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, riLED A-^
1 Todd A. Jones (Bax No, 198024)
tjones@archemorris com
2 Gregoty K. Fedenco (Bar No. 242184)
gfederico@archemorris.com •SAGi-V\MhM! QCOURTS
3 ARCHERNORRIS ^ DEPT, #53 #54
A Professional Law Corporation
4 301 UniversityAvenue, Suite 110
Sacramento, Califomia 95825-5537
5 Telephone: 916.646.2480
Facsimile: 916.646.5696
6
Attomeys for Defendants and Cross-Defendants
7 RICHARD KIRK RUYBALID, individually, and
dba CA CONSTRUCTION
8
9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF SACRAMENTO
11
12 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
ABBOTT,
13 DEFENDANT RICHARD KIRK
Plaintiffs, RUYBALID, individually, and dba CA
14 CONSTRUCTION'S SUPPLEMENTAL
OPPOSITION TO PLAINTIFFS' REPLY
15 RE: PLAINTIFFS' MOTION FOR
RONALD PAUL BRITSCHGI, et al, JUDGMENT ON THE PLEADINGS
16
Defendants. Date: October 21,2010
17 Time: 2:00 p.m.
Dept: 53
18
19 Action Filed: September 24,2007
Trial Date; January 11,2011
20
AND RELATED CROSS-ACTIONS.
21
22
23 Defendant/Cross-Complainant RICHARD KIRK RUYBALID, individually, and dba CA
24 CONSTRUCTION ("CA CONSTRUCTION") received the Reply Memorandum ofPoints and
25 Authorities in support ofthe Motion for Judgment on the Pleadings filed by Plaintiffs RODNEY
26 and FLORENTINE ABBOTT ("Plaintiffs") in this action. Due to clear misstatements of fact by
27 Plaintiffs and theu counsel in the Reply, Defendant/Cross-Complainant CA CONSTRUCTION
28 files this Supplemental Opposition to Plaintiffs' Motion for Judgment on the Pleadings.
NIC341/1035064-1
SUPPLEMENTAL OPPOSITION TO PLAINTIFFS' REPLY
1 I.
ARGUMENT
2
PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADEVGS IS NOT
3 TIMELY BECAUSE THE NOTICE OF MOTION CLEARLY STATES THAT
PLAINTIFFS' MOTION WAS BROUGHT PURSUANT TO CALIFORNIA CODE
4 OF CIVIL PROCEDURE §438
5 Plaintiffs' now allege that the instant motion is timely because the motion was brought on
5 non-statutory grounds. In their reply. Plaintiffs, through their counsel, state that " . the Abbotts'
7 motion for j'udgment on the pleadmgs was not brought under section 438, nowhere in the moving
8 papers is that section even cited. " (Plaintiffs' Reply, 1:21-23). As such, Plaintiffs argue that the
9 provisions of Code ofCivil Procedure §438, which require Plaintiffs to bring this motion more
10 than 30 days before the initial trial date, do not apply. This statement is blatantly false.
11 CA CONSTRUCTION directs the Court to Plaintiffs' Notice of Motion filed by their
12 counselon June 22, 2010. The Notice of Motion states:
13 PLEASE TAKE NOTICE that on October 21, 2010 at 2:00 p.m., or
as soon thereafter as the matter may be heard, in Dept. 53 of the
14 above-entitled court, located at 800 Ninth Street, Sacramento,
California 95814, plaintiffs and cross-defendants Florentine and
15 Rodney Abbott will move the court, pursuant to Code ofCivil
Procedure section 438. for an order entering judgment on the
16 pleadings in favor of cross-defendants Florentine and Rodney
Abbott and against cross-complainant CA Constraction on its cross-
17 complaint.
1g Furthermore, nowhere in Plaintiffs' Notice ofMotion or any ofthe accompanying moving
19 papers and declarations do Plaintiffs allege they are filing this motion on non-statutory grounds.
20 The purpose ofthe notice of motion is to "state the nature ofthe order sought and the
21 grounds for issuance of the order." California Rules ofCourt, Rule 3.1110(a). The Court carmot
22 grant different relief, or relief on different grounds, than stated in the notice of motion. People v.
23 American Sur. Ins. Co., (1999) 75 Cal.App.4di 719, 726; Luri v. Greenwald {2002) 107
24 Cal .App. 4th 1119,1124. Relief may be granted on grounds appearing anywhere in the
25 accompanying declarations and points and authorities.. .provided the notice states the motion will
26 be made on grounds disclosed in the accompanying papers. Carrasco v Craft (1985) 164
27 Cal.App.3d 796, 808.
28 The purpose ofthe opposition filed by CA CONSTRUCTION is to respond to arguments
N1C341/1035064-1 2
SUPPLEMENTAL OPPOSITION TO PLAINTIFFS' REPLY
1 contained in all of Plaintiffs' moving papers, including the notice. It is improper for Piaintiffs to
2 now claim that they are bringing the instant motion on entirely different grounds for which CA
3 CONSTRUCTION was not provided notice or afforded an opportunity to oppose. Plaintiffs
4 should be estopped from now arguing that this motion is brought on different grounds in order to
5 get around clear and definite time limitations on their ability to file this type of motion.
6 Trial was initially set for May 11, 2009. Plaintiffs filed their motion on June 4, 2010,
7 which is more than 389 days after the initial trial date. Thus, the motion clearly violates the
8 mandatory timelines set forth in Code of Civil Procedure § 438(e).
9 H.
10 CONCLUSION
For the above reasons, and the reasons outlined in its opposition, CA CONSTRUCTION
11
respectfially requests that this Court deny Plaintiffs' Motion for Judgment on the Pleadings.
12
13
14
Dated: October 11 2010 ARCHERNORRIS
15
16
17
4t#
Gregory K. Federico
>
Attomeys for Defendants/Cross-Defendants
18 RICHARD KIRK RUYBALID, individually,
and dba CA CONSTRUCTION
19
20
21
22
23
24
25
26
27
28
NIC341/1035064-1
SUPPLEMENTAL OPPOSITION TO PLAINTIFFS' REPLY
1 PROOF OF SERVICE
2 Name of Action: Rodney Abbott, et al. v. Ronald Paul Britschgi, et al.
Court and Action No: Sacramento County Superior No. 07AS04450
3
I, Marie Cantrell, declare that I am over the age of 18 years and not a party to this action
4 or proceeding. My business address is 301 University Avenue, Suite 110, Sacramento, Califomia
95825. On October 13, 2010,1 caused the following document(s) to be served:
5
DEFENDANT RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION'S
6 SUPPLEMENTAL OFFOSITION TO PLAINTIFFS' REPLY RE: MOTION FOR
JUDGMENT ON THE PLEADINGS
7
^ by placing a true copy ofthe documents listed above, enclosed in a sealed envelope,
8 addressed as set forth below, for collection and mailing on the date and at the business
" address shown above following our ordinary business practices.' I am readily familiar
with this business' practice for collection and processing of correspondence for
1Q mailing with the United States Postal Service. On the same day that a sealed envelope
is placed for collection and mailing, it is deposited in the ordinary course ofbusiness
11 with the United States Postal Service with postage fuliy prepaid.
12 I I By having a tme copy ofthe document(s) listed above transmitted by facsimile to the
person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission
13 was reported as complete without error by a report issued by the transmitting facsimile
14 machine.
15 |3cl By placing a trae copy of the docuraent(s) listed above, in a box or other facility
regularly maintained by UPS, an express service carrier, or delivered to a courier or
16 driver authorized by the express service carrier to receive docimients, in an envelope
designated by the express service carner, with delivery fees paid or provided for,
^^ addressed as set forth below.
^^ Q bv having personal delivery bv FIRST LEGAL SUPPORT SERVICES a trae copv of
19 the document(s) listed above, enclosed m a sealed envelope, to the person(s) and at the
address(es) set forth below.
20
21 i [SEE ATTACHED SERVICE LIST]
22
23 I declare under penalty ofperjury that the foregoing is trae and correct. Executed on
October 13,2010, at Sacramento, Califomia.
24
25
26
27
28
N1C341/608293-1
PROOF OF SERVICE
1 Service List
2
VIA OVERNIGHT MAIL
3 Stephanie Finelli PLAINTIFFS
Law Offices of Stephanie J Finelli
4 1007 Seventh Street, Su ite 500 Tel • (916) 443-2144
Sacramento, CA 95814 Fax: (916) 443-1511
5 E-mail sfinelli700@yahoo.com
6
VIA REGULAR MAIL
7 Richard D Sopp Counsel for CADRE DESIGN GROUP, INC.
Wheatley Sopp LLP
8 1004 River Rock Drive, Suite 245 Tel: (916) 988-3857
Folsom, CA 95630 Fax:(916)988-5296
9 Email: rds@mwsblaw com
10 Mark Smith In Pro Per
8549 Willow Valley Place
11 Granite Bay, CA 95746
12
13
14
15
16
17
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20
21
22
23
24
25
26
27
28
NIC341/608293-1 2
SERVICE LIST
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, riLED A-^ 1 Todd A. Jones (Bax No, 198024) tjones@archemorris com 2 Gregoty K. Fedenco (Bar No. 242184) gfederico@archemorris.com •SAGi-V\MhM! QCOURTS 3 ARCHERNORRIS ^ DEPT, #53 #54 A Professional Law Corporation 4 301 UniversityAvenue, Suite 110 Sacramento, Califomia 95825-5537 5 Telephone: 916.646.2480 Facsimile: 916.646.5696 6 Attomeys for Defendants and Cross-Defendants 7 RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 12 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 ABBOTT, 13 DEFENDANT RICHARD KIRK Plaintiffs, RUYBALID, individually, and dba CA 14 CONSTRUCTION'S SUPPLEMENTAL OPPOSITION TO PLAINTIFFS' REPLY 15 RE: PLAINTIFFS' MOTION FOR RONALD PAUL BRITSCHGI, et al, JUDGMENT ON THE PLEADINGS 16 Defendants. Date: October 21,2010 17 Time: 2:00 p.m. Dept: 53 18 19 Action Filed: September 24,2007 Trial Date; January 11,2011 20 AND RELATED CROSS-ACTIONS. 21 22 23 Defendant/Cross-Complainant RICHARD KIRK RUYBALID, individually, and dba CA 24 CONSTRUCTION ("CA CONSTRUCTION") received the Reply Memorandum ofPoints and 25 Authorities in support ofthe Motion for Judgment on the Pleadings filed by Plaintiffs RODNEY 26 and FLORENTINE ABBOTT ("Plaintiffs") in this action. Due to clear misstatements of fact by 27 Plaintiffs and theu counsel in the Reply, Defendant/Cross-Complainant CA CONSTRUCTION 28 files this Supplemental Opposition to Plaintiffs' Motion for Judgment on the Pleadings. NIC341/1035064-1 SUPPLEMENTAL OPPOSITION TO PLAINTIFFS' REPLY 1 I. ARGUMENT 2 PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADEVGS IS NOT 3 TIMELY BECAUSE THE NOTICE OF MOTION CLEARLY STATES THAT PLAINTIFFS' MOTION WAS BROUGHT PURSUANT TO CALIFORNIA CODE 4 OF CIVIL PROCEDURE §438 5 Plaintiffs' now allege that the instant motion is timely because the motion was brought on 5 non-statutory grounds. In their reply. Plaintiffs, through their counsel, state that " . the Abbotts' 7 motion for j'udgment on the pleadmgs was not brought under section 438, nowhere in the moving 8 papers is that section even cited. " (Plaintiffs' Reply, 1:21-23). As such, Plaintiffs argue that the 9 provisions of Code ofCivil Procedure §438, which require Plaintiffs to bring this motion more 10 than 30 days before the initial trial date, do not apply. This statement is blatantly false. 11 CA CONSTRUCTION directs the Court to Plaintiffs' Notice of Motion filed by their 12 counselon June 22, 2010. The Notice of Motion states: 13 PLEASE TAKE NOTICE that on October 21, 2010 at 2:00 p.m., or as soon thereafter as the matter may be heard, in Dept. 53 of the 14 above-entitled court, located at 800 Ninth Street, Sacramento, California 95814, plaintiffs and cross-defendants Florentine and 15 Rodney Abbott will move the court, pursuant to Code ofCivil Procedure section 438. for an order entering judgment on the 16 pleadings in favor of cross-defendants Florentine and Rodney Abbott and against cross-complainant CA Constraction on its cross- 17 complaint. 1g Furthermore, nowhere in Plaintiffs' Notice ofMotion or any ofthe accompanying moving 19 papers and declarations do Plaintiffs allege they are filing this motion on non-statutory grounds. 20 The purpose ofthe notice of motion is to "state the nature ofthe order sought and the 21 grounds for issuance of the order." California Rules ofCourt, Rule 3.1110(a). The Court carmot 22 grant different relief, or relief on different grounds, than stated in the notice of motion. People v. 23 American Sur. Ins. Co., (1999) 75 Cal.App.4di 719, 726; Luri v. Greenwald {2002) 107 24 Cal .App. 4th 1119,1124. Relief may be granted on grounds appearing anywhere in the 25 accompanying declarations and points and authorities.. .provided the notice states the motion will 26 be made on grounds disclosed in the accompanying papers. Carrasco v Craft (1985) 164 27 Cal.App.3d 796, 808. 28 The purpose ofthe opposition filed by CA CONSTRUCTION is to respond to arguments N1C341/1035064-1 2 SUPPLEMENTAL OPPOSITION TO PLAINTIFFS' REPLY 1 contained in all of Plaintiffs' moving papers, including the notice. It is improper for Piaintiffs to 2 now claim that they are bringing the instant motion on entirely different grounds for which CA 3 CONSTRUCTION was not provided notice or afforded an opportunity to oppose. Plaintiffs 4 should be estopped from now arguing that this motion is brought on different grounds in order to 5 get around clear and definite time limitations on their ability to file this type of motion. 6 Trial was initially set for May 11, 2009. Plaintiffs filed their motion on June 4, 2010, 7 which is more than 389 days after the initial trial date. Thus, the motion clearly violates the 8 mandatory timelines set forth in Code of Civil Procedure § 438(e). 9 H. 10 CONCLUSION For the above reasons, and the reasons outlined in its opposition, CA CONSTRUCTION 11 respectfially requests that this Court deny Plaintiffs' Motion for Judgment on the Pleadings. 12 13 14 Dated: October 11 2010 ARCHERNORRIS 15 16 17 4t# Gregory K. Federico > Attomeys for Defendants/Cross-Defendants 18 RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 19 20 21 22 23 24 25 26 27 28 NIC341/1035064-1 SUPPLEMENTAL OPPOSITION TO PLAINTIFFS' REPLY 1 PROOF OF SERVICE 2 Name of Action: Rodney Abbott, et al. v. Ronald Paul Britschgi, et al. Court and Action No: Sacramento County Superior No. 07AS04450 3 I, Marie Cantrell, declare that I am over the age of 18 years and not a party to this action 4 or proceeding. My business address is 301 University Avenue, Suite 110, Sacramento, Califomia 95825. On October 13, 2010,1 caused the following document(s) to be served: 5 DEFENDANT RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION'S 6 SUPPLEMENTAL OFFOSITION TO PLAINTIFFS' REPLY RE: MOTION FOR JUDGMENT ON THE PLEADINGS 7 ^ by placing a true copy ofthe documents listed above, enclosed in a sealed envelope, 8 addressed as set forth below, for collection and mailing on the date and at the business " address shown above following our ordinary business practices.' I am readily familiar with this business' practice for collection and processing of correspondence for 1Q mailing with the United States Postal Service. On the same day that a sealed envelope is placed for collection and mailing, it is deposited in the ordinary course ofbusiness 11 with the United States Postal Service with postage fuliy prepaid. 12 I I By having a tme copy ofthe document(s) listed above transmitted by facsimile to the person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission 13 was reported as complete without error by a report issued by the transmitting facsimile 14 machine. 15 |3cl By placing a trae copy of the docuraent(s) listed above, in a box or other facility regularly maintained by UPS, an express service carrier, or delivered to a courier or 16 driver authorized by the express service carrier to receive docimients, in an envelope designated by the express service carner, with delivery fees paid or provided for, ^^ addressed as set forth below. ^^ Q bv having personal delivery bv FIRST LEGAL SUPPORT SERVICES a trae copv of 19 the document(s) listed above, enclosed m a sealed envelope, to the person(s) and at the address(es) set forth below. 20 21 i [SEE ATTACHED SERVICE LIST] 22 23 I declare under penalty ofperjury that the foregoing is trae and correct. Executed on October 13,2010, at Sacramento, Califomia. 24 25 26 27 28 N1C341/608293-1 PROOF OF SERVICE 1 Service List 2 VIA OVERNIGHT MAIL 3 Stephanie Finelli PLAINTIFFS Law Offices of Stephanie J Finelli 4 1007 Seventh Street, Su ite 500 Tel • (916) 443-2144 Sacramento, CA 95814 Fax: (916) 443-1511 5 E-mail sfinelli700@yahoo.com 6 VIA REGULAR MAIL 7 Richard D Sopp Counsel for CADRE DESIGN GROUP, INC. Wheatley Sopp LLP 8 1004 River Rock Drive, Suite 245 Tel: (916) 988-3857 Folsom, CA 95630 Fax:(916)988-5296 9 Email: rds@mwsblaw com 10 Mark Smith In Pro Per 8549 Willow Valley Place 11 Granite Bay, CA 95746 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NIC341/608293-1 2 SERVICE LIST