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1 Todd A. Jones (Bar No. 198024)
Gregory K. Federico (Bar No. 242184)
2 ARCHER NORRIS
A Professional Law Corporation
3 655 University Avenue, Suite 225
Sacramento, California 95825-6747
4 Telephone: 916.646.2480
Facsimile: 916.646.5696
5
Attorneys for Defendants and Cross-Defendants
6 RICHARD KIRK RUYBALID, individually, and
dba CA CONSTRUCTION
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10
11 RODNEY ABBOTT and FLORENTINE Case No. 07AS04450
ABBOTT,
12 MEMORANDUM OF POINTS AND
Plaintiffs, AUTHORITIES IN SUPPORT OF
13 DEFENDANT CA CONSTRUCTION'S
v. MOTION TO STRIKE PORTIONS OF
14 PLAINTIFFS' UNVERIFIED FIRST
RONALD PAUL BRITSCHGI, et al., AMENDED COMPLAINT
15
Defendants. Date: November 17, 2009
16 Time: 9:00 a.m.
Dept: 54
17
Action Filed: September 24, 2007
18
AND ALL RELATED CROSS-ACTIONS.
19
20 I. INTRODUCTION
21 In Plaintiffs RODNEY and FLORENTINE ABBOTT's ("PLAINTIFFS") unverified First
22 Amended Complaint, PLAINTIFFS allege eight causes of action. PLAINTIFFS allege the
23 following causes of action against Defendant RICHARD KIRK RUYBALID, individually, and
24 dba CA CONSTRUCTION ("CA CONSTRUCTION"): (1) Fourth Cause of Action for Breach of
25 Written Contract; (2) Fifth Cause of Action for Negligence; and (3) Sixth Cause of Action for
26 Violation of Business & Professions Code Sections. CA CONSTRUCTION respectfully submits
27 the following points and authorities in support of an order striking the following portions of
28 PLAINTIFFS' First Amended Complaint:
NIC341/840619-1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
MOTION TO STRIKE PORTIONS OF PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT
1
PARAGRAPH PAGE/LINE TEXT TO BE STRICKEN
2 29. Page 10:14-15 ". . .personal injuries to plaintiffs and their family
members as a result of mold damage,. . ."
3
4 31. Page 10:24-28 "The aforementioned contract between
Defendant Ruybalid and Plaintiffs was solely for
5 foundation work, and thus required a C-8
contractor's license to perform. At all times
6 herein relevant, Defendant Ruybalid dba CA
Construction did not have a valid C-8 license.
7 Nor did said Defendants subcontract with a
8 specialty C-8 contractor to perform the work
under said contract."
9
32. Page 11:1-3 "At all times herein mentioned, Ruybalid did not
10 have the skill or the experience necessary to
properly perform under his agreement with
11 plaintiffs, and was aware that he lacked such
skill and/or experience."
12
33. Page 11:4- 10 "Plaintiffs are informed and believe and thereon
13 allege that Ruybalid has violated, or may have
14 violated, a number of statutes, including but not
limited to, Business & Professions Code section
15 7109 for willfully departing from accepted trade
standards for good and workmanlike
16 construction; sections 7026, 7028, and 703 1 for
performing work as a concrete contractor
17
without a valid C-8 license; and section 7160 for
18 knowingly making false or fraudulent
representations to Plaintiffs about his ability to
19 properly perform the services he was required to
perform under the contract with Plaintiffs."
20 34. Page 11:1 1-17 "Plaintiffs have been damaged in the sum of at
j least $53,206.88, as the sums they paid to
21
Ruybalid, plus interest thereon at the legal rate
22 of 10% per annum. Plaintiffs are also entitled to
a $500 penalty and attorney fees pursuant to
23 Business & Professions Code section 7160.
Because said Defendant was acting as a
24 contractor within the meaning of Business &
25 Professions Code section 7026 without a valid
contractor's license as required by section 7028,
26 Plaintiffs are entitled to treble damages and
attorney fees pursuant to Code of Civil
27 Procedure section 1029.8."
28
NIC341/840619-1 2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
MOTION TO STRIKE PORTIONS OF PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT
1 Prayer for Page 15:15-23 Sixth Cause of Action
Relief for the 1. For compensatory damages according
2 Sixth Cause of to proof at trial, including a refund of all sums
paid;
3 Action 2. For interest thereon at the legal rate;
3. For a penalty of $500;
4 4. For treble damages;
5. For costs of suit;
5 6. For attorneys' fees; and
7. For such other, further or different
6 relief as the court deems just and proper.
7
PLAINTIFFS filed their original complaint on or about September 24, 2007, naming
8
Defendants CA CONSTRUCTION and RONALD PAUL BRITSCHGI ("BRITSCHGI").
9
PLAINTIFFS' original complaint alleged various tort and contract claims related to the
10
construction of PLAINTIFFS' home at 8601 Rolling Green Way in Fair Oaks, California.
11
On or about June 24, 2009, PLAINTIFFS filed a motion for leave to file a First Amended
12
Complaint in this action. PLAINTIFFS' First Amended Complaint adds personal injury claims
13
due to alleged mold exposure, new factual allegations and causes of action against BRITSCHGI
14
and CA CONSTRUCTION, and two new parties to the case. The new parties are Defendant
15
Mark Smith, an individual doing business as Groundbreakers ("SMITH") and CONSTRUCTION
16
TESTING & ENGINEERING, INC. ("CTE"). SMITH was hired by PLAINTIFFS and provided
17
grading and earth movement for the subject property. CTE is the entity that PLAINTIFFS' hired
18
and paid to perform the soil/compaction tests on the subject property.
19
On July 20, 2009, the Court granted PLAINTIFFS' motion and provided leave for
20
PLAINTIFFS to file the First Amended Complaint. The First Amended Complaint was filed on
21
July 23, 2009 and served on all parties via United States Mail.
22
As an initial point, PLAINTIFFS appear to be claiming personal injury damages for the
23
benefit of parties who have not been named in the First Amended Complaint. PLAINTIFFS
24
allege that their "family members" have sustained personal injuries due to mold exposure. As
25
these family members are not named Plaintiffs, any and all reference to them in the First
26
Amended Complaint should be struck.
27
As to CA CONSTRUCTION, PLAINTIFFS set forth extremely ambiguous allegations
28
NIC341/840619-1 3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
MOTION TO STRIKE PORTIONS OF PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT
1 that claim CA CONSTRUCTION violated Business & Professions Code Sections, including
2 7109, 7026, 7028, 7031, and 7160. In fact, PLAINTIFFS allege that CA CONSTRUCTION
3 knowingly made "false or fraudulent representations to Plaintiffs about his ability to properly
4 perform the services he was required to perform under the contract with Plaintiffs." PLAINTIFFS
5 fail to allege with factual specificity the details surrounding the false and fraudulent statements to
6 PLAINTIFFS.
7 CA CONSTRUCTION has concurrently demurred to PLAINTIFFS' Sixth Cause of
8 Action on various grounds, including the fact that PLAINTIFFS do not have standing to allege
9 violations of the Business & Professions Code Sections, CA CONSTRUCTION is licensed, and
10 that PLAINTIFFS have failed to plead a cause of action sounding in fraud with the requisite
11 factual specificity. The demurrer and arguments contained therein is filed concurrently herewith
12 and incorporated by reference herein.
13 As such, CA CONSTRUCTION is now moving to strike the above-referenced provisions
14 from PLAINTIFFS' First Amended Complaint and prayer for relief. Since PLAINTIFFS' Sixth
15 Cause of Action is insufficiently pled to survive a demurrer, the claims contained therein are
16 improper and should be stricken from the First Amended Complaint.
17 On August 26, 2009, counsel for CA CONSTRUCTION met and conferred with counsel
18 for PLAINTIFFS and requested that PLAINTIFFS withdraw their Sixth Cause of Action based
19 on the fact that the cause of action was subject to a demurrer and motion to strike. As of the date
20 of filing this Motion to Strike, PLAINTIFFS have not agreed to withdraw the Sixth Cause of
21 Action.
22 II. ARGUMENT
23 A. A Complaint, or Any Part Thereof, is Subject to a Motion to Strike.
24 Under Code of Civil Procedure §43 5 (b), any party, within the time allowed to respond to a
25 pleading may serve and file a notice of motion to strike the whole or any part thereof. Code of
26 Civil Procedure §435(b)(l). Code of Civil Procedure §436 provides as follows:
27 //
28 //
N1C341/840619-1 4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
MOTION TO STRIKE PORTIONS OF PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT
1 The court may, upon a motion made pursuant to Section 435, or at
any time in its discretion, and upon terms it deems proper:
2
(a) Strike out any irrelevant, false or improper matter inserted in any
3 pleading.
4 (b) Strike out all or any part of any pleading not drawn or filed in
conformity with the laws of this state, a court rule, or an order of the
5 court.
6 California Code of Civil Procedure §431.10(c) defines an irrelevant matter as an
7 immaterial allegation. Code of Civil Procedure §431.10(b) provides that an immaterial allegation
8 is "(2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim or
9 defense [or] (3) a demand for judgment requesting relief not supported by the allegations of the
10 complaint..."
Ii CA CONSTRUCTION may properly move to strike the entirety of the above-referenced
12 portions of PLAINTIFFS' First Amended Complaint because PLAINTIFFS' claims and
13 accompanying prayer for relief as to their Sixth Cause of Action are not supported by sufficient
14 evidence, contain improper matter, are irrelevant, and contain false information.
15 B. Portions Of Plaintiffs' First Amended Complaint Are Irrelevant, False, Or Contain
Improper Matter And Should Be Struck.
16
1. Personal Injury Claims For Parties Not Named As Plaintiffs
17
In Paragraph 29 on page 10, lines 14 through 15, PLAINTIFFS' First Amended
18
Complaint details damages related to parties who are not named as Plaintiffs in the present action.
19
The First Amended Complaint states ".. .personal injuries to plaintiffs and their family members
20
as a result of mold damage,...". The family members named here are not parties to this action.
21
The only named Plaintiffs are Rodney and Florentine Abbott. PLAINTIFFS do not have standing
22
to seek claims on behalf of, and damages for, unnamed family members. As this provision of
23
PLAINTIFFS' First Amended Complaint is vague, ambiguous, irrelevant and improper, it should
24
be struck in its entirety from the First Amended Complaint.
25
2. Paragraph 32 Should Be Struck As It Contains Conclusory, Irrelevant, and
False Information
27 A motion to strike can be used to remove any "irrelevant, false or improper" subject
28
NIC341/840619-1 5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
MOTION TO STRIKE PORTIONS OF PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT
1 matter. Code of Civil Procedure §436. Irrelevant matter includes an immaterial allegation, which
2 is defined as "allegations not essential to the claim or defense" or "allegations 'neither pertinent
3 to nor supported by an otherwise sufficient claim or defense'". Code of Civil Procedure
4 §431.10(b).
5 In Paragraph 32, PLAINTIFFS allege that "At all times herein mentioned, Ruybalid did
6 not have the skill or the experience necessary to properly perform under his agreement with
7 plaintiffs,...". This statement is nothing more than a legal conclusion and there are no facts
8 offered in support of the statement. This legal conclusion is nothing more than an allegation that
9 is not essential to any of PLAINTIFFS' claims or defenses. As such, it is immaterial and
10 irrelevant. It should be struck from the First Amended Complaint.
11 Also, Paragraph 32 contains false information in that CA CONSTRUCTION was never
12 ".. .aware that he lacked such skill and/or experience." PLAINTIFFS have again made another
13 legal conclusion. This allegation is merely the opinion of PLAINTIFFS and their counsel. It is
14 not supported by any factual allegations or statements, and therefore it is immaterial and
15 irrelevant to this matter. It too should be struck from PLAINTIFFS' First Amended Complaint.
3. Plaintiffs Lack The Right To Prosecute Violations of Business and Professions
j7 Code Sections
As outlined above, this Court is empowered with the right to strike irrelevant matters from
lo
.Q a pleading. Code of Civil Procedure § 436. Here, PLAINTIFFS set forth extremely ambiguous
2ft allegations that claim CA CONSTRUCTION violated various sections of the Business and
Professions Code, including sections 7109, 7026, 7028, 7031, and 7160. These items are wholly
22 irrelevant.
PLAINTIFFS have alleged violations of these sections, and CA CONSTRUCTION is
24 therefore responsible for the accompanying civil penalties provided for under Business and
2<- Professions Code § 7028. PLAINTIFFS do not allege any right to prosecute these Business and
2-.- Professions Code violations or otherwise enforce the civil penalties. These code sections do not
~7 provide PLAINTIFFS a private right of action. The sections are designed for the California State
28 Contractor's Licensing Board to regulate unlicensed and unscrupulous contractors. As such,
NIC341/840619-1 6
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
MOTION TO STRIKE PORTIONS OF PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT
1 these extraneous allegations are irrelevant and improper in this matter.
2 4. CA Construction Is Licensed
3 The Court may also take judicial notice of facts not reasonably subject to dispute and
4 "capable of immediate and accurate verification by resort to sources of reasonably indisputable
5 accuracy." Evidence Code § 452(h). Further, the Court may take notice of official acts of any
6 state or federal legislative, executive or judicial department, and a "court can take judicial notice
7 of records and files of state administrative agencies. Evidence Code § 452(V); See Fowler v.
8 Howell (1996) 42 Cal.App.4th 1746, 1750.
9 At all times during construction of PLAINTIFFS' home, CA CONSTRUCTION held an
10 active "B" general contractor's license. Business & Professions Code §7057 states that "A
11 general building contractor shall not take a subcontract involving trades other than framing or
12 carpentry, unless the subcontract requires at least two unrelated trades or crafts other than framing
13 or carpentry, or unless the general building contractor holds the appropriate license
14 classification." In Exhibit "A" attached to the First Amended Complaint, the contract required
15 CA CONSTRUCTION to "excavate, form, place and finish concrete...". This scope of work
16 includes the work of a concrete contractor (C-9 Classification; California Code of Regulations,
17 Reg. 832.08), the work of an earthwork and paving contractor (C-12 Classification; California
18 Code of Regulations, Reg. 832.12), and a reinforcing steel contractor (C-50 Classification;
19 California Code of Regulations, Reg. 832.50). Thus, the work includes the work of two or more
20 unrelated trades. By the terms of its "B" license status, CA CONSTRUCTION was well versed
21 and authorized to perform the work outlined in the contract.
22 Pursuant to Evidence Code §452, CA CONSTRUCTION requests that the Court take
23 judicial notice of the Certified License History as issued by the CSLB for CA CONSTRUCTION
24 as evidenced in the documents attached as Exhibit "A" to the Request for Judicial Notice, filed
25 concurrently herewith and incorporated by reference herein.
26 5. The Claims Sounding In Fraud Are Not Pled With The Requisite Specificity
27 California Civil Code § 3294(c)(3) defines fraud as ".. .an intentional misrepresentation,
28 deceit, or concealment of a material fact known to the defendants with the intention on the part of
NIC341/840619-1 7
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
MOTION TO STRIKE PORTIONS OF PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT
1 the defendant of thereby depriving a person of property or legal rights or otherwise causing
2 injury." Civil Code § 3294(c)(3). Causes of action asserting fraudulent activity "should be set out
3 clearly, concisely, and with sufficient particularity to apprise the opposite party ... and to enable
4 the court to determine whether, on the facts pleaded, there is any foundation ... for the charge of
5 fraud." Scafidi v. Western Loan and Building Co. (1946) 72 Cal.App.2d 550, 553.
6 ... The effect of this rule is twofold: (1) general pleading of the
legal conclusion of 'fraud' is insufficient; the facts constituting
7 fraud must be alleged in the proper manner (i.e., factually and
specifically), and (2) the policy of liberal construction of the
8 pleadings . . . will not ordinarily be invoked to sustain a pleading
defective in any material respect.
10 5 Witkin, California Procedure (4th Ed.), Pleading § 669. [Emphasis added]
11 At Paragraph 33 on page 11, lines 4 through 10 of the First Amended Complaint,
o
12 PLAINTIFFS allege that CA CONSTRUCTION violated Business and Professions Code § 7160
13 by ".. .knowingly making false or fraudulent representations to Plaintiffs about his ability to
14 properly perform the services he was required to perform under the contract with Plaintiffs."
15 Although the cause of action is labeled as a violation of various Business and Professions Code
16 sections, it essentially alleges that CA CONSTRUCTION engaged in fraud or some variety of
17 intentional misrepresentation with respect to the contract for construction services at
18 PLAINTIFFS' home. The particularity requirement for causes of action based on fraudulent
19 behavior necessitates pleading facts that "show how, when, where, to whom, and by what means
20 the representations were tendered." Lazar v. Sup. Ct. (Rvkoff-Sexton. Inc.) (1996) 12 Cal.4th
21 631,645.
22 PLAINTIFFS' conclusory allegations are not sufficient to support such claims. They fail
23 to plead any facts regarding what statements were fraudulent or false, who made the fraudulent
24 and false statements, when the fraudulent and false statements were made, to whom the
25 fraudulent and false statements were made or the context in which they were. made. Based on the
26 lack of specificity, these provisions of PLAINTIFFS' First Amended Complaint should be struck
27 in their entirety.
28 Likewise, since PLAINTIFFS have failed to properly allege the fraudulent activities in
NIC341/840619-1 8
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
MOTION TO STRIKE PORTIONS OF PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT
1 support of their claim for a violation of as required by Business and Professions Code § 7160,
2 their request for damages and relief afforded by this provision should also be struck. Thus,
3 Paragraph 34 on page 11, lines 11 through 17 wherein PLAINTIFFS allege that they are entitled
4 to a $500 penalty and attorney fees pursuant to Business and Professions Code § 7160 should also
5 be struck from the First Amended Complaint.
6 III. CONCLUSION
7 Based on the foregoing, PLAINTIFFS' claims are conclusory and devoid of specific fact
8 based allegations. PLAINTIFFS' claims contain irrelevant, immaterial, false, and improper
9 matter. As such, CA CONSTRUCTION respectfully requests that this Court issue an order
10 striking the above-referenced portions from PLAINTIFFS' First Amended Complaint, as well as
11 their respective prayers for relief throughout the First Amended Complaint.
12
Dated: August 7/\ , 2009 ARCHER NORRIS
13
14
15 Gregory K. Federico
Attorneys for Defendants and Cross-
16 Defendants RICHARD KIRK RUYBALID,
individually, and dba CA CONSTRUCTION
17
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NIC341/840619-1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
MOTION TO STRIKE PORTIONS OF PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT
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1 Todd A. Jones (Bar No. 198024) Gregory K. Federico (Bar No. 242184) 2 ARCHER NORRIS A Professional Law Corporation 3 655 University Avenue, Suite 225 Sacramento, California 95825-6747 4 Telephone: 916.646.2480 Facsimile: 916.646.5696 5 Attorneys for Defendants and Cross-Defendants 6 RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 RODNEY ABBOTT and FLORENTINE Case No. 07AS04450 ABBOTT, 12 MEMORANDUM OF POINTS AND Plaintiffs, AUTHORITIES IN SUPPORT OF 13 DEFENDANT CA CONSTRUCTION'S v. MOTION TO STRIKE PORTIONS OF 14 PLAINTIFFS' UNVERIFIED FIRST RONALD PAUL BRITSCHGI, et al., AMENDED COMPLAINT 15 Defendants. Date: November 17, 2009 16 Time: 9:00 a.m. Dept: 54 17 Action Filed: September 24, 2007 18 AND ALL RELATED CROSS-ACTIONS. 19 20 I. INTRODUCTION 21 In Plaintiffs RODNEY and FLORENTINE ABBOTT's ("PLAINTIFFS") unverified First 22 Amended Complaint, PLAINTIFFS allege eight causes of action. PLAINTIFFS allege the 23 following causes of action against Defendant RICHARD KIRK RUYBALID, individually, and 24 dba CA CONSTRUCTION ("CA CONSTRUCTION"): (1) Fourth Cause of Action for Breach of 25 Written Contract; (2) Fifth Cause of Action for Negligence; and (3) Sixth Cause of Action for 26 Violation of Business & Professions Code Sections. CA CONSTRUCTION respectfully submits 27 the following points and authorities in support of an order striking the following portions of 28 PLAINTIFFS' First Amended Complaint: NIC341/840619-1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S MOTION TO STRIKE PORTIONS OF PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT 1 PARAGRAPH PAGE/LINE TEXT TO BE STRICKEN 2 29. Page 10:14-15 ". . .personal injuries to plaintiffs and their family members as a result of mold damage,. . ." 3 4 31. Page 10:24-28 "The aforementioned contract between Defendant Ruybalid and Plaintiffs was solely for 5 foundation work, and thus required a C-8 contractor's license to perform. At all times 6 herein relevant, Defendant Ruybalid dba CA Construction did not have a valid C-8 license. 7 Nor did said Defendants subcontract with a 8 specialty C-8 contractor to perform the work under said contract." 9 32. Page 11:1-3 "At all times herein mentioned, Ruybalid did not 10 have the skill or the experience necessary to properly perform under his agreement with 11 plaintiffs, and was aware that he lacked such skill and/or experience." 12 33. Page 11:4- 10 "Plaintiffs are informed and believe and thereon 13 allege that Ruybalid has violated, or may have 14 violated, a number of statutes, including but not limited to, Business & Professions Code section 15 7109 for willfully departing from accepted trade standards for good and workmanlike 16 construction; sections 7026, 7028, and 703 1 for performing work as a concrete contractor 17 without a valid C-8 license; and section 7160 for 18 knowingly making false or fraudulent representations to Plaintiffs about his ability to 19 properly perform the services he was required to perform under the contract with Plaintiffs." 20 34. Page 11:1 1-17 "Plaintiffs have been damaged in the sum of at j least $53,206.88, as the sums they paid to 21 Ruybalid, plus interest thereon at the legal rate 22 of 10% per annum. Plaintiffs are also entitled to a $500 penalty and attorney fees pursuant to 23 Business & Professions Code section 7160. Because said Defendant was acting as a 24 contractor within the meaning of Business & 25 Professions Code section 7026 without a valid contractor's license as required by section 7028, 26 Plaintiffs are entitled to treble damages and attorney fees pursuant to Code of Civil 27 Procedure section 1029.8." 28 NIC341/840619-1 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S MOTION TO STRIKE PORTIONS OF PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT 1 Prayer for Page 15:15-23 Sixth Cause of Action Relief for the 1. For compensatory damages according 2 Sixth Cause of to proof at trial, including a refund of all sums paid; 3 Action 2. For interest thereon at the legal rate; 3. For a penalty of $500; 4 4. For treble damages; 5. For costs of suit; 5 6. For attorneys' fees; and 7. For such other, further or different 6 relief as the court deems just and proper. 7 PLAINTIFFS filed their original complaint on or about September 24, 2007, naming 8 Defendants CA CONSTRUCTION and RONALD PAUL BRITSCHGI ("BRITSCHGI"). 9 PLAINTIFFS' original complaint alleged various tort and contract claims related to the 10 construction of PLAINTIFFS' home at 8601 Rolling Green Way in Fair Oaks, California. 11 On or about June 24, 2009, PLAINTIFFS filed a motion for leave to file a First Amended 12 Complaint in this action. PLAINTIFFS' First Amended Complaint adds personal injury claims 13 due to alleged mold exposure, new factual allegations and causes of action against BRITSCHGI 14 and CA CONSTRUCTION, and two new parties to the case. The new parties are Defendant 15 Mark Smith, an individual doing business as Groundbreakers ("SMITH") and CONSTRUCTION 16 TESTING & ENGINEERING, INC. ("CTE"). SMITH was hired by PLAINTIFFS and provided 17 grading and earth movement for the subject property. CTE is the entity that PLAINTIFFS' hired 18 and paid to perform the soil/compaction tests on the subject property. 19 On July 20, 2009, the Court granted PLAINTIFFS' motion and provided leave for 20 PLAINTIFFS to file the First Amended Complaint. The First Amended Complaint was filed on 21 July 23, 2009 and served on all parties via United States Mail. 22 As an initial point, PLAINTIFFS appear to be claiming personal injury damages for the 23 benefit of parties who have not been named in the First Amended Complaint. PLAINTIFFS 24 allege that their "family members" have sustained personal injuries due to mold exposure. As 25 these family members are not named Plaintiffs, any and all reference to them in the First 26 Amended Complaint should be struck. 27 As to CA CONSTRUCTION, PLAINTIFFS set forth extremely ambiguous allegations 28 NIC341/840619-1 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S MOTION TO STRIKE PORTIONS OF PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT 1 that claim CA CONSTRUCTION violated Business & Professions Code Sections, including 2 7109, 7026, 7028, 7031, and 7160. In fact, PLAINTIFFS allege that CA CONSTRUCTION 3 knowingly made "false or fraudulent representations to Plaintiffs about his ability to properly 4 perform the services he was required to perform under the contract with Plaintiffs." PLAINTIFFS 5 fail to allege with factual specificity the details surrounding the false and fraudulent statements to 6 PLAINTIFFS. 7 CA CONSTRUCTION has concurrently demurred to PLAINTIFFS' Sixth Cause of 8 Action on various grounds, including the fact that PLAINTIFFS do not have standing to allege 9 violations of the Business & Professions Code Sections, CA CONSTRUCTION is licensed, and 10 that PLAINTIFFS have failed to plead a cause of action sounding in fraud with the requisite 11 factual specificity. The demurrer and arguments contained therein is filed concurrently herewith 12 and incorporated by reference herein. 13 As such, CA CONSTRUCTION is now moving to strike the above-referenced provisions 14 from PLAINTIFFS' First Amended Complaint and prayer for relief. Since PLAINTIFFS' Sixth 15 Cause of Action is insufficiently pled to survive a demurrer, the claims contained therein are 16 improper and should be stricken from the First Amended Complaint. 17 On August 26, 2009, counsel for CA CONSTRUCTION met and conferred with counsel 18 for PLAINTIFFS and requested that PLAINTIFFS withdraw their Sixth Cause of Action based 19 on the fact that the cause of action was subject to a demurrer and motion to strike. As of the date 20 of filing this Motion to Strike, PLAINTIFFS have not agreed to withdraw the Sixth Cause of 21 Action. 22 II. ARGUMENT 23 A. A Complaint, or Any Part Thereof, is Subject to a Motion to Strike. 24 Under Code of Civil Procedure §43 5 (b), any party, within the time allowed to respond to a 25 pleading may serve and file a notice of motion to strike the whole or any part thereof. Code of 26 Civil Procedure §435(b)(l). Code of Civil Procedure §436 provides as follows: 27 // 28 // N1C341/840619-1 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S MOTION TO STRIKE PORTIONS OF PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT 1 The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: 2 (a) Strike out any irrelevant, false or improper matter inserted in any 3 pleading. 4 (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the 5 court. 6 California Code of Civil Procedure §431.10(c) defines an irrelevant matter as an 7 immaterial allegation. Code of Civil Procedure §431.10(b) provides that an immaterial allegation 8 is "(2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim or 9 defense [or] (3) a demand for judgment requesting relief not supported by the allegations of the 10 complaint..." Ii CA CONSTRUCTION may properly move to strike the entirety of the above-referenced 12 portions of PLAINTIFFS' First Amended Complaint because PLAINTIFFS' claims and 13 accompanying prayer for relief as to their Sixth Cause of Action are not supported by sufficient 14 evidence, contain improper matter, are irrelevant, and contain false information. 15 B. Portions Of Plaintiffs' First Amended Complaint Are Irrelevant, False, Or Contain Improper Matter And Should Be Struck. 16 1. Personal Injury Claims For Parties Not Named As Plaintiffs 17 In Paragraph 29 on page 10, lines 14 through 15, PLAINTIFFS' First Amended 18 Complaint details damages related to parties who are not named as Plaintiffs in the present action. 19 The First Amended Complaint states ".. .personal injuries to plaintiffs and their family members 20 as a result of mold damage,...". The family members named here are not parties to this action. 21 The only named Plaintiffs are Rodney and Florentine Abbott. PLAINTIFFS do not have standing 22 to seek claims on behalf of, and damages for, unnamed family members. As this provision of 23 PLAINTIFFS' First Amended Complaint is vague, ambiguous, irrelevant and improper, it should 24 be struck in its entirety from the First Amended Complaint. 25 2. Paragraph 32 Should Be Struck As It Contains Conclusory, Irrelevant, and False Information 27 A motion to strike can be used to remove any "irrelevant, false or improper" subject 28 NIC341/840619-1 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S MOTION TO STRIKE PORTIONS OF PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT 1 matter. Code of Civil Procedure §436. Irrelevant matter includes an immaterial allegation, which 2 is defined as "allegations not essential to the claim or defense" or "allegations 'neither pertinent 3 to nor supported by an otherwise sufficient claim or defense'". Code of Civil Procedure 4 §431.10(b). 5 In Paragraph 32, PLAINTIFFS allege that "At all times herein mentioned, Ruybalid did 6 not have the skill or the experience necessary to properly perform under his agreement with 7 plaintiffs,...". This statement is nothing more than a legal conclusion and there are no facts 8 offered in support of the statement. This legal conclusion is nothing more than an allegation that 9 is not essential to any of PLAINTIFFS' claims or defenses. As such, it is immaterial and 10 irrelevant. It should be struck from the First Amended Complaint. 11 Also, Paragraph 32 contains false information in that CA CONSTRUCTION was never 12 ".. .aware that he lacked such skill and/or experience." PLAINTIFFS have again made another 13 legal conclusion. This allegation is merely the opinion of PLAINTIFFS and their counsel. It is 14 not supported by any factual allegations or statements, and therefore it is immaterial and 15 irrelevant to this matter. It too should be struck from PLAINTIFFS' First Amended Complaint. 3. Plaintiffs Lack The Right To Prosecute Violations of Business and Professions j7 Code Sections As outlined above, this Court is empowered with the right to strike irrelevant matters from lo .Q a pleading. Code of Civil Procedure § 436. Here, PLAINTIFFS set forth extremely ambiguous 2ft allegations that claim CA CONSTRUCTION violated various sections of the Business and Professions Code, including sections 7109, 7026, 7028, 7031, and 7160. These items are wholly 22 irrelevant. PLAINTIFFS have alleged violations of these sections, and CA CONSTRUCTION is 24 therefore responsible for the accompanying civil penalties provided for under Business and 2<- Professions Code § 7028. PLAINTIFFS do not allege any right to prosecute these Business and 2-.- Professions Code violations or otherwise enforce the civil penalties. These code sections do not ~7 provide PLAINTIFFS a private right of action. The sections are designed for the California State 28 Contractor's Licensing Board to regulate unlicensed and unscrupulous contractors. As such, NIC341/840619-1 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S MOTION TO STRIKE PORTIONS OF PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT 1 these extraneous allegations are irrelevant and improper in this matter. 2 4. CA Construction Is Licensed 3 The Court may also take judicial notice of facts not reasonably subject to dispute and 4 "capable of immediate and accurate verification by resort to sources of reasonably indisputable 5 accuracy." Evidence Code § 452(h). Further, the Court may take notice of official acts of any 6 state or federal legislative, executive or judicial department, and a "court can take judicial notice 7 of records and files of state administrative agencies. Evidence Code § 452(V); See Fowler v. 8 Howell (1996) 42 Cal.App.4th 1746, 1750. 9 At all times during construction of PLAINTIFFS' home, CA CONSTRUCTION held an 10 active "B" general contractor's license. Business & Professions Code §7057 states that "A 11 general building contractor shall not take a subcontract involving trades other than framing or 12 carpentry, unless the subcontract requires at least two unrelated trades or crafts other than framing 13 or carpentry, or unless the general building contractor holds the appropriate license 14 classification." In Exhibit "A" attached to the First Amended Complaint, the contract required 15 CA CONSTRUCTION to "excavate, form, place and finish concrete...". This scope of work 16 includes the work of a concrete contractor (C-9 Classification; California Code of Regulations, 17 Reg. 832.08), the work of an earthwork and paving contractor (C-12 Classification; California 18 Code of Regulations, Reg. 832.12), and a reinforcing steel contractor (C-50 Classification; 19 California Code of Regulations, Reg. 832.50). Thus, the work includes the work of two or more 20 unrelated trades. By the terms of its "B" license status, CA CONSTRUCTION was well versed 21 and authorized to perform the work outlined in the contract. 22 Pursuant to Evidence Code §452, CA CONSTRUCTION requests that the Court take 23 judicial notice of the Certified License History as issued by the CSLB for CA CONSTRUCTION 24 as evidenced in the documents attached as Exhibit "A" to the Request for Judicial Notice, filed 25 concurrently herewith and incorporated by reference herein. 26 5. The Claims Sounding In Fraud Are Not Pled With The Requisite Specificity 27 California Civil Code § 3294(c)(3) defines fraud as ".. .an intentional misrepresentation, 28 deceit, or concealment of a material fact known to the defendants with the intention on the part of NIC341/840619-1 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S MOTION TO STRIKE PORTIONS OF PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT 1 the defendant of thereby depriving a person of property or legal rights or otherwise causing 2 injury." Civil Code § 3294(c)(3). Causes of action asserting fraudulent activity "should be set out 3 clearly, concisely, and with sufficient particularity to apprise the opposite party ... and to enable 4 the court to determine whether, on the facts pleaded, there is any foundation ... for the charge of 5 fraud." Scafidi v. Western Loan and Building Co. (1946) 72 Cal.App.2d 550, 553. 6 ... The effect of this rule is twofold: (1) general pleading of the legal conclusion of 'fraud' is insufficient; the facts constituting 7 fraud must be alleged in the proper manner (i.e., factually and specifically), and (2) the policy of liberal construction of the 8 pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect. 10 5 Witkin, California Procedure (4th Ed.), Pleading § 669. [Emphasis added] 11 At Paragraph 33 on page 11, lines 4 through 10 of the First Amended Complaint, o 12 PLAINTIFFS allege that CA CONSTRUCTION violated Business and Professions Code § 7160 13 by ".. .knowingly making false or fraudulent representations to Plaintiffs about his ability to 14 properly perform the services he was required to perform under the contract with Plaintiffs." 15 Although the cause of action is labeled as a violation of various Business and Professions Code 16 sections, it essentially alleges that CA CONSTRUCTION engaged in fraud or some variety of 17 intentional misrepresentation with respect to the contract for construction services at 18 PLAINTIFFS' home. The particularity requirement for causes of action based on fraudulent 19 behavior necessitates pleading facts that "show how, when, where, to whom, and by what means 20 the representations were tendered." Lazar v. Sup. Ct. (Rvkoff-Sexton. Inc.) (1996) 12 Cal.4th 21 631,645. 22 PLAINTIFFS' conclusory allegations are not sufficient to support such claims. They fail 23 to plead any facts regarding what statements were fraudulent or false, who made the fraudulent 24 and false statements, when the fraudulent and false statements were made, to whom the 25 fraudulent and false statements were made or the context in which they were. made. Based on the 26 lack of specificity, these provisions of PLAINTIFFS' First Amended Complaint should be struck 27 in their entirety. 28 Likewise, since PLAINTIFFS have failed to properly allege the fraudulent activities in NIC341/840619-1 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S MOTION TO STRIKE PORTIONS OF PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT 1 support of their claim for a violation of as required by Business and Professions Code § 7160, 2 their request for damages and relief afforded by this provision should also be struck. Thus, 3 Paragraph 34 on page 11, lines 11 through 17 wherein PLAINTIFFS allege that they are entitled 4 to a $500 penalty and attorney fees pursuant to Business and Professions Code § 7160 should also 5 be struck from the First Amended Complaint. 6 III. CONCLUSION 7 Based on the foregoing, PLAINTIFFS' claims are conclusory and devoid of specific fact 8 based allegations. PLAINTIFFS' claims contain irrelevant, immaterial, false, and improper 9 matter. As such, CA CONSTRUCTION respectfully requests that this Court issue an order 10 striking the above-referenced portions from PLAINTIFFS' First Amended Complaint, as well as 11 their respective prayers for relief throughout the First Amended Complaint. 12 Dated: August 7/\ , 2009 ARCHER NORRIS 13 14 15 Gregory K. Federico Attorneys for Defendants and Cross- 16 Defendants RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 17 18 19 20 21 22 23 24 25 26 27 28 NIC341/840619-1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S MOTION TO STRIKE PORTIONS OF PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT