Preview
1 Todd A. Jones (Bar No. 198024)
Gregory K. Federico (Bar No, 242184)
2 ARCHERNORRIS
A Professional Law Corporation
3 301 University Avenue, Suite 110
Sacramento, (California 95825
4 Telephone: 916,646.2480
Facsimile: 916 646.5696
5
Attomeys for Defendants
6 RICHARD KIRK RUYBALID, individually and
dba CA CONSTRUCTION
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10
II RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
ABBOTT,
12 CA CONSTRUCTION'S REPLY IN
Plaintiffs, SUPPORT OF MOTION IN LIMINE NO, 9
13 TO EXCLUDE LAY OPINIONS
REGARDING PLAINTIFFS' CLAIMS
14
RONALD PAUL BRITSCHGI, et al, Action Filed: September 24,2007
15
Defendants. Hearing Date- January 7, 2011
16 Trial Date. January 18,2011
Time: 8-30 a.m. aa*.'.. Al
17 Location: Department 43
18 AND ALL RELATED CROSS-ACTIONS.
19 m •dfamril
20 Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION
21 (hereinafter "CA CONSTRUCTION") hereby submits this reply brief in support of its Motion in
22 Limine No. 9.
23 I. THE MOTION SHOULD BE GRANTED BECAUSE PLAINTIFFS HAVE
INDICATED THAT EXPERT TESTIMONY WILL NOT BE
24
INTRODUCED THROUGH PLAINTIFF FLORENTINE ABBOTT
25 CA CONSTRUCTION filed the instant motion in the event Plaintiffs attempt to introduce
26 improper expert testimony through Plaintiffs FLORENTINE and RODNEY ABBOTT based on
27 their experience in the constmction trades. In their oppositton, Plainttffs agree that they will not
28
NIC549/I06916I-I
REPLY TO MOTION IN LIMINE NO. 9 TO EXCLUDE LAY OPINIONS
REGARDING PLAINTIFFS' CLAIMS
1 attempt to introduce expert testimony through Mrs. Abbott. CA CONSTRUCTION will accept
2 the representation by Plaintiffs' counsel. As alluded to in their oppositton, Mrs. Abbott should be
3 limited to her percipient observations prior to, during and after constmction on both the house and
4 cul-de-sac, including any observations made in her supervisory role as the conttactor/ owner-
5 builder of record with the County of Sacramento.
6 Plaintiffs' opposition, however, is silent as to Mr. Abbott. CA CONSTRUCTION requests
7 that Mr. Abbott's testimony also be limited to his observations prior to, during and after
8 constmction of both the house and cul-de-sac, as well as his supervision, if any, ofthe contractors
9 that worked on his home.
^'^ I n. EVIDENCE RELATED TO MRS. ABBOTT'S GENERAL CONTRACTOR
LICENSE APPLICATION AND THE ATTORNEY GENERAL ACTION
AGAINST HER LICENSE IS RELEVANT TO PROVE FACTS AT ISSUE
12 IN THE CASE AND MRS. ABBOTT'S CREDIBILITY AS A WITNESS
13 A. Plaintiffs' Pre-Emptive And Improper Request For The Exclusion Of
Relevant Evidence Should Be Denied
14
Plaintiffs did not file any motions in limine to exclude evidence pertaining to Mrs.
15
Abbott's general contractor's license application and the pending attomey general action against
16
her license. They only now raise it in their opposition to the instant motion, Plaintiffs attempt to
17
"back-door" a request for exclusion ofhighly relevant evidence is procedurally defective and, as a
18
result, the request should be denied.
19
20 B. The Evidence Is Relevant To Issues In The Case, Mrs. Abbott's Credibility
As A Witness, And Does Not Mislead The Jury, Waste Time, Or Confuse The
21 Issues.
22 Taking the words utilized by Plaintiffs in several of their motions, " . .a court should not
23 grant a motion in limine that has the effect of elimmating the opportunity for plaintiffs to prove
24 their causes of action." (See R&B Auto Center, Inc v. Farmers Group, Inc (2006) 140 Cal App.
25 4tii 327, 359, It would seem that the same reasoning should apply for CA CONSTRUCTION.
26 CA CONSTRUCTION has a number of affirmative defenses it must establish at trial,
27 including but not limited to the following: Conttibutory Negligence, Negligence of Others,
28
NIC549/I069161-1
REPLY TO MOTION IN LIMINE NO. 9 TO EXCLUDE LAY OPINIONS
REGARDING PLAINTIFFS' CLAIMS
1 Assumption ofthe Risk, Plaintiffs' Voluntary Conduct, Plaintiffs' Failure to use Reasonable
2 Diligence, Laches, Comparative Fault, Allocation of Fault, and Adequacy of Plans and
3 Specifications. The basis of these affirmative defenses is the conttibutory fault ofPlaintiffs in
4 causing their own damages. In fact. Plaintiffs' counsel would likely concede tiiat establishing
5 these affirmative defenses are fair game as she vehemently fought CA CONSTRUCTION'S
6 cross-complaint against Plaintiffs based on conttibutory negligence/comparative fault principles.
7 Thus, CA CONSTRUCTION should be entitied to establish its affirmative defenses through the
8 use of various evidence laid out in great detail in its moving papers.
9 Plaintiffs' argument that evidence related to Mrs. Abbott's license application and the
10 Attomey General action against her license would be misleading and confusing to the jury is a red
11 herring. Plaintiffs seek to exclude this evidence because it is damaging to Plaintiffs' claims, Mrs.
12 Abbott's credibility, and there is a sttong possibility that such evidence will exposes Mrs Abbott
13 to perjury claims. The evidence would actually clarify issues in the case, would not consume
14 undue time, and would not confuse the jury.
15 Further, Plaintiffs argue at length that such evidence is unproper character evidence. The
16 Court should disregard this argument, and the following Evidence Code provisions are applicable:
17 . Evidence Code § 350:
18 No evidence is admissible except relevant evidence.
19 Evidence Code ^35\:
20 Except as otherwise provided by statute, all relevant evidence is
admissible.
21
Evidence Code § 352:
22
The court in its discretion may exclude evidence if its probative
23 -• value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b)
24 create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury
25 Evidence Code § 1101(b) & (c):
26
27
28 (b) Nothing in this section prohibits the admission of evidence
NIC549/I069I6I-1 3
REPLY TO MOTION IN LIMINE NO 9 TO EXCLUDE LAY OPINIONS
REGARDING PLAINTIFFS' CLAIMS
1 that a person committed a crime, civil wrong, or other act when
relevant to prove some fact (such as motive, opportunity, intent,
2 preparation, plan, knowledge, identity, absence of mistake or
accident,.. other than his or her disposition to commit such an act.
3
4 (c) Nothing in this section affects the admissibility of evidence
offered to support or attack the credibility of a witness.
5
Pursuant to Evidence Code §1101 (b), this evidence is relevant if it is probative of some
6
other fact at issue in the case CA CONSTRUCTION will establish that the evidence is relevant
7
to prove other facts at issue in the case, including, but not hmited to, whether Mrs. Abbott
8
supervised the foundation work that is at issue in this case pursuant to her contractor's application
9
signed under penalty of perjury.
10
Furthermore, Evidence Code §1101(c) states that character evidence is admissible to
11
support or attack the credibility of a witness Again, the credibility of Mrs. Abbott is one of the
12
most important issues in this case. What Plainttffs' characterize as improper character evidence is
13
nothing more than evidence related to the credibility of Mrs. Abbott as a witoess. Impeachment
14
evidence is relevant when a person's credibility as a witness is called into question. CA
15
CONSTRUCTION is entitled to challenge Plaintiffs' claims and Plaintiffs' testimony provided in
16
deposition and at ttial through the use of impeachment-based evidence.
17
18 Dated: December 30, 2010 ARCHERNORRIS
19
20
Gregory K. Federico
21 Attorneys for Defendants RICHARD KIRK
RUYBALID, individually and dba CA
22 CONSTRUCTION
23
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25
26
27
28
NIC549/1069161-1
REPLY TO MOTION IN LIMINE NO, 9 TO EXCLUDE LAY OPINIONS
REGARDING PLAINTIFFS' CLAIMS
1 PROOF OF SERVICE
2 Name of Action: Rodney Abbott, et al. v. Ronald Paul Britschgi, et al.
Court and Action No: Sacramento County Superior No. 07AS04450
3
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,
Califomia 95825. On December 30,2010,1 caused the following document(s) to be served.
5
CA CONSTRUCTION'S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 9 TO
6 EXCLUDE LAY OPINIONS REGARDING PLAINTIFFS' CLAIMS
7 j—I By placing a true copy ofthe documents listed above, enclosed in a sealed envelope,
addressed as set forth below, for collection and mailing on the date and at the business
° address shown above following our ordinary business practices. I am readily familiar
g 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 of business
with the United States Postal Service with postage fully prepaid
11
j—I By having a true copy of the 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 ttansmitting facsimile
13 machine.
14
1)3 By placing a true copy of the document(s) listed above, m 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.
17
Jg r-J by having personal delivery 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
19 address(es) set forth below.
20
[SEE ATTACHED SERVICE LIST]
21
I declare under penalty of perjury that the foregoing is tme and correct, Executed on
22 December 30,2010, at Sacramento, Califomia
23
24
Wu
DY A, INGLAND
25
26
27
28
NIC34I/608293-I
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@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
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24
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27
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NIC341/608293-1
SERVICE LIST
Preview
1 Todd A. Jones (Bar No. 198024) Gregory K. Federico (Bar No, 242184) 2 ARCHERNORRIS A Professional Law Corporation 3 301 University Avenue, Suite 110 Sacramento, (California 95825 4 Telephone: 916,646.2480 Facsimile: 916 646.5696 5 Attomeys for Defendants 6 RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 II RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 ABBOTT, 12 CA CONSTRUCTION'S REPLY IN Plaintiffs, SUPPORT OF MOTION IN LIMINE NO, 9 13 TO EXCLUDE LAY OPINIONS REGARDING PLAINTIFFS' CLAIMS 14 RONALD PAUL BRITSCHGI, et al, Action Filed: September 24,2007 15 Defendants. Hearing Date- January 7, 2011 16 Trial Date. January 18,2011 Time: 8-30 a.m. aa*.'.. Al 17 Location: Department 43 18 AND ALL RELATED CROSS-ACTIONS. 19 m •dfamril 20 Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 21 (hereinafter "CA CONSTRUCTION") hereby submits this reply brief in support of its Motion in 22 Limine No. 9. 23 I. THE MOTION SHOULD BE GRANTED BECAUSE PLAINTIFFS HAVE INDICATED THAT EXPERT TESTIMONY WILL NOT BE 24 INTRODUCED THROUGH PLAINTIFF FLORENTINE ABBOTT 25 CA CONSTRUCTION filed the instant motion in the event Plaintiffs attempt to introduce 26 improper expert testimony through Plaintiffs FLORENTINE and RODNEY ABBOTT based on 27 their experience in the constmction trades. In their oppositton, Plainttffs agree that they will not 28 NIC549/I06916I-I REPLY TO MOTION IN LIMINE NO. 9 TO EXCLUDE LAY OPINIONS REGARDING PLAINTIFFS' CLAIMS 1 attempt to introduce expert testimony through Mrs. Abbott. CA CONSTRUCTION will accept 2 the representation by Plaintiffs' counsel. As alluded to in their oppositton, Mrs. Abbott should be 3 limited to her percipient observations prior to, during and after constmction on both the house and 4 cul-de-sac, including any observations made in her supervisory role as the conttactor/ owner- 5 builder of record with the County of Sacramento. 6 Plaintiffs' opposition, however, is silent as to Mr. Abbott. CA CONSTRUCTION requests 7 that Mr. Abbott's testimony also be limited to his observations prior to, during and after 8 constmction of both the house and cul-de-sac, as well as his supervision, if any, ofthe contractors 9 that worked on his home. ^'^ I n. EVIDENCE RELATED TO MRS. ABBOTT'S GENERAL CONTRACTOR LICENSE APPLICATION AND THE ATTORNEY GENERAL ACTION AGAINST HER LICENSE IS RELEVANT TO PROVE FACTS AT ISSUE 12 IN THE CASE AND MRS. ABBOTT'S CREDIBILITY AS A WITNESS 13 A. Plaintiffs' Pre-Emptive And Improper Request For The Exclusion Of Relevant Evidence Should Be Denied 14 Plaintiffs did not file any motions in limine to exclude evidence pertaining to Mrs. 15 Abbott's general contractor's license application and the pending attomey general action against 16 her license. They only now raise it in their opposition to the instant motion, Plaintiffs attempt to 17 "back-door" a request for exclusion ofhighly relevant evidence is procedurally defective and, as a 18 result, the request should be denied. 19 20 B. The Evidence Is Relevant To Issues In The Case, Mrs. Abbott's Credibility As A Witness, And Does Not Mislead The Jury, Waste Time, Or Confuse The 21 Issues. 22 Taking the words utilized by Plaintiffs in several of their motions, " . .a court should not 23 grant a motion in limine that has the effect of elimmating the opportunity for plaintiffs to prove 24 their causes of action." (See R&B Auto Center, Inc v. Farmers Group, Inc (2006) 140 Cal App. 25 4tii 327, 359, It would seem that the same reasoning should apply for CA CONSTRUCTION. 26 CA CONSTRUCTION has a number of affirmative defenses it must establish at trial, 27 including but not limited to the following: Conttibutory Negligence, Negligence of Others, 28 NIC549/I069161-1 REPLY TO MOTION IN LIMINE NO. 9 TO EXCLUDE LAY OPINIONS REGARDING PLAINTIFFS' CLAIMS 1 Assumption ofthe Risk, Plaintiffs' Voluntary Conduct, Plaintiffs' Failure to use Reasonable 2 Diligence, Laches, Comparative Fault, Allocation of Fault, and Adequacy of Plans and 3 Specifications. The basis of these affirmative defenses is the conttibutory fault ofPlaintiffs in 4 causing their own damages. In fact. Plaintiffs' counsel would likely concede tiiat establishing 5 these affirmative defenses are fair game as she vehemently fought CA CONSTRUCTION'S 6 cross-complaint against Plaintiffs based on conttibutory negligence/comparative fault principles. 7 Thus, CA CONSTRUCTION should be entitied to establish its affirmative defenses through the 8 use of various evidence laid out in great detail in its moving papers. 9 Plaintiffs' argument that evidence related to Mrs. Abbott's license application and the 10 Attomey General action against her license would be misleading and confusing to the jury is a red 11 herring. Plaintiffs seek to exclude this evidence because it is damaging to Plaintiffs' claims, Mrs. 12 Abbott's credibility, and there is a sttong possibility that such evidence will exposes Mrs Abbott 13 to perjury claims. The evidence would actually clarify issues in the case, would not consume 14 undue time, and would not confuse the jury. 15 Further, Plaintiffs argue at length that such evidence is unproper character evidence. The 16 Court should disregard this argument, and the following Evidence Code provisions are applicable: 17 . Evidence Code § 350: 18 No evidence is admissible except relevant evidence. 19 Evidence Code ^35\: 20 Except as otherwise provided by statute, all relevant evidence is admissible. 21 Evidence Code § 352: 22 The court in its discretion may exclude evidence if its probative 23 -• value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) 24 create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury 25 Evidence Code § 1101(b) & (c): 26 27 28 (b) Nothing in this section prohibits the admission of evidence NIC549/I069I6I-1 3 REPLY TO MOTION IN LIMINE NO 9 TO EXCLUDE LAY OPINIONS REGARDING PLAINTIFFS' CLAIMS 1 that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, 2 preparation, plan, knowledge, identity, absence of mistake or accident,.. other than his or her disposition to commit such an act. 3 4 (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness. 5 Pursuant to Evidence Code §1101 (b), this evidence is relevant if it is probative of some 6 other fact at issue in the case CA CONSTRUCTION will establish that the evidence is relevant 7 to prove other facts at issue in the case, including, but not hmited to, whether Mrs. Abbott 8 supervised the foundation work that is at issue in this case pursuant to her contractor's application 9 signed under penalty of perjury. 10 Furthermore, Evidence Code §1101(c) states that character evidence is admissible to 11 support or attack the credibility of a witness Again, the credibility of Mrs. Abbott is one of the 12 most important issues in this case. What Plainttffs' characterize as improper character evidence is 13 nothing more than evidence related to the credibility of Mrs. Abbott as a witoess. Impeachment 14 evidence is relevant when a person's credibility as a witness is called into question. CA 15 CONSTRUCTION is entitled to challenge Plaintiffs' claims and Plaintiffs' testimony provided in 16 deposition and at ttial through the use of impeachment-based evidence. 17 18 Dated: December 30, 2010 ARCHERNORRIS 19 20 Gregory K. Federico 21 Attorneys for Defendants RICHARD KIRK RUYBALID, individually and dba CA 22 CONSTRUCTION 23 24 25 26 27 28 NIC549/1069161-1 REPLY TO MOTION IN LIMINE NO, 9 TO EXCLUDE LAY OPINIONS REGARDING PLAINTIFFS' CLAIMS 1 PROOF OF SERVICE 2 Name of Action: Rodney Abbott, et al. v. Ronald Paul Britschgi, et al. Court and Action No: Sacramento County Superior No. 07AS04450 3 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, Califomia 95825. On December 30,2010,1 caused the following document(s) to be served. 5 CA CONSTRUCTION'S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 9 TO 6 EXCLUDE LAY OPINIONS REGARDING PLAINTIFFS' CLAIMS 7 j—I By placing a true copy ofthe documents listed above, enclosed in a sealed envelope, addressed as set forth below, for collection and mailing on the date and at the business ° address shown above following our ordinary business practices. I am readily familiar g 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 of business with the United States Postal Service with postage fully prepaid 11 j—I By having a true copy of the 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 ttansmitting facsimile 13 machine. 14 1)3 By placing a true copy of the document(s) listed above, m 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. 17 Jg r-J by having personal delivery 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 19 address(es) set forth below. 20 [SEE ATTACHED SERVICE LIST] 21 I declare under penalty of perjury that the foregoing is tme and correct, Executed on 22 December 30,2010, at Sacramento, Califomia 23 24 Wu DY A, INGLAND 25 26 27 28 NIC34I/608293-I 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@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