Preview
ELECTRONICALLY FILED
Superior Court of California,
GLEN A. VAN DYKE, SBN: 183796 County of Placer
MEGAN DEHERRERA, SBN:
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306646 06/10/2020 at 10:23:20 ‘
VAN DYKE LITIGATION & TRIAL ATTORNEYS, P.C. iy: Marina Olivarez Fuentes, Deputy Clert
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11025 Pioneer Trail, Suite 101A
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Truckee, CA 96161
Telephone: (530) 587-2130
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Facsimile: (530) 587-2829
glen@vdlitigation.com
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megan(@vdlitigation.com
Attorneys for Defendants KCS MANAGEMENT
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LLC; KCS PROPERTIES, LLC;
CHRISTOPHER SMITHER
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF PLACER
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ERIK HIRSCHBEK DBA WOOD RIDGE CASE NO. S-CV-0040580
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CONSTRUCTION,
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KCS MANAGEMENT, LLC'S
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Plaintiff, OPPOSITION TO MOTION TO
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VS. CONTINUE TRIAL DATE AND ALL
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RELATED DATES; DECLARATION OF
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ASPEN EARTHWORKS, INC., a California |GLEN A. VAN DYKE IN SUPPORT OF
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corporation; et al, OPPOSITION
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Defendants. Date: June 25, 2020
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Time: 8:30 a.m.
Dept. 42
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Complaint filed: 12/6/17
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Trial date: 9/14/20
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OPPOSITION
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I. INTRODUCTION
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A trial continuance will prejudice Defendant KCS Management, LLC (“KCS”), the
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owner of Martis 25-Lot 11, one of the properties in this action that continues to suffer substantial
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seasonal water damage resulting from defective construction. All parties have had ample time to
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conduct discovery. All remaining discovery could have and stillcan be conducted, including
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Opposition toMotion toContinue Trial ~1~ Hirschbek v.Aspen, etal.
remote depositions and written discovery. There isno reason that the other parties in this case
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have declared a “stay” on discovery, other than ostensibly to further delay this
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case. A delay of
even six (6) months
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substantially prejudices KCS and increases KCS’ consequential damages,
which continue
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to increase while KCS waits to recover the over $1 million necessary to repair
the defects and related damage. Itis requested the Court deny the Motion, or alternatively, grant
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only a short continuance of ninety (90) days to account for the time period that the moving
parties claim they missed because of the COVID-19 pandemic.
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Il. BACKGROUND
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This case arises from the construction of two residences at Northstar, California by
general contractor Erik Hirschbek dba Wood Ridge Construction’s (“Hirschbek”). (Declaration
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of Glen A. Van Dyke, “Van Dyke Decl.”, 4 2). KCS owns Martis 25-Lot 11 (“Lot 11”) and
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STEI, LLC owns Martis 25-Lot 12 (“Lot 12”). (/d.).Hirschbek
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performed construction work on
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the two properties starting in 2014, completing work in
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January of 2017. (/d.).Only months after
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completion, the properties suffered significant
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water damage resulting from inadequate and
missing
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drainage. (/d.). In particular, the lower level of the home at Lot 11 flooded through the
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foundation
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and into the home, causing over $1 million in damages to correct and install deficient
drainage and
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repair the water damage. (/d.).In addition, KCS Management, LLC has lost
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substantial rental income since January 2017, since the property was constructed to be an
investment
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property for short term rentals. (/d.). Since January 2017, the property has been
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vacant and unable to be rented out because of the significant and recurring damage. (Jd.).
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TI. ARGUMENT
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KCS
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will be substantially prejudiced ifthis trialis continued for six months. KCS
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has
diligently litigated itsclaims and will be ready for a trialin September. (Van Dyke Decl., 3).
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Until KCS can obtain a recovery at trial,KCS’ property
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remains significantly damaged and
unable to be used for the investment purpose for which itwas purchased.
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Waiting through
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another winter eliminates KCS’ ability
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to rent the property for another busy holiday season.
All parties have
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had and will have substantial time to perform discovery to prepare for
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trial set for September 14, 2020. There is no reason not to be conducting discovery at this time,
Opposition toMotion to ContinueTrial ~2~ Hirschbek v.Aspen, etal.
and no reason why discovery could not have been conducted in the past months. Written
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discovery could have been conducted. Depositions could have been conducted via
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video
conferencing.
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Moving party made no effort to compel the deposition of Erik Hirschbek
scheduled
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for March 24, 2020 via video conferencing and instead waited nearly 2 months to file
this motion. Pursuant to California’s Judicial Council Emergency Rule 11(a), the witness isnot
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required to be present with the deposition officer. There isno reason that Erik Hirschbek’s
deposition cannot proceed by video. If Moving Party believes itneeds Erik Hirschbek’s
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deposition to prepare for trial, itshould be re-set via video conference. There is no basis to object
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to the video deposition, especially pursuant to Rule 11(a). All parties can and should be ready for
a trial this September.
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IV. CONCLUSION
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In light of the foregoing, it isrequested that the Court deny this Motion and allow this
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three-year old case
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to proceed
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to trialin September so that KCS can recover itsdamages to repair]
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the defective conditions and damage atthe
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home. Alternatively, it is requested that the Court .
grant a shorter continuance
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up to only ninety (90) days to account for the time Moving Parties
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claim was lost.
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Dated: June 10, 2020 VAN DYKE LITIGATION &
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SSC
TRIAL ATTORNEYS, P,
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By:
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GLEN A. VAN DYKE,
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Attorney for Defendants
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Opposition toMotion toContinue Trial ~3~ Hirschbek v.Aspen, etal.
DECLARATION OF GLEN A. VAN DYKE IN SUPPORT OF OPPOSITION
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I,Glen A. Van Dyke, hereby declare as follows:
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1. I am an attorney at law, duly licensed to practice before all courts in the State of
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California, and am an attorney of record for
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KCS Management, LLC. I make this declaration
from my own personal knowledge of the facts,and ifcalled upon as a witness, Icould and would
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competently testify as to the truth of the matters contained herein.
2: As reflected in KCS Management, LLC’s Cross-Complaint, this case arises from
the construction of two residences at Northstar, California by general contractor Erik Hirschbek
dba Wood Ridge Construction’s (“Hirschbek”). KCS owns Martis 25-Lot 11 (“Lot 11”) and
STEI, LLC owns Martis 25-Lot 12 (“Lot 12”). Hirschbek performed construction work on the
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two properties starting in 2014, completing work in January
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of 2017. Only months after
completion, the properties suffered
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significant water damage resulting from inadequate and
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missing drainage. In particular, the lower level of the home at Lot 11 flooded through the
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foundation and into the home, causing over $1 million in damages to correct and install deficient
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drainage and repair the water damage. In addition, KCS Management, LLC has lost substantial
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rental income since January 2017,
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since the property was constructed to be an investment
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property for short
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term rentals. Since January 2017, the property has been vacant and unable to
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be rented out because of the significant and recurring damage.
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3. KCS has diligently litigated its claims and will be ready for a trial in September.
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I declare under penalty of perjury under the laws of the State of California that thd
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foregoing is true and correct. Dated this 10"" date of June, 2020 at Incline Village, Nevada.
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Glen A. Van Dyke
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Opposition toMotion toContinue Trial ~4r~ Hirschbek v.Aspen, etal.
PROOF OF SERVICE
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STATE OF CALIFORNIA ) Hirschbek v.Aspen, et al.
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) ss.
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COUNTY OF PLACER ) S-CV-0040580
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Iam employed in Nevada County. My business address is11025 Pioneer Trail, Suite
101A, Truckee, California 96161, where this mailing occurred. |am over the age of 18 years
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and am not a party to the within action.
On June 10, 2020, Iserved the foregoing document, bearing the title
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KCS MANAGEMENT, LLC'S OPPOSITION TO MOTION TO CONTINUE TRIAL
DATE AND ALL RELATED DATES; DECLARATION OF GLEN A. VAN DYKE IN
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SUPPORT OF OPPOSITION
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the interested parties in this action as follows: Attached Service List
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0) (U.S. MAIL/ U.P.S.)
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I placed such an envelope for collection and mailing on this date following
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ordinary business practices. I am readily familiar with the practices of Van Dyke Law
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Group for collection and processing of correspondence for mailing with the United States
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Postal Service the same day it iscollected in the ordinary course of business.
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[X] ONLY BY
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ELECTRONIC TRANSMISSION. Only by e-mailing the document(s) to
the persons at the e-mail address(es) listed based on Emergency Order 1 1(a) that, during
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the Coronavirus (COVID-19) pandemic, Van Dyke Litigation attorneys will be working
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remotely, not able to send physical mail as usual, and are therefore using only electronic
mails. No electronic message or other indication that the transmission was unsuccessful
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was received within a reasonable time after the transmission.
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[ ] (BY FACSIMILE) _ Sent to phone numbers as posted
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[X] (State) I declare under penalty of perjury that the foregoing is true and correct.
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Executed on June 10, 2020, at Truckee, California.
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Carol L. Ritte
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Bob Sims, Esq. Attorneys for Erik Hirschbek-E
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bob@sims-law.net
Michelle Wiederhold, Esq.
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michelle@sims-law.net
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Jamie Graydon
jamie@sims-law.net
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Sims Lawrence & Arruti
2261 Lava Ridge Court
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Roseville, CA 95661
David Levy Attorneys for Aspen Earthworks-E
dlevy@vanlevylaw.com
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Yvonne Jorgensen
yjorgensen@vanlevylaw.com
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Van De Poel, Levy, Arneal & Serrot, LLP
1600 South Main Plaza, Suite 325
Walnut Creek, California 94596
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William Munoz Attorneys for Welsh Hagen Assoc.-E
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wmunoz@mpbf.com
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Lakeysia Beene
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Ibeene@mpbf.com
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Isela Bravo
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ibravo@mpbf.com
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Murphy, Pearson, Bradley & Feeney
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520 Capitol Mall, Suite 250
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Sacramento, CA 95814
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Darren Ebner Attorneys for Petrilla Construction, Inc.
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debner@springelfink.com
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John Black
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jblack@springelfink.com
Deborah Schmidt
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dschmidt@springelfink.com
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camailroom@springelfink.com
Springel & Fink, LLP
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20377 SW Acacia Street. Suite 250
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Newport Beach, CA 92660
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