Preview
1 Todd A. Jones (BarNo. 198024)
Gregory K. Federico (BarNo. 242184)
2 ARCHERNORRIS
A Professional Law Corporation
ENDORSED
3 301 University Avenue, Suite 110 'ODEC-7 AMI): 17
Sacramento, Califomia 95825
4 Telephone. 916.646.2480 LEGAL PROCESS ;5^7
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
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11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
ABBOTT,
12 MOTION IN LIMINE NO. 12 TO
Plaintiffs, EXCLUDE REFERENCE TO
13 SUBCONTRACTORS BEING
RESPONSIBLE FOR DESIGN DEFECTS
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 a.m.
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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N1C549/1058522-1
DEFENDANTS' MOTION IN LIMINE NO 12 TO EXCLUDE REFERENCE TO SUBCONTRACTORS BEING
RESPONSIBLE FOR DESIGN DEFECTS
1 MOTION IN LIMINE NO. 12 TO EXCLUDE REFERENCE TO SUBCONTRACTORS
BEING RESPONSIBLE FOR DEFECTIVE DESIGN
2
Defendants hereby respectfully request an order prohibiting Plaintiffs, their attomeys and
3
witnesses from introducing any evidence of, or providing testimony, in the form ofexpert
4
opinions or otherwise, referencing that subcontractors can be responsible for defective design.
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Califomia courts have long recognized the principle that a subcontractor who has
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performed its work pursuant to the design, plans, specifications provided to it, is not liable for
7
damages resulting from these designs, plans, and specifications. See Corporation ofthe Presiding
8
Bishop V. Cavanaugh (1963) 217 Cal.App 2d 492; Kurland v. The United Pacific Insurance Co.
9
(1967) 251 Cal.App.2d 112. Califomia Code of Civil Procedure § 2784 defines design defect as
10
follows:
a condition arising out of its design which renders a
12 stmcture, item of equipment or machinery or any other
similar object, movable or immovable, when constmcted
13 substantially in accordance with its design, inherently unfit,
either wholly or in part, for its mtended use or which
^^ impairs or renders the use of such stmcture, equipment,
. J. machinery or property.
16 In situations where there exists a design defect, it has long been recognized by the court
17 that architects and subcontractors are not joint tortfeassors for work done by the subcontractors
18 according to the original design professional's plans. See Alexander v. Hammarberg (1951) 103
19 Cal.ApD.2d 872; Wallach v. Salkin (1963) 219 Cal.App.2d 157. In Sunbeam Construction Co.
20 V. Fisci (1969) 2 Cal.App.3d 181 the Court held:
21 Where the plan and specifications were prepared by the owner's
architect and not by the subcontractor, and since the subcontractor
22 undertook to do the work in accordance with the specific proposal,
it cannot reasonably be concluded that the subcontractor assumed
2-1 responsibility for the adequacy ofthe plans and specifications to
meet the purpose ofthe owner, and where the contractor faithfully
24 performs the work as specified, there carmot be an implied
warranty that the contractor will supplement the inadequacy ofthe
25 plans Id. at 184,185.
Defendants played no role in the design ofthe subject home and Defendants were not
26
charged with that responsibility. In fact, design components were excluded from its contract with
27
Plaintiffs. Plaintiffs and their designer. Cadre Design Group, Inc. (heremafter "Cadre"), designed
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N1C549/I058522-1 2
DEFENDANTS' MOTION IN LIMINE NO 12 TO EXCLUDE REFERENCE TO SUBCONTRACTORS BEING
RESPONSIBLE FOR DESIGN DEFECTS
1 the home. If there are design defects in the subject home and deficiencies in the plans created by
2 Cadre, those deficiencies cannot be attributed to Defendants.
3 By way of example, one of Plaintiffs' major allegations in this case is that Defendants
4 failed to coordinate the design ofthe elevations for the subject home with those ofthe cul-de-sac
5 project that was being developed by Plaintiffs at the same time. However, documents produced
6 in discovery indicate that Plaintiffs and their agent Ronald Britschgi (hereinafter "Britschgi"),
7 were the individuals ultimately responsible for setting and approving the elevations for the subject
8 home. The contract between Plaintiffs and Defendant CA CONSTRUCTION specifically
9 requires the builder and/or builder's agent to specify the location and elevation ofthe finished
10 floor height, garage slab height and piers. (See the subject contract attached as Exhibit "A" to the
11 Declaration of Gregory Federico). Also, on January 14, 2006, while acting as Plaintiffs' agent
12 and general contractor, Britschgi signed off on an "Elevation and Layout Approval" on behalfof
13 Plaintiffs. (See "Elevation and Layout Approval" attached as Exhibit "B" to the Declaration of
14 Gregory Federico). Per the contract language, the layout approval evidences that Plaintiffs and
15 their agent approved the location and elevation ofthe concrete forms, and also reveals that they
16 verified, inspected and approved the forms for the placement of concrete. Thus, Plaintiffs were in
17 complete control over all design elements ofthis project and approved all elevations. Defendants
18 cannot be held responsible for design issues
19 IL
CONCLUSION
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Based on the foregoing, Defendants respectfully request that the Court preclude any
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testimony or evidence regarding the responsibility ofany subcontractor for any design defects.
22
23 Dated: December 6,2010 ARCHER NORRIS
24
25
Gregory K. Federico
26 Attomeys for Defendants RICHARD KIRK
RUYBALID, individually and dba CA
27 CONSTRUCTION; and R4C0RP., INC.
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N1C549/I058522-I
DEFENDANTS' MOTION IN LIMINE NO 12 TO EXCLUDE REFERENCE TO SUBCONTRACTORS BEING
RESPONSIBLE FOR DESIGN DEFECTS
1 IT IS SO ORDERED.
2
3 DATED:
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JUDGE OF THE SUPERIOR COURT
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NIC549/1058522-I
DEFENDANTS' MOTION IN LIMINE NO. 12 TO EXCLUDE REFERENCE TO SUBCONTRACTORS BEING
RESPONSIBLE FOR DESIGN DEFECTS
1 PROOF OF SERVICE
2 Nameof 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. 12 TO EXCLUDE REFERENCE TO
6 SUBCONTRACTORS BEING RESPONSIBLE FOR DESIGN DEFECTS
7 I5cl ^y placing a true copy ofthe documents listed above, enclosed in a sealed envelope,
addressed as set forth below, for collection and mailing on the date and at the business
address shown above following our ordinary business practices. I am readily familiar
Q with this business' practice for collection and processing of correspondence for
mailing with the United States Postal Service. On the same day that a sealed envelope
10 is placed for collection and mailing, it is deposited in the ordinary course ofbusiness
with the United States Postal Service with postage fully prepaid.
11
I I By having a true copy ofthe document(s) listed above transmitted by facsimile to the
12 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
machine.
14
I—I By placing a tme copy ofthe document(s) listed above, in a box or other facility
15 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
16 designated by the express service carrier, with delivery fees paid or provided for,
addressed as set forth below.
lg rn bv having personal deliverv bv FIRST LEGAL SUPPORT SERVICES a tme copv of
the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the
19 address(es) set forth below.
20
[SEE ATTACHED SERVICE LIST]
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I declare under penalty ofperjury that the foregoing is tme and correct. Executed on
23 Decembet-6r20'l 0, at Sacramento, Califomia.
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N1C341/608293-I
PROOF OF SERVICE
Service List
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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
Richard D Sopp Counsel for CADRE DESIGN GROUP, INC.
6 Wheatley Sopp LLP
1004 River Rock Dnve, Suite 245 Tel (916)988-3857
7 Folsom, CA 95630 Fax:(916)988-5296
Email' rds@mwsblaw com
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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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NIC341/608293-1
SERVICE LIST
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1 Todd A. Jones (BarNo. 198024) Gregory K. Federico (BarNo. 242184) 2 ARCHERNORRIS A Professional Law Corporation ENDORSED 3 301 University Avenue, Suite 110 'ODEC-7 AMI): 17 Sacramento, Califomia 95825 4 Telephone. 916.646.2480 LEGAL PROCESS ;5^7 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. 12 TO Plaintiffs, EXCLUDE REFERENCE TO 13 SUBCONTRACTORS BEING RESPONSIBLE FOR DESIGN DEFECTS 14 RONALD PAUL BRITSCHGI, et al. Action Filed: September 24,2007 15 Defendants. Trial Date: January 17, 2011 16 Time: 8.30 a.m. 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 N1C549/1058522-1 DEFENDANTS' MOTION IN LIMINE NO 12 TO EXCLUDE REFERENCE TO SUBCONTRACTORS BEING RESPONSIBLE FOR DESIGN DEFECTS 1 MOTION IN LIMINE NO. 12 TO EXCLUDE REFERENCE TO SUBCONTRACTORS BEING RESPONSIBLE FOR DEFECTIVE DESIGN 2 Defendants hereby respectfully request an order prohibiting Plaintiffs, their attomeys and 3 witnesses from introducing any evidence of, or providing testimony, in the form ofexpert 4 opinions or otherwise, referencing that subcontractors can be responsible for defective design. 5 Califomia courts have long recognized the principle that a subcontractor who has 6 performed its work pursuant to the design, plans, specifications provided to it, is not liable for 7 damages resulting from these designs, plans, and specifications. See Corporation ofthe Presiding 8 Bishop V. Cavanaugh (1963) 217 Cal.App 2d 492; Kurland v. The United Pacific Insurance Co. 9 (1967) 251 Cal.App.2d 112. Califomia Code of Civil Procedure § 2784 defines design defect as 10 follows: a condition arising out of its design which renders a 12 stmcture, item of equipment or machinery or any other similar object, movable or immovable, when constmcted 13 substantially in accordance with its design, inherently unfit, either wholly or in part, for its mtended use or which ^^ impairs or renders the use of such stmcture, equipment, . J. machinery or property. 16 In situations where there exists a design defect, it has long been recognized by the court 17 that architects and subcontractors are not joint tortfeassors for work done by the subcontractors 18 according to the original design professional's plans. See Alexander v. Hammarberg (1951) 103 19 Cal.ApD.2d 872; Wallach v. Salkin (1963) 219 Cal.App.2d 157. In Sunbeam Construction Co. 20 V. Fisci (1969) 2 Cal.App.3d 181 the Court held: 21 Where the plan and specifications were prepared by the owner's architect and not by the subcontractor, and since the subcontractor 22 undertook to do the work in accordance with the specific proposal, it cannot reasonably be concluded that the subcontractor assumed 2-1 responsibility for the adequacy ofthe plans and specifications to meet the purpose ofthe owner, and where the contractor faithfully 24 performs the work as specified, there carmot be an implied warranty that the contractor will supplement the inadequacy ofthe 25 plans Id. at 184,185. Defendants played no role in the design ofthe subject home and Defendants were not 26 charged with that responsibility. In fact, design components were excluded from its contract with 27 Plaintiffs. Plaintiffs and their designer. Cadre Design Group, Inc. (heremafter "Cadre"), designed 28 N1C549/I058522-1 2 DEFENDANTS' MOTION IN LIMINE NO 12 TO EXCLUDE REFERENCE TO SUBCONTRACTORS BEING RESPONSIBLE FOR DESIGN DEFECTS 1 the home. If there are design defects in the subject home and deficiencies in the plans created by 2 Cadre, those deficiencies cannot be attributed to Defendants. 3 By way of example, one of Plaintiffs' major allegations in this case is that Defendants 4 failed to coordinate the design ofthe elevations for the subject home with those ofthe cul-de-sac 5 project that was being developed by Plaintiffs at the same time. However, documents produced 6 in discovery indicate that Plaintiffs and their agent Ronald Britschgi (hereinafter "Britschgi"), 7 were the individuals ultimately responsible for setting and approving the elevations for the subject 8 home. The contract between Plaintiffs and Defendant CA CONSTRUCTION specifically 9 requires the builder and/or builder's agent to specify the location and elevation ofthe finished 10 floor height, garage slab height and piers. (See the subject contract attached as Exhibit "A" to the 11 Declaration of Gregory Federico). Also, on January 14, 2006, while acting as Plaintiffs' agent 12 and general contractor, Britschgi signed off on an "Elevation and Layout Approval" on behalfof 13 Plaintiffs. (See "Elevation and Layout Approval" attached as Exhibit "B" to the Declaration of 14 Gregory Federico). Per the contract language, the layout approval evidences that Plaintiffs and 15 their agent approved the location and elevation ofthe concrete forms, and also reveals that they 16 verified, inspected and approved the forms for the placement of concrete. Thus, Plaintiffs were in 17 complete control over all design elements ofthis project and approved all elevations. Defendants 18 cannot be held responsible for design issues 19 IL CONCLUSION 20 Based on the foregoing, Defendants respectfully request that the Court preclude any 21 testimony or evidence regarding the responsibility ofany subcontractor for any design defects. 22 23 Dated: December 6,2010 ARCHER NORRIS 24 25 Gregory K. Federico 26 Attomeys for Defendants RICHARD KIRK RUYBALID, individually and dba CA 27 CONSTRUCTION; and R4C0RP., INC. 28 N1C549/I058522-I DEFENDANTS' MOTION IN LIMINE NO 12 TO EXCLUDE REFERENCE TO SUBCONTRACTORS BEING RESPONSIBLE FOR DESIGN DEFECTS 1 IT IS SO ORDERED. 2 3 DATED: 4 5 JUDGE OF THE SUPERIOR COURT 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NIC549/1058522-I DEFENDANTS' MOTION IN LIMINE NO. 12 TO EXCLUDE REFERENCE TO SUBCONTRACTORS BEING RESPONSIBLE FOR DESIGN DEFECTS 1 PROOF OF SERVICE 2 Nameof 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. 12 TO EXCLUDE REFERENCE TO 6 SUBCONTRACTORS BEING RESPONSIBLE FOR DESIGN DEFECTS 7 I5cl ^y placing a true copy ofthe documents listed above, enclosed in a sealed envelope, addressed as set forth below, for collection and mailing on the date and at the business address shown above following our ordinary business practices. I am readily familiar Q with this business' practice for collection and processing of correspondence for mailing with the United States Postal Service. On the same day that a sealed envelope 10 is placed for collection and mailing, it is deposited in the ordinary course ofbusiness with the United States Postal Service with postage fully prepaid. 11 I I By having a true copy ofthe document(s) listed above transmitted by facsimile to the 12 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 machine. 14 I—I By placing a tme copy ofthe document(s) listed above, in a box or other facility 15 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 16 designated by the express service carrier, with delivery fees paid or provided for, addressed as set forth below. lg rn bv having personal deliverv bv FIRST LEGAL SUPPORT SERVICES a tme copv of the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the 19 address(es) set forth below. 20 [SEE ATTACHED SERVICE LIST] 21 22 I declare under penalty ofperjury that the foregoing is tme and correct. Executed on 23 Decembet-6r20'l 0, at Sacramento, Califomia. 24 25 26 27 28 N1C341/608293-I PROOF OF SERVICE 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 Richard D Sopp Counsel for CADRE DESIGN GROUP, INC. 6 Wheatley Sopp LLP 1004 River Rock Dnve, 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 NIC341/608293-1 SERVICE LIST