Preview
FILE3/E: •^ ' " ^ , f T ^ n > "v^ *?* B
Vl 1 ^ w " ! 11 li o
STEPHANIE J. FINELLI, SBN 173462
Law Office of Stephanie J. Finelli
2 1007-7th Street, Suite 500
Sacramento, CA 95814 MAR 2 5 2011
3 tel 916-443-2144
fax 916-443-1511
4 DEPL'l -:l '
Attorney for Plaintiffs,
5
FLORENTINE and RODNEY ABBOTT
6
7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 IN AND FOR THE COUNTY OF SACRAMENTO
9
10 FLORENTINE AND RODNEY ABBOTT, CaseNo.:07AS04450
II Plamtiffs, OPPOSITION TO MOTION FOR
ATTORNEY FEES; DECLARATION OF
12 vs. STEPHANIE J. FINELLI
13 RONALD BRITSCHGI, et. al.. Trial Date: January 18, 2011
Judgment: February 3, 2011
14 Defendants
Hearing: April 8, 2011
15 Time: 9:30 a.m.
16 and related cross-actions Dept: 43
Judge: Brian Van Camp
17
18 I. INTRODUCTION
19 Following a jury verdict in favor of CA Construction, said defendant claims attorney fees
20 and litigation costs in the amount of $207,494.00 based upon an attorney-fee provision in the
21 contract between CA Construction and plaintiffs. This motion should be denied, as defendants
22 are not necessarily the prevailing party in this litigation. Rather, each party prevailed in the
23 action brought by the other. On December 2, 1010, this Court granted the Abbotts' motion for
24 judgment on the pleadings as to CA Construction's cross-complaint (See Exh A hereto.) As
25 such, each of the parties was the prevailing defendant in each of the actions, and neither is
26 entitled to an award ofattorney fees under the contract or under Civil Code section 1717.
27
28
Opposition to Motion For Attorney Fees -
II. LEGAL ARGUMENT
2 A. Summary of Law
3 The right to recover attorney fees is both contractual and statutory. The statutes are Civil
4 Code section 1717, which provides for an award of fees to the party "who is determined to be the
5 party prevailing on the c o n t r a c t . . . " (Civ.Code §1717(a)) and Code of Civil Procedure section
6 1033.5, which provides that when authorized by contract, reasonable attorney fees are allowable
7 as costs. (Code Civ.Proc. § 1033.5(a)(10)(A).) Nevertheless, to recover attorney fees, the party
8 seeking such fees must be declared the "prevailing party."
9
10 B. Defendants Were not Necessarily the Prevailing Party
11 The definition of "prevailing party" for purposes of an attorney-fee award is somewhat
12 different from the "prevailing party" for an award of costs. Under Civil Code section 1717, the
13 prevailing party is the one who recovered greater relief in the action on the contract (Civ Code
14 §1717(b)(l).)
15 Although CA Construction prevailed on the contract action at trial, plaintiffs were the
16 prevailing party on CA Construction's cross-complaint. (City of Long Beach v Stevedoring
17 Services of America (2007) 157 Cal.App.4th 672, 678, 680.) In City of Long Beach, supra, the
18 cross-defendant who had been sued for indemnity obtained a dismissal ofthe cross-complaint on
19 the grounds of mootness after the defendant who had cross-complained against it had prevailed
20 as against the plaintiff, thus mooting any action for indemnity against the cross-defendant. The
21 court held that the cross-defendant was nonetheless entitled to an award of costs as against the
22 defendant who had filed the cross-complaint. (M at p. 680 ["When a cross-complaint is
23 dismissed as moot, the cross-defendant is one in whose favor the cross-complaint was dismissed
24 and is therefore a prevailing party under Code ofCivil Procedure section 1032 entitled to costs as
25 amatter of right"])
26 CA Construction's cross-complaint for indemnity was an action "on the contract" in that
27 it sought indemnity from plaintiffs under the terms of the contract. In its opposition to the
28 Abbotts' motion forjudgment on the pleadings, CA Construction argued that it was allowed to
Opposition to Motion For Attorney Fees - 2
1 cross-complaint against the Abbotts "when the Plaintiffs' own negligence caused injury to CA
2 Construction." (Exh B at p. 5:17-19.) CA Construction stated that in its cross-complaint, it was
3 seeking damages from the Abbotts for their own negligence as the "owner-builder" on the
4 project in failing to supervise construction ofthe home. (Exh B at p. 8.3-7, 8:17-19.)
5 The Abbotts prevailed on the cross-complaint for indemnity. (Exh A.) As such, they
6 were not only entitled to attomey fees under the contract from which the cross-complaint arose;
7 they were also potentially entitled to an award of litigation costs, including attorney fees
8 pursuant to Code ofCivil Procedure sections 1021.6 and 1038. The Abbotts have not moved for
9 attorney fees or costs under the complaint or under either of these code sections, as they did not
10 prevail on their own complaint. However, the Abbotts' prevailing party status as to the cross
11 complaint does militate against a finding by this Court that either party prevailed in the action as
12 a whole.
13 Where, as here, both parties prevailed in some manner in actions on the contract, the
14 court has the discretion to find there is no prevailing party on the contract and to decline to award
15 any fees. (Civ.Code §1717(b)(l); Hilltop Investment Associates v Leon (1994) 28 Cal App.4th
16 462, 466, Hsu v Abbara (1995) 9 Cal.4th 863, 876.) This may be true where relief was denied
17 on both the complaint and the cross-complaint, and even where the defendant was the prevailing
18 party under Code ofCivil Procedure section 1032 for purposes of recovering costs. (McLarand,
19 Vasquez )TIFFS' MOTION FOR JUDGMENT
ENTON THE PLEADINGS
1 Declaration of Gregory K. Federico). The original complaint alleged various tort and contract
2 claims related to the constmction of Plaintiffs' home.
3 Plaintiffs attached a copy of the applicable subcontract as an exhibit to Plaintiffs' original
4 complaint. As stated in the subcontract attached to Plaintiffs' original complaint, Plaintiffs signed
5 a contract with CA CONSTRUCTION on October 25.2005 whereby CA CONSTRUCTION
6 would supply and install the concrete foundation and garage slab for Plaintiffs' home. As stated
7 in the subcontract, the driveway, all grading activities, all removal of dirt from the site, and
8 "everything not included herein" were specifically excluded from CA CONSTRUCTION'S scope
9 of work. This would include all design elements ofthe project.
10 As further detailed in the exhibit to Plaintiffs' original complaint. Plaintiffs acted as the
11 "owner/ builder" for all phases of construction of the subject home. Also, pursuant to documents
12 filed with the Sacramento County Building Department, Plaintiff FLORENTINE ABBOTT
13 certified with the local building authority for permitting purposes that she was acting as the owner
14 builder for all phases of construction. (See Exhibits "A" and "B" to the Request for Judicial
15 Notice filed concurrently herewith). As the responsible permitting party. Plaintiff FLORENTINE
16 ABBOTT was responsible for all aspects of the design and construction of the subject home.
17 Based on Plaintiffs' complaint and the language contained in the subcontract agreement,
18 CA CONSTRUCTION filed its Answer to Plaintiffs' Complaint and its Cross-Complaint on
19 November 13, 2007. (See CA CONSTRUCTION'S Answer to Plaintiffs' Complaint attached as
20 Exhibit "B" to the Declaration of Gregory K. Federico). The cross-complaint alleges the
21 following causes ofaction: (1) Implied Equitable Indemnity; (2) Comparative Indemnity;
22 (3) Comparative Negligence; (4) Contribution; and (5) Declaratory Relief against various
23 subcontractor defendants. (A tme and correct copy of CA Construction's Cross-Complaint is
24 attached as Exhibit "A" to Plaintiffs' Motion for Judgment on the Pleadings, and is incorporated
25 by reference herein).
26 On October 31, 2008, CA CONSTRUCTION filed a Second Amendment to its cross
27 complaint naming Plaintiffs RODNEY and FLORENTINE ABBOTT in lieu of MOES 2 and 3,
28 respectively. (A tme and correct copy of CA Constmction's Second Amendment to Cross-
NIC34t/l 031382-1 2
OPPOSITION OF CA CONSTRUCTION TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS
1 Complaint is attached as Exhibit "B" to Plaintiffs' Motion for Judgment on the Pleadings, and is
2 incorporated by reference herein).
3 Thereafter, on July 23,2009, Plaintiffs filed a First Amended Complaint ("FAC"). The
4 FAC added two new parties, personal injury claims for mold exposure, and new allegations and
5 causes ofaction against various defendants, including CA CONSTRUCTION. (See Plaintiffs'
6 FAC attached as Exhibit "C" to the Declaration of Gregory K. Federico). The FAC specifically
7 references the October 25,2005 subcontract between Plaintiffs and CA CONSTRUCTION.
8 On December 4, 2009, Plaintiffs filed a Second Amended Complaint ("SAC") (See
9 Plaintiffs' SAC attached as Exhibit "D" to the Declaration of Gregory K. Federico). The SAC is
10 substantially the same as the FAC in terms of its allegations.
11 The SAC alleges that CA CONSTRUCTION failed to properly place the house and
12 garage on the lot in terms of elevations in violation of the plans and specifications and as
13 requested by owner/builder Florentine Abbott. Plaintiffs' allege that CA CONSTRUCTION
14 breached its contract, failed to comply with relevant building codes, and failed to comply with
15 relevant standards ofcare in the industry. Plaintiffs further allege that the "fill" beneath the
16 garage slab, and potentially the foundation for the house, was improperly compacted, thus
17 rendering the house stmctural ly unstable.
18 Plaintiffs complained to the Califomia Contractors State License Board ("CSLB"). The
19 CSLB conducted an investigation, issued a report concluding that there were no defects with the
20 constmction of the foundation, and that Plaintiff FLORENTINE ABBOTT, as owner-builder,
21 failed to coordinate elevations on the house and cul-de-sac plans. (See Exhibit "C" to the Request
22 for Judicial Notice filed concurrently herewith). Although Plaintiffs' complaint relates to alleged
23 constmction defects, the cross-complaint of CA CONSTRUCTION against Plaintiffs is based on
24 constmction and design mismanagement by the owner-builder FLORENTINE ABBOTT.
25 Trial was initially set in this matter for May 11,2009. Thereafter, trial was continued to
26 May 24,2010 and is now set for January 17,2011. Plaintiffs filed the instant Motion for
27 Judgment on the Pleadings on June 4, 2010, more than 945 days after service upon them ofthe
28 'MOE' amendment to the Cross-Complaint and more than 389 days after the initial trial date of
NIC34I/103I382-I 3
OPPOSITION OF CA CONSTRUCTION TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS
1 May 11, 2009. Thus, the instant motion violates the mandatory filing requirements of Code of
2 Civil Procedure § 438(e), which requires such motions to be filed no later than 30 davs prior to
3 the initial (rial date.
4
II.
5 ARGUMENT
g A. The Standard Of Review For A Motion For Judgment On The Pleadings Is The
Demurrer Standard.
7
The standard of review applicable to a motion forjudgment on the pleadings is the same
8
standard as that ofa demurrer.
9
A plaintiffs motion forjudgment on the pleadings is analogous to a
JQ plaintiffs demurrer to an answer and is evaluated by the same
standards. (Citations omitted.) The motion should be denied ifthe
]] defendant's pleadings raise a material issue or set up affirmative
matter constituting a defense; for purposes of mling on the motion,
12 the trial court mustti-eatall of the defendant's allegations as being
tme. (Cttation omitted.)
'^ (Allstate Ins Co v Kim W (1984) 160 Cal.App.3d 326. 330; 206 Cal.Rptr. 609). "Like a
demurrer, a motion forjudgment on the pleadings is addressed solely to matters appearing from
15 the face of the challenged pleading." (Hughes v Western MacArthur Co (1987) 192 Cal. App.
'^ 3d 951,954 237 Cal. Rptr. 738). Plaintiffs' motion, which was brought pursuant to Code of Civil
17 Procedure § 438, must be analyzed like a demurrer, and defendant's answer, affirmative defenses
1K
and cross complaint, must be viewed in the light most favorable to defendant, not Plaintiffs. The
19
standard for review for statutory and non-statutory motions forjudgment on the pleadings is the
20
same, namely that the trial court accepts the complaint's (cross-complaint herein) material facts
21
alleged as tme, however extending consideration to matters subject to judicial notice. (Colberg,
22 Inc. V. State ofCalifornia ex rel Dept Pub Works (1976) 67 Cal .2d 408,412).
23
B. Plaintiffs' Motion For Judgment On The Pleadings Is Not Timely Filed and Must Be
24 Disregarded By This Court.
2^ Code of Civil Procedure § 438 sets forth the mandatory time lines for filing a motion for
_, judgment on the pleadings. This section states, in pertinent part:
27 ... (e) No motion may be made pursuant to this section ifa pretiial
conference order has been entered pursuant to Section 375, or
2g within 30 days ofthe date the action is initially set for trial,
NIC34I/I03I382-I 4
OPPOSITION OF CA CONSTRUCTION TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS
1 whichever is later, unless the court otherwise permits.(emphasis
added).
2
3 Here, the facts are clear that Plaintiffs, as the moving party, failed to timely file the instant
4 motion. The trial ofthis matter was initially set for May 11,2009. Plaintiffs did not file this
5 motion prior to the initial trial date. Thereafter, trial was continued to May 24, 2010 and is now
6 set for January 17,2011. Plaintiffs filed the instant Motion for Judgment on the Pleadings on
7 June 4,2010, more than 945 davs after service upon them oflhe 'MOE' amendment to the Cross
8 Complaint of CA CONSTRUCTION and more than 389 davs after the initial trial date was sel.
9 They have failed to seek leave ofthe court to do so and offer no explanation as to their manifest
10 failure to comply with the express requirements ofthe controlling statutory timeline outlined in
11 Code ofCivil Procedure § 438. For this reason, this motion must be denied.
12 C. Code of Civil Procedure § 428.10 Allows A Defendant To Cross-Complain Against A
Plaintiff For Apportionment Of Fault And Indemnity.
13
Plaintiffs offer no legal authority in support of their argument that "A plaintiffis not
14
subject to a cross-complaint for apportionment of fault." (See Plaintiffs' Motion for Judgment on
15
Pleadings, Memorandum of Points and Authorities, pg. 3:20-21). Contrary to this unsupported
16
assertion, Califomia law is clear that a defendant, such as CA CONSTRUCTION, may cross-
complain against a Plaintiff, such as the ABBOTTS, when the Plaintiffs' own negligence caused
18
injury to CA CONSTRUCTION. (Ses Daon Corp v Place Homeowners Assoc Cl 989) 207 Cal.
19
KApp.3d 1449,1444-1445 [defendant may file cross-complaint against any person from whom
20
defendant seeks total or partial indemnity on the basis of comparative fault]).
21
Code ofCivil Procedure § 428.10 states in pertinent part,
22
23 A party against whom a cause of action has been asserted in a
complaint or cross-complaint may file a cross complaint setting
24 forth either or both ofthe following:
25 (a) Any cause ofaction he has against any ofthe parties who filed
the complaint or cross-complaint against him....
26
.. .(b) Any cause of action he has against a person alleged to be
27 liable thereon, whether or not such person is already a party to the
action, ifthe cause ofaction asserted in this cross-complaint (1)
28 arises out of the same transaction, occurrence, or series of
NIC34I/I03I382-I 5
OPPOSITION OF CA CONSTRUCTION TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS
1 transactions or occurrences, as the cause brought against him....
2
The Califomia Court of Appeal has specifically allowed defendants to seek indemnity
3
from plaintiffs in a suit similar to the present one. In Daon Corp. v. Place Homeowners Assn.
4
(1989) 207 Cal. App. 3d 1449, respondent homeowner's association initiated a lawsuit against
5
appellant owners ofan apartment complex that was converted to condominiums alleging
6
stmctural defects and inadequate repair. Appellants cross-complained, alleging that they were
7
entitled to equitable indemnity from respondent. The trial court sustained respondent's demurrer
8
that it was named as a cross-defendant in the same capacity in which it had filed suit as a plaintiff,
9
and dismissed the cross-complaint.
10
The Court of Appeal held that although the complaint asserted that respondent brought the
11
action as a homeowner's association and manager of common areas, there were also allegations
12
on behalf of individual owners, and respondent was a proper cross-defendant in its management
13
capacity. However, the court affirmed theti"ialcourt on different grounds.
14
Like the homeowner's association in Daon, the Plaintiffs in the present case, and
15
specifically Mrs. Abbott as owner-builder, were acting in more than one capacity. The Plaintiffs
16
filed their original complaint, FAC, and SAC as the resident homeowner. However, as stated in
17
the subcontract attached to and referenced in the original complaint, FAC, and SAC, as well as
18
the building permit applications contained in Exhibits "A" and "B" to CA CONSTRUCTION'S
19
Request for Judicial Notice, Plaintiff FLORENTINE ABBOTT is a proper cross-defendant in her
20
owner-builder capacity. She was the party with primary design, supervisory and management
21
responsibility for the constmction ofthe home.
22
CA CONSTRUCTION'S cross-compiaint seeks indemnity for that portion of Plaintiffs'
23
injuries that was the "direct and proximate result ofthe [Plaintiffs] wrongful or negligent
24
conduct." Like Daon, under the rule set out in American Motorcycle Assn v Superior Court
25
(1978) 20 Cal.3d 578,584, CA CONSTRUCTION may cross-complain against Plaintiffs for
26
indemnity on the theory that Plaintiffs' own negligence in performing their design, management,
27
and supervisory duties, makes them ajoint tortfeasor (Doan at 1455). Here, Plaintiffs act, sue,
28
NIC34I/1031382-1 6
OPPOSITION OF CA CONSTRUCTION TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS
1 and are liable solely in their role as owner-builder and not as a resident homeowner.
2 Plaintiffs cite Leko v Cornerstone Bldg. Inspection Services (2001) 86 Cal.App.4th 1109
3 for the proposition that a defendant may only file a cross-complaint against a third party, Leko
4 does not stand for that proposition. Leko merely affirms American Motorcycle Assn. 's holding
5 that when the negligent acts of two tortfeasors are both a proximate cause of an indivisible injury,
6 the tortfeasors are jointly and severally liable for that injury (Id. ati 115). More specifically, Leko
1 holds that when two or more parties have an obligation to discover and disclose the same
8 stmctural defect, the failure of each to do so may be a proximate cause ofa single indivisible
9 injury to the person to whom the disclosure should have been made. In such cases, both realtors
10 and home inspectors will be jointly and severally liable to the purchaser for that injury (Id at
11 1116). The case is inapplicable to this situation.
12 Likewise, Plaintiffs' citation to Wilson v. Ritto (2003) 105 Cal.App.4th 361 is misplaced.
13 Plaintiffs use the Wilson case to support their proposition that "the apportioirment is a form of
14 equitable indemnity in which a defendant may reduce his or her damages by establishing others
15 are at fault for the plaintiffs injuries." (See Plaintiffs' Motion for Judgment on Pleadings,
16 Memorandum of Points and Authorities, pg. 4: 1-4). However, looking to the context of that
17 quote in Wilson, the court was merely noting that the defendant carries the burden of proving
18 affirmative defenses and indemnity cross-claims (Id. at pg. 369). Again, the case is inapplicable.
19 Here, the cross-complaint of CA CONSTRUCTION states in pertinent part,
20 .. .3. Cross-Complainant is informed and believes and thereon
alleges that each ofthe said cross-defendants designated as a MOE
21 is legally responsible in some manner for the events and happenings
herein referred to and caused the injuries and damages as herein
22 alleged...
23 ...7. Cross-Complainant in informed and believes, and thereon
alleges, that the cross-defendants, and each of them, were
24 negligently, legally and statutorily responsible in some manner for
the events and happenings referred to in the plaintiffs' Complaint
25 and proximately caused the injuries and damages therein alleged.
26
It is well held in Califomia law that a motion forjudgment on the pleadings by a
27
defendant [plaintiffs herein] is equivalent to a demurrer, and the court must treat all properiy
28
NIC34I/I031382-I 7
OPPOSITION OF CA CONSTRUCTION TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS
1 pleaded facts in the operative complaint [cross-complaint herein] as tme. (Kapstmallis v. Allstate
2 Ins. Co.(2002) 104 Cal. App. 4th 667,672, fn.l-citingSmj/e;^ v Citibank(1995) l\ Cal. 4th
3 138,146). CA CONSTRUCTION, as a "cross-complainant" herein, seeks only to name the
4 Plaintiffs under theories of Implied Equitable Indemnity, Comparative Indemnity, Comparative
Negligence and Contribution for their own actual negligence in failing to properly supervise the
constmction ofthe home in their role as "owner-builder". ' ^
7 Plaintiff FLORENTINE ABBOTT previously filed declarations with the Sacramento
8 County Building Department in which she declared under penalty ofperjury that she was the
9 "owner-builder" for all phases of constmction. (See Exhibits "A" and "B" to the Request for
10 Judicial Notice filed concurrently herewith). Further, Plaintiff FLORENTINE ABBOTT's
11 deposition was taken on December 15,2008 and January 23, 2009. She testified that she acted as
12 the "owner-builder" ofthe project. (See Excerpts of Plaintiff Florentine Abbott's deposition
13 attached as Exhibit "E" to the Declaration of Gregory Federico). Her deposition testimony
14 substantiated matters alleged in the cross-complaint of CA CONSTRUCTION, which were
15 alleged upon information and belief Plaintiff FLORENTINE ABBOTT must now be estopped
16 from denying her active and culpable role in the negligent supervision ofthis project, and at the
17 Ivery least, CA CONSTRUCTION must be afforded its opportunity to prove such at trial. If
18 successful in establishing its claims, CA CONSTRUCTION would be entitled to damages under
19 . the theories of its cross-complaint as filed against Plaintiffs. —" '
20 As a practical matter. Plaintiffs' motion is more akin to a motion for summaryjudgment
21 in which Plaintiffs seek summary adjudication on the issue of their ovn\ negligence in an effort to
22 preclude CA CONSTRUCTION from offering any evidence ofthe active and passive negligence
23 of Plaintiff FLORENTINE ABBOTT at trial. For the above reasons, the motion must be denied.
24
III.
25 CONCLUSION
26
For the above reasons, CA CONSTRUCTION respectfiilly requests that this Court deny
27
Plaintiffs' Motion for Judgment on the Pleadings. In the altemative, CA CONSTRUCTION
28
NIC34I/I03I382-I g
OPPOSITION OF CA CONSTRUCTION TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS
1 respectfully requests that this Court grant it leave to amend its cross-complaint as to Plaintiffs
2 RODNEY and FLORENTINE ABBOTT consistent with the Court's mling.
3 Dated: October ^ ,2010 ARCHERNORRIS
4
5
Gregory K. Federico
6 Attomeys for Defendants/Cross-Defendants
RICHARD KIRK RUYBALID, individually,
7 and dba CA CONSTRUCTION
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
NIC34I/I03I382-I
OPPOSITION OF CA CONSTRUCTION TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS
PROOF OF SERVICE
CASE NAME: Abbott v. Britschgi
CASE NUMBER: Sacramento County Superior Court 07AS04450
I declare that:
I am a citizen ofthe United States and a resident ofthe County of Sacramento. I am,
and at all times mentioned herein was, an active member of the State Bar of Califomia and
not a party to the above-entitled cause. My business address is 1007 Seventh Street, Suite
500, Sacramento, Califomia 95814.
On March 25, 2011, pursuant to CCP §1013A(2), I served tiie following:
OPPOSITION TO MOTION FOR ATTORNEY FEES; DECLARATION OF
STEPHANIE J FINELLI
BY FAX AND BY MAIL: by faxing and mailing a copy of said document to the following:
Gregory Federico
Archer Nortis
301 University Ave., Suite 110
Sacramento, CA 95825
fax 916-646-5696
BY MAIL: by depositing a copy of said document in the United States mail in Sacramento,
Califomia, in a sealed envelope, with postage ftilly prepaid, addressed as follows:
Richard W. Freeman, Jr.
Wood, Smith, Herming & Berman
1401 Willow Pass Road, Suite 700
Concord, CA 94520-7982
I declare under penalty of perjury imder the laws of the State of Califomia the
foregoing is tme and correct.
DATED: March 25, 2011
fephanie J Finelli
Preview
FILE3/E: •^ ' " ^ , f T ^ n > "v^ *?* B Vl 1 ^ w " ! 11 li o STEPHANIE J. FINELLI, SBN 173462 Law Office of Stephanie J. Finelli 2 1007-7th Street, Suite 500 Sacramento, CA 95814 MAR 2 5 2011 3 tel 916-443-2144 fax 916-443-1511 4 DEPL'l -:l ' Attorney for Plaintiffs, 5 FLORENTINE and RODNEY ABBOTT 6 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SACRAMENTO 9 10 FLORENTINE AND RODNEY ABBOTT, CaseNo.:07AS04450 II Plamtiffs, OPPOSITION TO MOTION FOR ATTORNEY FEES; DECLARATION OF 12 vs. STEPHANIE J. FINELLI 13 RONALD BRITSCHGI, et. al.. Trial Date: January 18, 2011 Judgment: February 3, 2011 14 Defendants Hearing: April 8, 2011 15 Time: 9:30 a.m. 16 and related cross-actions Dept: 43 Judge: Brian Van Camp 17 18 I. INTRODUCTION 19 Following a jury verdict in favor of CA Construction, said defendant claims attorney fees 20 and litigation costs in the amount of $207,494.00 based upon an attorney-fee provision in the 21 contract between CA Construction and plaintiffs. This motion should be denied, as defendants 22 are not necessarily the prevailing party in this litigation. Rather, each party prevailed in the 23 action brought by the other. On December 2, 1010, this Court granted the Abbotts' motion for 24 judgment on the pleadings as to CA Construction's cross-complaint (See Exh A hereto.) As 25 such, each of the parties was the prevailing defendant in each of the actions, and neither is 26 entitled to an award ofattorney fees under the contract or under Civil Code section 1717. 27 28 Opposition to Motion For Attorney Fees - II. LEGAL ARGUMENT 2 A. Summary of Law 3 The right to recover attorney fees is both contractual and statutory. The statutes are Civil 4 Code section 1717, which provides for an award of fees to the party "who is determined to be the 5 party prevailing on the c o n t r a c t . . . " (Civ.Code §1717(a)) and Code of Civil Procedure section 6 1033.5, which provides that when authorized by contract, reasonable attorney fees are allowable 7 as costs. (Code Civ.Proc. § 1033.5(a)(10)(A).) Nevertheless, to recover attorney fees, the party 8 seeking such fees must be declared the "prevailing party." 9 10 B. Defendants Were not Necessarily the Prevailing Party 11 The definition of "prevailing party" for purposes of an attorney-fee award is somewhat 12 different from the "prevailing party" for an award of costs. Under Civil Code section 1717, the 13 prevailing party is the one who recovered greater relief in the action on the contract (Civ Code 14 §1717(b)(l).) 15 Although CA Construction prevailed on the contract action at trial, plaintiffs were the 16 prevailing party on CA Construction's cross-complaint. (City of Long Beach v Stevedoring 17 Services of America (2007) 157 Cal.App.4th 672, 678, 680.) In City of Long Beach, supra, the 18 cross-defendant who had been sued for indemnity obtained a dismissal ofthe cross-complaint on 19 the grounds of mootness after the defendant who had cross-complained against it had prevailed 20 as against the plaintiff, thus mooting any action for indemnity against the cross-defendant. The 21 court held that the cross-defendant was nonetheless entitled to an award of costs as against the 22 defendant who had filed the cross-complaint. (M at p. 680 ["When a cross-complaint is 23 dismissed as moot, the cross-defendant is one in whose favor the cross-complaint was dismissed 24 and is therefore a prevailing party under Code ofCivil Procedure section 1032 entitled to costs as 25 amatter of right"]) 26 CA Construction's cross-complaint for indemnity was an action "on the contract" in that 27 it sought indemnity from plaintiffs under the terms of the contract. In its opposition to the 28 Abbotts' motion forjudgment on the pleadings, CA Construction argued that it was allowed to Opposition to Motion For Attorney Fees - 2 1 cross-complaint against the Abbotts "when the Plaintiffs' own negligence caused injury to CA 2 Construction." (Exh B at p. 5:17-19.) CA Construction stated that in its cross-complaint, it was 3 seeking damages from the Abbotts for their own negligence as the "owner-builder" on the 4 project in failing to supervise construction ofthe home. (Exh B at p. 8.3-7, 8:17-19.) 5 The Abbotts prevailed on the cross-complaint for indemnity. (Exh A.) As such, they 6 were not only entitled to attomey fees under the contract from which the cross-complaint arose; 7 they were also potentially entitled to an award of litigation costs, including attorney fees 8 pursuant to Code ofCivil Procedure sections 1021.6 and 1038. The Abbotts have not moved for 9 attorney fees or costs under the complaint or under either of these code sections, as they did not 10 prevail on their own complaint. However, the Abbotts' prevailing party status as to the cross 11 complaint does militate against a finding by this Court that either party prevailed in the action as 12 a whole. 13 Where, as here, both parties prevailed in some manner in actions on the contract, the 14 court has the discretion to find there is no prevailing party on the contract and to decline to award 15 any fees. (Civ.Code §1717(b)(l); Hilltop Investment Associates v Leon (1994) 28 Cal App.4th 16 462, 466, Hsu v Abbara (1995) 9 Cal.4th 863, 876.) This may be true where relief was denied 17 on both the complaint and the cross-complaint, and even where the defendant was the prevailing 18 party under Code ofCivil Procedure section 1032 for purposes of recovering costs. (McLarand, 19 Vasquez )TIFFS' MOTION FOR JUDGMENT ENTON THE PLEADINGS 1 Declaration of Gregory K. Federico). The original complaint alleged various tort and contract 2 claims related to the constmction of Plaintiffs' home. 3 Plaintiffs attached a copy of the applicable subcontract as an exhibit to Plaintiffs' original 4 complaint. As stated in the subcontract attached to Plaintiffs' original complaint, Plaintiffs signed 5 a contract with CA CONSTRUCTION on October 25.2005 whereby CA CONSTRUCTION 6 would supply and install the concrete foundation and garage slab for Plaintiffs' home. As stated 7 in the subcontract, the driveway, all grading activities, all removal of dirt from the site, and 8 "everything not included herein" were specifically excluded from CA CONSTRUCTION'S scope 9 of work. This would include all design elements ofthe project. 10 As further detailed in the exhibit to Plaintiffs' original complaint. Plaintiffs acted as the 11 "owner/ builder" for all phases of construction of the subject home. Also, pursuant to documents 12 filed with the Sacramento County Building Department, Plaintiff FLORENTINE ABBOTT 13 certified with the local building authority for permitting purposes that she was acting as the owner 14 builder for all phases of construction. (See Exhibits "A" and "B" to the Request for Judicial 15 Notice filed concurrently herewith). As the responsible permitting party. Plaintiff FLORENTINE 16 ABBOTT was responsible for all aspects of the design and construction of the subject home. 17 Based on Plaintiffs' complaint and the language contained in the subcontract agreement, 18 CA CONSTRUCTION filed its Answer to Plaintiffs' Complaint and its Cross-Complaint on 19 November 13, 2007. (See CA CONSTRUCTION'S Answer to Plaintiffs' Complaint attached as 20 Exhibit "B" to the Declaration of Gregory K. Federico). The cross-complaint alleges the 21 following causes ofaction: (1) Implied Equitable Indemnity; (2) Comparative Indemnity; 22 (3) Comparative Negligence; (4) Contribution; and (5) Declaratory Relief against various 23 subcontractor defendants. (A tme and correct copy of CA Construction's Cross-Complaint is 24 attached as Exhibit "A" to Plaintiffs' Motion for Judgment on the Pleadings, and is incorporated 25 by reference herein). 26 On October 31, 2008, CA CONSTRUCTION filed a Second Amendment to its cross 27 complaint naming Plaintiffs RODNEY and FLORENTINE ABBOTT in lieu of MOES 2 and 3, 28 respectively. (A tme and correct copy of CA Constmction's Second Amendment to Cross- NIC34t/l 031382-1 2 OPPOSITION OF CA CONSTRUCTION TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS 1 Complaint is attached as Exhibit "B" to Plaintiffs' Motion for Judgment on the Pleadings, and is 2 incorporated by reference herein). 3 Thereafter, on July 23,2009, Plaintiffs filed a First Amended Complaint ("FAC"). The 4 FAC added two new parties, personal injury claims for mold exposure, and new allegations and 5 causes ofaction against various defendants, including CA CONSTRUCTION. (See Plaintiffs' 6 FAC attached as Exhibit "C" to the Declaration of Gregory K. Federico). The FAC specifically 7 references the October 25,2005 subcontract between Plaintiffs and CA CONSTRUCTION. 8 On December 4, 2009, Plaintiffs filed a Second Amended Complaint ("SAC") (See 9 Plaintiffs' SAC attached as Exhibit "D" to the Declaration of Gregory K. Federico). The SAC is 10 substantially the same as the FAC in terms of its allegations. 11 The SAC alleges that CA CONSTRUCTION failed to properly place the house and 12 garage on the lot in terms of elevations in violation of the plans and specifications and as 13 requested by owner/builder Florentine Abbott. Plaintiffs' allege that CA CONSTRUCTION 14 breached its contract, failed to comply with relevant building codes, and failed to comply with 15 relevant standards ofcare in the industry. Plaintiffs further allege that the "fill" beneath the 16 garage slab, and potentially the foundation for the house, was improperly compacted, thus 17 rendering the house stmctural ly unstable. 18 Plaintiffs complained to the Califomia Contractors State License Board ("CSLB"). The 19 CSLB conducted an investigation, issued a report concluding that there were no defects with the 20 constmction of the foundation, and that Plaintiff FLORENTINE ABBOTT, as owner-builder, 21 failed to coordinate elevations on the house and cul-de-sac plans. (See Exhibit "C" to the Request 22 for Judicial Notice filed concurrently herewith). Although Plaintiffs' complaint relates to alleged 23 constmction defects, the cross-complaint of CA CONSTRUCTION against Plaintiffs is based on 24 constmction and design mismanagement by the owner-builder FLORENTINE ABBOTT. 25 Trial was initially set in this matter for May 11,2009. Thereafter, trial was continued to 26 May 24,2010 and is now set for January 17,2011. Plaintiffs filed the instant Motion for 27 Judgment on the Pleadings on June 4, 2010, more than 945 days after service upon them ofthe 28 'MOE' amendment to the Cross-Complaint and more than 389 days after the initial trial date of NIC34I/103I382-I 3 OPPOSITION OF CA CONSTRUCTION TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS 1 May 11, 2009. Thus, the instant motion violates the mandatory filing requirements of Code of 2 Civil Procedure § 438(e), which requires such motions to be filed no later than 30 davs prior to 3 the initial (rial date. 4 II. 5 ARGUMENT g A. The Standard Of Review For A Motion For Judgment On The Pleadings Is The Demurrer Standard. 7 The standard of review applicable to a motion forjudgment on the pleadings is the same 8 standard as that ofa demurrer. 9 A plaintiffs motion forjudgment on the pleadings is analogous to a JQ plaintiffs demurrer to an answer and is evaluated by the same standards. (Citations omitted.) The motion should be denied ifthe ]] defendant's pleadings raise a material issue or set up affirmative matter constituting a defense; for purposes of mling on the motion, 12 the trial court mustti-eatall of the defendant's allegations as being tme. (Cttation omitted.) '^ (Allstate Ins Co v Kim W (1984) 160 Cal.App.3d 326. 330; 206 Cal.Rptr. 609). "Like a demurrer, a motion forjudgment on the pleadings is addressed solely to matters appearing from 15 the face of the challenged pleading." (Hughes v Western MacArthur Co (1987) 192 Cal. App. '^ 3d 951,954 237 Cal. Rptr. 738). Plaintiffs' motion, which was brought pursuant to Code of Civil 17 Procedure § 438, must be analyzed like a demurrer, and defendant's answer, affirmative defenses 1K and cross complaint, must be viewed in the light most favorable to defendant, not Plaintiffs. The 19 standard for review for statutory and non-statutory motions forjudgment on the pleadings is the 20 same, namely that the trial court accepts the complaint's (cross-complaint herein) material facts 21 alleged as tme, however extending consideration to matters subject to judicial notice. (Colberg, 22 Inc. V. State ofCalifornia ex rel Dept Pub Works (1976) 67 Cal .2d 408,412). 23 B. Plaintiffs' Motion For Judgment On The Pleadings Is Not Timely Filed and Must Be 24 Disregarded By This Court. 2^ Code of Civil Procedure § 438 sets forth the mandatory time lines for filing a motion for _, judgment on the pleadings. This section states, in pertinent part: 27 ... (e) No motion may be made pursuant to this section ifa pretiial conference order has been entered pursuant to Section 375, or 2g within 30 days ofthe date the action is initially set for trial, NIC34I/I03I382-I 4 OPPOSITION OF CA CONSTRUCTION TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS 1 whichever is later, unless the court otherwise permits.(emphasis added). 2 3 Here, the facts are clear that Plaintiffs, as the moving party, failed to timely file the instant 4 motion. The trial ofthis matter was initially set for May 11,2009. Plaintiffs did not file this 5 motion prior to the initial trial date. Thereafter, trial was continued to May 24, 2010 and is now 6 set for January 17,2011. Plaintiffs filed the instant Motion for Judgment on the Pleadings on 7 June 4,2010, more than 945 davs after service upon them oflhe 'MOE' amendment to the Cross 8 Complaint of CA CONSTRUCTION and more than 389 davs after the initial trial date was sel. 9 They have failed to seek leave ofthe court to do so and offer no explanation as to their manifest 10 failure to comply with the express requirements ofthe controlling statutory timeline outlined in 11 Code ofCivil Procedure § 438. For this reason, this motion must be denied. 12 C. Code of Civil Procedure § 428.10 Allows A Defendant To Cross-Complain Against A Plaintiff For Apportionment Of Fault And Indemnity. 13 Plaintiffs offer no legal authority in support of their argument that "A plaintiffis not 14 subject to a cross-complaint for apportionment of fault." (See Plaintiffs' Motion for Judgment on 15 Pleadings, Memorandum of Points and Authorities, pg. 3:20-21). Contrary to this unsupported 16 assertion, Califomia law is clear that a defendant, such as CA CONSTRUCTION, may cross- complain against a Plaintiff, such as the ABBOTTS, when the Plaintiffs' own negligence caused 18 injury to CA CONSTRUCTION. (Ses Daon Corp v Place Homeowners Assoc Cl 989) 207 Cal. 19 KApp.3d 1449,1444-1445 [defendant may file cross-complaint against any person from whom 20 defendant seeks total or partial indemnity on the basis of comparative fault]). 21 Code ofCivil Procedure § 428.10 states in pertinent part, 22 23 A party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross complaint setting 24 forth either or both ofthe following: 25 (a) Any cause ofaction he has against any ofthe parties who filed the complaint or cross-complaint against him.... 26 .. .(b) Any cause of action he has against a person alleged to be 27 liable thereon, whether or not such person is already a party to the action, ifthe cause ofaction asserted in this cross-complaint (1) 28 arises out of the same transaction, occurrence, or series of NIC34I/I03I382-I 5 OPPOSITION OF CA CONSTRUCTION TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS 1 transactions or occurrences, as the cause brought against him.... 2 The Califomia Court of Appeal has specifically allowed defendants to seek indemnity 3 from plaintiffs in a suit similar to the present one. In Daon Corp. v. Place Homeowners Assn. 4 (1989) 207 Cal. App. 3d 1449, respondent homeowner's association initiated a lawsuit against 5 appellant owners ofan apartment complex that was converted to condominiums alleging 6 stmctural defects and inadequate repair. Appellants cross-complained, alleging that they were 7 entitled to equitable indemnity from respondent. The trial court sustained respondent's demurrer 8 that it was named as a cross-defendant in the same capacity in which it had filed suit as a plaintiff, 9 and dismissed the cross-complaint. 10 The Court of Appeal held that although the complaint asserted that respondent brought the 11 action as a homeowner's association and manager of common areas, there were also allegations 12 on behalf of individual owners, and respondent was a proper cross-defendant in its management 13 capacity. However, the court affirmed theti"ialcourt on different grounds. 14 Like the homeowner's association in Daon, the Plaintiffs in the present case, and 15 specifically Mrs. Abbott as owner-builder, were acting in more than one capacity. The Plaintiffs 16 filed their original complaint, FAC, and SAC as the resident homeowner. However, as stated in 17 the subcontract attached to and referenced in the original complaint, FAC, and SAC, as well as 18 the building permit applications contained in Exhibits "A" and "B" to CA CONSTRUCTION'S 19 Request for Judicial Notice, Plaintiff FLORENTINE ABBOTT is a proper cross-defendant in her 20 owner-builder capacity. She was the party with primary design, supervisory and management 21 responsibility for the constmction ofthe home. 22 CA CONSTRUCTION'S cross-compiaint seeks indemnity for that portion of Plaintiffs' 23 injuries that was the "direct and proximate result ofthe [Plaintiffs] wrongful or negligent 24 conduct." Like Daon, under the rule set out in American Motorcycle Assn v Superior Court 25 (1978) 20 Cal.3d 578,584, CA CONSTRUCTION may cross-complain against Plaintiffs for 26 indemnity on the theory that Plaintiffs' own negligence in performing their design, management, 27 and supervisory duties, makes them ajoint tortfeasor (Doan at 1455). Here, Plaintiffs act, sue, 28 NIC34I/1031382-1 6 OPPOSITION OF CA CONSTRUCTION TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS 1 and are liable solely in their role as owner-builder and not as a resident homeowner. 2 Plaintiffs cite Leko v Cornerstone Bldg. Inspection Services (2001) 86 Cal.App.4th 1109 3 for the proposition that a defendant may only file a cross-complaint against a third party, Leko 4 does not stand for that proposition. Leko merely affirms American Motorcycle Assn. 's holding 5 that when the negligent acts of two tortfeasors are both a proximate cause of an indivisible injury, 6 the tortfeasors are jointly and severally liable for that injury (Id. ati 115). More specifically, Leko 1 holds that when two or more parties have an obligation to discover and disclose the same 8 stmctural defect, the failure of each to do so may be a proximate cause ofa single indivisible 9 injury to the person to whom the disclosure should have been made. In such cases, both realtors 10 and home inspectors will be jointly and severally liable to the purchaser for that injury (Id at 11 1116). The case is inapplicable to this situation. 12 Likewise, Plaintiffs' citation to Wilson v. Ritto (2003) 105 Cal.App.4th 361 is misplaced. 13 Plaintiffs use the Wilson case to support their proposition that "the apportioirment is a form of 14 equitable indemnity in which a defendant may reduce his or her damages by establishing others 15 are at fault for the plaintiffs injuries." (See Plaintiffs' Motion for Judgment on Pleadings, 16 Memorandum of Points and Authorities, pg. 4: 1-4). However, looking to the context of that 17 quote in Wilson, the court was merely noting that the defendant carries the burden of proving 18 affirmative defenses and indemnity cross-claims (Id. at pg. 369). Again, the case is inapplicable. 19 Here, the cross-complaint of CA CONSTRUCTION states in pertinent part, 20 .. .3. Cross-Complainant is informed and believes and thereon alleges that each ofthe said cross-defendants designated as a MOE 21 is legally responsible in some manner for the events and happenings herein referred to and caused the injuries and damages as herein 22 alleged... 23 ...7. Cross-Complainant in informed and believes, and thereon alleges, that the cross-defendants, and each of them, were 24 negligently, legally and statutorily responsible in some manner for the events and happenings referred to in the plaintiffs' Complaint 25 and proximately caused the injuries and damages therein alleged. 26 It is well held in Califomia law that a motion forjudgment on the pleadings by a 27 defendant [plaintiffs herein] is equivalent to a demurrer, and the court must treat all properiy 28 NIC34I/I031382-I 7 OPPOSITION OF CA CONSTRUCTION TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS 1 pleaded facts in the operative complaint [cross-complaint herein] as tme. (Kapstmallis v. Allstate 2 Ins. Co.(2002) 104 Cal. App. 4th 667,672, fn.l-citingSmj/e;^ v Citibank(1995) l\ Cal. 4th 3 138,146). CA CONSTRUCTION, as a "cross-complainant" herein, seeks only to name the 4 Plaintiffs under theories of Implied Equitable Indemnity, Comparative Indemnity, Comparative Negligence and Contribution for their own actual negligence in failing to properly supervise the constmction ofthe home in their role as "owner-builder". ' ^ 7 Plaintiff FLORENTINE ABBOTT previously filed declarations with the Sacramento 8 County Building Department in which she declared under penalty ofperjury that she was the 9 "owner-builder" for all phases of constmction. (See Exhibits "A" and "B" to the Request for 10 Judicial Notice filed concurrently herewith). Further, Plaintiff FLORENTINE ABBOTT's 11 deposition was taken on December 15,2008 and January 23, 2009. She testified that she acted as 12 the "owner-builder" ofthe project. (See Excerpts of Plaintiff Florentine Abbott's deposition 13 attached as Exhibit "E" to the Declaration of Gregory Federico). Her deposition testimony 14 substantiated matters alleged in the cross-complaint of CA CONSTRUCTION, which were 15 alleged upon information and belief Plaintiff FLORENTINE ABBOTT must now be estopped 16 from denying her active and culpable role in the negligent supervision ofthis project, and at the 17 Ivery least, CA CONSTRUCTION must be afforded its opportunity to prove such at trial. If 18 successful in establishing its claims, CA CONSTRUCTION would be entitled to damages under 19 . the theories of its cross-complaint as filed against Plaintiffs. —" ' 20 As a practical matter. Plaintiffs' motion is more akin to a motion for summaryjudgment 21 in which Plaintiffs seek summary adjudication on the issue of their ovn\ negligence in an effort to 22 preclude CA CONSTRUCTION from offering any evidence ofthe active and passive negligence 23 of Plaintiff FLORENTINE ABBOTT at trial. For the above reasons, the motion must be denied. 24 III. 25 CONCLUSION 26 For the above reasons, CA CONSTRUCTION respectfiilly requests that this Court deny 27 Plaintiffs' Motion for Judgment on the Pleadings. In the altemative, CA CONSTRUCTION 28 NIC34I/I03I382-I g OPPOSITION OF CA CONSTRUCTION TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS 1 respectfully requests that this Court grant it leave to amend its cross-complaint as to Plaintiffs 2 RODNEY and FLORENTINE ABBOTT consistent with the Court's mling. 3 Dated: October ^ ,2010 ARCHERNORRIS 4 5 Gregory K. Federico 6 Attomeys for Defendants/Cross-Defendants RICHARD KIRK RUYBALID, individually, 7 and dba CA CONSTRUCTION 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NIC34I/I03I382-I OPPOSITION OF CA CONSTRUCTION TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS PROOF OF SERVICE CASE NAME: Abbott v. Britschgi CASE NUMBER: Sacramento County Superior Court 07AS04450 I declare that: I am a citizen ofthe United States and a resident ofthe County of Sacramento. I am, and at all times mentioned herein was, an active member of the State Bar of Califomia and not a party to the above-entitled cause. My business address is 1007 Seventh Street, Suite 500, Sacramento, Califomia 95814. On March 25, 2011, pursuant to CCP §1013A(2), I served tiie following: OPPOSITION TO MOTION FOR ATTORNEY FEES; DECLARATION OF STEPHANIE J FINELLI BY FAX AND BY MAIL: by faxing and mailing a copy of said document to the following: Gregory Federico Archer Nortis 301 University Ave., Suite 110 Sacramento, CA 95825 fax 916-646-5696 BY MAIL: by depositing a copy of said document in the United States mail in Sacramento, Califomia, in a sealed envelope, with postage ftilly prepaid, addressed as follows: Richard W. Freeman, Jr. Wood, Smith, Herming & Berman 1401 Willow Pass Road, Suite 700 Concord, CA 94520-7982 I declare under penalty of perjury imder the laws of the State of Califomia the foregoing is tme and correct. DATED: March 25, 2011 fephanie J Finelli