Preview
ELECTRONICALLY FILED
Superior Court of California,
GLEN A. VAN DYKE, SBN: 183796 County of Placer
MEGAN DEHERRERA, SBN:
=
306646 06/10/2020 at 10:23:20 ‘
VAN DYKE LITIGATION & TRIAL ATTORNEYS, P.C. iy: Marina Olivarez Fuentes, Deputy Clert
HP
11025 Pioneer Trail, Suite 101A
WW
Truckee, CA 96161
Telephone: (530) 587-2130
BR
Facsimile: (530) 587-2829
glen@vdlitigation.com
Dn
megan(@vdlitigation.com
Attorneys for Defendants KCS MANAGEMENT
NY
LLC; KCS PROPERTIES, LLC;
CHRISTOPHER SMITHER
mea
So
SUPERIOR COURT OF THE STATE OF CALIFORNIA
Ln
BS
FOR THE COUNTY OF PLACER
Ln
en
ERIK HIRSCHBEK DBA WOOD RIDGE CASE NO. S-CV-0040580
WH
CONSTRUCTION,
ew
KCS MANAGEMENT, LLC'S
BP
Plaintiff, OPPOSITION TO MOTION TO
ew
VS. CONTINUE TRIAL DATE AND ALL
ie
RELATED DATES; DECLARATION OF
DWH
ASPEN EARTHWORKS, INC., a California |GLEN A. VAN DYKE IN SUPPORT OF
ie
corporation; et al, OPPOSITION
NI
me
Defendants. Date: June 25, 2020
we
Be
Time: 8:30 a.m.
Dept. 42
Be
SDB
Complaint filed: 12/6/17
KH
Trial date: 9/14/20
KF
DY
YN
NY
OPPOSITION
YP
NY
I. INTRODUCTION
FF
NY
A trial continuance will prejudice Defendant KCS Management, LLC (“KCS”), the
NY
DH
owner of Martis 25-Lot 11, one of the properties in this action that continues to suffer substantial
NY
seasonal water damage resulting from defective construction. All parties have had ample time to
TN
NY
conduct discovery. All remaining discovery could have and stillcan be conducted, including
ao
Ye
Opposition toMotion toContinue Trial ~1~ Hirschbek v.Aspen, etal.
remote depositions and written discovery. There isno reason that the other parties in this case
Ye
have declared a “stay” on discovery, other than ostensibly to further delay this
BH
case. A delay of
even six (6) months
WwW
substantially prejudices KCS and increases KCS’ consequential damages,
which continue
BP
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
DAH
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.
ON
Il. BACKGROUND
Co
This case arises from the construction of two residences at Northstar, California by
general contractor Erik Hirschbek dba Wood Ridge Construction’s (“Hirschbek”). (Declaration
LL
BS
of Glen A. Van Dyke, “Van Dyke Decl.”, 4 2). KCS owns Martis 25-Lot 11 (“Lot 11”) and
we
STEI, LLC owns Martis 25-Lot 12 (“Lot 12”). (/d.).Hirschbek
ew
performed construction work on
HP
the two properties starting in 2014, completing work in
ew
January of 2017. (/d.).Only months after
BD
completion, the properties suffered significant
ew
water damage resulting from inadequate and
missing
ewe
drainage. (/d.). In particular, the lower level of the home at Lot 11 flooded through the
DH
foundation
Se
and into the home, causing over $1 million in damages to correct and install deficient
drainage and
NI
repair the water damage. (/d.).In addition, KCS Management, LLC has lost
ew
wm
substantial rental income since January 2017, since the property was constructed to be an
investment
Be
property for short term rentals. (/d.). Since January 2017, the property has been
SOD
vacant and unable to be rented out because of the significant and recurring damage. (Jd.).
NY
KF
TI. ARGUMENT
DB
KCS
Nn
will be substantially prejudiced ifthis trialis continued for six months. KCS
NY
has
diligently litigated itsclaims and will be ready for a trialin September. (Van Dyke Decl., 3).
NY
FY
Until KCS can obtain a recovery at trial,KCS’ property
NY
remains significantly damaged and
unable to be used for the investment purpose for which itwas purchased.
NY
Waiting through
DW
another winter eliminates KCS’ ability
NY
to rent the property for another busy holiday season.
All parties have
NY
had and will have substantial time to perform discovery to prepare for
oN
No
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
we
discovery could have been conducted. Depositions could have been conducted via
BH
video
conferencing.
WwW
Moving party made no effort to compel the deposition of Erik Hirschbek
scheduled
BB
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
Dn
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
ON
deposition to prepare for trial, itshould be re-set via video conference. There is no basis to object
So
to the video deposition, especially pursuant to Rule 11(a). All parties can and should be ready for
a trial this September.
S
IV. CONCLUSION
=
WW
In light of the foregoing, it isrequested that the Court deny this Motion and allow this
HP
three-year old case
wD
to proceed
ew
to trialin September so that KCS can recover itsdamages to repair]
RB
the defective conditions and damage atthe
ew
home. Alternatively, it is requested that the Court .
grant a shorter continuance
ewe
up to only ninety (90) days to account for the time Moving Parties
AH
ewe
claim was lost.
ewe
I
we
Be
Dated: June 10, 2020 VAN DYKE LITIGATION &
Be
SSC
TRIAL ATTORNEYS, P,
NY
KF
By:
NY
GLEN A. VAN DYKE,
NHN
N
Attorney for Defendants
N
FY
NY
mH
NY NY
nn
N
ao
NY
Opposition toMotion toContinue Trial ~3~ Hirschbek v.Aspen, etal.
DECLARATION OF GLEN A. VAN DYKE IN SUPPORT OF OPPOSITION
we
I,Glen A. Van Dyke, hereby declare as follows:
ww
1. I am an attorney at law, duly licensed to practice before all courts in the State of
CON
California, and am an attorney of record for
PB
KCS Management, LLC. I make this declaration
from my own personal knowledge of the facts,and ifcalled upon as a witness, Icould and would
DHA
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
ow
BS
two properties starting in 2014, completing work in January
ew
of 2017. Only months after
completion, the properties suffered
ew
significant water damage resulting from inadequate and
BDH
ewe
missing drainage. In particular, the lower level of the home at Lot 11 flooded through the
ewe
foundation and into the home, causing over $1 million in damages to correct and install deficient
ewe
drainage and repair the water damage. In addition, KCS Management, LLC has lost substantial
ANA
rental income since January 2017,
eB
since the property was constructed to be an investment
ANI
property for short
Be
term rentals. Since January 2017, the property has been vacant and unable to
we
be rented out because of the significant and recurring damage.
Be
3. KCS has diligently litigated its claims and will be ready for a trial in September.
SSO
I declare under penalty of perjury under the laws of the State of California that thd
DY
foregoing is true and correct. Dated this 10"" date of June, 2020 at Incline Village, Nevada.
KF
LAR
NY NY
YN
N
FF
NY
Glen A. Van Dyke
HW
NY
Dn
NY NY
on
YN
Opposition toMotion toContinue Trial ~4r~ Hirschbek v.Aspen, etal.
PROOF OF SERVICE
Ke
STATE OF CALIFORNIA ) Hirschbek v.Aspen, et al.
HB
) ss.
WwW
COUNTY OF PLACER ) S-CV-0040580
BB
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
DWH
and am not a party to the within action.
On June 10, 2020, Iserved the foregoing document, bearing the title
ONY
KCS MANAGEMENT, LLC'S OPPOSITION TO MOTION TO CONTINUE TRIAL
DATE AND ALL RELATED DATES; DECLARATION OF GLEN A. VAN DYKE IN
So
SUPPORT OF OPPOSITION
on
BS
the interested parties in this action as follows: Attached Service List
BW
0) (U.S. MAIL/ U.P.S.)
ew
I placed such an envelope for collection and mailing on this date following
BWP
ordinary business practices. I am readily familiar with the practices of Van Dyke Law
Bw
Group for collection and processing of correspondence for mailing with the United States
ese
Postal Service the same day it iscollected in the ordinary course of business.
ie
[X] ONLY BY
DAA
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
ew
the Coronavirus (COVID-19) pandemic, Van Dyke Litigation attorneys will be working
ew
NI
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
we
eB
was received within a reasonable time after the transmission.
Be
SSD
[ ] (BY FACSIMILE) _ Sent to phone numbers as posted
NY
[X] (State) I declare under penalty of perjury that the foregoing is true and correct.
KF
NY
Executed on June 10, 2020, at Truckee, California.
NN
Aine
NN
FY
Carol L. Ritte
NY
HW
NY
Dn
NN
orn
NY
Bob Sims, Esq. Attorneys for Erik Hirschbek-E
we
bob@sims-law.net
Michelle Wiederhold, Esq.
HH
michelle@sims-law.net
WwW
Jamie Graydon
jamie@sims-law.net
BB
Sims Lawrence & Arruti
2261 Lava Ridge Court
DWH
Roseville, CA 95661
David Levy Attorneys for Aspen Earthworks-E
dlevy@vanlevylaw.com
ON
Yvonne Jorgensen
yjorgensen@vanlevylaw.com
So
Van De Poel, Levy, Arneal & Serrot, LLP
1600 South Main Plaza, Suite 325
Walnut Creek, California 94596
BS
YW
William Munoz Attorneys for Welsh Hagen Assoc.-E
ew
wmunoz@mpbf.com
BP
Lakeysia Beene
ew
Ibeene@mpbf.com
Bw
Isela Bravo
ewe
ibravo@mpbf.com
ewe
Murphy, Pearson, Bradley & Feeney
DH
520 Capitol Mall, Suite 250
Be
Sacramento, CA 95814
ewe
AN
Darren Ebner Attorneys for Petrilla Construction, Inc.
wm
debner@springelfink.com
Bee
John Black
SOB
jblack@springelfink.com
Deborah Schmidt
NO
dschmidt@springelfink.com
NY
F
camailroom@springelfink.com
Springel & Fink, LLP
NH
NY
20377 SW Acacia Street. Suite 250
NY
Newport Beach, CA 92660
FYB
NY NY
DW
NY Ne
oN
Nb
Preview
ELECTRONICALLY FILED Superior Court of California, GLEN A. VAN DYKE, SBN: 183796 County of Placer MEGAN DEHERRERA, SBN: = 306646 06/10/2020 at 10:23:20 ‘ VAN DYKE LITIGATION & TRIAL ATTORNEYS, P.C. iy: Marina Olivarez Fuentes, Deputy Clert HP 11025 Pioneer Trail, Suite 101A WW Truckee, CA 96161 Telephone: (530) 587-2130 BR Facsimile: (530) 587-2829 glen@vdlitigation.com Dn megan(@vdlitigation.com Attorneys for Defendants KCS MANAGEMENT NY LLC; KCS PROPERTIES, LLC; CHRISTOPHER SMITHER mea So SUPERIOR COURT OF THE STATE OF CALIFORNIA Ln BS FOR THE COUNTY OF PLACER Ln en ERIK HIRSCHBEK DBA WOOD RIDGE CASE NO. S-CV-0040580 WH CONSTRUCTION, ew KCS MANAGEMENT, LLC'S BP Plaintiff, OPPOSITION TO MOTION TO ew VS. CONTINUE TRIAL DATE AND ALL ie RELATED DATES; DECLARATION OF DWH ASPEN EARTHWORKS, INC., a California |GLEN A. VAN DYKE IN SUPPORT OF ie corporation; et al, OPPOSITION NI me Defendants. Date: June 25, 2020 we Be Time: 8:30 a.m. Dept. 42 Be SDB Complaint filed: 12/6/17 KH Trial date: 9/14/20 KF DY YN NY OPPOSITION YP NY I. INTRODUCTION FF NY A trial continuance will prejudice Defendant KCS Management, LLC (“KCS”), the NY DH owner of Martis 25-Lot 11, one of the properties in this action that continues to suffer substantial NY seasonal water damage resulting from defective construction. All parties have had ample time to TN NY conduct discovery. All remaining discovery could have and stillcan be conducted, including ao Ye Opposition toMotion toContinue Trial ~1~ Hirschbek v.Aspen, etal. remote depositions and written discovery. There isno reason that the other parties in this case Ye have declared a “stay” on discovery, other than ostensibly to further delay this BH case. A delay of even six (6) months WwW substantially prejudices KCS and increases KCS’ consequential damages, which continue BP 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 DAH 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. ON Il. BACKGROUND Co This case arises from the construction of two residences at Northstar, California by general contractor Erik Hirschbek dba Wood Ridge Construction’s (“Hirschbek”). (Declaration LL BS of Glen A. Van Dyke, “Van Dyke Decl.”, 4 2). KCS owns Martis 25-Lot 11 (“Lot 11”) and we STEI, LLC owns Martis 25-Lot 12 (“Lot 12”). (/d.).Hirschbek ew performed construction work on HP the two properties starting in 2014, completing work in ew January of 2017. (/d.).Only months after BD completion, the properties suffered significant ew water damage resulting from inadequate and missing ewe drainage. (/d.). In particular, the lower level of the home at Lot 11 flooded through the DH foundation Se and into the home, causing over $1 million in damages to correct and install deficient drainage and NI repair the water damage. (/d.).In addition, KCS Management, LLC has lost ew wm substantial rental income since January 2017, since the property was constructed to be an investment Be property for short term rentals. (/d.). Since January 2017, the property has been SOD vacant and unable to be rented out because of the significant and recurring damage. (Jd.). NY KF TI. ARGUMENT DB KCS Nn will be substantially prejudiced ifthis trialis continued for six months. KCS NY has diligently litigated itsclaims and will be ready for a trialin September. (Van Dyke Decl., 3). NY FY Until KCS can obtain a recovery at trial,KCS’ property NY remains significantly damaged and unable to be used for the investment purpose for which itwas purchased. NY Waiting through DW another winter eliminates KCS’ ability NY to rent the property for another busy holiday season. All parties have NY had and will have substantial time to perform discovery to prepare for oN No 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 we discovery could have been conducted. Depositions could have been conducted via BH video conferencing. WwW Moving party made no effort to compel the deposition of Erik Hirschbek scheduled BB 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 Dn 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 ON deposition to prepare for trial, itshould be re-set via video conference. There is no basis to object So to the video deposition, especially pursuant to Rule 11(a). All parties can and should be ready for a trial this September. S IV. CONCLUSION = WW In light of the foregoing, it isrequested that the Court deny this Motion and allow this HP three-year old case wD to proceed ew to trialin September so that KCS can recover itsdamages to repair] RB the defective conditions and damage atthe ew home. Alternatively, it is requested that the Court . grant a shorter continuance ewe up to only ninety (90) days to account for the time Moving Parties AH ewe claim was lost. ewe I we Be Dated: June 10, 2020 VAN DYKE LITIGATION & Be SSC TRIAL ATTORNEYS, P, NY KF By: NY GLEN A. VAN DYKE, NHN N Attorney for Defendants N FY NY mH NY NY nn N ao NY Opposition toMotion toContinue Trial ~3~ Hirschbek v.Aspen, etal. DECLARATION OF GLEN A. VAN DYKE IN SUPPORT OF OPPOSITION we I,Glen A. Van Dyke, hereby declare as follows: ww 1. I am an attorney at law, duly licensed to practice before all courts in the State of CON California, and am an attorney of record for PB KCS Management, LLC. I make this declaration from my own personal knowledge of the facts,and ifcalled upon as a witness, Icould and would DHA 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 ow BS two properties starting in 2014, completing work in January ew of 2017. Only months after completion, the properties suffered ew significant water damage resulting from inadequate and BDH ewe missing drainage. In particular, the lower level of the home at Lot 11 flooded through the ewe foundation and into the home, causing over $1 million in damages to correct and install deficient ewe drainage and repair the water damage. In addition, KCS Management, LLC has lost substantial ANA rental income since January 2017, eB since the property was constructed to be an investment ANI property for short Be term rentals. Since January 2017, the property has been vacant and unable to we be rented out because of the significant and recurring damage. Be 3. KCS has diligently litigated its claims and will be ready for a trial in September. SSO I declare under penalty of perjury under the laws of the State of California that thd DY foregoing is true and correct. Dated this 10"" date of June, 2020 at Incline Village, Nevada. KF LAR NY NY YN N FF NY Glen A. Van Dyke HW NY Dn NY NY on YN Opposition toMotion toContinue Trial ~4r~ Hirschbek v.Aspen, etal. PROOF OF SERVICE Ke STATE OF CALIFORNIA ) Hirschbek v.Aspen, et al. HB ) ss. WwW COUNTY OF PLACER ) S-CV-0040580 BB 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 DWH and am not a party to the within action. On June 10, 2020, Iserved the foregoing document, bearing the title ONY KCS MANAGEMENT, LLC'S OPPOSITION TO MOTION TO CONTINUE TRIAL DATE AND ALL RELATED DATES; DECLARATION OF GLEN A. VAN DYKE IN So SUPPORT OF OPPOSITION on BS the interested parties in this action as follows: Attached Service List BW 0) (U.S. MAIL/ U.P.S.) ew I placed such an envelope for collection and mailing on this date following BWP ordinary business practices. I am readily familiar with the practices of Van Dyke Law Bw Group for collection and processing of correspondence for mailing with the United States ese Postal Service the same day it iscollected in the ordinary course of business. ie [X] ONLY BY DAA 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 ew the Coronavirus (COVID-19) pandemic, Van Dyke Litigation attorneys will be working ew NI 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 we eB was received within a reasonable time after the transmission. Be SSD [ ] (BY FACSIMILE) _ Sent to phone numbers as posted NY [X] (State) I declare under penalty of perjury that the foregoing is true and correct. KF NY Executed on June 10, 2020, at Truckee, California. NN Aine NN FY Carol L. Ritte NY HW NY Dn NN orn NY Bob Sims, Esq. Attorneys for Erik Hirschbek-E we bob@sims-law.net Michelle Wiederhold, Esq. HH michelle@sims-law.net WwW Jamie Graydon jamie@sims-law.net BB Sims Lawrence & Arruti 2261 Lava Ridge Court DWH Roseville, CA 95661 David Levy Attorneys for Aspen Earthworks-E dlevy@vanlevylaw.com ON Yvonne Jorgensen yjorgensen@vanlevylaw.com So Van De Poel, Levy, Arneal & Serrot, LLP 1600 South Main Plaza, Suite 325 Walnut Creek, California 94596 BS YW William Munoz Attorneys for Welsh Hagen Assoc.-E ew wmunoz@mpbf.com BP Lakeysia Beene ew Ibeene@mpbf.com Bw Isela Bravo ewe ibravo@mpbf.com ewe Murphy, Pearson, Bradley & Feeney DH 520 Capitol Mall, Suite 250 Be Sacramento, CA 95814 ewe AN Darren Ebner Attorneys for Petrilla Construction, Inc. wm debner@springelfink.com Bee John Black SOB jblack@springelfink.com Deborah Schmidt NO dschmidt@springelfink.com NY F camailroom@springelfink.com Springel & Fink, LLP NH NY 20377 SW Acacia Street. Suite 250 NY Newport Beach, CA 92660 FYB NY NY DW NY Ne oN Nb