Preview
I STEPHANIE J. FINELLI, SBN 173462
Law Office of Stephanie J. Finelli
2 1007-7th Street, Suite 500
Sacramento, CA 95814
3 tel 916-443-2144
fax 916-443-1511
4
Attomey for Plaintiffs,
5
FLORENTINE and RODNEY ABBOTT
6
7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 IN AND FOR THE COUNTY OF SACRAMENTO
9
10 FLORENTINE AND RODNEY ABBOTT, Case No • 07AS04450
11 Plaintiffs, REPLY TO SUPPLEMENTAL OPPOSITION
TO MOTION FOR JUDGMENT ON THE
12 vs. PLEADINGS AS TO CA CONSTRUCTION'S
CROSS-COMPLAINT AGAINST THE
13 RONALD BRITSCHGI, et. al., ABBOTTS
J 4. Defendants Date: November 16, 2010
Time: 2:00 p.m.
15 Dept- 53
16 and related cross-actions
17
18 Plaintiffs file this reply to cross-complainant's supplemental opposition, filed on
19 November 2, 2010. Plaintiffs hereby incorporate by reference the arguments made in theii
20 original reply, filed on October 12, 2010, and will not reiterate those arguments herein
21
A. Plaintiffs Cannot Be Named as Cross-defendants Based Upon Negligence That
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Allegedly Contributed to Their Own Damages
23
In his supplemental opposition, cross-complainant Richard Ruybalid, dba CA
24
Construction, cites certain paragraphs from his cross-complaint, namely those which (1) allege
25
that plaintiffs were themselves negligent and thus responsible for their own injuries; (2) assert an
26
entitlement to indemnity; and (3) allege that cross-complainant has incurred fees and costs
27 defending against plaintiffs' complaint. Once again, this is nothing more than an allegation ol
28 comparative negligence on the part of plaintiffs. There is simply no legal basis on which CA
Reply to Opposition to Motion for Judgment on the Pleadings - 1
1 Construction could recover damages from plaintiffs; at best, plaintiffs' own negligence will
2 reduce the damages CA Construction will owe to plaintiffs on their own complaint. Thus, the
3 cross-complaint is nothing more than an assertion of comparative negligence. There is no legal
4 basis for a cross-complaint against plaintiffs based upon their own alleged negligence that
allegedly contributed to their own damages.
5
6
B. Doan Is Entirely Distinguishable
7
In their prior reply papers, plaintiffs explained that CA Construction's reliance on Daon
8
Corp. v. Place Homeowners Assn (1989) 207 Cal.App 3d 1449 only further demonstrated why
9
the cross-complaint is legally improper and must be dismissed.
10
In Daon, the plaintiff and cross-defendant was a condominium homeowners' association
11 (HOA). Defendant and cross-complainant Daon was a construction company that was being
12 sued for structural defects to the complex. (Id. at pp. 1451-1452.) Daon cross-complamed
13 against the HOA for indemnity, alleging that the HOA had negligently performing its duties
14 owed the condominium owners under the CC&R's. (Id- at pp. 1452-1453.) Daon argued that it
could name the HOA as a cross-complainant, despite the fact that it was also a plaintiff because
15
the HOA had two capacities: one as a "surrogate plaintiff for the owners ofthe condominiums,
16
which is the capacity in which it filed the action; and another in its own capacity as an entity that
17
owed certain duties to the individual owners, which was the capacity in which it was sued as a
18
cross-defendant. (Id. at p. 1453.) The appellate court held that Daon could maintain a cross
19
complaint against the HOA for indemnity for damages that individual condominium owners
20 suffered, and for which Daon was required to pay, if those damages were cause by the HOA's
21 failure to properly carry out its duties to those condominium owners.
22 Here, in contrast, plaintiffs are not "surrogate plaintiffs" for anyone; they are individuals
23 As individuals, if plaintiffs did something negligent, that will reduce the damages to which they
24 are entitled. CA Construction argues that plaintiffs were owner/builders of their own house, and
thus somehow acting in "more than one capacity." But in contrast to Daon, plaintiffs are not
25
suing on behalf of anyone; they are the plaintiffs in their individual capacities. CA is not
26
alleging that the Abbotts owed a duty to anyone. Indeed, CA's cross-complaint for indemnity is
27
based solely on the Abbott's alleged negligence that contributed to their own damages. Thus, ii
28
Reply to Opposition to Motion for Judgment on the Pleadings - 2
1 proven, such negligence will, under the principles of comparative negligence, proportionately
2 reduce CA's liability to them.
3 CA Construction claims that if plaintiffs' reasoning applied "a subcontractor would never
4 have a cause of action for either contractual or equitable indemnity against a general contractor
5
or in this case the owner-builder, if the general contractor or owner-builder negligently failed to
perform its duties thus causing the damages at issue in the pleadings." (Supplemental
6
Opposition at p. 4:5-8.) This contention is a bit too overbroad. Certainly a subcontractor will
7
always have an action for equitable indemnity against the general in an action by a third party
8
homeowner. But CA is correct: if the general contractor were the plaintiff, then of course the
9
subcontractor would not have an action for equitable indemnity against the plaintiff contractor;
10 as here, the defendant subcontractor would plead comparative negligence as against the general
11 CA claims that plaintiffs' reliance on Lauriedale Associates. Ltd v. Wilson (1992) 7
12 Cal.App.4th 1439 is misplaced, asserting that it was distinguished in Paragon Real Estate Group
13 of San Fransisco, Inc. v. Hansen (2009) 178 Cal.App.4th 177. Cross-complainant asserts that the
14 Paragon court "reasoned that where there is no concem over a special relationship, a cross-
complainant should be allowed against another tortfeasor.'" (Supplemental Opposition at p.
15
4.17-18, emphasis added.) In Paragon, the issue was whether a defendant could file a cross
16
complaint against a thirdparty despite the assertion that liability would likely be apportioned in
17
the main action. (Id- at pp. 185-186.) Moreover, the Paragon court, in distinguishing Lauriedale,
18
explained why that case is so pertinent in this one. It stated, "the relationship between the
19
plaintiff homeowners association and the individual property owners in Lauriedale made them
20 essentially one and the same party, which led the court to hold that the affirmative defense oi
21 comparative negligence would be sufficient to protect the defendants' rights to have fault
22 apportioned." (Paragon, supra at p 185.) It further noted that, "this case is factually distinct
23 from Jaffe and Lauriedale, which involved cross-complaints for equitable indemnity asserted by
24
a defendant against an entity with an inseparable identity to that ofthe plaintiff"
Here, plaintiffs are not "essentially" one and the same with cross-defendants. And theii
25
identities with each other are not "inseparable." Here, plaintiffs and cross-defendants are exatly
26
the same party. If, as set forth in Paragon and prior cases, that a cross-complaint will not lie as
27
against a third party whose identity is inseparable or essentially one and the same as the plaintiff,
28
then obviously no such cross-complaint can be filed as against plaintiffs themselves.
Reply to Opposition to Motion for Judgment on the Pleadings - 3
1 It does not matter how many "hats" plaintiffs are wearing; they are individual plaintiffs in
2 this action and not suing on behalf of anybody. If they were negligent in some manner—and it
3 appears CA Construction will argue they were—^then their recovery will be reduced under the
4 well-settled principles of comparative fault. There is simply no legal basis for the cross
5
complaint, as C A Construction caimot obtain an award of money as against plaintiffs based upon
plaintiffs' alleged contributions to their own damages. The motion for judgment on the
6
pleadings must be granted.
7
8
C. Leave to Amend Should not Be Granted
9
CA requests leave to amend "consistent with the facts discovered during the discovery
10
process that relate to Plaintiffs' liability." (Supplemental Opposition at p. 5:8-9.) Once again,
11 the only basis for "liability" on the part of plaintiffs is their own alleged comparative negligence
12 As noted above, if plaintiffs were negligent, they are not "liable" to CA Construction in any
13 amount; their own recovery will be reduced. There is simply no legal basis for the cross
14 complaint against plaintiffs for indemnity. As such, leave to amend should not be granted.
15
Where the pleadings demonstrate that no liability exists as a matter of law, it is proper for
a court to deny leave to amend (Schonfeldt v. State of Califomia (1998) 61 Cal.App.4th 1462,
16
1465.) Plaintiff bears the burden of demonstrating how the complaint can be amended to state a
17
cause ofaction. fHendv v. Losse (1991) 54 Cal. 3d 723, 742.) Thus, it is up to CA Constmction
18
to demonstrate how they could amend their cross-complaint to state a cause of action foi
19
indemnity against plaintiffs. They have not done so, and under well-settled law cannot do so
20 Leave to amend should be denied.
21
22 D. Conclusion
23 Plaintiffs and cross-defendants Florentine and Rodney Abbott are entitled to judgment on
24 the pleadings as to CA Constmction's cross-complaint withoutileave to/amend
25
Dated: November 4, 2010 _
26
Stephanie J. Finelli
27 Attomey for Plaintiffs and Cross-defendants
Florentine and Rodney Abbott
28
Reply to Opposition to Motion for Judgment on the Pleadings - 4
PROOF OF SERVICE BY MAIL
CASENAME: Abbott V. Britschgi
CASENUMBER: Sacramento County Superior Court 07AS04450
I declare that:
I am a citizen ofthe United States and a resident ofthe County of Sacramento. I am,
and at all times mentioned herein was, an active member of the State Bar of Califomia and
not a party to the above-entitled cause. My business address is 1007 Seventh Street, Suite
500, Sacramento, Califomia 95814.
On November 4,2010, pursuant to CCP §1013A(2), I served the following:
REPLY TO SUPPLEMENTAL OPPOSITION TO MOTION FOR JUDGMENT ON
THE PLEADINGS AS TO CA CONSTRUCTION'S CROSS-COMPLAINT AGAINST
THE ABBOTTS
BY MAIL: by depositing a copy ofsaid document in the United States mail in Sacramento,
Califomia, in a sealed envelope, with postage fully prepaid, addressed as follows:
Gregory Federico
Archer Norris
301 University Ave., Suite 110
Sacramento, CA 95825
Richard Sopp
Maloney, Wheatley, Sopp & Brooks
1004 Moon River Rock Drive, Suite 245
Folsom, CA 95630
Mark Smith
8549 Willow Valley Place
Granite Bay, CA 95746
I declare under penalty of perjury under the laws of the State gf California the
foregoing is tme and correct.
Dated: November 4, 2010
Preview
I STEPHANIE J. FINELLI, SBN 173462 Law Office of Stephanie J. Finelli 2 1007-7th Street, Suite 500 Sacramento, CA 95814 3 tel 916-443-2144 fax 916-443-1511 4 Attomey for Plaintiffs, 5 FLORENTINE and RODNEY ABBOTT 6 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SACRAMENTO 9 10 FLORENTINE AND RODNEY ABBOTT, Case No • 07AS04450 11 Plaintiffs, REPLY TO SUPPLEMENTAL OPPOSITION TO MOTION FOR JUDGMENT ON THE 12 vs. PLEADINGS AS TO CA CONSTRUCTION'S CROSS-COMPLAINT AGAINST THE 13 RONALD BRITSCHGI, et. al., ABBOTTS J 4. Defendants Date: November 16, 2010 Time: 2:00 p.m. 15 Dept- 53 16 and related cross-actions 17 18 Plaintiffs file this reply to cross-complainant's supplemental opposition, filed on 19 November 2, 2010. Plaintiffs hereby incorporate by reference the arguments made in theii 20 original reply, filed on October 12, 2010, and will not reiterate those arguments herein 21 A. Plaintiffs Cannot Be Named as Cross-defendants Based Upon Negligence That 22 Allegedly Contributed to Their Own Damages 23 In his supplemental opposition, cross-complainant Richard Ruybalid, dba CA 24 Construction, cites certain paragraphs from his cross-complaint, namely those which (1) allege 25 that plaintiffs were themselves negligent and thus responsible for their own injuries; (2) assert an 26 entitlement to indemnity; and (3) allege that cross-complainant has incurred fees and costs 27 defending against plaintiffs' complaint. Once again, this is nothing more than an allegation ol 28 comparative negligence on the part of plaintiffs. There is simply no legal basis on which CA Reply to Opposition to Motion for Judgment on the Pleadings - 1 1 Construction could recover damages from plaintiffs; at best, plaintiffs' own negligence will 2 reduce the damages CA Construction will owe to plaintiffs on their own complaint. Thus, the 3 cross-complaint is nothing more than an assertion of comparative negligence. There is no legal 4 basis for a cross-complaint against plaintiffs based upon their own alleged negligence that allegedly contributed to their own damages. 5 6 B. Doan Is Entirely Distinguishable 7 In their prior reply papers, plaintiffs explained that CA Construction's reliance on Daon 8 Corp. v. Place Homeowners Assn (1989) 207 Cal.App 3d 1449 only further demonstrated why 9 the cross-complaint is legally improper and must be dismissed. 10 In Daon, the plaintiff and cross-defendant was a condominium homeowners' association 11 (HOA). Defendant and cross-complainant Daon was a construction company that was being 12 sued for structural defects to the complex. (Id. at pp. 1451-1452.) Daon cross-complamed 13 against the HOA for indemnity, alleging that the HOA had negligently performing its duties 14 owed the condominium owners under the CC&R's. (Id- at pp. 1452-1453.) Daon argued that it could name the HOA as a cross-complainant, despite the fact that it was also a plaintiff because 15 the HOA had two capacities: one as a "surrogate plaintiff for the owners ofthe condominiums, 16 which is the capacity in which it filed the action; and another in its own capacity as an entity that 17 owed certain duties to the individual owners, which was the capacity in which it was sued as a 18 cross-defendant. (Id. at p. 1453.) The appellate court held that Daon could maintain a cross 19 complaint against the HOA for indemnity for damages that individual condominium owners 20 suffered, and for which Daon was required to pay, if those damages were cause by the HOA's 21 failure to properly carry out its duties to those condominium owners. 22 Here, in contrast, plaintiffs are not "surrogate plaintiffs" for anyone; they are individuals 23 As individuals, if plaintiffs did something negligent, that will reduce the damages to which they 24 are entitled. CA Construction argues that plaintiffs were owner/builders of their own house, and thus somehow acting in "more than one capacity." But in contrast to Daon, plaintiffs are not 25 suing on behalf of anyone; they are the plaintiffs in their individual capacities. CA is not 26 alleging that the Abbotts owed a duty to anyone. Indeed, CA's cross-complaint for indemnity is 27 based solely on the Abbott's alleged negligence that contributed to their own damages. Thus, ii 28 Reply to Opposition to Motion for Judgment on the Pleadings - 2 1 proven, such negligence will, under the principles of comparative negligence, proportionately 2 reduce CA's liability to them. 3 CA Construction claims that if plaintiffs' reasoning applied "a subcontractor would never 4 have a cause of action for either contractual or equitable indemnity against a general contractor 5 or in this case the owner-builder, if the general contractor or owner-builder negligently failed to perform its duties thus causing the damages at issue in the pleadings." (Supplemental 6 Opposition at p. 4:5-8.) This contention is a bit too overbroad. Certainly a subcontractor will 7 always have an action for equitable indemnity against the general in an action by a third party 8 homeowner. But CA is correct: if the general contractor were the plaintiff, then of course the 9 subcontractor would not have an action for equitable indemnity against the plaintiff contractor; 10 as here, the defendant subcontractor would plead comparative negligence as against the general 11 CA claims that plaintiffs' reliance on Lauriedale Associates. Ltd v. Wilson (1992) 7 12 Cal.App.4th 1439 is misplaced, asserting that it was distinguished in Paragon Real Estate Group 13 of San Fransisco, Inc. v. Hansen (2009) 178 Cal.App.4th 177. Cross-complainant asserts that the 14 Paragon court "reasoned that where there is no concem over a special relationship, a cross- complainant should be allowed against another tortfeasor.'" (Supplemental Opposition at p. 15 4.17-18, emphasis added.) In Paragon, the issue was whether a defendant could file a cross 16 complaint against a thirdparty despite the assertion that liability would likely be apportioned in 17 the main action. (Id- at pp. 185-186.) Moreover, the Paragon court, in distinguishing Lauriedale, 18 explained why that case is so pertinent in this one. It stated, "the relationship between the 19 plaintiff homeowners association and the individual property owners in Lauriedale made them 20 essentially one and the same party, which led the court to hold that the affirmative defense oi 21 comparative negligence would be sufficient to protect the defendants' rights to have fault 22 apportioned." (Paragon, supra at p 185.) It further noted that, "this case is factually distinct 23 from Jaffe and Lauriedale, which involved cross-complaints for equitable indemnity asserted by 24 a defendant against an entity with an inseparable identity to that ofthe plaintiff" Here, plaintiffs are not "essentially" one and the same with cross-defendants. And theii 25 identities with each other are not "inseparable." Here, plaintiffs and cross-defendants are exatly 26 the same party. If, as set forth in Paragon and prior cases, that a cross-complaint will not lie as 27 against a third party whose identity is inseparable or essentially one and the same as the plaintiff, 28 then obviously no such cross-complaint can be filed as against plaintiffs themselves. Reply to Opposition to Motion for Judgment on the Pleadings - 3 1 It does not matter how many "hats" plaintiffs are wearing; they are individual plaintiffs in 2 this action and not suing on behalf of anybody. If they were negligent in some manner—and it 3 appears CA Construction will argue they were—^then their recovery will be reduced under the 4 well-settled principles of comparative fault. There is simply no legal basis for the cross 5 complaint, as C A Construction caimot obtain an award of money as against plaintiffs based upon plaintiffs' alleged contributions to their own damages. The motion for judgment on the 6 pleadings must be granted. 7 8 C. Leave to Amend Should not Be Granted 9 CA requests leave to amend "consistent with the facts discovered during the discovery 10 process that relate to Plaintiffs' liability." (Supplemental Opposition at p. 5:8-9.) Once again, 11 the only basis for "liability" on the part of plaintiffs is their own alleged comparative negligence 12 As noted above, if plaintiffs were negligent, they are not "liable" to CA Construction in any 13 amount; their own recovery will be reduced. There is simply no legal basis for the cross 14 complaint against plaintiffs for indemnity. As such, leave to amend should not be granted. 15 Where the pleadings demonstrate that no liability exists as a matter of law, it is proper for a court to deny leave to amend (Schonfeldt v. State of Califomia (1998) 61 Cal.App.4th 1462, 16 1465.) Plaintiff bears the burden of demonstrating how the complaint can be amended to state a 17 cause ofaction. fHendv v. Losse (1991) 54 Cal. 3d 723, 742.) Thus, it is up to CA Constmction 18 to demonstrate how they could amend their cross-complaint to state a cause of action foi 19 indemnity against plaintiffs. They have not done so, and under well-settled law cannot do so 20 Leave to amend should be denied. 21 22 D. Conclusion 23 Plaintiffs and cross-defendants Florentine and Rodney Abbott are entitled to judgment on 24 the pleadings as to CA Constmction's cross-complaint withoutileave to/amend 25 Dated: November 4, 2010 _ 26 Stephanie J. Finelli 27 Attomey for Plaintiffs and Cross-defendants Florentine and Rodney Abbott 28 Reply to Opposition to Motion for Judgment on the Pleadings - 4 PROOF OF SERVICE BY MAIL CASENAME: Abbott V. Britschgi CASENUMBER: Sacramento County Superior Court 07AS04450 I declare that: I am a citizen ofthe United States and a resident ofthe County of Sacramento. I am, and at all times mentioned herein was, an active member of the State Bar of Califomia and not a party to the above-entitled cause. My business address is 1007 Seventh Street, Suite 500, Sacramento, Califomia 95814. On November 4,2010, pursuant to CCP §1013A(2), I served the following: REPLY TO SUPPLEMENTAL OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS AS TO CA CONSTRUCTION'S CROSS-COMPLAINT AGAINST THE ABBOTTS BY MAIL: by depositing a copy ofsaid document in the United States mail in Sacramento, Califomia, in a sealed envelope, with postage fully prepaid, addressed as follows: Gregory Federico Archer Norris 301 University Ave., Suite 110 Sacramento, CA 95825 Richard Sopp Maloney, Wheatley, Sopp & Brooks 1004 Moon River Rock Drive, Suite 245 Folsom, CA 95630 Mark Smith 8549 Willow Valley Place Granite Bay, CA 95746 I declare under penalty of perjury under the laws of the State gf California the foregoing is tme and correct. Dated: November 4, 2010