejudicial. 18 Evidence Code §801 (b) limits the opinions of experts as follows: 19 "If a witness is testifying as an expert, his testimony in the form ofan opinion is limited to such an opinion as is: 20 21 22 (b) Based on matter (including his special knowledge, skill, experience, training and education) perceived by or personally 23 known to the witness or made known to him at or before the hearing, whether or not admissible, that is ofa type that 24 reasonably may be relied upon by an expert in forming an 25 opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a 26 basis for his opinion." 27 28 N1C549/1058521-1 MOTION IN LIMINE NO 11 TO EXCLUDE ANY EVIDENCE OF DAMAGES BASED ON SPECULATION AND/OR EXTRAPOLATION 1 The Court has authority to exclude evidence when the probative value is substantially 2 outweighed by the prejudice it creates. This Court further has the authority to control the process 3 ofthe case and proceedings before it. Code of Civil Procedure §128. To permit an expert 4 witness, let alone any witness, to extrapolate or hypothesize as to the amount of current and future 5 physical damage to the project, or as to the need for repairs of such physical damage based upon 6 minimal to no damage to only a limited area ofthe property, it would be extremely and unfairly 7 prejudicial. While Defendants may be able to demonstrate that such extrapolation is erroneous, a 8 serious and prejudicial likelihood exists that substantial harm will have already been done and the 9 "proverbial bell carmot be unmng." 10 This type of extrapolation technique is disapproved and in cases where such a technique 11 relies upon conjecture and speculation, it is improper pursuant to Pacific Gas & Electric Co. v. 12 Zuckerman (1987) 189 Cal.App.3d 1113. In Pacific Gas & Electric, the court held: 13 "The value of opinion evidence rests not in the conclusion reached but in the factors considered and the reasoning employed. 14 (Citations omitted) Where an expert bases his conclusion upon assumptions which are not supported by the record, upon matters 15 which are not reasonably relied upon by other experts, or upon factors which are speculafive, remote or conjectural, then his 16 conclusion has no evidentiary value. (Citations omitted.) In those circumstances the expert's opinion cannot rise to the dignity of 17 substanfial evidence." (Id. atp. 1135.) 18 To the extent that Plaintiffs' experts have not performed any destructive testing or opened 19 any portion ofthe garage slab or house foundation to verify the existence or non-existence of 20 proper compaction, testimony regarding defective conditions that may exist at these locations is 21 speculative, misleading, and lacks foundation. 22 Plaintiffs' expert James Lee, Jr., a landscape architect, gave opinion testimony as a 23 disclosed expert, that the garage slab is built on uncompacted soil. He bases this opinion on a 24 "presumption" only with no supporting scienfific or measurement data. At the same time he 25 testified that (1) he has never seen a set ofthe actual construction plans; (2) he had done no 26 testing of surrounding soils or the soils supporting the garage slab; (3) he does not hold an 27 engineering license. Lee continues to opine as follows: 28 N1C549/1058521-1 MOTION IN LIMINE NO. 11 TO EXCLUDE ANY EVIDENCE OF DAMAGES BASED ON SPECULATION AND/OR EXTRAPOLATION 1 • he does not know why construction decisions were made or why certain elevations in terms ofthe relationship ofthe house to the garage were made 2 he was not aware he could read other deposition transcripts and none were offered to 3 him he admits that he is "prone to exaggeration" 4 • h e creates grading plans but he is not licensed to do so he has no construction licenses 5 he has not been authorized to create a grading plan and he cannot calculate yardage, 5 walls, or obtain information from other professionals he never met with owners(Plaintiffs) to learn what they wanted to do in constructing 7 the residence; he learned ofplaintiffs' desires for the project via hearsay but can't confirm that his secondhand information correctly portrayed the wishes ofthe plaintiffs g • h e has no opinions about the work ofany ofthe contractors on this job as he lacks specific information 10 • opines that the driveway is too steep but has no Sacramento County code sections to point to; has done no research, bases his opinion on speaking with realtors who say 11 that steep driveways are difficult to market; he does not know the maximum allowable grade for driveway in Sacramento County 12 opines that contractor built the house andfoundation on fill without the assistance of 13 a geotechnical engineer and without certification that fill was properly compacted, but then testifies that he does not know if compaction was adequate; he presumes that the 14 stem wall ofthe garage would have been built on uncompacted fill, not certified and does not know ifthe stem wall was built on native ground, not aware ofits true height 15 most counties will not let him design actual retaining walls and perform the Ig calculations to support the walls he does not know what occurred under the slab 17 It is abundantly clear that Lee has no personal knowledge to support any of his alleged 18 .g "expert" opinions and that all his opinions are based on pure speculation. He cannot meet the 20 requirements of Evidence Code 801(b) to offer expert tesfimony about any ofthe soils issues for 21 which he has been retained. James Dillingham, P.E., is also anticipated to give "expert" testimony about the alleged 23 damages to the garage via alleged framing defects However, Dillingham, like Lee, has no 24 personal knowledge ofthe alleged defects nor has he conducted even the most basic testing on 25 site, such as taking measurements ofthe framing he condemns. He testified as an expert that: 26 27 • H e did no testing on his one and only site visit nor was he asked to conduct tests ofany kind, he took no measurements ofany aspect of plaintiffs' home or home site 28 N1C549/1058521-1 MOTION IN LIMINE NO 11 TO EXCLUDE ANY EVIDENCE OF DAMAGES BASED ON SPECULATION AND/OR EXTRAPOLATION 1 • He has not conducted a review ofany documents pertaining to the construction ofthe Plaintiffs' home; he has reviewed no deposition transcripts, has not been provided 2 with any documents in this case, saw only the plans given him by the plaintiff at her 3 home and he does not know if those plans are complete; he took no photographs and none were provided to him 4 • Dillingham's only knowledge about the project was received via telephone call from a man whose last name he does not recall where he learned ofa "rumor " of 5 uncompacted soil r • h e does not know the exact height ofthe garage wall but only speculates as 16' tall "...because it was well over my head" 7 • admits that he has no evidence that the garage slab was built on uncompacted fill yet calls for the removal ofthe slab; he has relied upon Plaintiffs' expert "Skip " who 8 heardfrom the landscape architect that the soil "might" not be adequately compacted; has no evidence that the soils underlying the house have been 9 inadequately compacted 10 • will offer opinion that the wall studs are too tall to meet the defection requirements for stucco and that project engineer was not informed ofthe height-but he does not 11 know where this information came from during his one-time site inspection he did no investigation into the type of framing -^ members used in construction yet he is critical of the framing, is not certain what the ,., plans called for as to framing but certain that the garage walls are too tall he has observed no damage to the stucco waterproofing system on the garage; has no 14 opimon on whether there has been movement in the framing ofthe house itself or movement in the foundation ofthe house 15 Finally, Plaintiffs' lead construction expert is Robert Weahunt, a general contractor with a 16 J y flair for exaggerafion. Again, like all of Plainfiffs' experts, Weahunt has no personal knowledge 18 as the basis for any of his opinions and relies totally on hearsay or what he defines as the 19 "standard of care". He has indicted the compaction ofthe soils underlying the garage slab and the 20 relationship ofthe garage to the cul-de-sac and calls for the demolition ofthe entire home/garage. 21 He has given expert testimony in this matter in which he opined that: 22 admits he is not an expert on grading lots or preparing sloping lots for construction; •^ admits that he is not an architect, that he has performed no testing at the residence 24 • admits that he is not an expert in this area [grading] and does not know what would have been necessary to make the level ofthe home foundation equal to the level ofthe 25 street/cul-de-sac and that to do so would be speculation on his part opines that CA Construction built foundation on uncompacted soils but admits that he 26 has no evidence to support this opimon 27 • opines that foundation contractor did an "end run " around building inspector's requestfor compaction report and then admits that his source of information is 28 hearsay from a non-expert N1C549/1058521-1 5 MOTION IN LIMINE NO 11 TO EXCLUDE ANY EVIDENCE OF DAMAGES BASED ON SPECULATION AND/OR EXTRAPOLATION • bases his opinion of lack of compaction on Lee's opinion; then changes his testimony and states that because he has not seen any compaction reports the fill material inside the stem wall was uncompacted; admits that he is not a geotechnical engineer; not aware ofany compaction tests ever bemg performed during or after construction; opines that the garage slab was placed on footings but does not know ifthe footings 4 were placed on uncompacted fill dirt as he did not observe the placement ofthe footings • opines that entire garage slab must be raisedfour (4) feet at a cost of more than $204,000 and admits that he bases this opinion on speculation and has not spoken personally with a structural engineer to confirm this position 7 • opines that stem wall was not constructed in accordance with the plans by CA Construction then changes his testimony claiming he has no evidence either way, then 8 admits that the stem wall was built in accordance with the Sacramento County approved set of plans submitted by Plaintiff for approval 9 Plaintiffs must prove each and every element of their causes of action at each location to 10 justify the requested repair. It is prejudicial to Defendants and is misleading to the jury to allow 11 experts to assume defective conditions and resultins damage exist where none has been observed. 12 Clearly, none ofthe Plaintiffs' experts have any personal knowledge ofany defects with the 13 construction of Plaintiffs' residence and should be barred from offering expert opinions thereon. 14 Defendants request that the Court preclude any party from attempting to introduce 15 evidence of alleged defects and costs of repair that do not correspond to locations where actual 16 damage has occurred or where the costs of repair are based on extrapolation or speculation. 17 18 CONCLUSION 19 Based on the foregoing. Defendants respectfully request that the Court issue an order 20 excluding any evidence or testimony conceming damages or need for repair, and unsupported 21 personal property loss, based on extrapolation and speculation. 22 Dated: December 6,2010 ARCHER NORRIS 23 24 25 Gregory K. Federico ^. Attomeys for Defendants RICHARD KIRK ^^ RUYBALID, individually and dba CA CONSTRUCTION, and R4C0RP., INC. 27 28 N1C549/1058521-1 MOTION IN LIMINE NO 11 TO EXCLUDE ANY EVIDENCE OF DAMAGES BASED ON SPECULATION AND/OR EXTRAPOLATION 1 IT IS SO ORDERED. 2 3 DATED: 4 5 6 JUDGE OF THE SUPERIOR COURT 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 N1C549/1058521-1 7 MOTION IN LIMINE NO 11 TO EXCLUDE ANY EVIDENCE OF DAMAGES BASED ON SPECULATION AND/OR EXTRAPOLATION 1 PROOF OF SERVICE 2 Name of Action: Rodney Abbott, et al. v. Ronald Paul Britschgi, et al. Court and Action No: Sacramento County Superior No. 07AS04450 3 I, Cindy A. Ingland, declare that I am over the age of 18 years and not a party to this 4 action or proceeding. My business address is 301 University Avenue, Suite 110, Sacramento, California 95825. On December 6, 2010,1 caused the following document(s) to be served: 5 MOTION IN LIMINE NO. 11 TO EXCLUDE ANY EVIDENCE OF DAMAGES 6 BASED ON SPECULATION AND/OR EXTRAPOLATION 7 8 I3cl By placing a tme copy ofthe documents listed above, enclosed in a sealed envelope, addressed as set forth below, for collection and mailing on the date and at the business 9 address shown above following our ordinary business practices. I am readily familiar ,Q with this business' practice for collection and processing of correspondence for mailing with the United States Postal Service. On the same day that a sealed envelope 11 is placed for collection and mailing, it is deposited in the ordinary course ofbusiness with the United States Postal Service with postage fully prepaid. 12 I—I By having a true copy ofthe document(s) listed above transmitted by facsimile to the 13 person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission was reported as complete without error by a report issued by the transmitting facsimile 14 machine. 15 I I By placing a tme copy ofthe document(s) listed above, in a box or other facility 16 regularly maintained by UPS, an express service carrier, or delivered to a courier or driver authorized by the express service carrier to receive documents, in an envelope 1.7 designated by the express service carrier, with delivery fees paid or provided for, addressed as set forth below. 18 19 n bv having personal deliverv bv FIRST LEGAL SUPPORT SERVICES a true copy of the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the 20 address(es) set forth below. 21 [SEE ATTACHED SERVICE LIST] 22 23 I declare under penalty ofperjury that the foregoing is true and correct. Executed on 24 Decemb^p6;;;^l O^t Sacramento, Califomia. 25 26 ^IhJu^ V^CJl^DYA. INGLAND 27 28 NIC341/608293-1 PROOF OF SERVICE 1 Service List 2 Stephanie Finelli PLAINTIFFS 3 Law Offices of Stephanie J Finelli 1007 Seventh Street, Suite 500 Tel (916)443-2144 4 Sacramento, CA 95814 Fax:(916)443-1511 E-mail sfinelli700(gyahoo com 5 Richard D Sopp Counsel for CADRE DESIGN GROUP, INC. 6 Wheatley Sopp LLP 1004 River Rock Drive, Suite 245 Tel (916)988-3857 7 Folsom, CA 95630 Fax:(916)988-5296 Email rds@mwsblaw com 8 Mark Smith In Pro Per 9 8549 Willow Valley Place Granite Bay, CA 95746 10 Richard W Freeman Counsel for R4C0RP 11 Scott S. Brooks WOOD SMITH HENNING & BERMAN LLP Tel (925) 356-8200 12 1401 Willow Pass Road, Suite 700 Fax: (925) 356-8250 Concord, CA 94520-7982 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 N1C341/608293-1 2 SERVICE LIST