Preview
I Todd A. Jones (Bar No. 198024)
tjones@archemorris.com
2 Gregory K. Federico (BarNo. 242184)
gfederico@archemorris.com
3 ARCHER NORRIS
A Professional Law Corporation
4 301 University Avenue, 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 DECLARATION OF GREGORY K.
Plaintiffs, FEDERICO IN SUPPORT OF
14 DEFENDANT RICHARD KIRK
RUYBALID, individually, and dba CA
15 CONSTRUCTION'S OPPOSITION TO
RONALD PAUL BRITSCHGI, et al.. PLAINTIFFS' MOTION FOR JUDGMENT
16 ON THE PLEADINGS
Defendants.
17 Date: October 21, 2010
Time: 2:00 p.m.
18 Dept: 53
19 Action Filed: September 24, 2007
Trial Date: January 17,2011
20
21 AND RELATED CROSS-ACTIONS.
22
23 I, Gregory K. Federico, hereby declare as follows:
24 1. I am an attomey duly licensed to practice before all the Courts in the State of
25 Califomia and 1 am an associate with Archer Norris, attomeys ofrecord for Defendant and Cross-
26 Complainant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION ("CA
CD 27 CONSTRUCTION"). I have personal knowledge ofthe matters set forth herein except where
cc: 28
o NIC34I/I03066I-1
DECLARATION IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO PLAINTIFFS' MOTION FOR
JUDGMENT ON THE PLEADINGS
1 stated on information and belief If called upon as a witness in this matter, I could and would
2 competently testify thereto.
3 2. Attached hereto as Exhibit "A" is a true and correct copy ofthe original Complaint
4 as filed by the Plaintiffs RODNEY and FLORENTINE ABBOTT ("Plaintiffs") in this matter,
5 3. Plaintiffs' original complaint cites the October 25, 2005 subcontract between
6 Plaintiffs and CA CONSTRUCTION as an attached exhibit.
7 4, Based on the content of Plaintiffs' original complaint, CA CONSTRUCTION filed
8 its Answer on November 13, 2007. I drafted the answer based on the allegations in the original
9 complaint and the subcontract between Plaintiffs and CA CONSTRUCTION
10 5. Attached hereto as Exhibit "B" is a tme and correct copy ofthe Answer filed by
11 CA CONSTRUCTION in this matter.
12 6. On November 13, 2007, CA CONSTRUCTION'S filed its cross-complaint for: (1)
13 Implied Equitable Indemnity; (2) Comparative Indemnity; (3) Comparative Negligence; (4)
14 Contribution; and (5) Declaratory Relief against various subcontractor defendants.
15 7. On October 31, 2008, CA CONSTRUCTION filed a Second Amendment to its
16 cross complaint naming Plaintiffs RODNEY and FLORENTINE ABBOTT in lieu of MOES 2
17 and 3, respectively.
18 8. On July 23, 2009, Plaintiffs filed a First Amended Complaint ("FAC"). The FAC
19 added two new parties, personal injury claims for mold exposure, and new allegations and causes
20 ofaction against various defendants, including CA CONSTRUCTION. Again, the FAC
21 specifically references the subcontract between Plaintiffs and CA CONSTRUCTION.
22 9. Attached hereto as Exhibit "C" is a true and correct of Plaintiffs' FAC.
23 10. On December 4, 2009, Plaintiffs filed a Second Amended Complaint ("SAC").
24 The SAC is substantially the same as the FAC in terms of its substantive allegations. Again,
25 Plaintiffs attach a copy of the subcontract between Plaintiffs and CA CONSTRUCTION as
26 Exhibit "A" to the SAC.
27 11, Attached hereto as Exhibit "D" is a true and correct copy of Plaintiffs SAC,
28 1 2 . 1 drafted the cross-complaint of CA CONSTRUCTION and the Second
NIC34I/I03066I-I 2
DECLARATION IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO PLAINTIFFS' MOTION FOR
JUDGMENT ON THE PLEADINGS
1 Amendment to Cross-Complaint upon information and belief. The allegations contained therein
2 are based on the allegations in the original complaint and the subcontract between Plaintiffs and
3 CA CONSTRUCTION. The cross-complaint of CA CONSTRUCTION against Plaintiffs stems
4 from construction and design mismanagement by the owner-builder ofthe home, FLORENTINE
5 ABBOTT.
6 1 3 . 1 took the deposition of Plaintiff FLORENTINE ABBOTT on December 15, 2008
7 and January 23, 2009. The testimony elicited during those depositions substantiated the matters
8 alleged in the cross-complaint of CA CONSTRUCTION and its Second Amendment to Cross-
9 Complaint.
10 14. Attached hereto as Exhibit "E" are true and correct copies of excerpts from
11 Plaintiff FLORENTINE ABBOTT's depositions.
12 15. Trial was initially set in this matter for May 11, 2009. Thereafter, trial was
13 continued to May 24, 2010 and is now set for January 17,2011,
14 16. Plaintiffs filed the instant Motion for Judgment on the Pleadings on June 4,2010,
15 more than 945 days after service upon them ofthe 'MOE' amendment to the Cross-Complaint
16 and more than 389 days after the initial trial date of May 11, 2009.
17
18
I declare under penalty ofperjury under the laws ofthe State of Califomia that the
19
2Q foregoing is tme and correct. Executed this l^" day of October, 2010 at Sacramento,
21 Califomia,
22
23
24 GREGORY K. FEDERICO
25
26
27
28
NIC34I/I03066I-I 3
DECLARATION IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO PLAINTIFFS' MOTION FOR
JUDGMENT ON THE PLEADINGS
A
EXHIBIT
LOREY MOORE 1004
1 0 / 2 3 / 2 0 0 7 1 5 : 4 3 FAX 1 8 8 8 7 7 8 8 '
Ffcm A t t o r n e y s Aid 916-64B-1SS:? Mon IS Oct 2007 01:35:06 PM POT Page S of 32
1
jAB:bte WRIGHT & BRITTON
2 An Association of Attorneys
JOHN A. BRITTON.- CBA NO. 055490
3 HAROLD C. WRIGHT - CBA NO. 044400
3741 Douglas Boulevard, Suite 380
4 Roseville, CA 95661
Telephone; (916) 781-2050
5 Facsimile: (916) 782-7560
6 Attomey for Plaintiffs
RODNEY ABBOTT and
7 FLORENTINE ABBOTT
8 IN THE SUPERIOR COURT OF CALJFORNIA ,
9 IN AND FOR THE COUNTY OF SACRAMENTO
10
RODNEY ABBOTT and CAsENd07ASO445O
11 -FLORENTINE ABBOTT
12
COMPLAINT FOR DAMAGES FOR
Piaintiffs, BREACH OF CONSTRUCTION
13 vs. CONTRACT, NEGLIOENCE, ANO
FOR SUIT ON CONTRACTOR'S
UCENSE BOND
14 RONALD PAUL BRITSCHGI,
15
Individually and doing business as (Unlimited Civil Case)
BRITSCHGI CONSTRUCTION,
RICHARD KIRK RUYBALID.
16 individually and doing business as
CA CONSTRUCTION, SURETY
17 COMPANY OF THE PACIFIC,
WESTERN SURETY COWPANY,
18 and DOES 1 through 20, Inclusive,
19
Defendants.
20
21
Plaintiff alleges:
22
GENERAL ALLEGATIONS
23 I.
24
At all times herein mentioned. Plaintiffs RODNEY ABBOTT and FLORENTINE
25
ABBOTT were owners of that part^el of specific real property located in the county of
26
Sacramento, State of Califbmia, and more particularly described as 8601 Rolling Green
27 Way, Fair Oaks. California 95628.
28
COMPLATNT FOR DAMAGES POR BREACH OP CONSTRUCTION CONTRACT,
NEGLIGENCE, AND FOR sun-ON CONTRACTORS'LICENse BONO
R e c e i v e d T i m t O c l . 15. 2007 1;27^M No. 5595
XHIBIT. rt
10/23/2007 15:44 FAI 18887788 LOREY MOORE (21005
)m Attorneys Aid 916-648-1SS3 Mon IS Oct 2007 01:35:06 PM PDT Page 6 o f 32
1 II.
2 Plaintiff are informed and believe and upon such Infomiation and belief allege that
3 at all times herein mentioned. Defendant RONALD PAUL BRITSCHGI, Is an Individual
4 doing business under that firm name and style of BRITSCHGI CONSTRUCTION and, at
S all fimes herein mentioned, was and is doing business In the County of Sacramento, State
6 of Califomla. Defendant RONALD PAUL BRITSCHGI was duly licensed by the
7 Contractor's License Board ofthe State of Cairfomia to conduct business as a contractor
8 within the State of Califomia and to engage in the work hereinafter described.
9 III.
10 Plaintiffs are informed and believe and upon such infomiation and belief allege that
11 at all times herein mentioned Oefendant RICHARD KIRK RUYBALIDfean individual doing
12 business under the firm name and style of CA CONSTRUCTION and at all times herein
13 mentioned, did business in the City of Fair Oaks, County of Sacramento. State of
14 California. Defendant RICHARD KIRK RUYBALDl was duly licensed by the Contractor's
15 License Boarel of the Stat© of Califomia lo conduct business as a contractor wrthin th©
16 State of Califomia and to engage In the work hereinafter described.
17 IV.
18 Plaintiffs are informed and believe and upon such information and belief allege that
19 at all times herein mentioned SURETY COMPANY OF THE PACIFIC was and Is licensed
20 wrthin the State of California to issue contractor license bonds in favor of contractors in the
21
State of California, and In this particular case, so issued a contractor's Dcense bond in
22
favor of 1(8 Insured RONALD PAUL BRITSCHGI, individually and doing t)usin©ss as |-
23
BRITSCHGl CONSTRUCTION.
24
V.
25
Piaintiffs are informed andbelieve and upon such information and belief allege that
2»6
at all times herein mentioned WESTERN SURETY COMPANY was and Is licensed within
2i7
the State of Califomia to issue contractor license bonds In favor of contractors In the State
28 of Califomia, and In this particular case, so issued a contractor's license bond in ftivor of
-2-
COMPUUNT FOR DAMAGES FOR BREACH OF CONSTRUCTION CONTRACT.
, , r. - . . NEGLIGENCE, AND FOR sun-ON CONTRACTORS'LICENSE BONO
Received Timt Oct, •('5 5flft7 1-OTPM Kn f;t;oi;
10/23/2007 15:44 FAX 18887788'' LOREY MOORE 121006
_fc i-./u« v x . j j . w u rtn r U I Page 7 o f 32
1 its insured .RICHARD KIRK RUYBALDl. Individually and doing business as CA
2 CONSTRUCTION.
3 VI.
4 Plaintiffs-are Ignorant ofthe true names ^nd capacities ofthe Defendants sued
5 herein as DOES 1 through 20, inclusive, and therefore sues these Defendants by such
6 fictitious names. Plaintiffs will amend this Complaint to allege their tme names and
7 cepacit'es when ascertained. PlaintifiB are Infbrmed and believe that each of these
8 Defendants is an agent and employee of each and every other Defendant named or to be
9 named in the above-entitled action, and each such DOE Defendant proximately caused
10 Plaintiffs damages as herein alleged while acting in such capacity. Plalritiffs are further
11 informed and believe, and upon such information and belief, allege that each ofthe DOE
12 Defendants were somehow negligent and/or at fault with respect to tho 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 Plaintiffs complain.
IS FIRST CAUSE OF ACTION
16 (Breach of Oral Contract Against Defendant, Ronald Paul Britschgi)
17 I.
18 Plaintiffs hereby reallege and incorporate herein by reference all ofthe allegations'
19 setforth in paragraphs 1-6 as setforth above.
20 II.
21 On orabout October 1,2005, Plaintiffs and Defendant RONALD PAUL BRITSCHGI
22 entered into an oral agreement in which said Defendant agreed to help the Plaintiffs build f
23 their personal residence which is located In Sacramento as more specificaUy described
24 hereinabove. Said Defendant, as a general contractor, agreed to assist Plaintiffs In the
25 constmction of their personal residence to the extent that said Defendant would assist,
26 guide, and direct Plaintiffs and other contractors with respect to certain stages of
27 constmction, namely, the location for placement ofthe house on the lot, grading ofthe lot
28 for purposes of constmction, the pouring of concrete, for the house and-garage for
-3- .
COMPLAINT FOR DAMAGES FOR BREACH OF CONSTRUCTION CONTRACT,
M B ^ I G E N C E , AND FOR SUIT ON CONTRACTORS' LICENSE BONO I
eceived Time^ Oct. I'i. 2007 1'27PM Nn "^(^QR
10/23/2007 15:44 FAI 18887788 LOREY MOORE 1007
Mon I S Oct 2007 0 1 : 3 5 : 0 6 W PDT Page g of 32
1 foundational purppses, with emphasis on proper elevatk>n of that fbundation as that
2 foundation related to Where the house ^nd garage would sit on the lot In relation to the
3 elevation of the street and pi^oposed streets in front of the lot, as well as the framing ofthe
• 4 house In additional to misce;IIaneous other duties. These miscellaneous other duties
5 included the supen/ision ofthe work done by other contractors working on constmction of
6 the house. For these services, Plaintiffs paid said Defendant the sum of approximately
7 $13,658.00, the exact sum ofwhich will be shown according to proof at time of trial. Said
8 Defendant agreed to perfbrm his duties so as to make sure that the house was constructed
9 according to certain plans and specifications given to said Defendant by Plaintifs at the
10 time ha agreed to work with Plaintiffs as a general contractor assisting them in the
" 11 constmction of their personal residence. During the course of constructk}n, changes
12 needed to be made to the plans and specifications originally prepared forthe constmction
13 of the family residence. Said Oefendant agreed to and did work with Plalntlffs and their
14 architect/designer with respect to modifying the pfans and specifications. Said Defendant
15 further agreed to use his care and skill as a general contractor withrespectto not only the
16 work that he was doing personally towards the constmction of the residence, but also he
17 agreed to usa his care and skill as a general contractor to supervise the woric done by
18 other subcontractors and to assure that all such wori< was done in a good and workmanlike
19 fashion, and done according to standards of constmction within the constniction industry,,
20 and according to certain plans and specifications. These oral agreements were entered
21 into by and between Plaintif and said .Defendant in a series of oral di$cussk>ns which took
22 place beginning on or about October 1,2005 and continuing through the rest of October "
23 2005.
24"
IIL
25
Plaintiffs have performed all conditions, covenants and promises underthe contract
26
with said Defendant to be performed on their part to be performed, Including, but not
27
limited to, the payment of $13,658.00 to said Defendant.
28
ffl
-4-
coigpumr FOR DAMAGES FOR BREACH OF CONSTRUCTION CONTRACT.
NEGUGENCE, AND FOR SUIT ON CONTRACTORS' UCENSE BOND
Received Time Oct. 15. 2007 1 • 27?M No, 5595
1 0 / 2 3 / 2 0 0 7 1 5 : 4 4 FAI 18887788 LOREY MOORE 121008
Kage 9 o t 32
1 IV.
2 On or about September 15. 2006, Plaintiffs discovered that said Defendant
3 breached the contract with them by failing tb properiy supervise the work perfomied by
4 other subcontractors and to assure that the work was done adequately, diligently, and In
5 a good and woricmanlike fashion and according to certain plans and specifications.
6 V.
7 As a result ofsaid Defendant breaching the contract, Plaintiffs have suffered certain
8 damages in that Plaintiffs' house and garage were defectively constmcted and not
9 according to plans and specifications. Those damages include the fact that neither the
10 house nor the garage were built at certain elevations to which they should have been
11 constmcted. The Incon-ect placing ofthe house and garage on the lot at certain levels was
12 not according to plans and specifications thus, resulting in certain darnage to the house
13 and garage and sunounding property, namely, drainage damage, the necessity of using
14 stairs to the house and stairs to the garage, the inability to use the garage for the purposes
15 for which It was intended, and damages to retaining walls as well as inclining other
16 expenses including, but not limited to, cost to repair, cost to reconstmct, and other
17 damages, the total amount of damages which Is unknown at this time, the exact sum of
18 which will be shown according to proof at time of trial.
19 SECOND CAUSE OF ACTION
20 (Negligence as to Defendant, Ronald Paul Britschgi)
• 21 I.
22 Plaintiffs hereby reallege and incorporate harein by reference all ofthe allegations'
23 set forth In the First Cause of Action.,
24 n.
25 Said Defendant had a duty to perform his constmction services and other services
26 in a good and workmanlike manner and in acconijance with accepted standards in the
27 constmction industry and in accordance with certain plans and specifications as given to
28 him by Plaintiffis.
-^ ^
COASm.AlNT FOR DAMAGES FOR BREACH OF CONSTRUCTION CONTRACT,
fjJEGUGENCE. AND FOR SUIT ON CONTRACTORS' UCENSE BOND
ceived Time Oct, IS, 9fln7 \ - i i m Wrt ^^a^. •
10/23/2007 15:44 FAI 18887788 LOREY MOORE 1009
won l i uct 2007 01:35:OS PM POT Page 10 of 32
I * 1
1 III.
2 In performing the services as referenced hereinabove, said Defendant acted
3 negligently tn 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 constmcted In a good and workmanlike'fashion rx>r accondlng to accepted standards in the
6 constmction industry, /urther, the house and garage were not constmcted according to
7 certain plans and specifications or in the manner as requested by Plaintiffs. Said
8 Defendant was further negligent in his duties in not properiy supervising the work done by
9 other contractors, which supervision he promised Plaintrffs he would peribrm.
10 IV. ,
11 As a result of the negligence of said Defendant, Plaintiffs have suffered certain
12 damages as more specifically referred to hereinabove. Those damages included the fact
13 that neither the house nor the garage were built according to plans and specifications or
14 at certain elevations to which they should have been constmcted. This negligent
15 conatmction has caused numerous damages. Including the fact that Plaintiffs cannot use
16 the garage for all of its intended purposes. Further, the Incorrect placing ofthe house and
17 garage on 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 damages toretainingwalls as well as incurring
20 other expenses including, but not limited to. cost torepair,cost to reconstmct, and other
21 damages, the total amount of damages which Is unknown at this time, the exact amount
22 of which, however, will be shown according tp proof at time of trial.
23 THIRD CAUSE OF ACTION
24 (Breach of Confract Against Defendant,
Richard Kirk Ruybaldl dba CA Constnuctlon)
25
26 I.
27 Plaintiffs hereby reallege and incorporate herein byreferenceall ofthe allegations
28 of the First Cause of Action.
COSifPLAINT FOR DAMAGES POR BREACH OF CONSTRUCTION CONTRACT,
NEGLIGENCE, AND FOR SUIT ON CON'mACTORS' LICENSE BOND
. ^ f r ^ i v e d Time Oct. 15. 2007 1'97^y ^^ SROf?
1 0 / 2 3 / 2 0 0 7 1 5 : 4 5 FAI 18887788 LOREY MOORE Ioio
" vx.jj.uQ rivi r u i fage u . ot 32
1
2 On or about October 25,2005, Plaintiffs and said Defendant entered Into a written
3 constmction contract, a copy of which is attached hereto marked as Exhibit A and
4 incorporated herein by reference.
5 lil.
6 Said Oefendant was given a copy of the original plans and specifications for the
7 constmction of the residence. He was so given those plans and specifications for the
8 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 specifications - both original plans and specifications and
• 11 then modified plans and specifications for Which said Oefendant partrcipated in the
12 modification of said plans and specifications.
13 IV.
14 Said Defendant breached the contract in question by falling 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 asrequesledby Raintiffs. Saki contract was further breached in that
17 said Defendant failed to properiy lay, pour and place the concrete ofthe house and the
18 garage as called forin the planis and speciflcatnns and as called for according to good and
19 wori|
5 Caaa Natnimr:
Attomeys for Defendants
6 RICHARD KIRK RUYBALID, individually, and Q7AS0-i4SQ
dba CA CONSTRUCTION
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10
11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
ABBOTT,
12 ANSWER TO COMPLAINT
Plaintiffs.
13 Action Filed: September 24, 2007
14
RONALD PAUL BRITSCHGI. et al.,
15
Defendants.
16
17
18 COMES NOW Defendants RICHARD KIRK RUYBALID, individually, and RICHARD
19 KIRK RUYBALID dba CA CONSTRUCTION on behalf of themselves and for no other
20 Defendant and answers Plaintiffs' complaint on file herein as follows.
21 These answering Defendants deny each and every allegation ofthe complaint on file
22 herein and each and every paragraph thereof and further deny that PlaintifFs sustained any
23 damages in the sum or sums alleged, or in any other sum or sums whatsoever, or at all, and
24 further deny that Plaintiffs £ire entitled to any damages by way ofthis action in any amount
25 whatsoever.
26 ///
27 ///
28 ///
N1C34I/6074I
'COPY ANSWER TO COMPLAINT
lEXHlBIT.
1 FIRST AFFIRMATIVE DEFENSE
(Failure to State a Cause ofAction)
2
3 The complaint on file herein fails to state facts sufficient to state a claim upon which relief
4 can be granted.
5 SECOND AFFIRMATIVE DEFENSE
(Contributory Negligence)
6
7 Plaintiffs were themselves careless and negligent and their own carelessness and
8 negligence proximately caused and contributed to the injuries and damages Plaintiffs complain of,
9 ifany there were. Plaintiffs' own carelessness and negligence account for one hundred percent of
10 the total carelessness and negligence relating to Plaintiffs' injuries and damages, ifany.
11 THIRD AFFIRMATIVE DEFENSE
12 (Negligence of Others)
13 The negligence, carelessness and other acts and omissions of other Defendants or Cross-
14 defendants in this lawsuit, as well as other persons and entities not parties to this lawsuit,
15 proximately caused or contributed to Plaintiffs' injuries and damages, ifany. The negligence,
16 carelessness and other acts or omissions ofthe other Defendants in this lawsuit, and other persons
17 and entities not parties to this lawsuit, account for one hundred percent ofthe injuries and
18 damages, ifany, and/or constitute supervening and/or intervening causes of Plaintiffs' injuries
19 and damages, ifany.
20
FOURTH AFFIRMATIVE DEFENSE
21 (Assumption ofthe Risk)
22 Plaintiffs are barred from asserting any claim against this answering defendant by reason of
23 Plaintiffs' assumption ofthe risk ofthe matters causing the injuries and damages incurred, ifany.
24
FIFTH AFFIRMATIVE DEFENSE
25 (Plaintiffs' Voluntary Conduct)
26 Plaintiffs voluntarily and knowingly entered into and engaged in the conduct alleged in
27 the complaint and voluntarily and knowingly assumed all ofthe risks incident to said conduct at
28 the time and place mentioned in said complaint.
NIC3'tl/607463-l 2
ANSWER TO COMPLAINT
1 SIXTH AFFIRMATIVE DEFENSE
(Plaintiffs' Failure to use Reasonable Diligence)
2
3 These answering Defendants are informed and believe and thereon allege that Plaintiffs'
4 injuries, loss or damages, ifany, were aggravated by Plaintiffs' failure to use reasonable
5 diligence.
6 SEVENTH AFFIRMATIVE DEFENSE
(Time Barred Claims)
7
8 These answering Defendants allege that the complaint and each cause ofaction set forth
9 therein is barred by provisions of Code ofCivil Procedure Sections 337, 337.1, 337.15, 338, 339,
10 340,342 and 343; and Califomia Civil Code Sections 896 and 900.
11 EIGHTH AFFIRMATIVE DEFENSE
(Plaintiffs' Undertaking a Known Danger)
12
13 TTiese answering Defendants allege that if Plaintiffs were injured, as alleged in the
14 complaint, or at all, then these answering Defendants are informed and believe and on the basis of
15 such information and belief allege that said damages were and are the result ofan open, obvious
16 and apparent danger which was known to and recognized by Plaintiffs, who nevertheless
17 knowingly, willingly, intentionally and voluntarily exposed themselves to said danger, thereby
18 assuming the risk of accident, injury and damage.
19 NINTH AFFIRMATIVE DEFENSE
(Laches)
20
21 • These answering Defendants allege that the Plaintiffs are barred by the equitable doctrines
22 of laches.
23 TENTH AFFIRMATIVE DEFENSE
(Waiver)
24
25 Plaintiffs have waived and are estopped from asserting any claim against these answering
26 Defendants by reason of Plaintiffs' approval and consent to the risk in the matters causing the
27 damages alleged, ifany, in their acknowledgement of, acquiescence in and consent to the alleged
28 act or omissions, ifany, of these answering Defendants.
NIC34I/607463-I 3
ANSWER TO COMPLAINT
1 ELEVENTH AFFIRMATIVE DEFENSE
(Comparative Fault)
2
3 While at all times denying any liability whatsoever to the Plaintiffs, any alleged liability
4 or responsibility of these Defendants are small in proportion to the alleged liability and
5 responsibility of other persons or entities, including other persons and entities who are
6 Defendants or Cross-Defendants herein, and Plaintiffs should be limited to seeking recovery fi-om
7 these Defendants for the proportion of alleged injuries and damages for which these answering
8 Defendants are allegedly liable or responsible, all such alleged liability and responsibility being
9 expressly denied.
10 TWELFTH AFFIRMATIVE DEFENSE
(Failure to Mitigate)
11
12 Plaintiffs' complaint fails to state a claim against these answering Defendants as Plaintiffs
13 failed to mitigate their damages.
14
THIRTEENTH AFFIRMATIVE DEFENSE
15 (Doctrine of Unclean Hands)
16 Plaintiffs' complaint and each cause ofaction therein is barred by the doctrine of unclean
17 hands.
FOURTEENTH AFFIRMATIVE DEFENSE
18 (Failure to Provide Notice of Breach of Warranty)
19 Plaintiffs' complaint and each cause ofaction therein fails to state a cause ofaction in that
20 Plaintiffs failed to give timely and proper notice of breach of warranty.
21 FIFTEENTH AFFIRMATIVE DEFENSE
(Failure to Join Necessary Parties)
22
23 Plaintiffs' complaint fails to state a claim upon which relief can be granted as there is a
24 defect or misjoinder of parties pursuant to Code ofCivil Procedure section 430.10(d), in that
25 Plaintiffs failed to join all parties necessary for final determination ofthis action.
26 SIXTEENTH AFFIFMATIVE DEFENSE
(Failure to State a CMm for Attorneys' Fees)
27
28 Plaintiffs' complaint fails to state a claim upon which attomey fees can be awarded.
NIC34I/607463-I 4
ANSWER TO COMPLAINT
1 SEVENTEENTH AFFIRMATIVE DEFENSE
(Attorneys' Fees)
2
3 These answering Defendants allege that they are entitled to an award of attorneys' fees
4 pursuant to Code ofCivil Procedure Section 1038, by which attomeys' fees may be awarded
5 upon entry ofjudgment on a complaint for express or implied indemnity or contribution, when
6 such complaint has been filed without any reasonable cause and good faith belief that there was
7 controversy that warranted thefilingofsuch complaint.
8 EIGHTEENTH AFFIRMATIVE DEFENSE
(Applicability ofBusiness Judgment Rule)
9
10 These answering Defendants are exemptfi-omliability to Plaintiffs by operation of
11 Corporations Code section 7231.
12 NINETEENTH AFFIRMATIVE DEFENSE
(Limited Warranty)
13
14 These answering Defendants allege that the warranties, ifany, by this answering
15 Defendants were limited as to time and scope.
16 TWENTIETH AFFIRMATIVE DEFENSE
(Lack of Privity)
17
18 These answering Defendants allege that at no time has this Defendant breached any
19 warranty to Plaintiffs or any party herein, and Defendants further allege that even ifany
20 warranties had been made by these answering Defendants, which is denied, no cause of action for
21 breach of warranty has been asserted or may be asserted against these Defendants as there is no
22 allegation of privity between these Defendants and any other party and, in fact, there was no such
23 privity to give rise to such cause ofaction.
24 TWENTY-FIRST AFFIRMATIVE DEFENSE
(Contractual Privity)
25
26 These answering Defendants allege that it was not in contractual privity with Plaintiffs
27 and, therefore. Plaintiffs have no contractual rights for recovery against said Defendants.
28 ///
NIC341/607463-1 5
ANSWER TO COMPLAINT
1 TWENTY-SECOND AFFIRMATIVE DEFENSE
(Unjust Enrichment)
2
3 These answering Defendants allege that any recovery by Plaintiffs would be unjust and
4 inequitable under the circumstances ofthe case, as all performance required by such Defendants
5 was properly performed.
6 TWENTY-THIRD AFFIRMATIVE DEFENSE
(Intervening A cts)
7
8 These answering Defendants allege that each cause ofaction is barred by the independent,
9 intervening and superseding acts of other parties.
10 TWENTY-FOURTH AFFIRMATIVE DEFENSE
(Civil Code Section 2 782)
11
12 These answering Defendants allege that each cause of action is barred by the provisions of
13 Civil Code Section 2782, et seq.
14 TWENTY-FIFTH AFFIRMATIVE DEFENSE
(Allocation of Fault)
15
16 These answering Defendants request that the Court determine the rights and liabilities of
17 the parties and determine the proportionate share of fault with respect to each party, and all
18 persons or entities not a party to the action, in order that proportionate shares of liability, if any
19 there may be, can be allocated.
20 TWENTY-SIXTH AFFIRMATIVE DEFENSE
(Misuse and Improper Maintenance)
21
22 These answering Defendants allege on information and belief that persons or entities other
23 than these answering Defendants misused and failed to properly maintain or repair the property
24 which is the subject ofthis action thereby causing or contributing to the damages, ifany, alleged
25 in the Complaint.
26 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
(Alteration)
27
28 These answering Defendants allege on information and belief that persons or entities other
NIC34I/607463-1 6
ANSWER TO COMPLAINT
1 than these answering Defendants, without the knowledge or consent of these answering
2 Defendants, altered the subject property to the extent that any alleged damages were solely and
3 proximately caused by such alteration.
4 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
(Ratification of Work)
5
6 These answering Defendants allege that Plaintiffs expressly or impliedly approved and/or
7 ratified any and all work performed by these answering Defendants at the subject property and
8 therefore Plaintiffs have waived and are estoppedfi-omasserting any claims arising out of such
9 matter.
10 TWENTY-NINTH AFFIRMATIVE DEFENSE
(Accord and Satisfaction)
11
12 These answering Defendants allege an accord and satisfaction between the parties barring
13 the complaint.
14 THIRTIETH AFFIRMATIVE DEFENSE
(Prior Breach ofContract)
15
16 These answering Defendants allege that they have been excused from performance ofany
17 contract alleged by Plaintiffs because of Plaintiffs' prior breach of contract.
18 THIRTY-FIRST AFFIRMATIVE DEFENSE
(Unconscionable Contract)
19
20 These answering Defendants allege that the contract alleged to exist between these
21 answering Defendants and Plaintiffs was drafted by Plaintiffs and was unconscionable at the time
22 it was made. It is therefore unenforceable.
23 THIRTY-SECOND AFFIRMATIVE DEFENSE
(Non-Negotiated Terms, Conditions)
24
25 These answering Defendants allege that the contract alleged to exist between these
26 answering Defendants and Plaintiffs was drafted by Plaintiffs and contained non-negotiated terms
27 and conditions which exclusively benefited Plaintiffs to the detriment of these answering
28 Defendants at the time the contract was made.
NIC34I/607463-1 7
ANSWER TO COMPLAINT
1 THIRTY-THIRD AFFIRMATIVE DEFENSE
(Uncertain Terms)
2
3 These answering Defendants allege that the contract alleged to exist between these
4 answering Defendants and Plaintiffs was drafted by Plaintiffs and contained uncertain terms,
5 conditions and language which must be interpreted against Plaintiffs.
6 THIRTY-FOURTH AFFIRMATIVE DEFENSE
(Performance Excused)
7
8 These answering Defendants allege that they have been excused from performing any
9 contractual duties alleged by Plaintiffs by reason of failure of consideration, waiver, breach of
10 condition precedent, impossibility of performance, prevention by Plaintiffs, frustration of purpose
11 and/or acceptance by Plaintiffs.
12 THIRTY-FIFTH AFFIRMATIVE DEFENSE
(Full or Partial Performance)
13
14 These answering Defendants allege that all duties owed to Plaintiffs have been
15 extinguished by these answering Defendants' fijll or partial performance.
16 THIRTY-SIXTH AFFIRMATIVE DEFENSE
(Adhesion)
17
18 These answering Defendants allege that the contract alleged to exist between these
19 answering Defendants and Plaintiffs was drafted by Plaintiffs and is a contract of adhesion. Any
20 ambiguities in terms and conditions ofthe contract must be resolved against Plaintiffs.
21 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
(Act of God)
22
23 These answering Defendants allege that any and all injunes, losses or damages, ifany,
24 were the direct and proximate result ofany unavoidable incident or condition and, as such, were
25 an act of God, without fault or liability on the part of these answering Defendants, including but
26 not limited to, an unforeseeable shifting of land mass, abnormal rainfall, or preexisting ancient
27 landslide.
28 ///
NIC341/607463-1 8
ANSWER TO COMPLAINT
1 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
(Economic Loss)
2
3 These answering Defendants allege that any and all damages sought are due to economic
4 loss, and these damages are noncompensible. The sole physical injury at issue is to the product
5 itself without any damage to other property. As such, the damages sought are for economic loss,
6 and these damages cannot be recovered from this answering party.
7 THIRTY-NINTH AFFIRMATIVE DEFENSE
(Lack of Standing)
8
9 These answering Defendants allege that Plaintiffs lack standing to sue these answering
10 Defendants with respect to the properties described in the complaint.
11 FORTIETH AFFIRMATIVE DEFENSE
(Civil Code Section 896 and 94S.S)
12
13 These answering Defendants allege that each cause ofaction is barred by the provisions of
14 Civil Code Section 896, et seq. and Civil Code Section 945.5,
15 FORTY-FIRST AFFIRMATIVE DEFENSE
(Failure to Allow Reasonable Access for Inspection and Repair)
16
17 These answering Defendants allege that Plaintiffs have unreasonably failed to minimize or
18 prevent damages in a timely manner, including the failure ofthe homeowners to allow reasonable
19 and timely access for inspections and repairs under Civil Code Sections 896 and 945.5.
20 FORTY-SECOND AFFIRMATIVE DEFENSE
(Homeowner Maintenance Obligation)
21
22 These answering Defendants allege that Plaintiffs have failed to follow the builder's or
23 manufacturer's recommendations, or commonly accepted homeowner's maintenance obligations
24 and, therefore, all claims are barred.
25 Wherefore, Defendants RICHARD KIRK RUYBALID, individually, and RICHARD
26 KIRK RUYBALID dba CA CONSTRUCTION pray for judgment as follows:
27 1. That Plaintiffs take nothing by way of their complaint on file herein;
28 2. That the complaint herein against Defendants RICHARD KIRK
NIC341/607463-1 9
ANSWER TO COMPLAINT
1 RUYBALID, individually, and RICHARD KIRK RUYBALID dba CA CONSTRUCTION be
2 dismissed in its entirety;
3 3. For costs of suit, including attorneys' fees; and
4 4. For such other and further relief that the court may deem just and proper.
5
6 Dated: November f, 2007 ARCHER NORRIS
7
8 ^0
Todd A. Jones
9
Preview
I Todd A. Jones (Bar No. 198024) tjones@archemorris.com 2 Gregory K. Federico (BarNo. 242184) gfederico@archemorris.com 3 ARCHER NORRIS A Professional Law Corporation 4 301 University Avenue, 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 DECLARATION OF GREGORY K. Plaintiffs, FEDERICO IN SUPPORT OF 14 DEFENDANT RICHARD KIRK RUYBALID, individually, and dba CA 15 CONSTRUCTION'S OPPOSITION TO RONALD PAUL BRITSCHGI, et al.. PLAINTIFFS' MOTION FOR JUDGMENT 16 ON THE PLEADINGS Defendants. 17 Date: October 21, 2010 Time: 2:00 p.m. 18 Dept: 53 19 Action Filed: September 24, 2007 Trial Date: January 17,2011 20 21 AND RELATED CROSS-ACTIONS. 22 23 I, Gregory K. Federico, hereby declare as follows: 24 1. I am an attomey duly licensed to practice before all the Courts in the State of 25 Califomia and 1 am an associate with Archer Norris, attomeys ofrecord for Defendant and Cross- 26 Complainant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION ("CA CD 27 CONSTRUCTION"). I have personal knowledge ofthe matters set forth herein except where cc: 28 o NIC34I/I03066I-1 DECLARATION IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS 1 stated on information and belief If called upon as a witness in this matter, I could and would 2 competently testify thereto. 3 2. Attached hereto as Exhibit "A" is a true and correct copy ofthe original Complaint 4 as filed by the Plaintiffs RODNEY and FLORENTINE ABBOTT ("Plaintiffs") in this matter, 5 3. Plaintiffs' original complaint cites the October 25, 2005 subcontract between 6 Plaintiffs and CA CONSTRUCTION as an attached exhibit. 7 4, Based on the content of Plaintiffs' original complaint, CA CONSTRUCTION filed 8 its Answer on November 13, 2007. I drafted the answer based on the allegations in the original 9 complaint and the subcontract between Plaintiffs and CA CONSTRUCTION 10 5. Attached hereto as Exhibit "B" is a tme and correct copy ofthe Answer filed by 11 CA CONSTRUCTION in this matter. 12 6. On November 13, 2007, CA CONSTRUCTION'S filed its cross-complaint for: (1) 13 Implied Equitable Indemnity; (2) Comparative Indemnity; (3) Comparative Negligence; (4) 14 Contribution; and (5) Declaratory Relief against various subcontractor defendants. 15 7. On October 31, 2008, CA CONSTRUCTION filed a Second Amendment to its 16 cross complaint naming Plaintiffs RODNEY and FLORENTINE ABBOTT in lieu of MOES 2 17 and 3, respectively. 18 8. On July 23, 2009, Plaintiffs filed a First Amended Complaint ("FAC"). The FAC 19 added two new parties, personal injury claims for mold exposure, and new allegations and causes 20 ofaction against various defendants, including CA CONSTRUCTION. Again, the FAC 21 specifically references the subcontract between Plaintiffs and CA CONSTRUCTION. 22 9. Attached hereto as Exhibit "C" is a true and correct of Plaintiffs' FAC. 23 10. On December 4, 2009, Plaintiffs filed a Second Amended Complaint ("SAC"). 24 The SAC is substantially the same as the FAC in terms of its substantive allegations. Again, 25 Plaintiffs attach a copy of the subcontract between Plaintiffs and CA CONSTRUCTION as 26 Exhibit "A" to the SAC. 27 11, Attached hereto as Exhibit "D" is a true and correct copy of Plaintiffs SAC, 28 1 2 . 1 drafted the cross-complaint of CA CONSTRUCTION and the Second NIC34I/I03066I-I 2 DECLARATION IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS 1 Amendment to Cross-Complaint upon information and belief. The allegations contained therein 2 are based on the allegations in the original complaint and the subcontract between Plaintiffs and 3 CA CONSTRUCTION. The cross-complaint of CA CONSTRUCTION against Plaintiffs stems 4 from construction and design mismanagement by the owner-builder ofthe home, FLORENTINE 5 ABBOTT. 6 1 3 . 1 took the deposition of Plaintiff FLORENTINE ABBOTT on December 15, 2008 7 and January 23, 2009. The testimony elicited during those depositions substantiated the matters 8 alleged in the cross-complaint of CA CONSTRUCTION and its Second Amendment to Cross- 9 Complaint. 10 14. Attached hereto as Exhibit "E" are true and correct copies of excerpts from 11 Plaintiff FLORENTINE ABBOTT's depositions. 12 15. Trial was initially set in this matter for May 11, 2009. Thereafter, trial was 13 continued to May 24, 2010 and is now set for January 17,2011, 14 16. Plaintiffs filed the instant Motion for Judgment on the Pleadings on June 4,2010, 15 more than 945 days after service upon them ofthe 'MOE' amendment to the Cross-Complaint 16 and more than 389 days after the initial trial date of May 11, 2009. 17 18 I declare under penalty ofperjury under the laws ofthe State of Califomia that the 19 2Q foregoing is tme and correct. Executed this l^" day of October, 2010 at Sacramento, 21 Califomia, 22 23 24 GREGORY K. FEDERICO 25 26 27 28 NIC34I/I03066I-I 3 DECLARATION IN SUPPORT OF CA CONSTRUCTION'S OPPOSITION TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS A EXHIBIT LOREY MOORE 1004 1 0 / 2 3 / 2 0 0 7 1 5 : 4 3 FAX 1 8 8 8 7 7 8 8 ' Ffcm A t t o r n e y s Aid 916-64B-1SS:? Mon IS Oct 2007 01:35:06 PM POT Page S of 32 1 jAB:bte WRIGHT & BRITTON 2 An Association of Attorneys JOHN A. BRITTON.- CBA NO. 055490 3 HAROLD C. WRIGHT - CBA NO. 044400 3741 Douglas Boulevard, Suite 380 4 Roseville, CA 95661 Telephone; (916) 781-2050 5 Facsimile: (916) 782-7560 6 Attomey for Plaintiffs RODNEY ABBOTT and 7 FLORENTINE ABBOTT 8 IN THE SUPERIOR COURT OF CALJFORNIA , 9 IN AND FOR THE COUNTY OF SACRAMENTO 10 RODNEY ABBOTT and CAsENd07ASO445O 11 -FLORENTINE ABBOTT 12 COMPLAINT FOR DAMAGES FOR Piaintiffs, BREACH OF CONSTRUCTION 13 vs. CONTRACT, NEGLIOENCE, ANO FOR SUIT ON CONTRACTOR'S UCENSE BOND 14 RONALD PAUL BRITSCHGI, 15 Individually and doing business as (Unlimited Civil Case) BRITSCHGI CONSTRUCTION, RICHARD KIRK RUYBALID. 16 individually and doing business as CA CONSTRUCTION, SURETY 17 COMPANY OF THE PACIFIC, WESTERN SURETY COWPANY, 18 and DOES 1 through 20, Inclusive, 19 Defendants. 20 21 Plaintiff alleges: 22 GENERAL ALLEGATIONS 23 I. 24 At all times herein mentioned. Plaintiffs RODNEY ABBOTT and FLORENTINE 25 ABBOTT were owners of that part^el of specific real property located in the county of 26 Sacramento, State of Califbmia, and more particularly described as 8601 Rolling Green 27 Way, Fair Oaks. California 95628. 28 COMPLATNT FOR DAMAGES POR BREACH OP CONSTRUCTION CONTRACT, NEGLIGENCE, AND FOR sun-ON CONTRACTORS'LICENse BONO R e c e i v e d T i m t O c l . 15. 2007 1;27^M No. 5595 XHIBIT. rt 10/23/2007 15:44 FAI 18887788 LOREY MOORE (21005 )m Attorneys Aid 916-648-1SS3 Mon IS Oct 2007 01:35:06 PM PDT Page 6 o f 32 1 II. 2 Plaintiff are informed and believe and upon such Infomiation and belief allege that 3 at all times herein mentioned. Defendant RONALD PAUL BRITSCHGI, Is an Individual 4 doing business under that firm name and style of BRITSCHGI CONSTRUCTION and, at S all fimes herein mentioned, was and is doing business In the County of Sacramento, State 6 of Califomla. Defendant RONALD PAUL BRITSCHGI was duly licensed by the 7 Contractor's License Board ofthe State of Cairfomia to conduct business as a contractor 8 within the State of Califomia and to engage in the work hereinafter described. 9 III. 10 Plaintiffs are informed and believe and upon such infomiation and belief allege that 11 at all times herein mentioned Oefendant RICHARD KIRK RUYBALIDfean individual doing 12 business under the firm name and style of CA CONSTRUCTION and at all times herein 13 mentioned, did business in the City of Fair Oaks, County of Sacramento. State of 14 California. Defendant RICHARD KIRK RUYBALDl was duly licensed by the Contractor's 15 License Boarel of the Stat© of Califomia lo conduct business as a contractor wrthin th© 16 State of Califomia and to engage In the work hereinafter described. 17 IV. 18 Plaintiffs are informed and believe and upon such information and belief allege that 19 at all times herein mentioned SURETY COMPANY OF THE PACIFIC was and Is licensed 20 wrthin the State of California to issue contractor license bonds in favor of contractors in the 21 State of California, and In this particular case, so issued a contractor's Dcense bond in 22 favor of 1(8 Insured RONALD PAUL BRITSCHGI, individually and doing t)usin©ss as |- 23 BRITSCHGl CONSTRUCTION. 24 V. 25 Piaintiffs are informed andbelieve and upon such information and belief allege that 2»6 at all times herein mentioned WESTERN SURETY COMPANY was and Is licensed within 2i7 the State of Califomia to issue contractor license bonds In favor of contractors In the State 28 of Califomia, and In this particular case, so issued a contractor's license bond in ftivor of -2- COMPUUNT FOR DAMAGES FOR BREACH OF CONSTRUCTION CONTRACT. , , r. - . . NEGLIGENCE, AND FOR sun-ON CONTRACTORS'LICENSE BONO Received Timt Oct, •('5 5flft7 1-OTPM Kn f;t;oi; 10/23/2007 15:44 FAX 18887788'' LOREY MOORE 121006 _fc i-./u« v x . j j . w u rtn r U I Page 7 o f 32 1 its insured .RICHARD KIRK RUYBALDl. Individually and doing business as CA 2 CONSTRUCTION. 3 VI. 4 Plaintiffs-are Ignorant ofthe true names ^nd capacities ofthe Defendants sued 5 herein as DOES 1 through 20, inclusive, and therefore sues these Defendants by such 6 fictitious names. Plaintiffs will amend this Complaint to allege their tme names and 7 cepacit'es when ascertained. PlaintifiB are Infbrmed and believe that each of these 8 Defendants is an agent and employee of each and every other Defendant named or to be 9 named in the above-entitled action, and each such DOE Defendant proximately caused 10 Plaintiffs damages as herein alleged while acting in such capacity. Plalritiffs are further 11 informed and believe, and upon such information and belief, allege that each ofthe DOE 12 Defendants were somehow negligent and/or at fault with respect to tho 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 Plaintiffs complain. IS FIRST CAUSE OF ACTION 16 (Breach of Oral Contract Against Defendant, Ronald Paul Britschgi) 17 I. 18 Plaintiffs hereby reallege and incorporate herein by reference all ofthe allegations' 19 setforth in paragraphs 1-6 as setforth above. 20 II. 21 On orabout October 1,2005, Plaintiffs and Defendant RONALD PAUL BRITSCHGI 22 entered into an oral agreement in which said Defendant agreed to help the Plaintiffs build f 23 their personal residence which is located In Sacramento as more specificaUy described 24 hereinabove. Said Defendant, as a general contractor, agreed to assist Plaintiffs In the 25 constmction of their personal residence to the extent that said Defendant would assist, 26 guide, and direct Plaintiffs and other contractors with respect to certain stages of 27 constmction, namely, the location for placement ofthe house on the lot, grading ofthe lot 28 for purposes of constmction, the pouring of concrete, for the house and-garage for -3- . COMPLAINT FOR DAMAGES FOR BREACH OF CONSTRUCTION CONTRACT, M B ^ I G E N C E , AND FOR SUIT ON CONTRACTORS' LICENSE BONO I eceived Time^ Oct. I'i. 2007 1'27PM Nn "^(^QR 10/23/2007 15:44 FAI 18887788 LOREY MOORE 1007 Mon I S Oct 2007 0 1 : 3 5 : 0 6 W PDT Page g of 32 1 foundational purppses, with emphasis on proper elevatk>n of that fbundation as that 2 foundation related to Where the house ^nd garage would sit on the lot In relation to the 3 elevation of the street and pi^oposed streets in front of the lot, as well as the framing ofthe • 4 house In additional to misce;IIaneous other duties. These miscellaneous other duties 5 included the supen/ision ofthe work done by other contractors working on constmction of 6 the house. For these services, Plaintiffs paid said Defendant the sum of approximately 7 $13,658.00, the exact sum ofwhich will be shown according to proof at time of trial. Said 8 Defendant agreed to perfbrm his duties so as to make sure that the house was constructed 9 according to certain plans and specifications given to said Defendant by Plaintifs at the 10 time ha agreed to work with Plaintiffs as a general contractor assisting them in the " 11 constmction of their personal residence. During the course of constructk}n, changes 12 needed to be made to the plans and specifications originally prepared forthe constmction 13 of the family residence. Said Oefendant agreed to and did work with Plalntlffs and their 14 architect/designer with respect to modifying the pfans and specifications. Said Defendant 15 further agreed to use his care and skill as a general contractor withrespectto not only the 16 work that he was doing personally towards the constmction of the residence, but also he 17 agreed to usa his care and skill as a general contractor to supervise the woric done by 18 other subcontractors and to assure that all such wori< was done in a good and workmanlike 19 fashion, and done according to standards of constmction within the constniction industry,, 20 and according to certain plans and specifications. These oral agreements were entered 21 into by and between Plaintif and said .Defendant in a series of oral di$cussk>ns which took 22 place beginning on or about October 1,2005 and continuing through the rest of October " 23 2005. 24" IIL 25 Plaintiffs have performed all conditions, covenants and promises underthe contract 26 with said Defendant to be performed on their part to be performed, Including, but not 27 limited to, the payment of $13,658.00 to said Defendant. 28 ffl -4- coigpumr FOR DAMAGES FOR BREACH OF CONSTRUCTION CONTRACT. NEGUGENCE, AND FOR SUIT ON CONTRACTORS' UCENSE BOND Received Time Oct. 15. 2007 1 • 27?M No, 5595 1 0 / 2 3 / 2 0 0 7 1 5 : 4 4 FAI 18887788 LOREY MOORE 121008 Kage 9 o t 32 1 IV. 2 On or about September 15. 2006, Plaintiffs discovered that said Defendant 3 breached the contract with them by failing tb properiy supervise the work perfomied by 4 other subcontractors and to assure that the work was done adequately, diligently, and In 5 a good and woricmanlike fashion and according to certain plans and specifications. 6 V. 7 As a result ofsaid Defendant breaching the contract, Plaintiffs have suffered certain 8 damages in that Plaintiffs' house and garage were defectively constmcted and not 9 according to plans and specifications. Those damages include the fact that neither the 10 house nor the garage were built at certain elevations to which they should have been 11 constmcted. The Incon-ect placing ofthe house and garage on the lot at certain levels was 12 not according to plans and specifications thus, resulting in certain darnage to the house 13 and garage and sunounding property, namely, drainage damage, the necessity of using 14 stairs to the house and stairs to the garage, the inability to use the garage for the purposes 15 for which It was intended, and damages to retaining walls as well as inclining other 16 expenses including, but not limited to, cost to repair, cost to reconstmct, and other 17 damages, the total amount of damages which Is unknown at this time, the exact sum of 18 which will be shown according to proof at time of trial. 19 SECOND CAUSE OF ACTION 20 (Negligence as to Defendant, Ronald Paul Britschgi) • 21 I. 22 Plaintiffs hereby reallege and incorporate harein by reference all ofthe allegations' 23 set forth In the First Cause of Action., 24 n. 25 Said Defendant had a duty to perform his constmction services and other services 26 in a good and workmanlike manner and in acconijance with accepted standards in the 27 constmction industry and in accordance with certain plans and specifications as given to 28 him by Plaintiffis. -^ ^ COASm.AlNT FOR DAMAGES FOR BREACH OF CONSTRUCTION CONTRACT, fjJEGUGENCE. AND FOR SUIT ON CONTRACTORS' UCENSE BOND ceived Time Oct, IS, 9fln7 \ - i i m Wrt ^^a^. • 10/23/2007 15:44 FAI 18887788 LOREY MOORE 1009 won l i uct 2007 01:35:OS PM POT Page 10 of 32 I * 1 1 III. 2 In performing the services as referenced hereinabove, said Defendant acted 3 negligently tn 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 constmcted In a good and workmanlike'fashion rx>r accondlng to accepted standards in the 6 constmction industry, /urther, the house and garage were not constmcted according to 7 certain plans and specifications or in the manner as requested by Plaintiffs. Said 8 Defendant was further negligent in his duties in not properiy supervising the work done by 9 other contractors, which supervision he promised Plaintrffs he would peribrm. 10 IV. , 11 As a result of the negligence of said Defendant, Plaintiffs have suffered certain 12 damages as more specifically referred to hereinabove. Those damages included the fact 13 that neither the house nor the garage were built according to plans and specifications or 14 at certain elevations to which they should have been constmcted. This negligent 15 conatmction has caused numerous damages. Including the fact that Plaintiffs cannot use 16 the garage for all of its intended purposes. Further, the Incorrect placing ofthe house and 17 garage on 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 damages toretainingwalls as well as incurring 20 other expenses including, but not limited to. cost torepair,cost to reconstmct, and other 21 damages, the total amount of damages which Is unknown at this time, the exact amount 22 of which, however, will be shown according tp proof at time of trial. 23 THIRD CAUSE OF ACTION 24 (Breach of Confract Against Defendant, Richard Kirk Ruybaldl dba CA Constnuctlon) 25 26 I. 27 Plaintiffs hereby reallege and incorporate herein byreferenceall ofthe allegations 28 of the First Cause of Action. COSifPLAINT FOR DAMAGES POR BREACH OF CONSTRUCTION CONTRACT, NEGLIGENCE, AND FOR SUIT ON CON'mACTORS' LICENSE BOND . ^ f r ^ i v e d Time Oct. 15. 2007 1'97^y ^^ SROf? 1 0 / 2 3 / 2 0 0 7 1 5 : 4 5 FAI 18887788 LOREY MOORE Ioio " vx.jj.uQ rivi r u i fage u . ot 32 1 2 On or about October 25,2005, Plaintiffs and said Defendant entered Into a written 3 constmction contract, a copy of which is attached hereto marked as Exhibit A and 4 incorporated herein by reference. 5 lil. 6 Said Oefendant was given a copy of the original plans and specifications for the 7 constmction of the residence. He was so given those plans and specifications for the 8 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 specifications - both original plans and specifications and • 11 then modified plans and specifications for Which said Oefendant partrcipated in the 12 modification of said plans and specifications. 13 IV. 14 Said Defendant breached the contract in question by falling 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 asrequesledby Raintiffs. Saki contract was further breached in that 17 said Defendant failed to properiy lay, pour and place the concrete ofthe house and the 18 garage as called forin the planis and speciflcatnns and as called for according to good and 19 wori| 5 Caaa Natnimr: Attomeys for Defendants 6 RICHARD KIRK RUYBALID, individually, and Q7AS0-i4SQ dba CA CONSTRUCTION 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 ABBOTT, 12 ANSWER TO COMPLAINT Plaintiffs. 13 Action Filed: September 24, 2007 14 RONALD PAUL BRITSCHGI. et al., 15 Defendants. 16 17 18 COMES NOW Defendants RICHARD KIRK RUYBALID, individually, and RICHARD 19 KIRK RUYBALID dba CA CONSTRUCTION on behalf of themselves and for no other 20 Defendant and answers Plaintiffs' complaint on file herein as follows. 21 These answering Defendants deny each and every allegation ofthe complaint on file 22 herein and each and every paragraph thereof and further deny that PlaintifFs sustained any 23 damages in the sum or sums alleged, or in any other sum or sums whatsoever, or at all, and 24 further deny that Plaintiffs £ire entitled to any damages by way ofthis action in any amount 25 whatsoever. 26 /// 27 /// 28 /// N1C34I/6074I 'COPY ANSWER TO COMPLAINT lEXHlBIT. 1 FIRST AFFIRMATIVE DEFENSE (Failure to State a Cause ofAction) 2 3 The complaint on file herein fails to state facts sufficient to state a claim upon which relief 4 can be granted. 5 SECOND AFFIRMATIVE DEFENSE (Contributory Negligence) 6 7 Plaintiffs were themselves careless and negligent and their own carelessness and 8 negligence proximately caused and contributed to the injuries and damages Plaintiffs complain of, 9 ifany there were. Plaintiffs' own carelessness and negligence account for one hundred percent of 10 the total carelessness and negligence relating to Plaintiffs' injuries and damages, ifany. 11 THIRD AFFIRMATIVE DEFENSE 12 (Negligence of Others) 13 The negligence, carelessness and other acts and omissions of other Defendants or Cross- 14 defendants in this lawsuit, as well as other persons and entities not parties to this lawsuit, 15 proximately caused or contributed to Plaintiffs' injuries and damages, ifany. The negligence, 16 carelessness and other acts or omissions ofthe other Defendants in this lawsuit, and other persons 17 and entities not parties to this lawsuit, account for one hundred percent ofthe injuries and 18 damages, ifany, and/or constitute supervening and/or intervening causes of Plaintiffs' injuries 19 and damages, ifany. 20 FOURTH AFFIRMATIVE DEFENSE 21 (Assumption ofthe Risk) 22 Plaintiffs are barred from asserting any claim against this answering defendant by reason of 23 Plaintiffs' assumption ofthe risk ofthe matters causing the injuries and damages incurred, ifany. 24 FIFTH AFFIRMATIVE DEFENSE 25 (Plaintiffs' Voluntary Conduct) 26 Plaintiffs voluntarily and knowingly entered into and engaged in the conduct alleged in 27 the complaint and voluntarily and knowingly assumed all ofthe risks incident to said conduct at 28 the time and place mentioned in said complaint. NIC3'tl/607463-l 2 ANSWER TO COMPLAINT 1 SIXTH AFFIRMATIVE DEFENSE (Plaintiffs' Failure to use Reasonable Diligence) 2 3 These answering Defendants are informed and believe and thereon allege that Plaintiffs' 4 injuries, loss or damages, ifany, were aggravated by Plaintiffs' failure to use reasonable 5 diligence. 6 SEVENTH AFFIRMATIVE DEFENSE (Time Barred Claims) 7 8 These answering Defendants allege that the complaint and each cause ofaction set forth 9 therein is barred by provisions of Code ofCivil Procedure Sections 337, 337.1, 337.15, 338, 339, 10 340,342 and 343; and Califomia Civil Code Sections 896 and 900. 11 EIGHTH AFFIRMATIVE DEFENSE (Plaintiffs' Undertaking a Known Danger) 12 13 TTiese answering Defendants allege that if Plaintiffs were injured, as alleged in the 14 complaint, or at all, then these answering Defendants are informed and believe and on the basis of 15 such information and belief allege that said damages were and are the result ofan open, obvious 16 and apparent danger which was known to and recognized by Plaintiffs, who nevertheless 17 knowingly, willingly, intentionally and voluntarily exposed themselves to said danger, thereby 18 assuming the risk of accident, injury and damage. 19 NINTH AFFIRMATIVE DEFENSE (Laches) 20 21 • These answering Defendants allege that the Plaintiffs are barred by the equitable doctrines 22 of laches. 23 TENTH AFFIRMATIVE DEFENSE (Waiver) 24 25 Plaintiffs have waived and are estopped from asserting any claim against these answering 26 Defendants by reason of Plaintiffs' approval and consent to the risk in the matters causing the 27 damages alleged, ifany, in their acknowledgement of, acquiescence in and consent to the alleged 28 act or omissions, ifany, of these answering Defendants. NIC34I/607463-I 3 ANSWER TO COMPLAINT 1 ELEVENTH AFFIRMATIVE DEFENSE (Comparative Fault) 2 3 While at all times denying any liability whatsoever to the Plaintiffs, any alleged liability 4 or responsibility of these Defendants are small in proportion to the alleged liability and 5 responsibility of other persons or entities, including other persons and entities who are 6 Defendants or Cross-Defendants herein, and Plaintiffs should be limited to seeking recovery fi-om 7 these Defendants for the proportion of alleged injuries and damages for which these answering 8 Defendants are allegedly liable or responsible, all such alleged liability and responsibility being 9 expressly denied. 10 TWELFTH AFFIRMATIVE DEFENSE (Failure to Mitigate) 11 12 Plaintiffs' complaint fails to state a claim against these answering Defendants as Plaintiffs 13 failed to mitigate their damages. 14 THIRTEENTH AFFIRMATIVE DEFENSE 15 (Doctrine of Unclean Hands) 16 Plaintiffs' complaint and each cause ofaction therein is barred by the doctrine of unclean 17 hands. FOURTEENTH AFFIRMATIVE DEFENSE 18 (Failure to Provide Notice of Breach of Warranty) 19 Plaintiffs' complaint and each cause ofaction therein fails to state a cause ofaction in that 20 Plaintiffs failed to give timely and proper notice of breach of warranty. 21 FIFTEENTH AFFIRMATIVE DEFENSE (Failure to Join Necessary Parties) 22 23 Plaintiffs' complaint fails to state a claim upon which relief can be granted as there is a 24 defect or misjoinder of parties pursuant to Code ofCivil Procedure section 430.10(d), in that 25 Plaintiffs failed to join all parties necessary for final determination ofthis action. 26 SIXTEENTH AFFIFMATIVE DEFENSE (Failure to State a CMm for Attorneys' Fees) 27 28 Plaintiffs' complaint fails to state a claim upon which attomey fees can be awarded. NIC34I/607463-I 4 ANSWER TO COMPLAINT 1 SEVENTEENTH AFFIRMATIVE DEFENSE (Attorneys' Fees) 2 3 These answering Defendants allege that they are entitled to an award of attorneys' fees 4 pursuant to Code ofCivil Procedure Section 1038, by which attomeys' fees may be awarded 5 upon entry ofjudgment on a complaint for express or implied indemnity or contribution, when 6 such complaint has been filed without any reasonable cause and good faith belief that there was 7 controversy that warranted thefilingofsuch complaint. 8 EIGHTEENTH AFFIRMATIVE DEFENSE (Applicability ofBusiness Judgment Rule) 9 10 These answering Defendants are exemptfi-omliability to Plaintiffs by operation of 11 Corporations Code section 7231. 12 NINETEENTH AFFIRMATIVE DEFENSE (Limited Warranty) 13 14 These answering Defendants allege that the warranties, ifany, by this answering 15 Defendants were limited as to time and scope. 16 TWENTIETH AFFIRMATIVE DEFENSE (Lack of Privity) 17 18 These answering Defendants allege that at no time has this Defendant breached any 19 warranty to Plaintiffs or any party herein, and Defendants further allege that even ifany 20 warranties had been made by these answering Defendants, which is denied, no cause of action for 21 breach of warranty has been asserted or may be asserted against these Defendants as there is no 22 allegation of privity between these Defendants and any other party and, in fact, there was no such 23 privity to give rise to such cause ofaction. 24 TWENTY-FIRST AFFIRMATIVE DEFENSE (Contractual Privity) 25 26 These answering Defendants allege that it was not in contractual privity with Plaintiffs 27 and, therefore. Plaintiffs have no contractual rights for recovery against said Defendants. 28 /// NIC341/607463-1 5 ANSWER TO COMPLAINT 1 TWENTY-SECOND AFFIRMATIVE DEFENSE (Unjust Enrichment) 2 3 These answering Defendants allege that any recovery by Plaintiffs would be unjust and 4 inequitable under the circumstances ofthe case, as all performance required by such Defendants 5 was properly performed. 6 TWENTY-THIRD AFFIRMATIVE DEFENSE (Intervening A cts) 7 8 These answering Defendants allege that each cause ofaction is barred by the independent, 9 intervening and superseding acts of other parties. 10 TWENTY-FOURTH AFFIRMATIVE DEFENSE (Civil Code Section 2 782) 11 12 These answering Defendants allege that each cause of action is barred by the provisions of 13 Civil Code Section 2782, et seq. 14 TWENTY-FIFTH AFFIRMATIVE DEFENSE (Allocation of Fault) 15 16 These answering Defendants request that the Court determine the rights and liabilities of 17 the parties and determine the proportionate share of fault with respect to each party, and all 18 persons or entities not a party to the action, in order that proportionate shares of liability, if any 19 there may be, can be allocated. 20 TWENTY-SIXTH AFFIRMATIVE DEFENSE (Misuse and Improper Maintenance) 21 22 These answering Defendants allege on information and belief that persons or entities other 23 than these answering Defendants misused and failed to properly maintain or repair the property 24 which is the subject ofthis action thereby causing or contributing to the damages, ifany, alleged 25 in the Complaint. 26 TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Alteration) 27 28 These answering Defendants allege on information and belief that persons or entities other NIC34I/607463-1 6 ANSWER TO COMPLAINT 1 than these answering Defendants, without the knowledge or consent of these answering 2 Defendants, altered the subject property to the extent that any alleged damages were solely and 3 proximately caused by such alteration. 4 TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Ratification of Work) 5 6 These answering Defendants allege that Plaintiffs expressly or impliedly approved and/or 7 ratified any and all work performed by these answering Defendants at the subject property and 8 therefore Plaintiffs have waived and are estoppedfi-omasserting any claims arising out of such 9 matter. 10 TWENTY-NINTH AFFIRMATIVE DEFENSE (Accord and Satisfaction) 11 12 These answering Defendants allege an accord and satisfaction between the parties barring 13 the complaint. 14 THIRTIETH AFFIRMATIVE DEFENSE (Prior Breach ofContract) 15 16 These answering Defendants allege that they have been excused from performance ofany 17 contract alleged by Plaintiffs because of Plaintiffs' prior breach of contract. 18 THIRTY-FIRST AFFIRMATIVE DEFENSE (Unconscionable Contract) 19 20 These answering Defendants allege that the contract alleged to exist between these 21 answering Defendants and Plaintiffs was drafted by Plaintiffs and was unconscionable at the time 22 it was made. It is therefore unenforceable. 23 THIRTY-SECOND AFFIRMATIVE DEFENSE (Non-Negotiated Terms, Conditions) 24 25 These answering Defendants allege that the contract alleged to exist between these 26 answering Defendants and Plaintiffs was drafted by Plaintiffs and contained non-negotiated terms 27 and conditions which exclusively benefited Plaintiffs to the detriment of these answering 28 Defendants at the time the contract was made. NIC34I/607463-1 7 ANSWER TO COMPLAINT 1 THIRTY-THIRD AFFIRMATIVE DEFENSE (Uncertain Terms) 2 3 These answering Defendants allege that the contract alleged to exist between these 4 answering Defendants and Plaintiffs was drafted by Plaintiffs and contained uncertain terms, 5 conditions and language which must be interpreted against Plaintiffs. 6 THIRTY-FOURTH AFFIRMATIVE DEFENSE (Performance Excused) 7 8 These answering Defendants allege that they have been excused from performing any 9 contractual duties alleged by Plaintiffs by reason of failure of consideration, waiver, breach of 10 condition precedent, impossibility of performance, prevention by Plaintiffs, frustration of purpose 11 and/or acceptance by Plaintiffs. 12 THIRTY-FIFTH AFFIRMATIVE DEFENSE (Full or Partial Performance) 13 14 These answering Defendants allege that all duties owed to Plaintiffs have been 15 extinguished by these answering Defendants' fijll or partial performance. 16 THIRTY-SIXTH AFFIRMATIVE DEFENSE (Adhesion) 17 18 These answering Defendants allege that the contract alleged to exist between these 19 answering Defendants and Plaintiffs was drafted by Plaintiffs and is a contract of adhesion. Any 20 ambiguities in terms and conditions ofthe contract must be resolved against Plaintiffs. 21 THIRTY-SEVENTH AFFIRMATIVE DEFENSE (Act of God) 22 23 These answering Defendants allege that any and all injunes, losses or damages, ifany, 24 were the direct and proximate result ofany unavoidable incident or condition and, as such, were 25 an act of God, without fault or liability on the part of these answering Defendants, including but 26 not limited to, an unforeseeable shifting of land mass, abnormal rainfall, or preexisting ancient 27 landslide. 28 /// NIC341/607463-1 8 ANSWER TO COMPLAINT 1 THIRTY-EIGHTH AFFIRMATIVE DEFENSE (Economic Loss) 2 3 These answering Defendants allege that any and all damages sought are due to economic 4 loss, and these damages are noncompensible. The sole physical injury at issue is to the product 5 itself without any damage to other property. As such, the damages sought are for economic loss, 6 and these damages cannot be recovered from this answering party. 7 THIRTY-NINTH AFFIRMATIVE DEFENSE (Lack of Standing) 8 9 These answering Defendants allege that Plaintiffs lack standing to sue these answering 10 Defendants with respect to the properties described in the complaint. 11 FORTIETH AFFIRMATIVE DEFENSE (Civil Code Section 896 and 94S.S) 12 13 These answering Defendants allege that each cause ofaction is barred by the provisions of 14 Civil Code Section 896, et seq. and Civil Code Section 945.5, 15 FORTY-FIRST AFFIRMATIVE DEFENSE (Failure to Allow Reasonable Access for Inspection and Repair) 16 17 These answering Defendants allege that Plaintiffs have unreasonably failed to minimize or 18 prevent damages in a timely manner, including the failure ofthe homeowners to allow reasonable 19 and timely access for inspections and repairs under Civil Code Sections 896 and 945.5. 20 FORTY-SECOND AFFIRMATIVE DEFENSE (Homeowner Maintenance Obligation) 21 22 These answering Defendants allege that Plaintiffs have failed to follow the builder's or 23 manufacturer's recommendations, or commonly accepted homeowner's maintenance obligations 24 and, therefore, all claims are barred. 25 Wherefore, Defendants RICHARD KIRK RUYBALID, individually, and RICHARD 26 KIRK RUYBALID dba CA CONSTRUCTION pray for judgment as follows: 27 1. That Plaintiffs take nothing by way of their complaint on file herein; 28 2. That the complaint herein against Defendants RICHARD KIRK NIC341/607463-1 9 ANSWER TO COMPLAINT 1 RUYBALID, individually, and RICHARD KIRK RUYBALID dba CA CONSTRUCTION be 2 dismissed in its entirety; 3 3. For costs of suit, including attorneys' fees; and 4 4. For such other and further relief that the court may deem just and proper. 5 6 Dated: November f, 2007 ARCHER NORRIS 7 8 ^0 Todd A. Jones 9