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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 DEFENDANT CA CONSTRUCTION'S
Plaintiffs, NOTICE OF MOTION AND MOTION TO
13 STRIKE PORTIONS OF PLAINTIFFS'
v. UNVERIFIED FIRST AMENDED
14 COMPLAINT; MEMORANDUM OF
RONALD PAUL BRITSCHGI, et al., POINTS AND AUTHORITIES; REQUEST
15 FOR JUDICIAL NOTICE; AND
Defendants. DECLARATION OF GREGORY K.
16 FEDERICO IN SUPPORT THEREOF
17 Date: November 17, 2009
Time: 9:00 a.m.
18 Dept: 54
19 Action Filed: September 24, 2007
20 AND ALL RELATED CROSS-ACTIONS.
21
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
22
PLEASE TAKE NOTICE THAT on November 17, 2009, at 9:00 a.m., or as soon
23
thereafter as the matter may be heard, in Department 54 in the Sacramento County Superior Court
24
located at 800 9th Street, Sacramento, California, Defendant RICHARD KIRK RUYBALID,
25
individually, and dba CA CONSTRUCTION'S ("CA CONSTRUCTION") will move this Court
for an order striking the following portions of Plaintiffs RODNEY and FLORENTINE
ABBOTT'S ("PLAINTIFFS") Unverified First Amended Complaint:
NIC341/840579-1
DEFENDANT CA CONSTRUCTION'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF
o PLAINTIFFS' 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 7031 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
21 34. Page 11:11-17 "Plaintiffs have been damaged in the sum of at
least $53,206.88, as the sums they paid to
22 Ruybalid, plus interest thereon at the legal rate
of 10% per annum. Plaintiffs are also entitled to
23 a $500 penalty and attorney fees pursuant to
Business & Professions Code section 7160.
24 Because said Defendant was acting as a
25 contractor within the meaning of Business &
Professions Code section 7026 without a valid
26 contractor's license as required by section 7028,
Plaintiffs are entitled to treble damages and
27 attorney fees pursuant to Code of Civil
Procedure section 1029.8."
28
NIC341/840579-1 2
DEFENDANT CA CONSTRUCTION'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF
PLAINTIFFS' 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
8 The motion to strike shall be made on the grounds that the First Amended Complaint
9 contains improper matter as PLAINTIFFS do not have standing to pursue claims related to the
10 alleged violations of Business and Professions code sections. Also, these paragraphs contain
11 legal conclusions unsupported by facts plead with the specificity required for causes of action
12 sounding in fraud. This motion is further made on the grounds that the above-referenced
13 paragraphs contains terms, phrases, and prayers that are unsupported, conclusory, irrelevant and
14 improper and should be stricken from the First Amended Complaint. This motion is brought
15 pursuant to California Code of Civil Procedure §§435 through 437.
16 This motion to strike shall be based on this notice of motion to strike, the attached
17 memorandum of points and authorities, the attached Request for Judicial Notice, the attached
18 declaration of Gregory K. Federico, such other and further evidence as exists in the files of this
19 matter as maintained by the Court, and upon such further oral and documentary evidence as may
20 be introduced at the time of the hearing on this motion to strike and upon such items of which the
21 Court may take judicial notice.
22 Pursuant to Local Rule 3.04, the court will make a tentative ruling on the merits of this
23 matter by 2:00 p.m., the court day before the hearing. You may access and download the court's
24 ruling from the court's website at http://www.saccourt.com. If you do not have online access,
25 you may obtain the tentative ruling over the telephone by calling (916) 874-8142 and a deputy
26 clerk will read the ruling to you. If you wish to request oral argument, you must contact the
27 courtroom clerk at (916) 874-7858 (Department 53) or (916) 874-7848 (Department 54) and the
28
NIC341/840579-1 3
DEFENDANT CA CONSTRUCTION'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF
PLAINTIFFS' FIRST AMENDED COMPLAINT
1 opposing party before 4:00 p.m. the court day before the hearing. If you do not call the court and
2 the opposing party by 4:00 p.m. on the court day before the hearing, no hearing will be held.
3
Dated: August
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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 DEFENDANT CA CONSTRUCTION'S Plaintiffs, NOTICE OF MOTION AND MOTION TO 13 STRIKE PORTIONS OF PLAINTIFFS' v. UNVERIFIED FIRST AMENDED 14 COMPLAINT; MEMORANDUM OF RONALD PAUL BRITSCHGI, et al., POINTS AND AUTHORITIES; REQUEST 15 FOR JUDICIAL NOTICE; AND Defendants. DECLARATION OF GREGORY K. 16 FEDERICO IN SUPPORT THEREOF 17 Date: November 17, 2009 Time: 9:00 a.m. 18 Dept: 54 19 Action Filed: September 24, 2007 20 AND ALL RELATED CROSS-ACTIONS. 21 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 22 PLEASE TAKE NOTICE THAT on November 17, 2009, at 9:00 a.m., or as soon 23 thereafter as the matter may be heard, in Department 54 in the Sacramento County Superior Court 24 located at 800 9th Street, Sacramento, California, Defendant RICHARD KIRK RUYBALID, 25 individually, and dba CA CONSTRUCTION'S ("CA CONSTRUCTION") will move this Court for an order striking the following portions of Plaintiffs RODNEY and FLORENTINE ABBOTT'S ("PLAINTIFFS") Unverified First Amended Complaint: NIC341/840579-1 DEFENDANT CA CONSTRUCTION'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF o PLAINTIFFS' 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 7031 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 21 34. Page 11:11-17 "Plaintiffs have been damaged in the sum of at least $53,206.88, as the sums they paid to 22 Ruybalid, plus interest thereon at the legal rate of 10% per annum. Plaintiffs are also entitled to 23 a $500 penalty and attorney fees pursuant to Business & Professions Code section 7160. 24 Because said Defendant was acting as a 25 contractor within the meaning of Business & Professions Code section 7026 without a valid 26 contractor's license as required by section 7028, Plaintiffs are entitled to treble damages and 27 attorney fees pursuant to Code of Civil Procedure section 1029.8." 28 NIC341/840579-1 2 DEFENDANT CA CONSTRUCTION'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS' 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 8 The motion to strike shall be made on the grounds that the First Amended Complaint 9 contains improper matter as PLAINTIFFS do not have standing to pursue claims related to the 10 alleged violations of Business and Professions code sections. Also, these paragraphs contain 11 legal conclusions unsupported by facts plead with the specificity required for causes of action 12 sounding in fraud. This motion is further made on the grounds that the above-referenced 13 paragraphs contains terms, phrases, and prayers that are unsupported, conclusory, irrelevant and 14 improper and should be stricken from the First Amended Complaint. This motion is brought 15 pursuant to California Code of Civil Procedure §§435 through 437. 16 This motion to strike shall be based on this notice of motion to strike, the attached 17 memorandum of points and authorities, the attached Request for Judicial Notice, the attached 18 declaration of Gregory K. Federico, such other and further evidence as exists in the files of this 19 matter as maintained by the Court, and upon such further oral and documentary evidence as may 20 be introduced at the time of the hearing on this motion to strike and upon such items of which the 21 Court may take judicial notice. 22 Pursuant to Local Rule 3.04, the court will make a tentative ruling on the merits of this 23 matter by 2:00 p.m., the court day before the hearing. You may access and download the court's 24 ruling from the court's website at http://www.saccourt.com. If you do not have online access, 25 you may obtain the tentative ruling over the telephone by calling (916) 874-8142 and a deputy 26 clerk will read the ruling to you. If you wish to request oral argument, you must contact the 27 courtroom clerk at (916) 874-7858 (Department 53) or (916) 874-7848 (Department 54) and the 28 NIC341/840579-1 3 DEFENDANT CA CONSTRUCTION'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT 1 opposing party before 4:00 p.m. the court day before the hearing. If you do not call the court and 2 the opposing party by 4:00 p.m. on the court day before the hearing, no hearing will be held. 3 Dated: August