Preview
1 STEPHANIE J. FINELLI, SBN 173462
Law Office of Stephanie J. Finelli
2 1007-7th Street, Suite 500
Sacramento, CA 95814
3 tel 916-443-2144
fax 916-443-1511
4
Attorney for Plaintiffs,
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FLORENTINE and RODNEY ABBOTT
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7
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF SACRAMENTO
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FLORENTINE AND RODNEY ABBOTT, CaseNo.: 07AS04450
II
Plaintiffs, OPPOSITION TO DEMURRER
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vs.
13 Date: October 29, 2010
RONALD BRITSCHGI, et. al., Time: 2:00 p.m.
14 Dept: 53
Defendants
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and related cross-actions
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I. INTRODUCTION
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R4Corp has been named as a defendant as a successor in interest to CA Construction, the
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entity which entered into a contract with Plaintiffs
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Plaintiffs request this Court take judicial notice of the concurrently filed Opposition to
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Motion to Quash, etc., including the Introduction and Legal Argument thereto. For purposes ol
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brevity and to avoid unnecessary redundancy, Plaintiffs simply incorporate that opposition herein
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by reference.
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Opposition to Demurrer - 1
1 II. LEGAL ARGUMENT
2 A. A Demurrer Is Limited to the Face of the Pleadings and Facts of Which This Court
May Take Judicial Notice and Must Be Denied if Plaintiff Has Stated a Cause of
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Action on any Legal Theory
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A demurrer may only challenge those defects on the face of the complaint or which are
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judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) No other extrinsic
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evidence—such as declarations or other documents—^may be considered. (Ion Equip Corp. v.
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Nelson (1980) 110 Cal.App.3d 868, 881.) Thus, the Declaration ofRichard Ruybalid in support
8 ofthe demurrer and any "facts" set forth therein should be stricken in their entirety.
9 It is error for a trial court to sustain a demurrer when the plaintiff has stated a cause oi
10 action under any possible legal theory. (Aubrv v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962,
11 966-967) Thus, if this Court concludes that Plaintiffs' amendment to substitute R4Corp for a
12 Doe Defendant is legally cognizable on any legal grounds, the demurrer must be overruled.
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B. Plaintiffs' Complaint Sufficiently Alleged Doe Defendants
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In their original complaint, Plaintiffs specifically alleged that the Doe Defendants 1
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through 20 were negligent and at fault and that they proximately cause Plaintiffs' damages as
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alleged therein. (See Exh B to Federico Declaration in support of Demurrer at p. 34-14.) This
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paragraph was incorporated by reference into every subsequent cause of action in the complaint
18 (See Id. atpp. 3:18-19, 5:22-23, 6:27-28, 8:9-10, 9:6-7.)
19 The allegations as to the responsibility of the Doe defendants is also alleged in the First
20 Amended Complaint. (See Exh C to Federic Decl. at p. 3:3-13.) These allegations are likewise
21 incorporated by reference into each cause ofaction therein. (Id. at pp. 3:17-18, 5:20-21, 7:3-4,
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8:3-4,9:18-19,10:22-23.)
The allegations likewise appear in the Second Amended Complaint. (Exh D to Federico
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Decl. at p. 33-13.) These allegations are likewise incorporated by reference into each cause ol
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action therein. (Id. at pp. 3-17-18, 5:19-20, 7:3-4, 7:27-28, 9:15-16, 10:18-19.)
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This is sufficient to constitute "charging allegations" against the Doe defendants. (See
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Winding Creek v. McGlashan (1996) 44 Cal.App.4th 933, 938, 941-942.) Therein, the Doe
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allegations were substantially similar to those in this case. (Winding Creek, supra at p. 938 )
28 The court held such was sufficient to allege causes ofaction against the Does:
Opposition to Demurrer - 2
1 [E]very single cause of action stated in that pleading incorporated by reference
plaintiffs' allegation that ". . . each of the fictitiously named Defendants is
2
responsible in some manner for the occurances [sic] herein alleged, and that
3 Plaintiffs' damages as herein alleged were proximately caused by those
Defendants." Also incorporated in each cause of action was the allegation that"..
4 . each Defendant acted as agent for their co-Defendants and were acting in that
capacity at all times herein mentioned, or were in the employment of said other
5
Defendants acting within the course and scope of their employment."
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7 (Id-at pp. 941-942.)
8 Moreover, here, Plaintiffs' Prayer for Relief states, "Plaintiffs pray judgment against
9 Defendants, and each ofthem, as follows." (Exh D to Federico Decl. at p. 14.1-2.) This is also
10 sufficient as a charging allegation. (Winding Creek, supra at p. 942.)
11 Defendants' other citations are inapposite. In Fireman's Fund v. Sparks (2004) 114
12 Cal.App.4th 1135, 1140-1141, the amended complaints contamed no Doe allegations. And in
13 Bemson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, defendant argued that the piaintiff
14 simply filed his complaint too late, and should have filed to name only "Does" once he was
15 aware of the defamatory writing, even though he was imaware of the perpetrator. Notably, the
16 Supreme Court reversed the sustaining ofthe demvirrer on this ground. (Id. at p. 938.) That case
17 is not on point or even relevant.
18 Each of the three complaints properly alleges charging allegations as against Doe
19 defendants. The amendment is proper. The demurrer should be overruled.
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21 C. There Is no Uncertainty
22 As noted above, an amendment to include a named defendant for a Doe is proper where,
23 as here, charging allegations as against the Does exist. Defendants complain that they are unable
24 to determine which allegations are against R4Corp. As noted above and in opposition to
25 Defendants' Motion to Quash, R4 Corp has been named as the successor in interest to CA
26 Corporation Defendants cite to no law permitting an amendment to name a defendant as a
27 "Doe" defendant be sustained simply because the complaint contains several different causes of
28 action and certain named defendants are named in each one.
Opposition to Demurrer - 3
1 Nevertheless, if this Court determines that the amendment is uncertain, leave to amend
2 should be granted to allow Plaintiffs to more clearly state that R4Corp is the successor to CA
3 Construction.
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5 D. If the Demurrer Is Sustained, It Should Be With Leave to Amend
6 If this Court sustains R4Corp's demurrer, it should grant Plaintiff leave to amend the
7 complaint. (See Quelimane Co v. Stewart Title Guarantv Co. (1998) 19 Cal.4th 26, 39.) It
8 would be error to sustain any such demurrer without granting leave to amend. (Ibid.)
9 R4Corp contends that if under substantive law, no liability exits, a demurrer is proper and
10 leave to amend may be denied. However, as noted above and in Plaintiffs' Opposition to Motion
11 to Quash, etc., liability certainly exists under Code ofCivil Procedure section 1908, as R4Corp is
12 a successor in interest to CA Construction. Thus, even if the complaint as pled is procedurally
13 defective, leave to amend should be granted to allow Plaintiffs to correct it
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15 III. CONCLUSION
16 The demurrer should be overmled in its entirety.
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Dated October 18, 2010
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Stephanie J. Finelli,
20 Attomey for Plaintiffs and Cross-defendants
Florentine and Rodney Abbott
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Opposition to Demurrer - 4
FROOF OF SERVICE
CASE NAME- Abbott v. Britschgi
CASE NUMBER: Sacramento County Superior Court 07AS04450
I declare that:
I am a citizen ofthe United States and a resident ofthe County of Sacramento. I am,
and at all times mentioned herein was, an active member of the State Bar of Califomia and
not a party to the above-entitied cause. My business address is 1007 Seventh Sfreet, Suite
500, Sacramento, Califomia 95814.
On October 18, 2010, pursuantto CCP §1013A(2), I served tiie following-
OPPOSITION TO DEMURRER
BY FAX AND BY MAIL: by faxing and mailing a copy of said document to the following:
Gregory Federico
Archer Norris
655 University Ave., Suite 225
Sacramento, CA 95825
fax 916-646-5696
BY MAIL: by depositing a copy ofsaid document in the United States mail in Sacramento,
Califomia, in a sealed envelope, with postage fully prepaid, addressed as follows:
Richard Sopp
Maloney, Wheatley, Sopp & Brooks
1004 Moon River Rock Drive, Suite 245
Folsom, CA 95630
Mark Smith
8549 Willow Valley Place
Granite Bay, CA 95746
I declare under penalty of perjury under the laws of the State of Califomia the
foregoing is tme and correct.
DATED: October 18, 2010
Stephanie J. Finelli
Preview
1 STEPHANIE J. FINELLI, SBN 173462 Law Office of Stephanie J. Finelli 2 1007-7th Street, Suite 500 Sacramento, CA 95814 3 tel 916-443-2144 fax 916-443-1511 4 Attorney for Plaintiffs, 5 FLORENTINE and RODNEY ABBOTT 6 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SACRAMENTO 9 10 FLORENTINE AND RODNEY ABBOTT, CaseNo.: 07AS04450 II Plaintiffs, OPPOSITION TO DEMURRER 12 vs. 13 Date: October 29, 2010 RONALD BRITSCHGI, et. al., Time: 2:00 p.m. 14 Dept: 53 Defendants 15 16 and related cross-actions 17 18 I. INTRODUCTION 19 R4Corp has been named as a defendant as a successor in interest to CA Construction, the 20 entity which entered into a contract with Plaintiffs 21 Plaintiffs request this Court take judicial notice of the concurrently filed Opposition to 22 Motion to Quash, etc., including the Introduction and Legal Argument thereto. For purposes ol 23 brevity and to avoid unnecessary redundancy, Plaintiffs simply incorporate that opposition herein 24 by reference. 25 26 27 28 Opposition to Demurrer - 1 1 II. LEGAL ARGUMENT 2 A. A Demurrer Is Limited to the Face of the Pleadings and Facts of Which This Court May Take Judicial Notice and Must Be Denied if Plaintiff Has Stated a Cause of 3 Action on any Legal Theory 4 A demurrer may only challenge those defects on the face of the complaint or which are 5 judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) No other extrinsic 6 evidence—such as declarations or other documents—^may be considered. (Ion Equip Corp. v. 7 Nelson (1980) 110 Cal.App.3d 868, 881.) Thus, the Declaration ofRichard Ruybalid in support 8 ofthe demurrer and any "facts" set forth therein should be stricken in their entirety. 9 It is error for a trial court to sustain a demurrer when the plaintiff has stated a cause oi 10 action under any possible legal theory. (Aubrv v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 11 966-967) Thus, if this Court concludes that Plaintiffs' amendment to substitute R4Corp for a 12 Doe Defendant is legally cognizable on any legal grounds, the demurrer must be overruled. 13 B. Plaintiffs' Complaint Sufficiently Alleged Doe Defendants 14 In their original complaint, Plaintiffs specifically alleged that the Doe Defendants 1 15 through 20 were negligent and at fault and that they proximately cause Plaintiffs' damages as 16 alleged therein. (See Exh B to Federico Declaration in support of Demurrer at p. 34-14.) This 17 paragraph was incorporated by reference into every subsequent cause of action in the complaint 18 (See Id. atpp. 3:18-19, 5:22-23, 6:27-28, 8:9-10, 9:6-7.) 19 The allegations as to the responsibility of the Doe defendants is also alleged in the First 20 Amended Complaint. (See Exh C to Federic Decl. at p. 3:3-13.) These allegations are likewise 21 incorporated by reference into each cause ofaction therein. (Id. at pp. 3:17-18, 5:20-21, 7:3-4, 22 8:3-4,9:18-19,10:22-23.) The allegations likewise appear in the Second Amended Complaint. (Exh D to Federico 23 Decl. at p. 33-13.) These allegations are likewise incorporated by reference into each cause ol 24 action therein. (Id. at pp. 3-17-18, 5:19-20, 7:3-4, 7:27-28, 9:15-16, 10:18-19.) 25 This is sufficient to constitute "charging allegations" against the Doe defendants. (See 26 Winding Creek v. McGlashan (1996) 44 Cal.App.4th 933, 938, 941-942.) Therein, the Doe 27 allegations were substantially similar to those in this case. (Winding Creek, supra at p. 938 ) 28 The court held such was sufficient to allege causes ofaction against the Does: Opposition to Demurrer - 2 1 [E]very single cause of action stated in that pleading incorporated by reference plaintiffs' allegation that ". . . each of the fictitiously named Defendants is 2 responsible in some manner for the occurances [sic] herein alleged, and that 3 Plaintiffs' damages as herein alleged were proximately caused by those Defendants." Also incorporated in each cause of action was the allegation that".. 4 . each Defendant acted as agent for their co-Defendants and were acting in that capacity at all times herein mentioned, or were in the employment of said other 5 Defendants acting within the course and scope of their employment." 6 7 (Id-at pp. 941-942.) 8 Moreover, here, Plaintiffs' Prayer for Relief states, "Plaintiffs pray judgment against 9 Defendants, and each ofthem, as follows." (Exh D to Federico Decl. at p. 14.1-2.) This is also 10 sufficient as a charging allegation. (Winding Creek, supra at p. 942.) 11 Defendants' other citations are inapposite. In Fireman's Fund v. Sparks (2004) 114 12 Cal.App.4th 1135, 1140-1141, the amended complaints contamed no Doe allegations. And in 13 Bemson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, defendant argued that the piaintiff 14 simply filed his complaint too late, and should have filed to name only "Does" once he was 15 aware of the defamatory writing, even though he was imaware of the perpetrator. Notably, the 16 Supreme Court reversed the sustaining ofthe demvirrer on this ground. (Id. at p. 938.) That case 17 is not on point or even relevant. 18 Each of the three complaints properly alleges charging allegations as against Doe 19 defendants. The amendment is proper. The demurrer should be overruled. 20 21 C. There Is no Uncertainty 22 As noted above, an amendment to include a named defendant for a Doe is proper where, 23 as here, charging allegations as against the Does exist. Defendants complain that they are unable 24 to determine which allegations are against R4Corp. As noted above and in opposition to 25 Defendants' Motion to Quash, R4 Corp has been named as the successor in interest to CA 26 Corporation Defendants cite to no law permitting an amendment to name a defendant as a 27 "Doe" defendant be sustained simply because the complaint contains several different causes of 28 action and certain named defendants are named in each one. Opposition to Demurrer - 3 1 Nevertheless, if this Court determines that the amendment is uncertain, leave to amend 2 should be granted to allow Plaintiffs to more clearly state that R4Corp is the successor to CA 3 Construction. 4 5 D. If the Demurrer Is Sustained, It Should Be With Leave to Amend 6 If this Court sustains R4Corp's demurrer, it should grant Plaintiff leave to amend the 7 complaint. (See Quelimane Co v. Stewart Title Guarantv Co. (1998) 19 Cal.4th 26, 39.) It 8 would be error to sustain any such demurrer without granting leave to amend. (Ibid.) 9 R4Corp contends that if under substantive law, no liability exits, a demurrer is proper and 10 leave to amend may be denied. However, as noted above and in Plaintiffs' Opposition to Motion 11 to Quash, etc., liability certainly exists under Code ofCivil Procedure section 1908, as R4Corp is 12 a successor in interest to CA Construction. Thus, even if the complaint as pled is procedurally 13 defective, leave to amend should be granted to allow Plaintiffs to correct it 14 15 III. CONCLUSION 16 The demurrer should be overmled in its entirety. 17 18 Dated October 18, 2010 19 Stephanie J. Finelli, 20 Attomey for Plaintiffs and Cross-defendants Florentine and Rodney Abbott 21 22 23 24 25 26 27 28 Opposition to Demurrer - 4 FROOF OF SERVICE CASE NAME- Abbott v. Britschgi CASE NUMBER: Sacramento County Superior Court 07AS04450 I declare that: I am a citizen ofthe United States and a resident ofthe County of Sacramento. I am, and at all times mentioned herein was, an active member of the State Bar of Califomia and not a party to the above-entitied cause. My business address is 1007 Seventh Sfreet, Suite 500, Sacramento, Califomia 95814. On October 18, 2010, pursuantto CCP §1013A(2), I served tiie following- OPPOSITION TO DEMURRER BY FAX AND BY MAIL: by faxing and mailing a copy of said document to the following: Gregory Federico Archer Norris 655 University Ave., Suite 225 Sacramento, CA 95825 fax 916-646-5696 BY MAIL: by depositing a copy ofsaid document in the United States mail in Sacramento, Califomia, in a sealed envelope, with postage fully prepaid, addressed as follows: Richard Sopp Maloney, Wheatley, Sopp & Brooks 1004 Moon River Rock Drive, Suite 245 Folsom, CA 95630 Mark Smith 8549 Willow Valley Place Granite Bay, CA 95746 I declare under penalty of perjury under the laws of the State of Califomia the foregoing is tme and correct. DATED: October 18, 2010 Stephanie J. Finelli