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November 2014

Gordon & Rees Construction Team Wins Dismissal of Plaintiffs’ Complaint Following Favorable Rulings on Motions in Limine

A Gordon & Rees construction team led by San Francisco partners Bill Peters and Bryce Carroll, along with associates Amy Alexander and Jessica Clouse, won the complete dismissal of all claims against a national builder three days prior to the commencement of trial. The tipping point that led to the dismissal came following the court’s determination that the plaintiffs were prohibited from introducing evidence based on extrapolation, coupled with the court’s ruling precluding the introduction of evidence of alleged defects where there was no evidence of property damage consistent with the Aas v. Superior Court ruling. The court considered the two motions in limine prior to jury selection.

The plaintiffs alleged numerous construction defects at their homes. The plaintiffs’ original cost of repair exceeded $1.3 million. Throughout the expert discovery process, it was evident that the plaintiffs’ claims lacked sufficient investigation and evidence of property damage. The Gordon & Rees team targeted its questioning of the plaintiffs’ experts to reveal the lack of property damage and insufficient investigation.

Prior to trial, the defense team filed two coordinated motions in limine that, if granted, would reduce the plaintiffs’ case from hundreds of claims down to a handful. The first motion was to exclude the use of speculative evidence based on extrapolation. With the help of a statistician, the Gordon & Rees team argued that the plaintiffs’ destructive testing sampling size was too small to demonstrate that the conditions observed through the testing were necessarily similar to those throughout the entire set of homes. Moreover, the team argued that the sampling conducted by the plaintiffs was not truly a random sampling, and thus subject to bias. The court agreed with the arguments and issued its ruling that the plaintiffs’ experts would be precluded from offering testimony on alleged conditions that were not actually observed.

The Gordon & Rees team also filed a motion to prevent the introduction of alleged defects where there was no evidence of property damage. The team argued that for the plaintiffs to recover for the alleged damages there must be a showing of property damage associated with the claim. This theory is based on the holding in Aas v. Superior Court. The court gave the plaintiffs multiple opportunities to find evidence to oppose the motion. In the end, Gordon & Rees’s detailed summary of the evidence persuaded the court, which granted the motion.

The Contra Costa Superior Court’s granting of the two motions in limine in essence gutted the plaintiffs’ case. The plaintiffs were now precluded from offering speculative extrapolation evidence, as well as offering evidence of any alleged defective conditions, where there was no showing of property damage. In light of the two rulings, the plaintiffs ultimately dismissed their case in exchange for a waiver of costs three days before trial. The result highlights the benefits of using a statistician to evaluate the means and methods of plaintiffs’ sampling of evidence to determine the adequacy of the sample, as well as the benefits of analyzing plaintiffs’ anticipated expert testimony prior to expert discovery to craft a discovery plan geared toward excluding potentially damaging evidence prior to trial.

Amy Kuo Alexander
Jessica Clouse
William J. Peters



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