Preview
1 Todd A. Jones (Bar No. 198024)
tjones(^archemorris.com
2 Gregory K. Federico (BarNo. 242184)
gfederico(§archemorris.com
3 ARCHER NORRIS
A Professional Law Corporation
4 301 University Avenue, Suite 110
Sacramento, Califomia 95825-5537
5 Telephone: 916,646.2480
Facsimile: 916.646.5696
6
Attomeys for Defendants and Cross-Defendants
7 RICHARD KIRK RUYBALID, individually, and
dba CA CONSTRUCTION
8
9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF SACRAMENTO
11
12 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
ABBOTT,
13 DEFENDANT RICHARD KIRK
Plaintiffs, RUYBALID, individually, and dba CA
14 CONSTRUCTION'S OPPOSITION TO
V. PLAINTIFFS' MOTION FOR JUDGMENT
15 ON THE PLEADINGS
RONALD PAUL BRITSCHGI, et al.,
16 Date: October 21, 2010
Defendants. Time: 2:00 p.m.
17 Dept: 53
18 Action Filed: September 24, 2007
19 Trial Date: January 11,2011
20 AND RELATED CROSS-ACTIONS.
21
22 I.
INTRODUCTION
23 This is a case seeking damages for alleged construction defects in a single family home
24 located in Fair Oaks, Califomia. Plaintiffs RODNEY and FLORENTINE ABBOTT ("Plaintiffs")
25 filed their complaint on September 24, 2007 against a number of parties, including Defendant and
26 Cross-Complainant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION
CD 27 ("CA CONSTRUCTION") (See Plaintiffs' Original Complaint attached as Exhibit "A" to the
Cil 28
O NIC34I/I031382-1
OPPOSITION OF CA CONSTRUCTION TO PLAFNTIFFS' MOTION FOR KJDGMENT ON 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 ofthe 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 of the project.
10 As further detailed in the exhibit to Plaintiffs' original complaint. Plaintiffs acted as the
11 "owner/ builder" for all phases of constmction ofthe 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 constmction. (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 ofthe design and constmction ofthe 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 Constmction'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-
NIC34I/I03I382-I 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 ofthe 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 of care 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 stmcturally 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 ofthe 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 Nofice filed concurrently herewith). Although Plaintiffs' complaint relates to alleged
23 constmcfion 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. Plainfiffs filed the instant Mofion 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/I03I382-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 he filed no later than 30 days prior lo
3 the initial trial date.
4
II.
5 ARGUMENT
g A. The Standard Of Review For A Motion For Judgment On The Pleadings Is The
D e m u r r e r Standard.
The standard of review applicable to a motion for judgment on the pleadings is the same
o
standard as that of a demurrer.
9
A plaintiffs motion for judgment 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 if the
JI defendant's pleadings raise a material issue or set up affirmative
matter constituting a defense; for purposes of mling on the motion,
J2 the trial court must treat all ofthe defendant's allegations as being
tme. (Citation omitted.)
^^ (Allstate Ins Co v Kim W (1984) 160 Cal.App.3d 326, 330; 206 Cal.Rptr. 609), "Like a
demurrer, a motion for judgment on the pleadings is addressed solely to matters appearing from
the face ofthe challenged pleading." (Hughes v Western MacArthur Co (1987) 192 Cal. App.
^^ 3d 951, 954 237 Cal. Rptr. 738). Plainfiffs' motion, which was brought pursuant to Code of Civil
17
18 Procedure § 438, must be analyzed like a demurrer, and defendant's answer, affirmative defenses
19 and cross complaint, must be viewed in the light most favorable to defendant, not Plaintiffs. The
20 standard for review for statutory and non-statutory mofions for judgment on the pleadings is the
21 same, namely that the trial court accepts the complaint's (cross-complaint herein) material facts
22 alleged as tme, however extending consideration to matters subject to judicial notice. (Colberg,
23 Inc. V. State ofCalifornia ex rel Dept Pub Works (1976) 67 Cal.2d 408,412),
B. Plaintiffs' Motion For Judgment On The Pleadings Is Not Timely Filed and Must Be
24 Disregarded By This Court.
Code of Civil Procedure § 438 sets forth the mandatory time lines for filing a motion for
25
judgment on the pleadings. This secfion states, in pertinent part:
26
27 ... (e) No motion may be made pursuant to this section if a pretrial
conference order has been entered pursuant to Secfion 375, or
2g within 30 days ofthe date the action is initiaUy set f o r trial,
NIC34I/I03I382-I
OPPOSITION OF CA CONSTRUCTION TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS
1 whichever is later, unless the court otherwise permits.(emphasis
added).
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3 Here, the facts are clear that Plaintiffs, as the moving party, failed to fimely file the instant
4 mofion. The trial of this matter was inifiallv 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 ofthe 'MOE' amendment to the Cross
8 Complaint of CA CONSTRUCTION and more than 389 davs after the initial trial date was set.
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
I -^ Plaintiff For Apportionment Of Fault And Indemnity.
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 ofPoints 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-
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complain against a Plaintiff, such as the ABBOTTS, when the Plaintiffs' own negligence caused
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injury to CA CONSTRUCTION. (See Daon Corp v Place Homeowners Assoc ('1989) 207 Cal,
19
App.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 ofaction 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 of acfion he has against any of the parties who filed
the complaint or cross-complaint against him....
.. .(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)
23 arises out ofthe 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 plainfiffs 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,
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and dismissed the cross-complaint.
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The Court of Appeal held that although the complaint asserted that respondent brought the
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action as a homeowner's association and manager of common areas, there were also allegations
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on behalf of individual owners, and respondent was a proper cross-defendant in its management
13
capacity. However, the court affirmed the trial court 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 acfing in more than one capacity. The Plaintiffs
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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
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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
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owner-builder capacity. She was the party with primary design, supervisory and management
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responsibility for the constmction ofthe home.
22
CA CONSTRUCTION'S cross-complaint seeks indemnity for that portion of Plainfiffs'
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
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(1978) 20 Cal.3d 578, 584, CA CONSTRUCTION may cross-complain against Plainfiffs for
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indemnity on the theory that Plaintiffs' own negligence in performing their design, management,
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and supervisory dufies, makes them ajoint tortfeasor (Doan at 1455). Here, Plaintiffs act, sue,
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NIC34I/I03I382-I 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 proposifion 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 ofan indivisible injury,
6 the tortfeasors are jointly and severally liable for that injury (Id. atl 115), More specifically, Leko
7 holds that when two or more parties have an obligation to discover and disclose the same
8 stmctural defect, the failure ofeach 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 situafion,
12 Likewise, Plainfiffs' 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 apportionment 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 ofPoints 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 marmer 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 for judgment on the pleadings by a
27
defendant [plaintiffs herein] is equivalent to a demurrer, and the court must treat all properly
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. (Kapsimallis v. Allstate
2 Ins. Co,(2002) 104 Cal. App. 4th 667,672, fn.l-citing Smiley v Citibank (1995) 11 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
5 Negligence and Contribution for their own actual negligence in failing to properly supervise the
6 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 concun-ently 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 Plainfiff Florentine Abbott's deposifion
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 informafion and belief Plainfiff FLORENTINE ABBOTT must now be estopped
16 from denying her active and culpable role in the negligent supervision ofthis project, and at the
17 very least, CA CONSTRUCTION must be afforded its opportunity to prove such at trial. If
18 successfiil 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 summary judgment
21 in which Plainfiffs seek summary adjudicafion on the issue of their own 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 respectfully requests that this Court deny
27 Plaintiffs' Motion for Judgment on the Pleadings. In the altemative, CA CONSTRUCTION
28
NIC34I/I03I382-I 8
OPPOSITION OF CA CONSTRUCTION TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS
1 respectfially 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 ruling.
3 Dated: October ^ , 2010 ARCHER NORRIS
4
5
Gregory K. Federico
" Attomeys for Defendants/Cross-Defendants
RICHARD KIRK RUYBALID, individually,
7 and dba CA CONSTRUCTION
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NIC34I/I03I382-
OPPOSITION OF CA CONSTRUCTION TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADFNGS
1 PROOF OF SERVICE
2 Name of Action: Rodney Abbott, et al. v. Ronald Paul Britschgi, et al.
Court and Action No: Sacramento County Superior No. 07AS04450
3
I, Marie Cantrell, declare that I am over the age of 18 years and not a party to this action
4 or proceeding. My business address is 301 University Avenue, Suite 110, Sacramento, Califomia
95825. On October 7, 2010,1 caused the following document(s) to be served:
5
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR JUDGMENT ON THE
6 PLEADINGS
7 I3cl l^y placing a tme copy ofthe documents listed above, enclosed in a sealed envelope,
addressed as set forth below, for collection and mailing on the date and at the business
8 . . . .
address shown above following our ordinary business practices. I am readily familiar
g with this business' practice for collection and processing of correspondence for
mailing with the United States Postal Service On the same day that a sealed envelope
10 is placed for collection and mailing, it is deposited in the ordinary course ofbusiness
with the United States Postal Service with postage fully prepaid.
11
r~| By having a tme copy ofthe document(s) listed above transmitted by facsimile to the
12 person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission
.» was reported as complete without error by a report issued by the transmitting facsimile
machine.
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By placing a tme copy ofthe document(s) listed above, in a box or other facility
15 ' ' regularly maintained by UPS, an express service carrier, or delivered to a courier or
driver authorized by the express service carrier to receive documents, in an envelope
16 designated by the express service carrier, with delivery fees paid or provided for,
addressed as set forth below.
Jg r n bv having personal deliverv bv FIRST LEGAL SUPPORT SERVICES a tme copv of
the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the
\9 address(es) set forth below.
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[SEE ATTACHED SERVICE LIST]
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I declare under penalty ofperjury that the foregoing is true and correct. Executed on
23 October 7, 2010, at Sacramento, Califomia.
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NIC34I/608293-I
PROOF OF SERVICE
1 Service List
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VIA OVERNIGHT MAIL
3 Stephanie Finelli PLAINTIFFS
Law Offices of Stephanie J Finelli
4 1007 Seventh Street, Suite 500 Tel (916)443-2144
Sacramento, CA 95814 Fax: (916) 443-1511
5 E-mail sfinelli700(gyahoo com
6
VIA REGULAR MAIL
7 Richard D Sopp Counsel for CADRE DESIGN GROUP, INC.
Wheatley Sopp LLP
8 1004 River Rock Drive, Suite 245 Tel. (916) 988-3857
Folsom, CA 95630 Fax: (916) 988-5296
9 Email rds@mwsblaw com
10 Mark Smith In Pro Per
8549 Willow Valley Place
11 Granite Bay, CA 95746
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NIC34I/608293-I 2
SERVICE LIST
Preview
1 Todd A. Jones (Bar No. 198024) tjones(^archemorris.com 2 Gregory K. Federico (BarNo. 242184) gfederico(§archemorris.com 3 ARCHER NORRIS A Professional Law Corporation 4 301 University Avenue, Suite 110 Sacramento, Califomia 95825-5537 5 Telephone: 916,646.2480 Facsimile: 916.646.5696 6 Attomeys for Defendants and Cross-Defendants 7 RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 12 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 ABBOTT, 13 DEFENDANT RICHARD KIRK Plaintiffs, RUYBALID, individually, and dba CA 14 CONSTRUCTION'S OPPOSITION TO V. PLAINTIFFS' MOTION FOR JUDGMENT 15 ON THE PLEADINGS RONALD PAUL BRITSCHGI, et al., 16 Date: October 21, 2010 Defendants. Time: 2:00 p.m. 17 Dept: 53 18 Action Filed: September 24, 2007 19 Trial Date: January 11,2011 20 AND RELATED CROSS-ACTIONS. 21 22 I. INTRODUCTION 23 This is a case seeking damages for alleged construction defects in a single family home 24 located in Fair Oaks, Califomia. Plaintiffs RODNEY and FLORENTINE ABBOTT ("Plaintiffs") 25 filed their complaint on September 24, 2007 against a number of parties, including Defendant and 26 Cross-Complainant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION CD 27 ("CA CONSTRUCTION") (See Plaintiffs' Original Complaint attached as Exhibit "A" to the Cil 28 O NIC34I/I031382-1 OPPOSITION OF CA CONSTRUCTION TO PLAFNTIFFS' MOTION FOR KJDGMENT ON 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 ofthe 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 of the project. 10 As further detailed in the exhibit to Plaintiffs' original complaint. Plaintiffs acted as the 11 "owner/ builder" for all phases of constmction ofthe 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 constmction. (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 ofthe design and constmction ofthe 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 Constmction'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- NIC34I/I03I382-I 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 ofthe 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 of care 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 stmcturally 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 ofthe 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 Nofice filed concurrently herewith). Although Plaintiffs' complaint relates to alleged 23 constmcfion 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. Plainfiffs filed the instant Mofion 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/I03I382-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 he filed no later than 30 days prior lo 3 the initial trial date. 4 II. 5 ARGUMENT g A. The Standard Of Review For A Motion For Judgment On The Pleadings Is The D e m u r r e r Standard. The standard of review applicable to a motion for judgment on the pleadings is the same o standard as that of a demurrer. 9 A plaintiffs motion for judgment 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 if the JI defendant's pleadings raise a material issue or set up affirmative matter constituting a defense; for purposes of mling on the motion, J2 the trial court must treat all ofthe defendant's allegations as being tme. (Citation omitted.) ^^ (Allstate Ins Co v Kim W (1984) 160 Cal.App.3d 326, 330; 206 Cal.Rptr. 609), "Like a demurrer, a motion for judgment on the pleadings is addressed solely to matters appearing from the face ofthe challenged pleading." (Hughes v Western MacArthur Co (1987) 192 Cal. App. ^^ 3d 951, 954 237 Cal. Rptr. 738). Plainfiffs' motion, which was brought pursuant to Code of Civil 17 18 Procedure § 438, must be analyzed like a demurrer, and defendant's answer, affirmative defenses 19 and cross complaint, must be viewed in the light most favorable to defendant, not Plaintiffs. The 20 standard for review for statutory and non-statutory mofions for judgment on the pleadings is the 21 same, namely that the trial court accepts the complaint's (cross-complaint herein) material facts 22 alleged as tme, however extending consideration to matters subject to judicial notice. (Colberg, 23 Inc. V. State ofCalifornia ex rel Dept Pub Works (1976) 67 Cal.2d 408,412), B. Plaintiffs' Motion For Judgment On The Pleadings Is Not Timely Filed and Must Be 24 Disregarded By This Court. Code of Civil Procedure § 438 sets forth the mandatory time lines for filing a motion for 25 judgment on the pleadings. This secfion states, in pertinent part: 26 27 ... (e) No motion may be made pursuant to this section if a pretrial conference order has been entered pursuant to Secfion 375, or 2g within 30 days ofthe date the action is initiaUy set f o r trial, NIC34I/I03I382-I 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 fimely file the instant 4 mofion. The trial of this matter was inifiallv 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 ofthe 'MOE' amendment to the Cross 8 Complaint of CA CONSTRUCTION and more than 389 davs after the initial trial date was set. 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 I -^ Plaintiff For Apportionment Of Fault And Indemnity. 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 ofPoints 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- 17 complain against a Plaintiff, such as the ABBOTTS, when the Plaintiffs' own negligence caused 18 injury to CA CONSTRUCTION. (See Daon Corp v Place Homeowners Assoc ('1989) 207 Cal, 19 App.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 ofaction 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 of acfion he has against any of the parties who filed the complaint or cross-complaint against him.... .. .(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) 23 arises out ofthe 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 plainfiffs 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 the trial court 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 acfing 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-complaint seeks indemnity for that portion of Plainfiffs' 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 Plainfiffs for 26 indemnity on the theory that Plaintiffs' own negligence in performing their design, management, 27 and supervisory dufies, makes them ajoint tortfeasor (Doan at 1455). Here, Plaintiffs act, sue, 28 NIC34I/I03I382-I 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 proposifion 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 ofan indivisible injury, 6 the tortfeasors are jointly and severally liable for that injury (Id. atl 115), More specifically, Leko 7 holds that when two or more parties have an obligation to discover and disclose the same 8 stmctural defect, the failure ofeach 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 situafion, 12 Likewise, Plainfiffs' 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 apportionment 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 ofPoints 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 marmer 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 for judgment on the pleadings by a 27 defendant [plaintiffs herein] is equivalent to a demurrer, and the court must treat all properly 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. (Kapsimallis v. Allstate 2 Ins. Co,(2002) 104 Cal. App. 4th 667,672, fn.l-citing Smiley v Citibank (1995) 11 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 5 Negligence and Contribution for their own actual negligence in failing to properly supervise the 6 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 concun-ently 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 Plainfiff Florentine Abbott's deposifion 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 informafion and belief Plainfiff FLORENTINE ABBOTT must now be estopped 16 from denying her active and culpable role in the negligent supervision ofthis project, and at the 17 very least, CA CONSTRUCTION must be afforded its opportunity to prove such at trial. If 18 successfiil 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 summary judgment 21 in which Plainfiffs seek summary adjudicafion on the issue of their own 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 respectfully requests that this Court deny 27 Plaintiffs' Motion for Judgment on the Pleadings. In the altemative, CA CONSTRUCTION 28 NIC34I/I03I382-I 8 OPPOSITION OF CA CONSTRUCTION TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS 1 respectfially 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 ruling. 3 Dated: October ^ , 2010 ARCHER NORRIS 4 5 Gregory K. Federico " 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- OPPOSITION OF CA CONSTRUCTION TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADFNGS 1 PROOF OF SERVICE 2 Name of Action: Rodney Abbott, et al. v. Ronald Paul Britschgi, et al. Court and Action No: Sacramento County Superior No. 07AS04450 3 I, Marie Cantrell, declare that I am over the age of 18 years and not a party to this action 4 or proceeding. My business address is 301 University Avenue, Suite 110, Sacramento, Califomia 95825. On October 7, 2010,1 caused the following document(s) to be served: 5 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR JUDGMENT ON THE 6 PLEADINGS 7 I3cl l^y placing a tme copy ofthe documents listed above, enclosed in a sealed envelope, addressed as set forth below, for collection and mailing on the date and at the business 8 . . . . address shown above following our ordinary business practices. I am readily familiar g with this business' practice for collection and processing of correspondence for mailing with the United States Postal Service On the same day that a sealed envelope 10 is placed for collection and mailing, it is deposited in the ordinary course ofbusiness with the United States Postal Service with postage fully prepaid. 11 r~| By having a tme copy ofthe document(s) listed above transmitted by facsimile to the 12 person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission .» was reported as complete without error by a report issued by the transmitting facsimile machine. 14 By placing a tme copy ofthe document(s) listed above, in a box or other facility 15 ' ' regularly maintained by UPS, an express service carrier, or delivered to a courier or driver authorized by the express service carrier to receive documents, in an envelope 16 designated by the express service carrier, with delivery fees paid or provided for, addressed as set forth below. Jg r n bv having personal deliverv bv FIRST LEGAL SUPPORT SERVICES a tme copv of the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the \9 address(es) set forth below. 20 [SEE ATTACHED SERVICE LIST] 21 22 I declare under penalty ofperjury that the foregoing is true and correct. Executed on 23 October 7, 2010, at Sacramento, Califomia. 24 25 26 27 28 NIC34I/608293-I PROOF OF SERVICE 1 Service List 2 VIA OVERNIGHT MAIL 3 Stephanie Finelli PLAINTIFFS Law Offices of Stephanie J Finelli 4 1007 Seventh Street, Suite 500 Tel (916)443-2144 Sacramento, CA 95814 Fax: (916) 443-1511 5 E-mail sfinelli700(gyahoo com 6 VIA REGULAR MAIL 7 Richard D Sopp Counsel for CADRE DESIGN GROUP, INC. Wheatley Sopp LLP 8 1004 River Rock Drive, Suite 245 Tel. (916) 988-3857 Folsom, CA 95630 Fax: (916) 988-5296 9 Email rds@mwsblaw com 10 Mark Smith In Pro Per 8549 Willow Valley Place 11 Granite Bay, CA 95746 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NIC34I/608293-I 2 SERVICE LIST