Preview
1 Todd A. Jones (BarNo. 198024)
tiones(§archemorris.com
2 Gregory K. Federico (BarNo. 242184)
gfederico(@archemorris.com LED/ENOORSED
3 ARCHERNORRIS
A Professional Law Corporation
4 655 University Avenue, Suite 225 JUN 2 1 2010
Sacramento, Califomia 95825-6747
5 Telephone: 916.646.2480 A WOO
Facsimile: 916.646.5696 By:.
6
Attomeys for Defendant
7 R4C0RP, A Cahfomia Corporation
8
SUPERIOR COURT OF CALIFORNIA
9
COUNTY OF SACRAMENTO
10
11
RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
12 ABBOTT,
DECLARATION OF GREGORY K.
13 Plaintiffs, FEDERICO IN SUPPORT OF DEMURRER
OFR4CORP,INC.
14
Date: October 29,2010
15 RONALD PAUL BRITSCHGI, et al.. Time: 2:00 p.m.
Dept: 53
16 Defendants.
Action Filed: September 24,2007
17
AND RELATED CROSS-ACTIONS.
18
19
I, Gregory K. Federico, hereby declare as follows:
20
1. I am an attoraey duly licensed to practice before all the Courts in the State of
21
Califomia and I am an associate with Archer Norris, attomeys of record for Defendant R4C0RP,
22
INC. I have personal knowledge ofthe matters set forth herein except where stated on
23
infoimation and belief Ifcalled upon as a witness m this matter, I could and would competent]
24 &!-<•
testify thereto.
25
2. Attached hereto as Exhibit-A to this declaration is a tme and correct copy ofthe
26
Business Entity Detail as downloaded by me from the web site for the Califorma Secretary of
ESSifS^
27
State pertaining to my client, R4C0RP, INC. and its organization and corporate standing.
28
NIC549/974433-1
DECLARATION OF GREGORY K. FEDERICO IN SUPPORT OF DEMURRER
1 3. Attached hereto as Exhibit-B is a tme and correct copy ofthe original Complaint
2 as filed by the plaintiffs in this matter.
3 4. Attached hereto as Exhibit-C is a tme and correct copy ofthe First Amended
4 Complaint as filed by the plaintiffs in this matter.
5
5. Attached hereto as Exhibit-D is a tme and correct copy ofthe Second Amended
6
Complaint as filed by the plaintiffs in this matter
7
6. Attached hereto as Exhibit-E is a tme and correct copy ofthe Amendment to
8
Second Amended Complaint as filed by the plaintiffs in this matter.
9
10
11 I declare under penalty ofperjury under the laws ofthe State of Califomia that the
12 foregoing is tme and correct. Executed this ^ day of June, 2010 at Sacramento, Califomia.
13
14 GREGORY K. FEDERICO
15
16
17
18
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NIC549/974433-1
DECLARATION OF GREGORY K FEDERICO IN SUPPORT OF DEMURRER
Business Search - Business Entities - Business Programs Page 1 of 1
.Business Entities (BE)
Business Entity Detail
' Online Services
- Business Searcli
- Disclosure Search
- E-File Scatements Data IS updated weekly and is current as of Friday, June 18, 2010. It is
- Mail Processing Times not a complete or certified record of the entity.
Main Page
Service Options Entity Name: R4C0RP, INC.
Name Availability Entity Number: C2859899
Forms, Samples & Fees
Date Filed: 03/21/2006
1 Annual/Biennial Stateme
Flling Tips Status: ACTIVE
Information Requests Jurisdiction: CALIFORNIA
(certificates, copies &
status reports) Entity Address: 9332 FAIR OAKS BLVD
i Service of Process
Entity City, State, Zip: FAIR OAKS CA 95628
FAQs
1 Contact I n f o r m a t i o n A g e n t f o r Service of Process: RICHARD K RUYBALID
! Resources Agent Address: 9332 FAIR OAKS BLVD
\ - Business Resources
- Tax I n f o r m a t i o n Agent City, State, Zip: FAIR OAKS CA 95628
1 - Starting A Business
( - Xriternational Business
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i {misleading business
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Copynght © 2010 California Secretary of State
EXHIBIT. A
http://kepler.sos.ca.gov/cbs.aspx 6/21/2010
LOREY MOORE 111002
10/23/2007 15:43 FAX 18887788466
mon j.i uct iC(37 01:3S'.06 PM PDT P^ge 3 o f 32
I
suM-ino
SUMMONS iVHaoimrmuOHir
(CITACION JUDICIAL)
MOTICE TO DEFENDANTi
(AViSOALDSUANOADO): '
RONALD PAUL BRITSCHQI, individually and doing business as BRITSCHGI
CONSTRUCTION, RICHARD KiBK RUYBALID, indivicJuaHy and doing
business as CA CONSTRUCTION, SURETY COMPANY OF THE PACIFIC
WESTERN SURETY COMPAMY, and DOES 1 through 20, inclusive
YOU A R E BEING SUeD B Y PLAIMTIFF:
(LO E S T A I S M A N D A N P O E L DSlifANDANrS):
RODNEY ABBOTT and FLORENTINE ABBOTT
Tou l » v t 30 CAliSMDAR OAYS attef I h l * M m m o M and I B Q I I papan « M • • n w d t,n yonaa. You O M Una t h a i * court faima and mera
inforaiaison at ihs CaUfomia Courf* Qnl(no $«1(-Halp Cantor (wmr.coiirtlnftixa jiovMelfhelp), your eoq?tlytawWiraiy, or (he tourthouto
naartwl you, l f y o u cannot pay ths flllng fao, 3 t k S i i court olorit for ataowaiver form, l f y o u do not nioyeurraipono* on Umo, you may
lo«» the caa« hy default andyour twosea. monay, and propnty may ba takan without (nrthsr wanting frcm thecourt.
Thera sm othgr tagal rtqulrontents. Ybu may wont to eafi en attomsy right a w i y . If you dO not kflow an Bttomay, you ntly want t o t a l l an
Attsitiay rsitrrat telt.orji), art oi Contra d ' A y o d t da laa Cortaa d t Callfwni*,
tMiim*.aaufSnfo.oa.aoWtBlihatp/ospanoU) a pontindeao sn eeottTio cOn la carte o «/ e^eglo da abogadaa loeaSes,
The name snd address of the COurt is: cusEHUMsai! 07AS044SQ
( E l nombre y direccidn ds la oorto ^ y
Sacramento Cotmty Supenor Court
720 Ninm Street
Sacramento, CA S5314
The nams, ad<)rsss. and talephone number of ^aintiffs attomay, or f^alntirf wHheut an attomay, Is:
( B nombuB, la dliBcciin y ol rtHmdn) de tolifona del abogado tfe/ demandBnto, o del dsmandsnte qu^no tiona abogado, es):
John A. erffion, SBN OSS490 Phone: (915) 781 -SOSO
Wright & Bntton, 3741 Douglaa Boulevard, Suite 380, RowviUe, CA 95661 « BROWN
PATE; OCT" ^ 2 m Ctsric, by . , Oeputy
(Secreterio) , (Adlunio)
(Por proof af seivtoe ofthis summons, use Proof Of SBIVICO Of Summons (farm P0S.C10f.)
(Pdr9 prueba do ertUaga de esta citatidn use etfomuiarto Proof of Service of Summons. (POS-010}).
NOncE TO m e PERSPN SERVED: You aro wrved r r ^ U r k ¥ € ^ < 1 ^ f \ C H i ^ i / t ^ ^ - ^ i t .
V ^ ] as an Individual defendanL ^ - . j C ^ l i V * «-' m ? ' ^ s /
QS the person:sued under the llotWous name of fspeol^): ^ , „ { ^ >,-,,, ^ *-/
3. d D on behalf of fspecW
under L D CCP4lB10{«rpo«hDn) J ^ CCP 416.S0(minor)
C D CCP 416.20 (defurwi corporation) | I CCP 416.70 (conser/ateo)
1 I CCP 416.40 (aseociation or partnenshfp) [ [ CCP 416.90 (authonzed person)
L . 1 a\het (sp'tit^tf^):
4. C H h y personal delivary on (tfsfej:
UvM^fWA^MMfA^tMlH >
ftn»teRi9it coutetoeiMj'FQaHiA, IMIUNTYOF S A C R A I M E N T O
sntEETAQDAsss: 7 2 0 Ninth Straet
MULMo/toDXEss: 7 2 0 Nirltfi S t r o o t
CTrrANonpcore: SaorBmentO, C A 95814-
CASE NAMfi Rodney Abbott. 8t al. v. Rpnald Paul Brltechgl, otaJ-
CWIL CASE COVER SHEET • Complex Caso Oeslgnaflon
C Z ] Unlimited • Umited
(Amount (Amount • Countor • Jolftdar
demanded demanded Is RIed withfirstappearance by defendant
exceeds $25,000) $25,000 or less) (CA Rules of Coun. KJIB 3.4Q2)
;_ , /fema -f-g below muit be comple^d {nto tnsfructlono an yaeye i )
Ched< a n « box below fer the case type that Oest describee this oase;
AutoTp/t Cgnimct Provfsionalty Comptox CMI UtigaHon
B Aulo (22)
UnlRMiwJ motorist (fie)
Othar Pi/POWD (Parsonai ti^ury/Proparty
JZJ
ZH
^ 3
firaaehofeontrast/wanniy^OB)
Rule 3.740 coIlactKMis (09)
Other collections (00)
(Cal. Rules of Court, rulaa 3.>4ao-3,403)
[ Z I Anfitni8(^radora([irfa(lan(03]
m ConelnK&Dn dsfect (10>
Dama^a/Wron^l Qoalh) Tort
._J bieurance eovBraae (IB) n MtW8tDrt(40)
" " " ^ AStW«tOS(04)
Z J Other BOiilracJ (37) CZ] SecurlBBBlRfgatlontaa)
ProdiKit Shifty {24> RoBlCropafty I Envlronraenlal/raxic lon (30) •
juredkal malprgctica (45} I J
Srlnarrfdemalh/lnvwao L ^ inauranca eovare&a cfarrtia ariiJnQ tram the
Othar PUFWVO (23) condemnBHon (14) above Itslfld pmtfgjflnally complex case
Non-Pl/PtwWD (Other)Tort I I ...v..a,-.
^-—i Wranafiii eriodan
» T . — . . if33)
—> typ«itt(4l)
^ Bus)nBsatofl/unfalrbu6lnaOTpiaclica(07) u l ] 01hBrrealpit.peity(26) Enfarcamant Vt Judnmant
Z ] civi riBhIa (08) " - Patalnor
Unlawful - LZJ Enforcaittant ofjudgment (20)
^ Oefsmstlon (13) I — ] Commefdal (31) W)eecHaiMoua Ch«er of ^ u s e s of actjon (spoe/iy/-siK
Thiscase [ Z l is [ ^ is not a d a s s sction suit.
If thara are any known relaled oases, file end sanra a n o ^ o of related f us$ form 04^013.)
Date: S e p t o m b 6 ^ ^ 2 0 0 7
'"^^ John A. Britton
(rVPEOR PRINT WMg;
NOTICE ,^
• Plaintiff muat file this cover sheet vwth tha first paper filed in the action or proceeding (except small cleima cases or ce9e8.ffifid
under the Probate Code, Family Code, or Welfare and Institutions CDd«). (Cal. Rules of Court, rule 3.220.) Failure to file may result
irt u n c t i o n s .
• File this coversheet In addition to any cover oheet rec^lred by local court rule.
' If this case fs cMnplax under rule 3 4O0 et seq. of the CHWorriB Rutes of Court, y o u must serve a copy ofthis coversheet on e l l
' otner peitias to the action or proceeding.
• Unless this b a collactlcns cass under rule 3.740 or a comptor case, thiscoudr sheet wllf ba used for statisitesi purposes onl/,
CIVJL C A S K C O V E R S H E E T C»l< i(iil»»2.«.a.lia,],M.iiiii t, >fxn\
inmugwit)Kkc».«ay
mny.aecew<{))v.com
Received 'Wm 0 ( \ . I'i. 9007 I'^Pis/s Wn i^f;(l(;
1 0 / 2 3 / 2 0 0 7 15:43 FAI 18887788466 LOREY MOORE 11004
from Attorneys A-id 916-648-lSiJ-S Mon IS Oct 2007 01:35:06 PM POT Page 5 o f 32
1
JAB:blQ WRIGHT & BRITTON
2 An Associatfon of Attorneys
JOHN A. BRITTON - CBA NO. 0S5490
3 HAROLD C. WRIGHT - CBA NO. 044400
3741 Douglas Boulevard, Suite 380
4 p;os9villd.CA95€61
Telephone: (916) 781-2050
S Facsimile: (916) 782-7560
5 Attorney for Pfaihtiffs
RODNEY ABBOTT and '
7 FLORENTINE ABBOTT
8 fN THE SUPERtOR COURT OF CAUFORNIA
9 IN AND FORTHE COUNTY OF SACRAMENTO
10
RODNEY ABBOTT and CAseNd)7AS0445'0
11 -aORENTINE ABBOTT
COMPLAINT FOR DAMAGES FOR
12 Piaintiffs. BREACH OF CONSTRUCTION
V5. CONTRACT, NEQLIOENCE, AND
13 FOR s u r r o N C O N T R A C T O R ' S
14 RONALD PAUL BRITSCHGI, LICENSE BOND
Individually and doing business as
15 I BRlTSCHGi CONSTRUCTION, (Unlimited Civii Cass)
RICHARD KIRK RUYBALID.
individually and doing businass ss
CA CONSTRUCTION. SURETY
17 COMPANY OF THE PACIFIC,
WESTERN SURETY COMPANY,
18 and DOES 1 through 20, Inclusive,
19 Defendants.
20
21 Plaintiif alleges:
22 GENERAL ALLEGATIONS
23 I.
24 At all ttmes herein mentioned, Plaintiffs ROONEY ABBOTT and FLORENTINE
25 ABBOTT were owners of that parcel of specific real property located in tlie County of
26 Sacramento. State of Caiifbmia. and more particularly described as 8601 Rolling Green
27 Way, Fair Oaks, California 95B28.
28
C O M P L ^ i ^ FOR DAMAGES FOR BREACH OP CONSTRUCTION C O N T R ^ f T
NEGLIGENCE, AND FOR SUIT ON CONTRACTORS' LICENSS BOND ' '
R e c e i v e d Time O c [ 15 2007 1:27»M No.5595
1 0 / 2 3 / 2 0 0 7 15:44 FAX 18887788486 LOREY KOORE iiioos
m Attorneys Aid 916-64S-1SS3 Mon IS Oct 2007 01:3$:06 PM PDT Page 6 of 32
1 iL
2 plaintiffs are informed and believe and upon such information and befief allege tiat
3 at sii times herein mentioned. Defendant RONALD PAUL BRITSCHGI, ts an Individual
4 doing biuiness undarthat firm name and style of BRITSCHGI CONSTRU(^TlON and, at
S all times herein mentioned, was and is doing business in the County ofSacramento, Sbte
6 of Caiifomia. Defendant RONALD PAUL BRITSCHGI was duly (Icensed by the
7 Contractor's License Board ofttie State of California to conduct-business as a contractor
8 within the State ofCalifornia and to engage in ths work hereinafter described.
9 III.
10 PlaintifFs are informed and believs and upon such information and belief allege tl^at
11 " at all times herein mentioned Dsfendant RIOIARD KIRK RUYBALID Is an ihdividual doing
12 business underthe firm name and style of CA CONSTRUCTION and at aii times herein
13 mentioned, did business in th© City of Fair Oaks, County of Sacramento. State of
14 California, Defendant RICHARD KIRK RUYBALDl was duly licerised by the Contractor's
15 License Board of the State of California to condtict business as a contractor within the
16 Stat© of Califomia and to engage-In the work hereinafter described.
17 IV.
18 Plaintiffs are informed and believe and upon sucb infbnnation and beUef allege that
19 at all times herein mentioned SURETY COMPANY OF THE PACIFIC was and is licensed
20 wittiin the State of California to issue contractor license bonds infavorof contractors in the
21 State of Califomia, and in this partloilar case, so issued a contractor's Bcense bond In
22 favor of Ifs insured RONALD PAUL BRITSCHGI, individually and doing business as
23 BRITSCHGI CONSTRUCTION.
24 V, .
25 Plaintiffe are informed and'believe and upon such information and belief allege that
26 at ali times herein mentioned WESTERN SURETY COMPANY was and is licensed within •
27 the State of California to issUe contractor license bonds In favor of contractors in the State
28 of Califomla, and In this particular case, so Issued a contractor's license bond in favor of
-2-
I CCmnjMUr FOR DAMAGES FOR BRfiACH OF CONSTRUCTION CONTRACT,
i• NEGLIGENCE, AND FOR SUH" ON CONTRACTORS' LICENSE BONO
Received ri'm* Oct. Ifj 5007 1 ITPM Mn WOR
10/23/2007 15:44 FAX 18887788466 LOKEY MOORE @006
-«/w/ v ^ . j j . u u riM r u i Page 7 of 32
1 its insured .RICHARD KIRK RUYBALDL Individually and doing business as CA
2 CONSTRUCTION.
3 VI.
4 Plaintiffs-are ignorant of the true names gnd capacities of the Defendants siied
5 herein as DOES 1 through 20, inclusive, and therefore sues these Defendants by such
6 fictitious nanfws. Plalntlffs will amend this Complaint tO'allege their true names and'
7 capacities when ascertained. Plaintiffe are Informed and believe that each of these
8 Defendants is an agent ar^d employee of each and every other Defendant named orto be
3 named In the above-entitled action, and each such DOE Defendant proximately caused
10 Plaintiffs damages as herein alleged while acting in such capacity. Plaitiffs are further
11 informed and believe, and upon such information and belief, allege that each ofthe DOE
12 Defendants ^vere somehow negligent and/or at fault with respect to the work done on
13 Plaintiffs real property as more specifically referred to herein and that said DOE
14 Defendants somehow proximately caused the damages of which Plaintifis complain.
IS FIRST CAUSE OF ACTION
16 (BrBach of Oral Contract Against Defendant, Ronald Paul Britsehigi}
17 " I .
18 Plaintiffe hereby reallege and incorporate herein by reference all ofthe allegations'
19 setforth in paragraphs 1-8 as setforth abova.
20
IL
21
On oraboutOctober 1,2005, Plaintiffs and Defendant RONALD PAUL BRITSCHGI
22
entered into an oral agreement in which said Defendant agreed to help tha Plaintiffs build - -
23
their pergonal residence which is located in Sacramento as more specifically described
24'
hereinabove. Said Defendant, as a general contractor, agreed to assist Plaintiffs in the
2S
constmction oftheir personal residence to the extent that said Defendant would assist,
26
guide, and direct Plaintiffs and other, contractois with respect to certain stages of
-27
constmction, namely, the location for placement ofthe house on the lot. grading ofthe iot
23
for purposes of construction, the pouring of' concrete, for the house end-garage for
-3- . - '
COMPLAINT FOR DAMAGES FOR BREACH OF CONSTRUCTION CONTRACT,
MBStlGENCE, AND FOR SUIT ON CONTRACTORS' LICENSE BOND
e c e i v e d T i m e ' O c t . I'i. 5 0 0 7 1-97PM Wn '^i^Q'^
10/23/2007 15:44 FAX 18887788466 LOKEY MOORE ©007
rrom Atxorneys Aid HHi--M»-ii^J Mon I S O c t 2 0 0 7 0 i t 3 S ; O 6 PM POT Paga » of 32
1 foundattonaL purposes, with emphasis on proper elevation of that foundation as that
2 foundation related to where the house ^nd garage would sit on ihe lot in relation to the
3 elevation of the street and pit>pcsed streets In front of the lot. as well as the framing ofthe
• 4 house in additional to misceillaneoua other duties. These miscellaneous other duties
S included the supervision ofthe work done by other contractors working on constmction of
6 the house. For these ssr^ces, Plaintiffs paid said Defendant the sum of appraramately
7 $13,668.00, the exect sum of whit;h will be shown according to proof at time of trial. Said
8
Defendant agreed to perform his duties so as to makesure thatthehouse was constructed
9
according to certain plans and specifications given to said Defendant by Plaintiffs at the
10 time ha agreed to work w^fh Plaintiffs as a general contractor assisting them In-the
" 11 conslruction of their persortal rasldenee. During the course of constnjctron, changes
12 needed to be made to the plans and specifications orl^'natiy preparsd for the c<»istnjction
13 of the family residence^ Said Defendant agreed to and did work with Plaintiffe and their
14 architect^designerwlth respect to modifyingithepfans and specifications. Said Defendant
IS fijrther agreed to use his care and skill as a general contractor with respect to not only the
16 work that he was doing personayy towards the construction of the residence, but also he
17 agreed to usa his Care and skill as a general contractor to suoervlse the work done by
18 other subcontractors and to assure that ail such work Was done in a good and workmanlike
19 fashion, and done according to standards of con8tru<^ion within the construction Industry,,
20 and according to certain plans and specifications. These oral agreements were entered
21 into by and between Plaintiffs and said.Defcn'dantin a series of oral discusstons which took
22 platje beginning on or about October 1,2005 and continuing through the rest ofOctober
23 2005.
24 IM.
25 Plaintiffs have perfbrmed all conditions, covenants and promises underthe contract
2G with said Defendant tobe performed on their part to be performed, including, but not
27 limited to, the payment of $13,658.00 to said Defendant
28 / / /
-4-
COMfPl^MT FOR DAMAGES FOR BREACH OF CONSTRUCTION CONTRACT,
NEGLIGENCE. AND FOR SUfT ON CONTRjWXtORS' LICENSE BONO
R e c e i v e d Time Oct, 15. 2007 1 •27?IVi 1^0, 5 5 9 5
10/23/2007 15:44 FAX 18887788488 LOREY MOORE il008
vAw j . * . \ i \ j rvi rw I Haga B o t 32
IV.
2 On or atiout September 15. 2006, Plalntlffs discovered that said Defendant
3 breached the contract with them by failing tb. properly supervise the work performed by
4 other subcontractors and to assure that the work was done adequately, diligently, and in
5 a good and workmanlike fashion and acconjing to certain plans and spaclficatlqns.
e V.
7 As a result ofsaid Defendant breaching the contract. Plaintiffs have suffered certain
8 damages in that Plaintiffs' house and garage were defectively constructed and not
9 according to plans and specifications. Thosa damages include the fed that neither tha
10 house nor the garage were built at certain elevations to which they should have been
11 constructed. The incorect placing ofthe house and garage on the lot at certain levelswas
12 not according to plans and specificattons thus, resulting in certain darriage to the house
13 and garage and surrounding property, namely, drainage damage, the necessity of using
14 stairs to the house and stairs to the garage, the inability to use the garage fior the purposes
15 for which It was intended, and damages to retaining walls as well as incLirring other
15 expenses including, but not limited to, cost to repair, cost to reconstmct, and otiier
17 damages. tf\e total amountof damages which is unknown at this time, tha exact sum of
18 which will be shown according to proof at tinfte oftrial.
19 SECOND CAUSE OF ACTION
20 (Negligence as to Defendant, Ronald Paul Brltschgl)
' 21 I.
22 Plaintiffs hereby reallege and incorporate herein by referencfe ali ofthe allegations 4
23 set forth in the First Cause of Action.,
24 H.
25 Said Defendant had a duty to perform his construction sen/Ices and other sen/ices
26 in a good and workmanlike manner and in accordance with accepted standards in the
27 oonstruction industry and in accordance wifh certain plans and specifications as given to
28 him by Plaintiffis.
-5- .
COJii(P>iAlNIT FOR DAMAGES FOR BREACH OF CONSTRUCTION CONTRACT,
KEGUOENCE, AND FOR SUIT ON CONTRACTORS' LICENSE BOND
ceived Time O c t , I'i. 90O7 ! - 0 7 P M Mrt RI^Qi;.
10/23/2007 15:44 FAX 18887788468 LOREY HOORE iiooo
• .<.nii n . i . i , t j i n a y a Hia 3i.D--b^ii-j.30-J pnon ± i u c t /!D07 0 1 : 3 5 : 0 6 PM PDT Page 10 of 32
I
IH.
. 2 In perfonttlng the sen/ices as referenced hereinabove, sakl Defendant acted
3 negligently in the performance of those services. The negligence manifested Itself in
4 certain ways, including, but not limited to, the fact that the house and thegarage were not
5 constructed in a good and workmanlike-teshion nor seconding to accepted standards in the
6 construction industry. Further, the house and garage were not constmcted according to
7 certain plans and epeoifications or in the manner as requited by Plaintiffs. Said
8 Defendant waa further negligent In his duties in not property supervising the work done by
9 other contractors, which supervision be promised Plaintrffs he would pertonn.
10 IV. .
11 As a result of tha negligence of said Defendant, Plaintiffs have suffered certain
12 damages as more specifically referred to hereinabove. Those damages included the fact
13 fhatneither the house nor the garage were built according to plans and specifications or
14 at certain elevations to which they should have been constructed. This negligent
15 construction has caused numerous damages. Including the fact that Raintfffs cannot use
16 the garage for all of its Intended purposes. Further, the Inconect placing ofthe house and
17 garage oii the lot at certain levels not according to plans and specifications or according
18 to the desires ofthe Plaintiffs, has caused drainage damage, the necessity of using stairs
19 to the house and stairs to the garage, and damagas to retaining walls as well as incumng
20 other expenses including, but not limited to, cost to repair, cost to reconstruct, and other
21 daniages, the total amount of damages which is unknown at ttiis time, the exact amount
22 of which, however, wiil be shown according to proof at fime of trial.
23 THIRD CAUSE OF ACTION
24 (Braai^h of Contract Against Defendant.
Richard Kirk Ruybaldi dba CA Construction)
25
26 I.
27 Plaintiffs hereby reallege and mcorporate herein by referenc© all ofthe atlegations
28 of the First Cause of Action.
-6-
CORrSPLAlNT FOR DAMAGES FOR BREACH OF CONSTRUCTION CONTRACT,
NEGLIGENCE, AND FOR SUIT ON CONTRACTORS' LICENSE BOND
;!*ciive(! Tlpe Oci, 15. 9007 l ' ? 7 ' y J^^ fi'?')'; ' ' •
10/23/2007 15:43 FAX 18887788486 LOREY MOORE ISlOlO
" ~ " ••' ^^\. C W I m,. . i j . i n f rm r u t f'age i x ot 32
}.
1 , • , " •
2 On or about October 25,2005, Plaintiffs and said Defendant entered Into a written
3 construction contract, a copy of which is attached hweto marked as Exhibit A and
4 incorporated herein by reference.
5 Iti.
6 Said Defendant was given a copy ofthe original plans and specifications forthe
7 construction of the residence. He was so given those plans and specifications for the
3 purpose of specifically performing his part of the contract to be performed, namely,
9 excavation work, form work, and the placing of foundation concrete forthe residence and
10 garage as per certain plans and specincations - both original plans and specifications and
• 11 then modlfted plans and specifications for Which said Defendant participated in the
12 modificalion of said plana ariKJ specificafions.
13 IV.
14 Said Defendant breached the contract in question .by failing to properiy place the
15 house and garage on such a location on the lot as called for pursuant to certain plans and
16 specifications and as requested by Plaintiffs. Said contract was further breached in that
17 said Defendant failed to property lay, pour and place the concrete of the house and the
18 garage as called for in the plan's and specifications and as called for according to good and
19 workmanlike standards within the construction Industry, The foundation ofthe house ahd
20 garage were constmcted as such so as to limit PlaintifTs use and enjoyment of both the
21 house and the garage because said Defendant failed td perform his sen/Ices underthe
22 contract b/following the plans and specificattons as given to him and tOfoltowthe requests
23 of him madefayPlaintiffs.
24 V.
2S At all times herein menttoned, unless otherwise excused, Plaintiffs have performed I
26 their duties under the contract to ba performed.
27 V4.
28 As a result ofsaid Defendant's breach ofthe contract, Plaintiffs have been damaged
-7- ' . -
COMFLAlfJT FCWl Di 9ftft7 1 ')7P)U|-WA CKQK
f
1 0 / 2 3 / 2 0 0 7 1 5 : 4 5 FAX 18887788466 LOREY MOORE 0013
rfX-*n Attorneys Aid 916-S48-1S:83 Man IS Oct 2007 01:35:06 PM PDT Page 14 of 32
1
1 coftdlttoned upon full compliance by said Defendant contractor with all the provisions of
2 DWsion 3, Chapter 9 ot the Business & Professions Code of the State of California,, and
3 inuringto the benefit ofsaid person damaged as a nssult ofthe violations ofsaid Chapter
4 by said Defendant contractor.'
5 VI.
6 That a connection with the pert'ormance of the construction contract refen-ed to
? hereinabove, said Defendant contractor failed to comply with the pmvlsi'ons of DN'feion 3,
8 Chapter 9, the Business & Professions Code ofthe State of Californis, and lh particular,,
9 failed to comply with those pmvlsions of Business & Professions Code Section 7109, In
10 that said Defendant contractor intentionaUy departed fh^m accepted trade $tandan:ls,
11 departed from and disregarded from certain plans and apeciflcatfons; that said Defendant
12 contractor failed to comply with Business'& Professions Code Section 7113 In that said
13 Defendant contractor was, and at all times herein mentioned, in breach of contract with
14 Plaintiffs. Plaintiffs have been damaged as more specifically referred to hereinabove in a
15 sum not yet determined, the exact sum of which wili be shown according to proof at time
16 oftriaL
17 SIXTH CAUSE OF ACTION
18 (Suit on Contractor's License Bond Against Western Sure^ Comf^ny)
19 L
20 Plaintiffs hereby reallege and incorporate herein by reference all ofthe allegations
21 set forth in the prior causes of action.
22 li.
23 That said.Defendant. RICHARD KIRK RUYBALID, Individually and doing business
24 asCA CONSTRUCTION, was at alt times in this Complaint mentioned, now Is, a contractor
25 licensed under the laws of the State Of California and holds himself out aa a licensed
26 contractor with Catifornia contractor's license number 536735.
27 IIL
28 ThatDefendant. WESTERN SURETY COMPANY, a company licensed in California
-10-
a m P U M T FOR DAMAGES FOR BRgACH OF CONSTRUCTION CONTRACT,
-NEGLIGENCE, AND FOR SUIT ON CONTRACTORS' LICENSE BOND
f i e c e . y e d Time O c t . IS, 2DD7 J.27PM"No, 5595
10/23/2007 15:43 FAX 18887788488 LOREY MOORE ©014
rom Attomeys Aid 91fi™64S-1583 Mon IS Oct 2007 01:35:06 PM PDT Page IS of 32
1 to Issue contractor's iicense bonds, was at all times In this Complaint, authorized to
2 transact business as a"surety upon bonds or undertakings in the State of California.
3 IV.
4 That at all times mentioned In this Complaint, Plaintiffs were in contract with
5 Defendant RICHARD KIRK RUYBALID, to perform those constmcfion services as more
6 speciffcally referenced In this lawsuit
7 V.
8 Thatupon the application ofDefendant. RICHARD KIRK RUYBALID tothe Registrar
9 of the Contractor's State Ucense Boarel of the State of Califomla for a contactor's license
10 or renewal thereof, and in accordance with the provisions of Sectton 7071.6 of tfie
U Business & Professions Code ofthe State of Caiifbmia. said Defendant contractor filed
12 with said Registrar a bond issusd by Defandant WESTERN SURETY COIVIPANY in the
13 sum of at least $TO,000.00, conditioned upon full compliance by said Defendant contractor
14 with all tne provisions of Division 3, Chapter 6 of the Sustness & Professions Code ofthe
15 Stat© of Califomia, and Inuring to the benefit of said person damaged as a result ofthe
16 violations of said Chapter by said Defendant contractor.
17 VL
. 13 That in connection wHh the performance of th© construction contract referred to
13 hereinabove, said Defendant contractor failed to comply with the provisions of Division 3,
20 Chapter 9 ofthe Business & Professions Code of fhe State of Callfomla.and in particular,
21 failed to comply with those provisions of Business & Professions Code Section 7109, tn
22 that said Defendant contractor mtentionally departed from accepted trade standards.'
23 departed from and disregarded certain plans and specifications; that said Defendant
24 coritractor failed to comply wfth Business & [Professions Code Section 7113 in that said
25 Defendant contractor was, and at ail times herein mentioned, in breach of contract with
25 Plalntlffe; and as a result Plalntlffs have been damaged as more specifically referred to
27 hereinabove In a sum not yet determined which sum not yet determined, whioh sum shall
28 be sbown according to proof al time oftrial.
-11-
COMPLAINT FOR DAMAGES FOR BREACH OF CONSTRUCTION CONTRACT,
^ I ,r . . . . NEGUGENCE,AND FOR SUIT ON CONTRACTORS* UCENSE BONO
Received Time' Oel, 15. 2007 1;27PM «o.5595
10/23/2007 15:45 FAX 18887788466 LOREY MOORE B1015
4
from Attorneys Aid 916-S48-1S83 Mon IS Oct: 2007 0i:3S;06 PM POT Page 16 of 32
1 WHEREFORE, Plaintiffs pray judgmont against Defendants, and each ofthem. on
2 all cai^ses of action, as follows:
3 1. For compensatory damages according to proof at time of trial;
4 2. For Interest on their damages at the legal rate;
S 3. For judgment against bom bonding companies Iri. the.futf amotint of each'
5 bond;
7 4. For atlome/s fees and cosfs;
8 5. For costs of Suit incurred herein; and
9 B. For such other and further relief as tha Court deems Just and proper.
•10
DATED; Saptembar^. 2007. . " WRIGHT & BRITTON
11
12
13
Attorney for Plalntlffs
14 RODNEY ABBOTT and
FLORENTINE ABBOTT
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1 Todd A. Jones (BarNo. 198024) tiones(§archemorris.com 2 Gregory K. Federico (BarNo. 242184) gfederico(@archemorris.com LED/ENOORSED 3 ARCHERNORRIS A Professional Law Corporation 4 655 University Avenue, Suite 225 JUN 2 1 2010 Sacramento, Califomia 95825-6747 5 Telephone: 916.646.2480 A WOO Facsimile: 916.646.5696 By:. 6 Attomeys for Defendant 7 R4C0RP, A Cahfomia Corporation 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 12 ABBOTT, DECLARATION OF GREGORY K. 13 Plaintiffs, FEDERICO IN SUPPORT OF DEMURRER OFR4CORP,INC. 14 Date: October 29,2010 15 RONALD PAUL BRITSCHGI, et al.. Time: 2:00 p.m. Dept: 53 16 Defendants. Action Filed: September 24,2007 17 AND RELATED CROSS-ACTIONS. 18 19 I, Gregory K. Federico, hereby declare as follows: 20 1. I am an attoraey duly licensed to practice before all the Courts in the State of 21 Califomia and I am an associate with Archer Norris, attomeys of record for Defendant R4C0RP, 22 INC. I have personal knowledge ofthe matters set forth herein except where stated on 23 infoimation and belief Ifcalled upon as a witness m this matter, I could and would competent] 24 &!-<• testify thereto. 25 2. Attached hereto as Exhibit-A to this declaration is a tme and correct copy ofthe 26 Business Entity Detail as downloaded by me from the web site for the Califorma Secretary of ESSifS^ 27 State pertaining to my client, R4C0RP, INC. and its organization and corporate standing. 28 NIC549/974433-1 DECLARATION OF GREGORY K. FEDERICO IN SUPPORT OF DEMURRER 1 3. Attached hereto as Exhibit-B is a tme and correct copy ofthe original Complaint 2 as filed by the plaintiffs in this matter. 3 4. Attached hereto as Exhibit-C is a tme and correct copy ofthe First Amended 4 Complaint as filed by the plaintiffs in this matter. 5 5. Attached hereto as Exhibit-D is a tme and correct copy ofthe Second Amended 6 Complaint as filed by the plaintiffs in this matter 7 6. Attached hereto as Exhibit-E is a tme and correct copy ofthe Amendment to 8 Second Amended Complaint as filed by the plaintiffs in this matter. 9 10 11 I declare under penalty ofperjury under the laws ofthe State of Califomia that the 12 foregoing is tme and correct. Executed this ^ day of June, 2010 at Sacramento, Califomia. 13 14 GREGORY K. FEDERICO 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NIC549/974433-1 DECLARATION OF GREGORY K FEDERICO IN SUPPORT OF DEMURRER Business Search - Business Entities - Business Programs Page 1 of 1 .Business Entities (BE) Business Entity Detail ' Online Services - Business Searcli - Disclosure Search - E-File Scatements Data IS updated weekly and is current as of Friday, June 18, 2010. It is - Mail Processing Times not a complete or certified record of the entity. Main Page Service Options Entity Name: R4C0RP, INC. Name Availability Entity Number: C2859899 Forms, Samples & Fees Date Filed: 03/21/2006 1 Annual/Biennial Stateme Flling Tips Status: ACTIVE Information Requests Jurisdiction: CALIFORNIA (certificates, copies & status reports) Entity Address: 9332 FAIR OAKS BLVD i Service of Process Entity City, State, Zip: FAIR OAKS CA 95628 FAQs 1 Contact I n f o r m a t i o n A g e n t f o r Service of Process: RICHARD K RUYBALID ! Resources Agent Address: 9332 FAIR OAKS BLVD \ - Business Resources - Tax I n f o r m a t i o n Agent City, State, Zip: FAIR OAKS CA 95628 1 - Starting A Business ( - Xriternational Business Relations Program •* Indicates the information is not contamed in the California Secretary 1 Customer Alert of State's database. i {misleading business solicitations) • If the status of the corporation is "Surrender," the agent for service of process is automatically revoked. Please refer to California Corporations Code section 2 1 1 4 for information relating to service upon corporations that have surrendered. • For information on checking or reservmg a name, refer to Name Avaljablllty • For information on ordenng certificates, copies of documents and/or status reports or to request a more extensive search, refer to I n f o r m a t i o n Requests. • For help with searching an entity name, refer to Search Tips. • For descriptions of the vanous fields and status types, refer to Field Descriptions and Status Definitions. Modify Search New Search Printer Friendly Back t o Search Results Privacy Statement j Free Document Readers Copynght © 2010 California Secretary of State EXHIBIT. A http://kepler.sos.ca.gov/cbs.aspx 6/21/2010 LOREY MOORE 111002 10/23/2007 15:43 FAX 18887788466 mon j.i uct iC(37 01:3S'.06 PM PDT P^ge 3 o f 32 I suM-ino SUMMONS iVHaoimrmuOHir (CITACION JUDICIAL) MOTICE TO DEFENDANTi (AViSOALDSUANOADO): ' RONALD PAUL BRITSCHQI, individually and doing business as BRITSCHGI CONSTRUCTION, RICHARD KiBK RUYBALID, indivicJuaHy and doing business as CA CONSTRUCTION, SURETY COMPANY OF THE PACIFIC WESTERN SURETY COMPAMY, and DOES 1 through 20, inclusive YOU A R E BEING SUeD B Y PLAIMTIFF: (LO E S T A I S M A N D A N P O E L DSlifANDANrS): RODNEY ABBOTT and FLORENTINE ABBOTT Tou l » v t 30 CAliSMDAR OAYS attef I h l * M m m o M and I B Q I I papan « M • • n w d t,n yonaa. You O M Una t h a i * court faima and mera inforaiaison at ihs CaUfomia Courf* Qnl(no $«1(-Halp Cantor (wmr.coiirtlnftixa jiovMelfhelp), your eoq?tlytawWiraiy, or (he tourthouto naartwl you, l f y o u cannot pay ths flllng fao, 3 t k S i i court olorit for ataowaiver form, l f y o u do not nioyeurraipono* on Umo, you may lo«» the caa« hy default andyour twosea. monay, and propnty may ba takan without (nrthsr wanting frcm thecourt. Thera sm othgr tagal rtqulrontents. Ybu may wont to eafi en attomsy right a w i y . If you dO not kflow an Bttomay, you ntly want t o t a l l an Attsitiay rsitrrat telt.orji), art oi Contra d ' A y o d t da laa Cortaa d t Callfwni*, tMiim*.aaufSnfo.oa.aoWtBlihatp/ospanoU) a pontindeao sn eeottTio cOn la carte o «/ e^eglo da abogadaa loeaSes, The name snd address of the COurt is: cusEHUMsai! 07AS044SQ ( E l nombre y direccidn ds la oorto ^ y Sacramento Cotmty Supenor Court 720 Ninm Street Sacramento, CA S5314 The nams, ad<)rsss. and talephone number of ^aintiffs attomay, or f^alntirf wHheut an attomay, Is: ( B nombuB, la dliBcciin y ol rtHmdn) de tolifona del abogado tfe/ demandBnto, o del dsmandsnte qu^no tiona abogado, es): John A. erffion, SBN OSS490 Phone: (915) 781 -SOSO Wright & Bntton, 3741 Douglaa Boulevard, Suite 380, RowviUe, CA 95661 « BROWN PATE; OCT" ^ 2 m Ctsric, by . , Oeputy (Secreterio) , (Adlunio) (Por proof af seivtoe ofthis summons, use Proof Of SBIVICO Of Summons (farm P0S.C10f.) (Pdr9 prueba do ertUaga de esta citatidn use etfomuiarto Proof of Service of Summons. (POS-010}). NOncE TO m e PERSPN SERVED: You aro wrved r r ^ U r k ¥ € ^ < 1 ^ f \ C H i ^ i / t ^ ^ - ^ i t . V ^ ] as an Individual defendanL ^ - . j C ^ l i V * «-' m ? ' ^ s / QS the person:sued under the llotWous name of fspeol^): ^ , „ { ^ >,-,,, ^ *-/ 3. d D on behalf of fspecW under L D CCP4lB10{«rpo«hDn) J ^ CCP 416.S0(minor) C D CCP 416.20 (defurwi corporation) | I CCP 416.70 (conser/ateo) 1 I CCP 416.40 (aseociation or partnenshfp) [ [ CCP 416.90 (authonzed person) L . 1 a\het (sp'tit^tf^): 4. C H h y personal delivary on (tfsfej: UvM^fWA^MMfA^tMlH > ftn»teRi9it coutetoeiMj'FQaHiA, IMIUNTYOF S A C R A I M E N T O sntEETAQDAsss: 7 2 0 Ninth Straet MULMo/toDXEss: 7 2 0 Nirltfi S t r o o t CTrrANonpcore: SaorBmentO, C A 95814- CASE NAMfi Rodney Abbott. 8t al. v. Rpnald Paul Brltechgl, otaJ- CWIL CASE COVER SHEET • Complex Caso Oeslgnaflon C Z ] Unlimited • Umited (Amount (Amount • Countor • Jolftdar demanded demanded Is RIed withfirstappearance by defendant exceeds $25,000) $25,000 or less) (CA Rules of Coun. KJIB 3.4Q2) ;_ , /fema -f-g below muit be comple^d {nto tnsfructlono an yaeye i ) Ched< a n « box below fer the case type that Oest describee this oase; AutoTp/t Cgnimct Provfsionalty Comptox CMI UtigaHon B Aulo (22) UnlRMiwJ motorist (fie) Othar Pi/POWD (Parsonai ti^ury/Proparty JZJ ZH ^ 3 firaaehofeontrast/wanniy^OB) Rule 3.740 coIlactKMis (09) Other collections (00) (Cal. Rules of Court, rulaa 3.>4ao-3,403) [ Z I Anfitni8(^radora([irfa(lan(03] m ConelnK&Dn dsfect (10> Dama^a/Wron^l Qoalh) Tort ._J bieurance eovBraae (IB) n MtW8tDrt(40) " " " ^ AStW«tOS(04) Z J Other BOiilracJ (37) CZ] SecurlBBBlRfgatlontaa) ProdiKit Shifty {24> RoBlCropafty I Envlronraenlal/raxic lon (30) • juredkal malprgctica (45} I J Srlnarrfdemalh/lnvwao L ^ inauranca eovare&a cfarrtia ariiJnQ tram the Othar PUFWVO (23) condemnBHon (14) above Itslfld pmtfgjflnally complex case Non-Pl/PtwWD (Other)Tort I I ...v..a,-. ^-—i Wranafiii eriodan » T . — . . if33) —> typ«itt(4l) ^ Bus)nBsatofl/unfalrbu6lnaOTpiaclica(07) u l ] 01hBrrealpit.peity(26) Enfarcamant Vt Judnmant Z ] civi riBhIa (08) " - Patalnor Unlawful - LZJ Enforcaittant ofjudgment (20) ^ Oefsmstlon (13) I — ] Commefdal (31) W)eecHaiMoua Ch«er of ^ u s e s of actjon (spoe/iy/-siK Thiscase [ Z l is [ ^ is not a d a s s sction suit. If thara are any known relaled oases, file end sanra a n o ^ o of related f us$ form 04^013.) Date: S e p t o m b 6 ^ ^ 2 0 0 7 '"^^ John A. Britton (rVPEOR PRINT WMg; NOTICE ,^ • Plaintiff muat file this cover sheet vwth tha first paper filed in the action or proceeding (except small cleima cases or ce9e8.ffifid under the Probate Code, Family Code, or Welfare and Institutions CDd«). (Cal. Rules of Court, rule 3.220.) Failure to file may result irt u n c t i o n s . • File this coversheet In addition to any cover oheet rec^lred by local court rule. ' If this case fs cMnplax under rule 3 4O0 et seq. of the CHWorriB Rutes of Court, y o u must serve a copy ofthis coversheet on e l l ' otner peitias to the action or proceeding. • Unless this b a collactlcns cass under rule 3.740 or a comptor case, thiscoudr sheet wllf ba used for statisitesi purposes onl/, CIVJL C A S K C O V E R S H E E T C»l< i(iil»»2.«.a.lia,],M.iiiii t, >fxn\ inmugwit)Kkc».«ay mny.aecew<{))v.com Received 'Wm 0 ( \ . I'i. 9007 I'^Pis/s Wn i^f;(l(; 1 0 / 2 3 / 2 0 0 7 15:43 FAI 18887788466 LOREY MOORE 11004 from Attorneys A-id 916-648-lSiJ-S Mon IS Oct 2007 01:35:06 PM POT Page 5 o f 32 1 JAB:blQ WRIGHT & BRITTON 2 An Associatfon of Attorneys JOHN A. BRITTON - CBA NO. 0S5490 3 HAROLD C. WRIGHT - CBA NO. 044400 3741 Douglas Boulevard, Suite 380 4 p;os9villd.CA95€61 Telephone: (916) 781-2050 S Facsimile: (916) 782-7560 5 Attorney for Pfaihtiffs RODNEY ABBOTT and ' 7 FLORENTINE ABBOTT 8 fN THE SUPERtOR COURT OF CAUFORNIA 9 IN AND FORTHE COUNTY OF SACRAMENTO 10 RODNEY ABBOTT and CAseNd)7AS0445'0 11 -aORENTINE ABBOTT COMPLAINT FOR DAMAGES FOR 12 Piaintiffs. BREACH OF CONSTRUCTION V5. CONTRACT, NEQLIOENCE, AND 13 FOR s u r r o N C O N T R A C T O R ' S 14 RONALD PAUL BRITSCHGI, LICENSE BOND Individually and doing business as 15 I BRlTSCHGi CONSTRUCTION, (Unlimited Civii Cass) RICHARD KIRK RUYBALID. individually and doing businass ss CA CONSTRUCTION. SURETY 17 COMPANY OF THE PACIFIC, WESTERN SURETY COMPANY, 18 and DOES 1 through 20, Inclusive, 19 Defendants. 20 21 Plaintiif alleges: 22 GENERAL ALLEGATIONS 23 I. 24 At all ttmes herein mentioned, Plaintiffs ROONEY ABBOTT and FLORENTINE 25 ABBOTT were owners of that parcel of specific real property located in tlie County of 26 Sacramento. State of Caiifbmia. and more particularly described as 8601 Rolling Green 27 Way, Fair Oaks, California 95B28. 28 C O M P L ^ i ^ FOR DAMAGES FOR BREACH OP CONSTRUCTION C O N T R ^ f T NEGLIGENCE, AND FOR SUIT ON CONTRACTORS' LICENSS BOND ' ' R e c e i v e d Time O c [ 15 2007 1:27»M No.5595 1 0 / 2 3 / 2 0 0 7 15:44 FAX 18887788486 LOREY KOORE iiioos m Attorneys Aid 916-64S-1SS3 Mon IS Oct 2007 01:3$:06 PM PDT Page 6 of 32 1 iL 2 plaintiffs are informed and believe and upon such information and befief allege tiat 3 at sii times herein mentioned. Defendant RONALD PAUL BRITSCHGI, ts an Individual 4 doing biuiness undarthat firm name and style of BRITSCHGI CONSTRU(^TlON and, at S all times herein mentioned, was and is doing business in the County ofSacramento, Sbte 6 of Caiifomia. Defendant RONALD PAUL BRITSCHGI was duly (Icensed by the 7 Contractor's License Board ofttie State of California to conduct-business as a contractor 8 within the State ofCalifornia and to engage in ths work hereinafter described. 9 III. 10 PlaintifFs are informed and believs and upon such information and belief allege tl^at 11 " at all times herein mentioned Dsfendant RIOIARD KIRK RUYBALID Is an ihdividual doing 12 business underthe firm name and style of CA CONSTRUCTION and at aii times herein 13 mentioned, did business in th© City of Fair Oaks, County of Sacramento. State of 14 California, Defendant RICHARD KIRK RUYBALDl was duly licerised by the Contractor's 15 License Board of the State of California to condtict business as a contractor within the 16 Stat© of Califomia and to engage-In the work hereinafter described. 17 IV. 18 Plaintiffs are informed and believe and upon sucb infbnnation and beUef allege that 19 at all times herein mentioned SURETY COMPANY OF THE PACIFIC was and is licensed 20 wittiin the State of California to issue contractor license bonds infavorof contractors in the 21 State of Califomia, and in this partloilar case, so issued a contractor's Bcense bond In 22 favor of Ifs insured RONALD PAUL BRITSCHGI, individually and doing business as 23 BRITSCHGI CONSTRUCTION. 24 V, . 25 Plaintiffe are informed and'believe and upon such information and belief allege that 26 at ali times herein mentioned WESTERN SURETY COMPANY was and is licensed within • 27 the State of California to issUe contractor license bonds In favor of contractors in the State 28 of Califomla, and In this particular case, so Issued a contractor's license bond in favor of -2- I CCmnjMUr FOR DAMAGES FOR BRfiACH OF CONSTRUCTION CONTRACT, i• NEGLIGENCE, AND FOR SUH" ON CONTRACTORS' LICENSE BONO Received ri'm* Oct. Ifj 5007 1 ITPM Mn WOR 10/23/2007 15:44 FAX 18887788466 LOKEY MOORE @006 -«/w/ v ^ . j j . u u riM r u i Page 7 of 32 1 its insured .RICHARD KIRK RUYBALDL Individually and doing business as CA 2 CONSTRUCTION. 3 VI. 4 Plaintiffs-are ignorant of the true names gnd capacities of the Defendants siied 5 herein as DOES 1 through 20, inclusive, and therefore sues these Defendants by such 6 fictitious nanfws. Plalntlffs will amend this Complaint tO'allege their true names and' 7 capacities when ascertained. Plaintiffe are Informed and believe that each of these 8 Defendants is an agent ar^d employee of each and every other Defendant named orto be 3 named In the above-entitled action, and each such DOE Defendant proximately caused 10 Plaintiffs damages as herein alleged while acting in such capacity. Plaitiffs are further 11 informed and believe, and upon such information and belief, allege that each ofthe DOE 12 Defendants ^vere somehow negligent and/or at fault with respect to the work done on 13 Plaintiffs real property as more specifically referred to herein and that said DOE 14 Defendants somehow proximately caused the damages of which Plaintifis complain. IS FIRST CAUSE OF ACTION 16 (BrBach of Oral Contract Against Defendant, Ronald Paul Britsehigi} 17 " I . 18 Plaintiffe hereby reallege and incorporate herein by reference all ofthe allegations' 19 setforth in paragraphs 1-8 as setforth abova. 20 IL 21 On oraboutOctober 1,2005, Plaintiffs and Defendant RONALD PAUL BRITSCHGI 22 entered into an oral agreement in which said Defendant agreed to help tha Plaintiffs build - - 23 their pergonal residence which is located in Sacramento as more specifically described 24' hereinabove. Said Defendant, as a general contractor, agreed to assist Plaintiffs in the 2S constmction oftheir personal residence to the extent that said Defendant would assist, 26 guide, and direct Plaintiffs and other, contractois with respect to certain stages of -27 constmction, namely, the location for placement ofthe house on the lot. grading ofthe iot 23 for purposes of construction, the pouring of' concrete, for the house end-garage for -3- . - ' COMPLAINT FOR DAMAGES FOR BREACH OF CONSTRUCTION CONTRACT, MBStlGENCE, AND FOR SUIT ON CONTRACTORS' LICENSE BOND e c e i v e d T i m e ' O c t . I'i. 5 0 0 7 1-97PM Wn '^i^Q'^ 10/23/2007 15:44 FAX 18887788466 LOKEY MOORE ©007 rrom Atxorneys Aid HHi--M»-ii^J Mon I S O c t 2 0 0 7 0 i t 3 S ; O 6 PM POT Paga » of 32 1 foundattonaL purposes, with emphasis on proper elevation of that foundation as that 2 foundation related to where the house ^nd garage would sit on ihe lot in relation to the 3 elevation of the street and pit>pcsed streets In front of the lot. as well as the framing ofthe • 4 house in additional to misceillaneoua other duties. These miscellaneous other duties S included the supervision ofthe work done by other contractors working on constmction of 6 the house. For these ssr^ces, Plaintiffs paid said Defendant the sum of appraramately 7 $13,668.00, the exect sum of whit;h will be shown according to proof at time of trial. Said 8 Defendant agreed to perform his duties so as to makesure thatthehouse was constructed 9 according to certain plans and specifications given to said Defendant by Plaintiffs at the 10 time ha agreed to work w^fh Plaintiffs as a general contractor assisting them In-the " 11 conslruction of their persortal rasldenee. During the course of constnjctron, changes 12 needed to be made to the plans and specifications orl^'natiy preparsd for the c<»istnjction 13 of the family residence^ Said Defendant agreed to and did work with Plaintiffe and their 14 architect^designerwlth respect to modifyingithepfans and specifications. Said Defendant IS fijrther agreed to use his care and skill as a general contractor with respect to not only the 16 work that he was doing personayy towards the construction of the residence, but also he 17 agreed to usa his Care and skill as a general contractor to suoervlse the work done by 18 other subcontractors and to assure that ail such work Was done in a good and workmanlike 19 fashion, and done according to standards of con8tru<^ion within the construction Industry,, 20 and according to certain plans and specifications. These oral agreements were entered 21 into by and between Plaintiffs and said.Defcn'dantin a series of oral discusstons which took 22 platje beginning on or about October 1,2005 and continuing through the rest ofOctober 23 2005. 24 IM. 25 Plaintiffs have perfbrmed all conditions, covenants and promises underthe contract 2G with said Defendant tobe performed on their part to be performed, including, but not 27 limited to, the payment of $13,658.00 to said Defendant 28 / / / -4- COMfPl^MT FOR DAMAGES FOR BREACH OF CONSTRUCTION CONTRACT, NEGLIGENCE. AND FOR SUfT ON CONTRjWXtORS' LICENSE BONO R e c e i v e d Time Oct, 15. 2007 1 •27?IVi 1^0, 5 5 9 5 10/23/2007 15:44 FAX 18887788488 LOREY MOORE il008 vAw j . * . \ i \ j rvi rw I Haga B o t 32 IV. 2 On or atiout September 15. 2006, Plalntlffs discovered that said Defendant 3 breached the contract with them by failing tb. properly supervise the work performed by 4 other subcontractors and to assure that the work was done adequately, diligently, and in 5 a good and workmanlike fashion and acconjing to certain plans and spaclficatlqns. e V. 7 As a result ofsaid Defendant breaching the contract. Plaintiffs have suffered certain 8 damages in that Plaintiffs' house and garage were defectively constructed and not 9 according to plans and specifications. Thosa damages include the fed that neither tha 10 house nor the garage were built at certain elevations to which they should have been 11 constructed. The incorect placing ofthe house and garage on the lot at certain levelswas 12 not according to plans and specificattons thus, resulting in certain darriage to the house 13 and garage and surrounding property, namely, drainage damage, the necessity of using 14 stairs to the house and stairs to the garage, the inability to use the garage fior the purposes 15 for which It was intended, and damages to retaining walls as well as incLirring other 15 expenses including, but not limited to, cost to repair, cost to reconstmct, and otiier 17 damages. tf\e total amountof damages which is unknown at this time, tha exact sum of 18 which will be shown according to proof at tinfte oftrial. 19 SECOND CAUSE OF ACTION 20 (Negligence as to Defendant, Ronald Paul Brltschgl) ' 21 I. 22 Plaintiffs hereby reallege and incorporate herein by referencfe ali ofthe allegations 4 23 set forth in the First Cause of Action., 24 H. 25 Said Defendant had a duty to perform his construction sen/Ices and other sen/ices 26 in a good and workmanlike manner and in accordance with accepted standards in the 27 oonstruction industry and in accordance wifh certain plans and specifications as given to 28 him by Plaintiffis. -5- . COJii(P>iAlNIT FOR DAMAGES FOR BREACH OF CONSTRUCTION CONTRACT, KEGUOENCE, AND FOR SUIT ON CONTRACTORS' LICENSE BOND ceived Time O c t , I'i. 90O7 ! - 0 7 P M Mrt RI^Qi;. 10/23/2007 15:44 FAX 18887788468 LOREY HOORE iiooo • .<.nii n . i . i , t j i n a y a Hia 3i.D--b^ii-j.30-J pnon ± i u c t /!D07 0 1 : 3 5 : 0 6 PM PDT Page 10 of 32 I IH. . 2 In perfonttlng the sen/ices as referenced hereinabove, sakl Defendant acted 3 negligently in the performance of those services. The negligence manifested Itself in 4 certain ways, including, but not limited to, the fact that the house and thegarage were not 5 constructed in a good and workmanlike-teshion nor seconding to accepted standards in the 6 construction industry. Further, the house and garage were not constmcted according to 7 certain plans and epeoifications or in the manner as requited by Plaintiffs. Said 8 Defendant waa further negligent In his duties in not property supervising the work done by 9 other contractors, which supervision be promised Plaintrffs he would pertonn. 10 IV. . 11 As a result of tha negligence of said Defendant, Plaintiffs have suffered certain 12 damages as more specifically referred to hereinabove. Those damages included the fact 13 fhatneither the house nor the garage were built according to plans and specifications or 14 at certain elevations to which they should have been constructed. This negligent 15 construction has caused numerous damages. Including the fact that Raintfffs cannot use 16 the garage for all of its Intended purposes. Further, the Inconect placing ofthe house and 17 garage oii the lot at certain levels not according to plans and specifications or according 18 to the desires ofthe Plaintiffs, has caused drainage damage, the necessity of using stairs 19 to the house and stairs to the garage, and damagas to retaining walls as well as incumng 20 other expenses including, but not limited to, cost to repair, cost to reconstruct, and other 21 daniages, the total amount of damages which is unknown at ttiis time, the exact amount 22 of which, however, wiil be shown according to proof at fime of trial. 23 THIRD CAUSE OF ACTION 24 (Braai^h of Contract Against Defendant. Richard Kirk Ruybaldi dba CA Construction) 25 26 I. 27 Plaintiffs hereby reallege and mcorporate herein by referenc© all ofthe atlegations 28 of the First Cause of Action. -6- CORrSPLAlNT FOR DAMAGES FOR BREACH OF CONSTRUCTION CONTRACT, NEGLIGENCE, AND FOR SUIT ON CONTRACTORS' LICENSE BOND ;!*ciive(! Tlpe Oci, 15. 9007 l ' ? 7 ' y J^^ fi'?')'; ' ' • 10/23/2007 15:43 FAX 18887788486 LOREY MOORE ISlOlO " ~ " ••' ^^\. C W I m,. . i j . i n f rm r u t f'age i x ot 32 }. 1 , • , " • 2 On or about October 25,2005, Plaintiffs and said Defendant entered Into a written 3 construction contract, a copy of which is attached hweto marked as Exhibit A and 4 incorporated herein by reference. 5 Iti. 6 Said Defendant was given a copy ofthe original plans and specifications forthe 7 construction of the residence. He was so given those plans and specifications for the 3 purpose of specifically performing his part of the contract to be performed, namely, 9 excavation work, form work, and the placing of foundation concrete forthe residence and 10 garage as per certain plans and specincations - both original plans and specifications and • 11 then modlfted plans and specifications for Which said Defendant participated in the 12 modificalion of said plana ariKJ specificafions. 13 IV. 14 Said Defendant breached the contract in question .by failing to properiy place the 15 house and garage on such a location on the lot as called for pursuant to certain plans and 16 specifications and as requested by Plaintiffs. Said contract was further breached in that 17 said Defendant failed to property lay, pour and place the concrete of the house and the 18 garage as called for in the plan's and specifications and as called for according to good and 19 workmanlike standards within the construction Industry, The foundation ofthe house ahd 20 garage were constmcted as such so as to limit PlaintifTs use and enjoyment of both the 21 house and the garage because said Defendant failed td perform his sen/Ices underthe 22 contract b/following the plans and specificattons as given to him and tOfoltowthe requests 23 of him madefayPlaintiffs. 24 V. 2S At all times herein menttoned, unless otherwise excused, Plaintiffs have performed I 26 their duties under the contract to ba performed. 27 V4. 28 As a result ofsaid Defendant's breach ofthe contract, Plaintiffs have been damaged -7- ' . - COMFLAlfJT FCWl Di 9ftft7 1 ')7P)U|-WA CKQK f 1 0 / 2 3 / 2 0 0 7 1 5 : 4 5 FAX 18887788466 LOREY MOORE 0013 rfX-*n Attorneys Aid 916-S48-1S:83 Man IS Oct 2007 01:35:06 PM PDT Page 14 of 32 1 1 coftdlttoned upon full compliance by said Defendant contractor with all the provisions of 2 DWsion 3, Chapter 9 ot the Business & Professions Code of the State of California,, and 3 inuringto the benefit ofsaid person damaged as a nssult ofthe violations ofsaid Chapter 4 by said Defendant contractor.' 5 VI. 6 That a connection with the pert'ormance of the construction contract refen-ed to ? hereinabove, said Defendant contractor failed to comply with the pmvlsi'ons of DN'feion 3, 8 Chapter 9, the Business & Professions Code ofthe State of Californis, and lh particular,, 9 failed to comply with those pmvlsions of Business & Professions Code Section 7109, In 10 that said Defendant contractor intentionaUy departed fh^m accepted trade $tandan:ls, 11 departed from and disregarded from certain plans and apeciflcatfons; that said Defendant 12 contractor failed to comply with Business'& Professions Code Section 7113 In that said 13 Defendant contractor was, and at all times herein mentioned, in breach of contract with 14 Plaintiffs. Plaintiffs have been damaged as more specifically referred to hereinabove in a 15 sum not yet determined, the exact sum of which wili be shown according to proof at time 16 oftriaL 17 SIXTH CAUSE OF ACTION 18 (Suit on Contractor's License Bond Against Western Sure^ Comf^ny) 19 L 20 Plaintiffs hereby reallege and incorporate herein by reference all ofthe allegations 21 set forth in the prior causes of action. 22 li. 23 That said.Defendant. RICHARD KIRK RUYBALID, Individually and doing business 24 asCA CONSTRUCTION, was at alt times in this Complaint mentioned, now Is, a contractor 25 licensed under the laws of the State Of California and holds himself out aa a licensed 26 contractor with Catifornia contractor's license number 536735. 27 IIL 28 ThatDefendant. WESTERN SURETY COMPANY, a company licensed in California -10- a m P U M T FOR DAMAGES FOR BRgACH OF CONSTRUCTION CONTRACT, -NEGLIGENCE, AND FOR SUIT ON CONTRACTORS' LICENSE BOND f i e c e . y e d Time O c t . IS, 2DD7 J.27PM"No, 5595 10/23/2007 15:43 FAX 18887788488 LOREY MOORE ©014 rom Attomeys Aid 91fi™64S-1583 Mon IS Oct 2007 01:35:06 PM PDT Page IS of 32 1 to Issue contractor's iicense bonds, was at all times In this Complaint, authorized to 2 transact business as a"surety upon bonds or undertakings in the State of California. 3 IV. 4 That at all times mentioned In this Complaint, Plaintiffs were in contract with 5 Defendant RICHARD KIRK RUYBALID, to perform those constmcfion services as more 6 speciffcally referenced In this lawsuit 7 V. 8 Thatupon the application ofDefendant. RICHARD KIRK RUYBALID tothe Registrar 9 of the Contractor's State Ucense Boarel of the State of Califomla for a contactor's license 10 or renewal thereof, and in accordance with the provisions of Sectton 7071.6 of tfie U Business & Professions Code ofthe State of Caiifbmia. said Defendant contractor filed 12 with said Registrar a bond issusd by Defandant WESTERN SURETY COIVIPANY in the 13 sum of at least $TO,000.00, conditioned upon full compliance by said Defendant contractor 14 with all tne provisions of Division 3, Chapter 6 of the Sustness & Professions Code ofthe 15 Stat© of Califomia, and Inuring to the benefit of said person damaged as a result ofthe 16 violations of said Chapter by said Defendant contractor. 17 VL . 13 That in connection wHh the performance of th© construction contract referred to 13 hereinabove, said Defendant contractor failed to comply with the provisions of Division 3, 20 Chapter 9 ofthe Business & Professions Code of fhe State of Callfomla.and in particular, 21 failed to comply with those provisions of Business & Professions Code Section 7109, tn 22 that said Defendant contractor mtentionally departed from accepted trade standards.' 23 departed from and disregarded certain plans and specifications; that said Defendant 24 coritractor failed to comply wfth Business & [Professions Code Section 7113 in that said 25 Defendant contractor was, and at ail times herein mentioned, in breach of contract with 25 Plalntlffe; and as a result Plalntlffs have been damaged as more specifically referred to 27 hereinabove In a sum not yet determined which sum not yet determined, whioh sum shall 28 be sbown according to proof al time oftrial. -11- COMPLAINT FOR DAMAGES FOR BREACH OF CONSTRUCTION CONTRACT, ^ I ,r . . . . NEGUGENCE,AND FOR SUIT ON CONTRACTORS* UCENSE BONO Received Time' Oel, 15. 2007 1;27PM «o.5595 10/23/2007 15:45 FAX 18887788466 LOREY MOORE B1015 4 from Attorneys Aid 916-S48-1S83 Mon IS Oct: 2007 0i:3S;06 PM POT Page 16 of 32 1 WHEREFORE, Plaintiffs pray judgmont against Defendants, and each ofthem. on 2 all cai^ses of action, as follows: 3 1. For compensatory damages according to proof at time of trial; 4 2. For Interest on their damages at the legal rate; S 3. For judgment against bom bonding companies Iri. the.futf amotint of each' 5 bond; 7 4. For atlome/s fees and cosfs; 8 5. For costs of Suit incurred herein; and 9 B. For such other and further relief as tha Court deems Just and proper. •10 DATED; Saptembar^. 2007. . " WRIGHT & BRITTON 11 12 13 Attorney for Plalntlffs 14 RODNEY ABBOTT and FLORENTINE ABBOTT 15 16 17 18 19 20 -21 22 23