Preview
1 Todd A. Jones (Bar No. 198024)
Gregory K. Federico (Bar No. 242184)
2 ARCHER NORRIS
A Professional Law Corporation
3 655 University Avenue, Suite 225
Sacramento, California 95825-6747 NOV 9 2009
4 Telephone: 916.646.2480
Facsimile: 916.646.5696
5 By:. A. O'DONNELIL
Deputy Clerk,
Attorneys for Defendants and Cross-Defendants
6 RICHARD KIRK RUYBALID, individually, and
dba CA CONSTRUCTION
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10
11 RODNEY ABBOTT and FLORENTINE Case No. 07AS04450
ABBOTT,
12 MEMORANDUM OF POINTS AND
Plaintiffs, AUTHORITIES IN SUPPORT OF
13 DEFENDANT CA CONSTRUCTION'S
v. REPLY TO PLAINTIFFS' OPPOSITION
14 TO DEMURRER
RONALD PAUL BRITSCHGI, et al.,
15 Date: November 17,2009
Defendants. Time: 9:00 a.m.
16 Dept: 54
17 Action Filed: September 24, 2007
18 AND ALL RELATED CROSS-ACTIONS.
19
20 I. INTRODUCTION
21 Defendant RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION
22 ("CA CONSTRUCTION") hereby files this memorandum of points and authorities in support of
23 its reply to Plaintiffs FLORENTINE and RODNEY ABBOTT'S ("PLAINTIFFS") Opposition to
24 CA CONSTRUCTION'S Demurrer.
25 II. DEMURRER
26 A. Clarification As To Standard On Demurrer
27 Although PLAINTIFFS correctly assert that this Court must admit all material facts which
28
NIC341/87I442-1
MEMO OF POINTS AND AUTHORITIES FN REPLY TO PLAINTIFFS' OPPOSITION TO DEMURRER
1 are properly asserted, PLAINTIFFS fail to address the fact that the Court is not required to
2 assume the truth of "contentions, deductions or conclusions of fact or law." See Stansfield v.
3 Starkey (1990) 220 Cal.App.3d 59, 72. PLAINTIFFS also ignore the requirement incumbent on a
4 pleading party to plead facts ".. .upon which liability depends. .", or "ultimate facts." See Weil &
5 Brown, California Practice Guide, supra at §6:127. PLAINTIFFS' First Amended Complaint is
6 littered with "contentions, deductions or conclusions of fact or law", most notably in the
7 allegations that CA CONSTRUCTION made false and fraudulent representations to
8 PLAINTIFFS. As stated above, the Court is not required to assume that these contentions,
9 deductions or conclusions of fact or law are true.
B. Plaintiffs' Opposition Fails To Address Business & Professions Code Sections
1j 7109, 7026, 7028, and 7160 For Which Plaintiffs Lack Standing
PLAINTIFFS allege that CA CONSTRUCTION violated Business & Professions Code
Sections 7109, 7026; 7028, 7031, and 7160. As stated in its demurrer, CA CONSTRUCTION
argues that PLAINTIFFS lack standing to sue under any of these provisions because they do not
provide a private cause of action for plaintiffs. The only section addressed by PLAINTIFFS on
the standing issue is Section 7031, which arguably permits a private plaintiff to sue an unlicensed
contractor for recovery of contract sums. Section 7031 makes no reference to penalties or
attorneys' fees, which are damages PLAINTIFFS seek in their First Amended Complaint.
lo
Since PLAINTIFFS have not addressed the issue of standing under Business & Profession
Code Sections 7109, 7026, 7028, and 7160, one can only assume PLAINTIFFS concede that
these sections provide no private cause of action.
PLAINTIFFS fail to address the fact that Business & Professions Code § 7109(b) states
__ that a willful departure from accepted trade standards constitutes ".. .a came for disciplinary
_4 action." PLAINTIFFS also fail to address the fact that various sections of Business & Professions
_, Code § 7028 specifically reference misdemeanors, fines, indictments, convictions and jail
_., sentences. These references imply criminal proceedings issued by legal authorities, not private
_7 plaintiffs, and administrative proceedings initiated by the Contractors' State Licensing Board
_0 ("CSLB"). When regulatory statutes provide a comprehensive scheme for enforcement by an
Zo
N1C341/871442-I 2
MEMO OF POINTS AND AUTHORITIES IN REPLY TO PLAINTIFFS' OPPOSITION TO DEMURRER
1 administrative agency, the courts ordinarily conclude that the Legislature intended the
2 administrative remedy to be exclusive unless the statutory language or legislative history clearly
3 indicates an intent to create a private right of action. Moradi-Shalal, supra, 46 Cal.3d at pp. 294-
4 295, 300; Vikco, supra, 70 Cal.App.4th 55, 62-65. PLAINTIFFS present no authority to the
5 contrary, and as such the demurrer should be sustained on these grounds.
C. Plaintiffs' Argument Regarding Licensure Of CA Construction Must Fail
7
PLAINTIFFS argue the Court should not take judicial notice of CA CONSTRUCTION'S
8 "B" construction license. The Court may consider any matter of which the court is required to or
9 may take judicial notice. Code of Civil Procedure § 430.30. The Court may take notice of official
10 acts of any state or federal legislative, executive or judicial department, and a "court can take
11 judicial notice of records and files of state administrative agencies. Evidence Code § 452(c); See
12 Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1750. Pursuant to statutory and case law, this
13 Court is permitted to take judicial notice of the certified license history of CA CONSTRUCTION
14 as referenced in its Request for Judicial Notice, filed previously with CA CONSTRUCTION'S
15 demurrer and motion to strike, and incorporated by reference herein.
16 The certified license history indicates that CA CONSTRUCTION was licensed at all
17 relevant times and authorized to perform the work it contracted for with PLAINTIFFS. As
18 argued in its demurrer, CA CONSTRUCTION performed various construction activities on this
19 project, including concrete work, earthwork, paving, and placement of reinforcing steel. This
20 work encompasses the work of two or more unrelated trades as outlined in a class "B" license.
21 PLAINTIFFS must be reminded that simply pleading "contentions, deductions or
22 conclusions of fact or law" is insufficient. As to the licensure issue, PLAINTIFFS simply allege
23 that CA CONSTRUCTION was not licensed, which is nothing more than a conclusion of law and
24 contention. The First Amended Complaint does not contain material facts necessary to survive a
25 demurrer. If under substantive law no liability exists, it is not an abuse of discretion for a court to
26 sustain a demurrer without leave to amend. Berkeley Police Association v. City of Berkeley
27
(1978) 76 Cal.App.3d 931, 943. To establish their licensure claim, PLAINTIFFS must show that
28
NIC341/871442-1 3
MEMO OF POINTS AND AUTHORITIES IN REPLY TO PLAINTIFFS' OPPOSITION TO DEMURRER
1 CA CONSTRUCTION was not licensed. PLAINTIFFS cannot make this showing as established
2 in the certified license history provided to the Court.
D. Plaintiffs' Cause Of Action For Violation Of Business & Professions Code
4 §7160 Must Fail As It Is A Legal Conclusion Without Material Fact
CA CONSTRUCTION argued at length in its demurrer that PLAINTIFFS have failed to
plead the material facts associated with the false and fraudulent representations allegedly tendered
by representatives of CA CONSTRUCTION. PLAINTIFFS failed to plead ".. .how, when,
where, to whom, and by what means the representations were tendered." as required by the Lazar
o
decision. See Lazar v. Sup. Ct. (Rvkoff-Sexton, Inc.) (1996) 12 CaUth 631. 645.
PLAINTIFFS argue that for pleading purposes, all that is required is that PLAINTIFFS
allege that (1) CA CONSTRUCTION violated Business and Professions Code Section 7160 by
knowingly making false or fraudulent statements about its ability to perform the work contracted
for; and (2) that CA CONSTRUCTION'S work was defective. PLAINTIFFS are mistaken in this
belief, and they fail to provide any legal authority to support their position. Business and
Professions Code Section 7160 contains important words, none of which PLAINTIFFS address in
the First Amended Complaint.
First, PLAINTIFFS plead no material facts showing CA CONSTRUCTION'S state of
mind that reveal it "knowingly" made false or fraudulent statements. Second, PLAINTIFFS
1o
plead no material facts indicating that any alleged statements were "false". Finally, PLAINTIFFS
plead no material facts that indicate that any alleged statements were tendered in a "fraudulent"
-1 manner.
With the cause of action sounding in fraud, PLAINTIFFS must be specific in their
allegations and must show the so-called "who, what, when, where, and how" as it pertains to the
alleged misrepresentations. PLAINTIFFS ignore these requirements and merely plead legal
„, conclusions, deductions, and their own legal contentions. One is left to assume that PLAINTIFFS
yc lack the necessary factual support to substantiate this claim. Thus, the demurrer should be
97 sustained and all applicable references should be struck from the First Amended Complaint.
28
N1C341/8 71442-1 4
MEMO OF POINTS AND AUTHORITIES IN REPLY TO PLAINTIFFS' OPPOSITION TO DEMURRER
1
E. The First Amended Complaint Is Vague, Ambiguous, And Uncertain
Pursuant to Code of Civil Procedure §430.10(0, a party may object by demurrer when
3
"The pleading is uncertain. As used in this subdivision, "uncertain" includes ambiguous and
4
unintelligible....". The purpose of a complaint is to furnish the defendants with certain definite
5
charges which can be intelligently met.
6
PLAINTIFFS' Sixth Cause of Action broadly alleges that CA CONSTRUCTION violated
7
Business & Professions Code Sections 7109, 7026, 7028, 7031, and 7160. CA CONSTRUCTION
8
believes that none of these sections provide PLAINTIFFS a private right of action and that the
9
provisions of the Business & Professions Code cited by PLAINTIFFS are disciplinary in nature.
10
Even if the Court assumes that some of these provisions provide PLAINTIFFS standing, each
11
section relates to differing topics, contains separate elements, and provides for specific and
12
separate enumerated relief. Despite the distinction in each of these provisions, PLAINTIFFS
13
make one general allegation that all referenced sections were violated. PLAINTIFFS fail to
14
address the separate elements of the various Business & Professions Code sections. For this
15
reason alone, the pleading is uncertain, ambiguous and unintelligible. CA CONSTRUCTION
16
cannot intelligently meet the allegations contained in the Sixth Cause of Action.
17
III. CONCLUSION
18
Based on the above arguments, CA CONSTRUCTION respectfully requests that its
19
demurrer and motion to strike portions of PLAINTIFFS' Sixth Cause of Action in the First
20
Amended Complaint be sustained without leave to amend.
21
Dated: November '* . 2009 ARCHER NORRIS
23
24
Gregory K. Federico
Attorneys for Defendants and Cross-
Defendants RICHARD KIRK RUYBALID,
individually, and dba CA CONSTRUCTION
27
28
N1C341/871442-1 5
MEMO OF POINTS AND AUTHORITIES IN REPLY TO PLAINTIFFS' OPPOSITION TO DEMURRER
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 655 University Avenue, Suite 225, Sacramento, California
95825. On November 9, 2009,1 caused the following document(s) to be served:
5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA
6 CONSTRUCTION'S REPLY TO REPLY TO PLAINTIFFS' OPPOSITION TO DEMURRER
7 fxl by placing a true copy of the documents listed above, enclosed in a sealed envelope,
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
n with this business' practice for collection and processing of correspondence for
mailing with the United States Postal Service. On the same day that a sealed envelope
10 is placed for collection and mailing, it is deposited in the ordinary course of business
with the United States Postal Service with postage fully prepaid.
11
I I by having a true copy of the document(s) listed above transmitted by facsimile to the
12 person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission
was reported as complete without error by a report issued by the transmitting facsimile
machine.
14
by placing a true copy of the document(s) listed above, in a box or other facility
15 ' ' regularly maintained by UPS, an express service carrier, or delivered to a courier or
driver authorized by the express service carrier to receive documents, in an envelope
16 designated by the express service carrier, with delivery fees paid or provided for,
addressed as set forth below.
18
[SEE ATTACHED SERVICE LIST]
19
I declare under penalty of perjury that the foregoing is true and correct. Executed on
November 9, 2009, at Sacramento, California.
22
23
Marie Cantrell
24
25
26
27
28 M
NIC341/608293-1
PROOF OF SERVICE
1 Service List
2
VIA OVERNIGHT MAIL
3
Stephanie Finelli PLAINTIFFS
4 Law Offices of Stephanie J. Finelli
1007 Seventh Street, Suite 500 Teh (916)443-2144
5 Sacramento, CA95814 Fax:(916)443-1511
E-mail, sfinelli700@yahoo.com
6
7 VIA REGULAR MAIL
8 Craig N. Lundgren Counsel for RONALD PAUL BRITSCHGI,
LUNDGREN & REYNOLDS, LLP INDIVIDUALLY AND DBA BRITSCHGI
9 424 Second Street, Suite A CORPORATION
Davis, CA 95616
10 Tel' (530)297-5030
Fax: (530) 297-5077
11 E-mail: clundgren@lr-law.net
12 Richard D. Sopp Counsel for CADRE DESIGN GROUP, INC.
Wheatley Sopp LLP
13 1004 River Rock Drive, Suite 245 Tel: (916)988-3857
Folsom, CA 95630 Fax:(916)988-5296
14 Email: rds@mwsblaw.com
15 Sean D. Schwerdtfeger Counsel for CONSTRUCTION TESTING &
Joyati Tanya Schomee ENGINEERING, INC.
16 L/O OF SEAN D. SCHWERDTFEGER
501 West Broadway, Suite 1700 Tel: (619) 595-3403
17 San Diego, CA92101 Fax: (619)595-3404
Email: sean.schwerdtfeger@gmail.com
18
19
20
21
22
23
24
25
26
27
28
NIC341/608293-I
SERVICE LIST
Preview
1 Todd A. Jones (Bar No. 198024) Gregory K. Federico (Bar No. 242184) 2 ARCHER NORRIS A Professional Law Corporation 3 655 University Avenue, Suite 225 Sacramento, California 95825-6747 NOV 9 2009 4 Telephone: 916.646.2480 Facsimile: 916.646.5696 5 By:. A. O'DONNELIL Deputy Clerk, Attorneys for Defendants and Cross-Defendants 6 RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 RODNEY ABBOTT and FLORENTINE Case No. 07AS04450 ABBOTT, 12 MEMORANDUM OF POINTS AND Plaintiffs, AUTHORITIES IN SUPPORT OF 13 DEFENDANT CA CONSTRUCTION'S v. REPLY TO PLAINTIFFS' OPPOSITION 14 TO DEMURRER RONALD PAUL BRITSCHGI, et al., 15 Date: November 17,2009 Defendants. Time: 9:00 a.m. 16 Dept: 54 17 Action Filed: September 24, 2007 18 AND ALL RELATED CROSS-ACTIONS. 19 20 I. INTRODUCTION 21 Defendant RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 22 ("CA CONSTRUCTION") hereby files this memorandum of points and authorities in support of 23 its reply to Plaintiffs FLORENTINE and RODNEY ABBOTT'S ("PLAINTIFFS") Opposition to 24 CA CONSTRUCTION'S Demurrer. 25 II. DEMURRER 26 A. Clarification As To Standard On Demurrer 27 Although PLAINTIFFS correctly assert that this Court must admit all material facts which 28 NIC341/87I442-1 MEMO OF POINTS AND AUTHORITIES FN REPLY TO PLAINTIFFS' OPPOSITION TO DEMURRER 1 are properly asserted, PLAINTIFFS fail to address the fact that the Court is not required to 2 assume the truth of "contentions, deductions or conclusions of fact or law." See Stansfield v. 3 Starkey (1990) 220 Cal.App.3d 59, 72. PLAINTIFFS also ignore the requirement incumbent on a 4 pleading party to plead facts ".. .upon which liability depends. .", or "ultimate facts." See Weil & 5 Brown, California Practice Guide, supra at §6:127. PLAINTIFFS' First Amended Complaint is 6 littered with "contentions, deductions or conclusions of fact or law", most notably in the 7 allegations that CA CONSTRUCTION made false and fraudulent representations to 8 PLAINTIFFS. As stated above, the Court is not required to assume that these contentions, 9 deductions or conclusions of fact or law are true. B. Plaintiffs' Opposition Fails To Address Business & Professions Code Sections 1j 7109, 7026, 7028, and 7160 For Which Plaintiffs Lack Standing PLAINTIFFS allege that CA CONSTRUCTION violated Business & Professions Code Sections 7109, 7026; 7028, 7031, and 7160. As stated in its demurrer, CA CONSTRUCTION argues that PLAINTIFFS lack standing to sue under any of these provisions because they do not provide a private cause of action for plaintiffs. The only section addressed by PLAINTIFFS on the standing issue is Section 7031, which arguably permits a private plaintiff to sue an unlicensed contractor for recovery of contract sums. Section 7031 makes no reference to penalties or attorneys' fees, which are damages PLAINTIFFS seek in their First Amended Complaint. lo Since PLAINTIFFS have not addressed the issue of standing under Business & Profession Code Sections 7109, 7026, 7028, and 7160, one can only assume PLAINTIFFS concede that these sections provide no private cause of action. PLAINTIFFS fail to address the fact that Business & Professions Code § 7109(b) states __ that a willful departure from accepted trade standards constitutes ".. .a came for disciplinary _4 action." PLAINTIFFS also fail to address the fact that various sections of Business & Professions _, Code § 7028 specifically reference misdemeanors, fines, indictments, convictions and jail _., sentences. These references imply criminal proceedings issued by legal authorities, not private _7 plaintiffs, and administrative proceedings initiated by the Contractors' State Licensing Board _0 ("CSLB"). When regulatory statutes provide a comprehensive scheme for enforcement by an Zo N1C341/871442-I 2 MEMO OF POINTS AND AUTHORITIES IN REPLY TO PLAINTIFFS' OPPOSITION TO DEMURRER 1 administrative agency, the courts ordinarily conclude that the Legislature intended the 2 administrative remedy to be exclusive unless the statutory language or legislative history clearly 3 indicates an intent to create a private right of action. Moradi-Shalal, supra, 46 Cal.3d at pp. 294- 4 295, 300; Vikco, supra, 70 Cal.App.4th 55, 62-65. PLAINTIFFS present no authority to the 5 contrary, and as such the demurrer should be sustained on these grounds. C. Plaintiffs' Argument Regarding Licensure Of CA Construction Must Fail 7 PLAINTIFFS argue the Court should not take judicial notice of CA CONSTRUCTION'S 8 "B" construction license. The Court may consider any matter of which the court is required to or 9 may take judicial notice. Code of Civil Procedure § 430.30. The Court may take notice of official 10 acts of any state or federal legislative, executive or judicial department, and a "court can take 11 judicial notice of records and files of state administrative agencies. Evidence Code § 452(c); See 12 Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1750. Pursuant to statutory and case law, this 13 Court is permitted to take judicial notice of the certified license history of CA CONSTRUCTION 14 as referenced in its Request for Judicial Notice, filed previously with CA CONSTRUCTION'S 15 demurrer and motion to strike, and incorporated by reference herein. 16 The certified license history indicates that CA CONSTRUCTION was licensed at all 17 relevant times and authorized to perform the work it contracted for with PLAINTIFFS. As 18 argued in its demurrer, CA CONSTRUCTION performed various construction activities on this 19 project, including concrete work, earthwork, paving, and placement of reinforcing steel. This 20 work encompasses the work of two or more unrelated trades as outlined in a class "B" license. 21 PLAINTIFFS must be reminded that simply pleading "contentions, deductions or 22 conclusions of fact or law" is insufficient. As to the licensure issue, PLAINTIFFS simply allege 23 that CA CONSTRUCTION was not licensed, which is nothing more than a conclusion of law and 24 contention. The First Amended Complaint does not contain material facts necessary to survive a 25 demurrer. If under substantive law no liability exists, it is not an abuse of discretion for a court to 26 sustain a demurrer without leave to amend. Berkeley Police Association v. City of Berkeley 27 (1978) 76 Cal.App.3d 931, 943. To establish their licensure claim, PLAINTIFFS must show that 28 NIC341/871442-1 3 MEMO OF POINTS AND AUTHORITIES IN REPLY TO PLAINTIFFS' OPPOSITION TO DEMURRER 1 CA CONSTRUCTION was not licensed. PLAINTIFFS cannot make this showing as established 2 in the certified license history provided to the Court. D. Plaintiffs' Cause Of Action For Violation Of Business & Professions Code 4 §7160 Must Fail As It Is A Legal Conclusion Without Material Fact CA CONSTRUCTION argued at length in its demurrer that PLAINTIFFS have failed to plead the material facts associated with the false and fraudulent representations allegedly tendered by representatives of CA CONSTRUCTION. PLAINTIFFS failed to plead ".. .how, when, where, to whom, and by what means the representations were tendered." as required by the Lazar o decision. See Lazar v. Sup. Ct. (Rvkoff-Sexton, Inc.) (1996) 12 CaUth 631. 645. PLAINTIFFS argue that for pleading purposes, all that is required is that PLAINTIFFS allege that (1) CA CONSTRUCTION violated Business and Professions Code Section 7160 by knowingly making false or fraudulent statements about its ability to perform the work contracted for; and (2) that CA CONSTRUCTION'S work was defective. PLAINTIFFS are mistaken in this belief, and they fail to provide any legal authority to support their position. Business and Professions Code Section 7160 contains important words, none of which PLAINTIFFS address in the First Amended Complaint. First, PLAINTIFFS plead no material facts showing CA CONSTRUCTION'S state of mind that reveal it "knowingly" made false or fraudulent statements. Second, PLAINTIFFS 1o plead no material facts indicating that any alleged statements were "false". Finally, PLAINTIFFS plead no material facts that indicate that any alleged statements were tendered in a "fraudulent" -1 manner. With the cause of action sounding in fraud, PLAINTIFFS must be specific in their allegations and must show the so-called "who, what, when, where, and how" as it pertains to the alleged misrepresentations. PLAINTIFFS ignore these requirements and merely plead legal „, conclusions, deductions, and their own legal contentions. One is left to assume that PLAINTIFFS yc lack the necessary factual support to substantiate this claim. Thus, the demurrer should be 97 sustained and all applicable references should be struck from the First Amended Complaint. 28 N1C341/8 71442-1 4 MEMO OF POINTS AND AUTHORITIES IN REPLY TO PLAINTIFFS' OPPOSITION TO DEMURRER 1 E. The First Amended Complaint Is Vague, Ambiguous, And Uncertain Pursuant to Code of Civil Procedure §430.10(0, a party may object by demurrer when 3 "The pleading is uncertain. As used in this subdivision, "uncertain" includes ambiguous and 4 unintelligible....". The purpose of a complaint is to furnish the defendants with certain definite 5 charges which can be intelligently met. 6 PLAINTIFFS' Sixth Cause of Action broadly alleges that CA CONSTRUCTION violated 7 Business & Professions Code Sections 7109, 7026, 7028, 7031, and 7160. CA CONSTRUCTION 8 believes that none of these sections provide PLAINTIFFS a private right of action and that the 9 provisions of the Business & Professions Code cited by PLAINTIFFS are disciplinary in nature. 10 Even if the Court assumes that some of these provisions provide PLAINTIFFS standing, each 11 section relates to differing topics, contains separate elements, and provides for specific and 12 separate enumerated relief. Despite the distinction in each of these provisions, PLAINTIFFS 13 make one general allegation that all referenced sections were violated. PLAINTIFFS fail to 14 address the separate elements of the various Business & Professions Code sections. For this 15 reason alone, the pleading is uncertain, ambiguous and unintelligible. CA CONSTRUCTION 16 cannot intelligently meet the allegations contained in the Sixth Cause of Action. 17 III. CONCLUSION 18 Based on the above arguments, CA CONSTRUCTION respectfully requests that its 19 demurrer and motion to strike portions of PLAINTIFFS' Sixth Cause of Action in the First 20 Amended Complaint be sustained without leave to amend. 21 Dated: November '* . 2009 ARCHER NORRIS 23 24 Gregory K. Federico Attorneys for Defendants and Cross- Defendants RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 27 28 N1C341/871442-1 5 MEMO OF POINTS AND AUTHORITIES IN REPLY TO PLAINTIFFS' OPPOSITION TO DEMURRER 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 655 University Avenue, Suite 225, Sacramento, California 95825. On November 9, 2009,1 caused the following document(s) to be served: 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA 6 CONSTRUCTION'S REPLY TO REPLY TO PLAINTIFFS' OPPOSITION TO DEMURRER 7 fxl by placing a true copy of the documents listed above, enclosed in a sealed envelope, 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 n with this business' practice for collection and processing of correspondence for mailing with the United States Postal Service. On the same day that a sealed envelope 10 is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service with postage fully prepaid. 11 I I by having a true copy of the document(s) listed above transmitted by facsimile to the 12 person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission was reported as complete without error by a report issued by the transmitting facsimile machine. 14 by placing a true copy of the document(s) listed above, in a box or other facility 15 ' ' regularly maintained by UPS, an express service carrier, or delivered to a courier or driver authorized by the express service carrier to receive documents, in an envelope 16 designated by the express service carrier, with delivery fees paid or provided for, addressed as set forth below. 18 [SEE ATTACHED SERVICE LIST] 19 I declare under penalty of perjury that the foregoing is true and correct. Executed on November 9, 2009, at Sacramento, California. 22 23 Marie Cantrell 24 25 26 27 28 M NIC341/608293-1 PROOF OF SERVICE 1 Service List 2 VIA OVERNIGHT MAIL 3 Stephanie Finelli PLAINTIFFS 4 Law Offices of Stephanie J. Finelli 1007 Seventh Street, Suite 500 Teh (916)443-2144 5 Sacramento, CA95814 Fax:(916)443-1511 E-mail, sfinelli700@yahoo.com 6 7 VIA REGULAR MAIL 8 Craig N. Lundgren Counsel for RONALD PAUL BRITSCHGI, LUNDGREN & REYNOLDS, LLP INDIVIDUALLY AND DBA BRITSCHGI 9 424 Second Street, Suite A CORPORATION Davis, CA 95616 10 Tel' (530)297-5030 Fax: (530) 297-5077 11 E-mail: clundgren@lr-law.net 12 Richard D. Sopp Counsel for CADRE DESIGN GROUP, INC. Wheatley Sopp LLP 13 1004 River Rock Drive, Suite 245 Tel: (916)988-3857 Folsom, CA 95630 Fax:(916)988-5296 14 Email: rds@mwsblaw.com 15 Sean D. Schwerdtfeger Counsel for CONSTRUCTION TESTING & Joyati Tanya Schomee ENGINEERING, INC. 16 L/O OF SEAN D. SCHWERDTFEGER 501 West Broadway, Suite 1700 Tel: (619) 595-3403 17 San Diego, CA92101 Fax: (619)595-3404 Email: sean.schwerdtfeger@gmail.com 18 19 20 21 22 23 24 25 26 27 28 NIC341/608293-I SERVICE LIST