Free Objections - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case No. 03-cv-2669-MSK-PAC LEPRINO FOODS COMPANY, Plaintiff, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; BIG-D CORPORATION, a Utah corporation; BIG-D CAPITAL CORP., a Wyoming corporation; and Does 1-100, inclusive, Defendants/Counterclaimants, BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; and Does 1-100, inclusive, Third Party Plaintiffs, v. MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Defendant. MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Plaintiff/Counterclaimant, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; FEDERAL INSURANCE COMPANY, an Indiana corporation; and Roes 20 through 80, inclusive, Counterdefendant/Third Party Defendants. PLAINTIFF' COMBINED OBJECTIONS TO EVIDENCE S AND/OR MOTION TO STRIKE

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Plaintiff Leprino Foods Company ("Leprino") objects to and moves to strike evidence proffered by Big-D Construction Corp., and Big-D Construction Corp.-California (collectively, "Big-D") in Response to Plaintiff' Motion for Summary Adjudication ("Response," Docket s No. 191) as follows: AFFIDAVIT OF KERRY ARNOLD Leprino generally objects and moves to strike the Kerry Arnold ("Arnold") Affidavit is irrelevant beyond laying a foundation for the alleged change orders Big-D claims extended time. There is no suggestion the change orders require extrinsic evidence to explain an ambiguity, and Arnold' opinion is irrelevant. Arnold' testimony is irrelevant to the issue of the GC Costs, the s s untimely CE' of UMM and the so-called "abandonment" theory. Additionally, Leprino objects s and moves to strike the Affidavit in each paragraph or portion thereof, as set forth herein. 1. The statement in paragraph 2 regarding what Arnold "understood" lacks

foundation and appears to be based on hearsay. 2. Paragraph 3 states what Arnold' "understanding of the way that the Project was s

run," but then goes on to identify particular responsibilities. Arnold lacks foundation to make the statement because in paragraph 1 he states his work on the Project began a year after the Agreement was signed. His comments about the Project design activities generally must

therefore be based on hearsay, but in any event cannot be based on his personal experience. Finally, the affidavit includes Arnold' conclusions as to certain parties' contractual s responsibilities and Arnold lacks foundation to make the statements and the statement violate the parol evidence rule. 2

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3.

All of the testimony in paragraphs 4-6 relates to events that occurred before

Arnold was on the Project, and there is no foundation for Arnold' personal knowledge. The s testimony lacks foundation and must be based on hearsay. 4. The testimony lacks foundation and personal knowledge as demonstrated by the

phrase "My understanding of the way the project was to be run..." and "It was my further understanding that..." There is no factual support for the alleged conclusions surrounding delays. 5. The statement in paragraph that on February 4, 2002, "Big-D was entitled to a 148

day extension" is an inadmissible legal conclusion. It is also vague because the later statement relates to an extension for phase II only. Moreover, the statement continued "but I knew this would not work for Jack Towle" calls for speculation as to Jack Towle' state of mind. s 6. Arnold' testimony in Paragraphs 11-13 explaining the alleged extension and its s Interpretation of the contract

purpose violates the parol evidence rule and is irrelevant.

amendment is an issue of law for the court, and there is no foundation for the need for parol evidence to explain it. 7. As to Paragraph 10 of the Arnold Affidavit, allegations of statements made to him

by Jack Towle were out of court statements offered for the truth of the matter asserted and, therefore, they are inadmissible hearsay. 8. The declaration lacks foundation and as evidenced by the statements of Arnold

such as "For whatever reason, this seemed to satisfy Jack Towle . . ." The statement also contains hearsay and speculation on the declarant' part evidenced by the statement that "[t]he s whole negotiation was on the edge of being rejected by Jack Towle . . ." Statements made regarding oral agreements and negotiations are also hearsay and must be disregarded. 3

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9.

The statement contains hearsay regarding the out-of-court communications

allegedly made by Jack Towle and offered by the declarant for the truth of the matter asserted. Paragraph 13 in its entirety should be stricken. 10. As to Paragraph 14 of the Arnold Affidavit, Arnold' conclusory allegations as to s

what documents "adjusted the contract completion date" without factual support and insufficient to defeat summary judgment. Arnold is not qualified to give an opinion as to the alleged effect of the purported documents. 11. As to Paragraph 15 of the Arnold Affidavit, Arnold' conclusory statements s

regarding the amount and scope of work "directly performed" by Leprino lacks personal knowledge as Arnold did not do any of the alleged work that Leprino was doing. 12. As to Paragraph 16 of the Arnold Affidavit, Arnold' conclusory allegations as to s

delays and the impact of the alleged delays on bids and "additional General Conditions" to be without factual support and insufficient to defeat summary judgment. 13. As to Paragraph 17 of the Arnold Affidavit, Arnold' conclusory allegations as to s

what was Leprino' "intent" lacks foundation and is speculative. The statement lacks foundation s as Arnold does not properly authenticate the purported documents attached as Exhibit "V". The letters also contain hearsay. In addition, Paragraph 17 is objectionable and should be stricken in that it contains inadmissible hearsay regarding out-of-court conversations and statements of Jack Towle and Arnold offered for the truth of the matter asserted. 14. As to Paragraph 18 of the Arnold Affidavit, Arnold' conclusory and speculative s

allegations as to why Leprino employees wanted Big-D to do "this work" lack personal

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knowledge and are inadmissible. statements made by Jack Towle. 15.

The paragraph contains inadmissible hearsay regarding

As to Paragraph 19 of the Arnold Affidavit, Arnold' statement regarding GSL s

having "a hard time explaining the scope" lacks personal knowledge, is conclusory and speculative. Similarly, the alleged claim that "the scope was still being changed by Jack Towle" also lacks foundation, contains hearsay, is conclusory and without factual support. 16. As to Paragraph 20 of the Arnold Affidavit: objection; lacks foundation, untimely,

speculation and hearsay. Arnold' conclusory statement that Big-D "was on track to complete s by September 1, 2002" and the completion date was "extremely tight" is without factual support and insufficient to defeat summary judgment. Arnold' allegations as to what he was told by s GSL, Jack Towle and Dave Shankel, are hearsay and therefore, inadmissible. 17. As to Paragraph 21 of the Arnold Affidavit, the paragraph lacks foundation, is

speculative, violates the parole evidence rule and begins with hearsay. Arnold' allegations as to s what he was told by GSL, Jack Towle, Joel Krein, Rob Moore, and Forrest McNabb, are out-ofcourt statements offered for the truth of the matter asserted. These alleged statements are hearsay and, therefore, inadmissible. Arnold lacks personal knowledge and merely speculates as to why work may have been included. This is evident in his statement when he states "[i]t appeared that Jack Towle simply wanted Big-D around . . ." This statement speculates as to Jack Towle' state of mind and is conclusory. Additionally, Leprino objects to the attempted parole s evidence proffered by Arnold regarding additional compensation allegedly offered to Big-D by way of hearsay statements. Arnold' fails to provide factual support for the conclusion regarding s what GSL wanted and the date of completion. 5

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18.

As to Paragraph 22 of the Arnold Affidavit, Arnold' conclusory allegations s

regarding the original negotiations lack foundation, must be based on hearsay and are speculation as he does not claim he was a part of the negotiations. The paragraph also is replete with improper parole evidence and inadmissible hearsay regarding statements made by Arnold, Jack Towle and unnamed GSL personnel. 19. As to Paragraph 23 of the Arnold Affidavit, Arnold lacks personal knowledge and

speculates as to what the alleged change orders may have been included. This is evident in his statement when he states "the scope appeared to cover . . ." The paragraph includes inadmissible hearsay regarding the change orders and statements allegedly made by Arnold and Jack Towle. 20. As to Paragraph 24 of the Arnold Affidavit, Arnold' allegations as to what he s

was told by "Joel Hancock and other GSL personnel" and Jack Towle, are hearsay and therefore, inadmissible. Arnold' conclusory statement as to what others personally did lacks foundation. s 21. As to Paragraphs 25 and 26 of the Arnold Affidavit, they are irrelevant and parol

evidence apparently offered to explain a contract modification in writing, specifically change orders 361, 411, and 412. 22. As to Paragraph 28 of the Arnold Affidavit, Arnold' statements regarding what s

"satisfied everyone" and what "was very clear to all" lacks foundation, are conclusory and speculative. It is without factual support and insufficient to defeat summary judgment. To the extent it is offered to explain the change order, it is irrelevant and parol evidence. 23. As to Paragraph 30 of the Arnold Affidavit, Arnold' statements regarding what s Specifically, the statement

was "clear" lacks foundation, are conclusory and speculative. requires speculation regarding Towle' state of mind. s 6

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24.

As to Paragraphs 33 and 34, Arnold fails to identify dates because he was not on

the job during the time of the referenced matters. The tilt ups were constructed before November 2001. AFFIDAVIT OF MARK BERRY Leprino objects to Mark Berry' ("Berry") Affidavit as irrelevant to the dispositive s legal issues regarding UMM, which is whether the CE' that are the basis of UMM' claim s s satisfy the contractual condition precedent of pursuing the claim, or whether the CE' are s untimely. Nothing in the Affidavit addresses either issue or the issues relating to Big-D. The Berry Affidavit is inadmissible because it fails to set forth specific facts showing there is a genuine issue for trial." See, In Re Paoli, 916 F.2d 829, 862 (3d Cir. 1990). Leprino objects to and moves to strike the affidavit of Mark Berry, in its entirety, as untimely, as it was not filed and served within the time limits prescribed by this Court. The papers in support of Big-D' s Response, were due to be filed with the court no later than January 30, 2006. However, this affidavit and the exhibits which were purportedly "attached" were not filed and served until January 31, 2006. Additionally, Leprino objects and moves to strike the Berry Affidavit in each paragraph or portion thereof, as set forth herein. 25. As to the entire Affidavit, Berry fails to adequately lay a foundation for the so-

called opinions he later provides. Any succeeding opinion testimony is inadmissible. Moreover, the opinions typically related to when certain things occurred for which Berry failed to lay a foundation regarding the source of his knowledge, which is necessarily hearsay. Berry attempts to apply the law to the facts and states an opinion regarding conduct and decisions of Leprino beyond the proper scope of his testimony. Berry also fails to provide factual basis for the 7

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conclusions in the affidavit. See, Bulthuis v. Rexall Corp., 789 F.2d 1315, 1318 (9th Cir. 1985). See also, Merit Motors, Inc v. Chrysler Corp., 569 F.2d 666, 672-673 (D.C. Cir 1977). The opinion in Paragraph 6 is an interpretation of the contract. This is a matter of law and not expert testimony. Secondarily, the opinion relates to an alleged fact, e.g., whether something was provided on a certain date. This is not the subject of expert opinion. 26. As to Paragraph 7 of the Berry Affidavit, Berry is speculating as to what Leprino

"knew" and when. There is no factual foundation for Berry to offer the statements; the statement must be based on hearsay; and are not permitted as an expert because they relate to guessing a party' statement of mind, which is both inadmissible speculation and not the subject of Berry' s s alleged expertise. 27. As to Paragraph 8 of the Berry Affidavit, Berry cannot offer opinions regarding

when activities occurred without a foundation. This is fact and not so-called expert testimony. 28. As to Paragraph 9 of the Berry Affidavit, Berry, beginning in the second sentence,

states his opinion of facts without a foundation. Berry' understanding of when certain facts s occurred is irrelevant. Such testimony is not expert, but percipient testimony, and nothing suggests Berry has personal knowledge of the alleged facts. 29. As to Paragraph 10 of the Berry Affidavit, Berry speculates as to the motivation

for certain activities. Berry' speculation is inadmissible and not subject of his alleged expertise. s Moreover, Berry' testimony about value engineering lacks foundations insofar as it ignores the s Contract and Subcontract obligations to value engineer. 30. Paragraph 11 of the Berry Affidavit lacks foundation. According to the attached His opinion on whether Big-D was

report, Berry studied the cause of delay to UMM. 8

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responsible for the delay defies at least 25 references in the report where Berry blames Big-D for causing the delay due to faulty coordination and scheduling. 31. As to Paragraph 12 of the Berry Affidavit, Berry fails to lay a foundation

regarding the claims and damages by establishing the conditions precedent to pursue the claim were met, namely the reason for the claim and the timely written notice of the claim. Approximately $7 million of the $8 million in change estimates referred to by Berry were untimely and the balance of the alleged calculation is based on non-reimbursable costs, either by failure to submit any claim or the fact that the types expenses. Berry fails to lay a foundation for his calculation of damages. As to the second method, Berry is basing his calculation on the lack of a subcontract, but there is a subcontract. Berry' entire opinion regarding damages is s

irrelevant to the legal issues presented in the motion. AFFIDAVIT OF ALAN BURROWS Leprino objects and moves to strike Alan Burrows' ("Burrows") Affidavit in its entirety or, in the alternative, in each paragraph or portion thereof, as set forth herein. Burrows

Affidavit is irrelevant to the dispositive legal issues of (1) whether the substantial completion date was extended, (2) whether Big-D' GC Cost claim is prohibited by the terms of the contract and undisputed date it was submitted, (3) whether Big-D is prohibited from recovering based on California statutory law or based on a quasi-contract theory when, as a matter of law, the abandonment theory fails, and (4) whether UMM' claim was s substantially untimely and not subject to reimbursement as a matter of law. None of those issues are addressed here. The Burrows Affidavit is irrelevant and inadmissible because it fails to set forth specific facts showing there is a genuine issue for trial." See, In Re Paoli, 916 F.2d 9

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829, 862 (3d Cir. 1990). For the following additional specific reasons, the Burrows Affidavit is inadmissible. 32. As to Paragraph 1 of the Burrows Affidavit, the Affidavit misstates the testimony

of Burrows, contradicts sworn testimony and lacks foundation. According to Burrows in his deposition, he was an employee only until September 2001 and he was only the Project Manager for the Lemoore West Cheese Processing Facility for three months in late 1999 and early 2000 before he was demoted. (See, portions of relevant transcripts of Burrows deposition 96:22-25, 112:3-5, attached as Exhibit "1" to Declaration of Rich Gillespie in Support of Reply to Response to Motion Summary Adjudication) . 33. As to Paragraph 3 of the Burrows Affidavit, the statement contradicts sworn

testimony and lacks foundation. Burrows was not associated with the construction schedule with the "Project" and has no personal knowledge if a "universal construction schedule" ever existed or not. (Burrows deposition: 98:22-99:20, 100:9-23). 34. As to Paragraph 4 of the Burrows Affidavit, the testimony of Burrows contradicts Burrows has no personal

sworn testimony, calls for speculation and lacks foundation.

knowledge of "confusion" on the part of others or the status of the "Project design." (Burrows deposition: 101:1-6, 105:18-107:4; 107:15-108:8). Burrows did not testify or establish facts to support the claim that "aspects of the design were often altered due to errors or . . . a change in direction." According to Burrows, he stated he has no facts to support this claim. (Burrows deposition: 108:20-110:10,111:12-19). Burrows also fails to give a date of the "start of

construction." The Burrows Affidavit requires Burrows to speculate as to others state of mind.

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35.

As to Paragraph 5 of the Burrows Affidavit, the testimony of Burrows contradicts

sworn testimony, calls for speculation and lacks foundation. Contrary to his affidavit, Burrows unequivocally states in his deposition, that he has no personal knowledge or basis for the budgetary "facts" set forth in this affidavit. (Burrows deposition: 111:20-112:5). 36. As to Paragraph 6 of the Burrows Affidavit, the testimony of Burrows contradicts

sworn testimony, calls for speculation and lacks foundation. Burrows has no understanding or basis of personal knowledge of delays relating to construction of the "Project." (Burrows deposition: 112:6-112:22). Burrows has no personal knowledge of delays relating to "Project' s critical path." (Burrows deposition: 113:11-114:13). Burrows admits he is purely speculating and has no personal knowledge of dates Big-D expected Tri-Clover to deliver its design. (Burrows deposition: 116:21-117:6). 37. As to Paragraph 7 of the Burrows Affidavit, the testimony of Burrows contradicts

sworn testimony, calls for speculation and lacks foundation. Contrary to his affidavit, Burrows admitted in his deposition he has no personal knowledge of Leprino' purchase of "processing s equipment before completion of the design." (Burrows deposition: 118:5- 19). Similarly,

Burrows has no personal knowledge of design changes or specific instances needed to accommodate particular pieces of equipment that Leprino had already purchased." (Burrows deposition: 118:20-119:5). 38. As to Paragraph 8 of the Burrows Affidavit, the testimony of Burrows contradicts Burrows has no personal

sworn testimony, calls for speculation and lacks foundation.

knowledge of the ordering of work done by subcontactors without authorized change orders (Burrows deposition: 123:10-124:3). 11

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AFFIDAVIT OF DANIEL J. GRASMICK Leprino objects to and moves to strike Daniel J. Grasmick' ("Grasmick") Affidavit in its s entirety. The opinion relates to the allegation of "concurrent delay." This applies solely to the issue of Leprino' damages caused by Big-D delaying the Project. Since the motion s specifically limited itself to the liability of Big-D for breach (and not causation and damages), this Affidavit is entirely irrelevant. Also, the papers in support of Big-D' s

Response, were due to be filed with the court no later than January 30, 2006. However, this Affidavit and the exhibits which were purportedly "attached" were not filed and served until January 31, 2006. Finally, expert opinions are governed by Federal Rules of Evidence 702 and 703. By mere attachment of a purported resume of himself and an unauthenticated resume of another individual, Grasmick has not demonstrated that either he or Fred Clark are qualified as experts that are able to provide expert opinions in the purported issues by knowledge, skill, experience, training or education. (Fed. R. Evid. 702). Grasmick identifies himself as a "chemical engineer" yet gives opinions on water discharge rates, Notice of Violations of conditions in 2002 in Lemoore, and likely "formal enforcement actions against the City of Lemoore WWTF by the Central Valley RWQCB", including the potential issuances of cease and desist orders, and other areas for which he is not qualified. Clearly, Grasmick, among other things, is interpreting law, an area far outside his scope as an "expert" and a "chemical engineer." Grasmick cannot even demonstrate that the opinions are his, rather he indicates they are "SGI' opinions." He fails to s provide the foundation for the SGI opinions.

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Grasmick does not demonstrate: (1) the testimony given is based on sufficient facts or data, (2) the testimony is the product of reliable principals and methods, and (3) the witness has applied those principals to the facts of the case. (Fed. R. Evid. 702) In his Affidavit, he makes no mention of the quantity or nature of the data purportedly reviewed. He makes no mention that his testimony is the product of reliable principals or methods. In fact, he makes no mention of any principals or methods at all, let alone reliable ones. Lastly, Grasmick does not claim to apply any principals and methods reliably to the facts. He states no facts and no principals and no methods. Leprino objects and moves to strike the Affidavit in each paragraph or portion thereof, as set forth herein. From his own Affidavit, Grasmick demonstrates no knowledge or expertise in waste water pre treatment plants for industrial (as opposed to contamination remediation). This expert is incompetent to give an expert opinion on matters in this case (even if they were relevant). Thus, the entire Affidavit should be stricken and disregarded. Finally, the Affidavit is inadmissible because it fails to set forth specific facts showing there is a genuine issue for trial." See, In Re Paoli, 916 F.2d 829, 862 (3d Cir. 1990). Additionally, the Affidavit is objected to for the following reasons: 39. As to Paragraph 1 of the Grasmick Affidavit, he states he is a chemical engineer.

He states he is with an environmental consulting firm, but fails to lay any foundation as an expert in treating millions of gallons of biological waste water. Grasmick' conclusory statements s regarding his qualifications are inadequate. 40. As to Paragraph 2 of the Grasmick Affidavit, the affidavit states that SGI was

retained by Big-D to provide expert testimony. Grasmick fails to identify who at SGI was 13

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"retained by Big-D" and who was "tasked to review correspondence and other technical memoranda and to provide an opinion . . ." Recently, the expert for SGI was presented for deposition and it was Clark, not Grasmick, that testified. (See Para. 3). The report states the opinions are SGI' and this raises a further question regarding Grasmick' qualifications. s s On a motion for summary adjudication, the sufficiency on an expert' affidavit is s governed by Rule 56(e). Ambrosian v. Labarraque, 966 F.2d 1464, 1470, (D.C. Cir. 1992). Under Rule 56(e) the expert must back up his or her opinion with specific facts: "[e]xpert opinion is admissible and may defeat summary judgment if it appears the affiant is competent to give an expert opinion and the factual basis for the opinion is stated in the affidavit . . ." Bulthius v. Rexall Corp., 789 F.2d 1315, 1318 (9th Cir. 1985). See also, Merit Motors, Inc. v. Chrysler Corp., 569 F.2d 666, 672-673 (D.C. Cir 1977). Moreover, expert declarations that contain nothing but conclusory allegations on the ultimate legal issue are not sufficient to defeat summary judgment. Evers v. General Motors, 770 F.2d 984, 986 (11 Cir. 1985). In Paragraph 5, Grasmick, the self-described "chemical engineer", states "his" purported opinion without any factual basis for such opinion. Grasmick fails to define or describe the "regulatory actions taking place" or the "NOV conditions being experienced by City of Lemoore WWTF during 2002." He fails to define and describe "BOD, TSS and EC Composition", the nature and rate of discharges, and potential "operational capacity", the hearsay "statements made from Central Valley RWQCB", etc. In fact, the "opinion" stated in the affidavit makes no sense and consists entirely of unsupported conclusions fraught with undefined terms and jargon. It provides no factual basis whatsoever for the SGI (or his) opinion. Thus, for the reasons stated above, Leprino' motion to strike should be granted, and its objections should be sustained. s 14

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AFFIDAVIT OF PHILLIP M. GUDGEL Leprino objects to and moves to strike Phillip M. Gudgel' ("Gudgel") Affidavit. The s Affidavit can be summed up by the statement that in Gudgel' opinion, Leprino, by an act or s omission, caused some or all of the Project delays. Gudgel' Affidavit is irrelevant to the s dispositive legal issues of (1) whether the substantial completion date was extended, (2) whether Big-D' GC Cost claim is prohibited by the terms of the contract and undisputed date it was submitted, (3) whether Big-D is prohibited from recovering based on California statutory law or based on a quasi-contract theory when, as a matter of law, the abandonment theory fails, and (4) whether UMM' claim was substantially untimely and s not subject to reimbursement as a matter of law. None of those issues are addressed here. Additionally, Gudgel is allegedly an expert. Expert opinions are governed by Federal Rules of Evidence 702 and 703. By mere attachment of a purported resume of himself, Gudgel has not demonstrated that he is qualified as an expert to provide an expert opinion in the purported issue by knowledge, skill, experience, training or education. (Fed. R. Evid. 702) Gudgel fails to provide the foundation for the alleged opinions. He does not demonstrate (1) the testimony given is based on sufficient facts or data, and (2) the testimony is the product of reliable. (Fed. R. Evid. 702). In his affidavit, he makes no mention of the quantity or nature of the data purportedly reviewed. He only reviewed "certain" contract documents, correspondence, pleadings, deposition testimony, photos, schedules and other information. He fails to indicate which documents he decided not to review and the reasons why he failed to review them. He makes no mention that his testimony is the product of reliable principals or methods. In fact, he makes no mention of any principals or methods at all, let alone reliable ones. 15

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Lastly, Gudgel does not claim to apply any principals and methods reliably to the facts. He states no facts and no principals and no methods. Thus, Gudgel may not testify in the form of an opinion as to any issue in this case. Expert declarations that contain nothing but conclusory allegations on the ultimate legal issue are not sufficient to defeat summary judgment. Evers v. General Motors, 770 F.2d 984, 986 (11 Cir. 1985). Additionally, Leprino specifically objects as follows: 41 As to Paragraph 2 of the Gudgel Affidavit, Paragraph 3 cites to his Curriculum

Vitae attached as Exhibit "A" however, this document contains inadmissible hearsay. 42. As to Paragraph 4 of the Gudgel Affidavit, he speculates as to Leprino' "prior s

knowledge." Accordingly, the remainder of the opinion is based on speculation and lacks foundation. Gudgel' description of the Contract is irrelevant. Gudgel cannot offer testimony to s explain his understanding of the Contract. His statement regarding what Leprino "anticipated" is irrelevant. The balance of the paragraph regarding what Leprino knew is irrelevant. He cannot testify as to Leprino' state of mind. s 43. As to Paragraph 5 of the Gudgel Affidavit, Gudgel testifies as to the "expected"

completion date and what this would require. Gudgel used the term "abandoned" but it is unclear if he is using it in a legal sense. However, whose expectation is not stated and since the term is not in the contract, it is irrelevant to areas outside the scope of his own claimed, albeit disputed, "expertise." If so, Gudgel cannot offer a legal conclusion. Moreover, Gudgel lacks foundation to make this opinion. At his deposition, Gudgel testified he did not understand the legal significance of the term and knew only one fact related to the schedule that he referred to as abandoning or not exercising a contract term. 16

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44.

As to Paragraph 6 of the Gudgel Affidavit, Gudgel' opinion regarding what s

Leprino should have "expected" lacks foundation and is irrelevant. The parties' obligations are governed by the Contract. The statement is irrelevant because the relevant inquiry, assuming Gudgel is correct at all, is "where is Big-D' written request for an extension of time" in March s of 2001? The Affidavit fails to address this dispositive issue. 45. As to Paragraph 14 of the Gudgel Affidavit, Gudgel' opinion regarding what s

Leprino "believed" lacks foundation and is irrelevant. The parties' obligations are governed by the Contract. The statement is irrelevant because the relevant inquiry, assuming Gudgel is correct at all, is "where is Big-D' written request for an extension of time" in September of s 2001? The Affidavit fails to address this dispositive issue lacks foundation to guess at what Leprino "believed" and why certain undefined Leprino "decisions" were made is speculative and lacks foundation and factual support. Gudgel also fails to provide factual basis for any the conclusions in the paragraph. 46. As to Paragraph 18 of the Gudgel Affidavit, what Gudgel opines Leprino

"believed" and "recognized" are speculative and lack foundation and factual support. Gudgel also fails to properly authenticate the purported e-mail and does not attempt to attach it. The statement of what the e-mail purportedly states is one of several layers of hearsay associated with the unauthenticated document draft by an individual other that the declarant. AFFIDAVIT OF FORREST McNABB Leprino objects to and moves to strike the Forrest McNabb ("McNabb") Affidavit, in its entirety. The Affidavit is irrelevant to raise a triable issue. The issues addressed by McNabb begin with his understanding of the contract. This violates the parol evidence rule, is irrelevant 17

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and inadmissible. The question of whether he verbally notified anyone of delay is irrelevant. The contract clearly calls for a written notice and request for extension of time. The Affidavit fails to address the relevant issue. Additionally, Paragraph 4 is replete with hearsay in that it refers to out of court statements and notifications offered for the truth of the matter asserted. McNabb lacks

foundation regarding alleged statements and notices made by other personnel at Big-D to Leprino. Further, he fails to provide factual support for the conclusory statements regarding alleged delays by Leprino or the unidentified "Architect-Engineer", and purported notice given thereto. AFFIDAVIT OF ROBERT S. MOORE Leprino objects to and moves to strike the Robert S. Moore' ("Moore") Affidavit of, in s its entirety, as untimely, as it was not filed and served within the time limits prescribed by this court. The papers in support of Big-D' Response, were due to be filed with the court no later s than January 30, 2006. However, this affidavit and the exhibits which were purportedly

"attached" were not filed and served until January 31, 2006. 47. Moore' Affidavit is irrelevant to the dispositive legal issues of (1) whether s

the substantial completion date was extended, (2) whether Big-D' GC Cost claim is prohibited by the terms of the contract and undisputed date it was submitted, (3) whether Big-D is prohibited from recovering based on California statutory law or based on a quasicontract theory when, as a matter of law, the abandonment theory fails, and (4) whether UMM' claim was substantially untimely and not subject to reimbursement as a matter of s law. None of those issues are addressed here. 18

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48.

Additionally, Leprino objects and moves to strike the Affidavit in its entirety

because Moore offers his opinion of the legal obligations in the contract. This is inadmissible. The document speaks for itself. evidence. The testimony in paragraphs 17-19 is inadmissible parol

Moore refers to the project cost, but the contract states the project cost is

undetermined. Moore cannot offer parol testimony as to the meaning of the written instrument. 47. Moore' description of why he failed to follow the contract fails to set forth a s

legal basis to or, in the alternative, in each paragraph or portion thereof, as set forth herein. 48. Paragraphs 6-16 appear to be premised on an estoppel argument, but fail to lay a

foundation regarding a statement upon which Moore could rely to not exercise his legal rights. Therefore, the remainder of the related testimony lacks foundation and is irrelevant. 49. Moore' conclusory allegations without factual support are insufficient to defeat s

summary judgment. National Steel Corp. v. Golden Eagle Ins. Co., 121 F.3d 496, 502 (9th Cir. 1997). Moore' conclusions as to the contract language are not sufficient to oppose a motion for s summary adjudication. AFFIDAVIT OF LARRY WORRELL Leprino objects to and moves to strike the Larry Worrell ("Worrell") affidavit, in its entirety or in the alternative, Leprino objects and moves to strike the affidavit in each paragraph or portion thereof, as set forth herein. Nothing in the Worrell Affidavit is relevant to the issues here, except that Big-D was paid over $137 million and claims it is unpaid roughly $3.8 million. Worrell does not have a foundation to testify as to whether the money is due. His foundation is limited to what Big-D believes it is owed. Any conclusions regarding fault or liability should be

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stricken. Conclusory allegations without factual support are insufficient to defeat summary judgment. National Steel Corp. v. Golden Eagle Ins. Co., 121 F.3d 496, 502 (9th Cir. 1997). WHEREFORE, for the reasons set forth above, Leprino respectively requests that the subject evidence offered by Big-D to oppose Leprino' summary judgment motion be stricken. s Respectfully submitted this 24th day of February, 2006. LEPRINO FOODS COMPANY

By:

s/ Michael G. Bohn One of Its Attorneys Michael G. Bohn Bret M. Heidemann Campbell Bohn Killin Brittan & Ray, LLC 270 St. Paul Street, Suite 200 Denver, Colorado 80206 Telephone: (303) 322-3400 Facsimile: (303) 322-5800 [email protected] [email protected] Patrick T. Markham, Esq. Jacobson & Markham 8880 Cal Center Drive, #100 Sacramento, California 95826 Telephone: (916) 854-5969 Facsimile: (916) 854-5965 [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on the 24th day of February 2006, I electronically filed the foregoing PLAINTIFF' COMBINED OBJECTIONS TO EVIDENCE AND/OR MOTION TO S STRIKE with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Christopher J. Hersey of [email protected] Francis (Frank) J. Hughes of [email protected] Patrick Quinn Hustead of [email protected] Peter J. Ippolito of [email protected] Richard Carl Kaufman of [email protected] John David Mereness of [email protected] C. Michael Montgomery of [email protected] Daniel James Nevis of [email protected] Laurence R. Phillips of [email protected] N. Kathleen Strickland of [email protected]

s/ Cori Atteberry Cori Atteberry, Legal Assistant

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