Preview
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1 Todd A. Jones (Bar No. 198024)
Gregory K. Federico (Bar No. 242184)
ARCHER NORRIS
A Professional Law Corporation
r^-g^-i
3 655 University Avenue, Suite 225
Sacramento, California 95825-6747 AUG 28 2009
4 Telephone: 916.646.2480
Facsimile: 916.646.5696 B
5
L
V ~~2L^r
u uonnel1
Attorneys for Defendants and Cross-Defendants 1
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. DEMURRER TO PLAINTIFFS'
14 UNVERIFIED FIRST AMENDED
RONALD PAUL BRITSCHGI, et al., COMPLAINT
15
Defendants. Date: November 17, 2009
16 Time: 9:00 a.m.
Dept: 54
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Action Filed: September 24, 2007
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AND ALL RELATED CROSS-ACTIONS.
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N1C34 1/840763-1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
DEMURRER TO PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT
1 I. INTRODUCTION
2 This case involves allegations of construction defects at a custom single-family home
3 located at 8601 Rolling Green Way in Fair Oaks, California. Plaintiffs RODNEY ABBOTT and
4 FLORENTINE ABBOTT (hereinafter "PLAINTIFFS") are the owners of the subject home.
5 Florence Abbott acted as the owner/builder for all phases of construction of the subject home.
6 PLAINTIFFS hired Defendant Ronald Paul Britschgi (hereinafter "BRITSCHGI") as the general
7 contractor for the construction of the home through the framing stage. PLAINTIFFS hired
8 Defendant RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION
9 (hereinafter "CA CONSTRUCTION") to supply and install the concrete foundation and garage
10 slab per plans and specifications. Finally, Cross-Defendant CADRE DESIGN GROUP, INC.
11 (hereinafter "CADRE") designed the home with substantial input from PLAINTIFFS.
12 PLAINTIFFS allege, among other things, that BRITSCHGI and CA CONSTRUCTION
13 failed to properly place the house and garage on the lot, particularly with regard to the elevation,
14 as called for pursuant to the plans and specifications and as requested by Florence Abbott. In
15 addition, PLAINTIFFS allege that BRITSCHGI and CA CONSTRUCTION breached their
16 respective contracts, failed to comply with applicable building codes, and failed to comply with
17 the standard of care within the relevant industry. More recently, PLAINTIFFS allege that the fill
18 and soils beneath the garage slab, and potentially the house, were improperly compacted.
19 PLAINTIFFS filed their original complaint on September 24,2007 against BRITSCHGI
20 and CA CONSTRUCTION. PLAINTIFFS' original complaint alleged various tort and contract
21 claims related to the construction of PLAINTIFFS' home. On June 24, 2009, PLAINTIFFS filed
22 a motion for leave to file a First Amended Complaint. PLAINTIFFS' First Amended Complaint
23 adds personal injury claims for mold exposure, new factual allegations and causes of action
24 against BRITSCHGI and CA CONSTRUCTION, and two new parties. The new parties are
25 Defendant Mark Smith, an individual doing business as Groundbreakers (hereinafter "SMITH")
26 and CONSTRUCTION TESTING & ENGINEERING, INC. (hereinafter "CTE"). SMITH was
27 hired by PLAINTIFFS and provided grading and earth movement for the subject property.
28 PLAINTIFFS' hired and paid CTE to perform the soil/compaction tests on the subject property.
NIC341/840763-1 1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
DEMURRER TO PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT
On July 20, 2009, the Court granted PLAINTIFFS' motion and provided leave for
PLAINTIFFS to file the First Amended Complaint. The First Amended Complaint was filed on
July 23, 2009 and served on all parties via United States mail. In PLAINTIFFS' unverified First
Amended Complaint, PLAINTIFFS allege eight causes of action. As to CA CONSTRUCTION,
PLAINTIFFS allege the following: (1) The Fourth Cause of Action for Breach of Written
Contract; (2) The Fifth Cause of Action for Negligence; and (3) The Sixth Cause of Action for
Violation of Business & Professions Code Sections.
The Sixth Cause of Action is particularly defective and is therefore subject to demurrer.
First, PLAINTIFFS lack the legal capacity to sue for violations of the Business & Professions
10 Code Sections. Business & Professions Code Sections, including sections 7109, 7026, 7028,
11 7031, and 7160, do not provide PLAINTIFFS with a private right of action as these sections
12 represent a comprehensive scheme for enforcement by an administrative agency. Second, CA
13 CONSTRUCTION is a licensed contractor and authorized to perform the work at issue. Third,
14 PLAINTIFFS' claim that CA CONSTRUCTION violated Business & Professions Code §7160 is
15 an action sounding in fraud and must be specifically pled. PLAINTIFFS' claim is devoid of any
16 factual allegations describing the false or fraudulent statements made by CA CONSTRUCTION
17 or its representatives. The First Amended Complaint merely recites conclusions that lack factual
18 support and it is uncertain, vague, ambiguous and unintelligible. Finally, the First Amended
19 Complaint, as pled, fails to state a cause of action based in fraud. Thus, CA CONSTRUCTION
20 respectfully requests this court sustain its demurrer without leave to amend.
21 Defendant CA CONSTRUCTION has concurrently moved to strike the following sections
22 from the First Amended Complaint:
23 1. Paragraph 29, at 10:14 to 15;
24 2. Paragraph 31, at 10:24 to 28; .
25 3. Paragraph 32, at 11:1 to 3;
26 4. Paragraph 33, at 11:4 to 10;
27 5. Paragraph 34, at 11:11 to 17; and
28 6. Prayer as to the Sixth Cause of Action: Page 15, lines 15-23
NIC341/840763-1 2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
DEMURRER TO PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT
1 As such, CA CONSTRUCTION hereby incorporates by reference herein, its Motion to
2 Strike portions of PLAINTIFFS' First Amended Complaint filed concurrently herewith.
3 On August 26, 2009, counsel for CA CONSTRUCTION met and conferred with counsel
4 for PLAINTIFFS and requested that PLAINTIFFS withdraw their Sixth Cause of Action based
5 on the fact that the cause of action was subject to a demurrer and motion to strike. As of the date
6 of filing this demurrer, PLAINTIFFS have not agreed to withdraw the Sixth Cause of Action.
7 II. STATUTORY AND LEGAL AUTHORITY FOR DEMURRER
8 The statutory authority for a demurrer is contained in California Code of Civil Procedure
9 §430.10. This section states in pertinent part:
"The party against whom a complaint or cross-complaint has been filed may
object by demurrer or answer as provided in Section 430.30 to the pleading on
11 any one or more of the following grounds:
12 • • -(b) The person who filed the pleading does not have the legal capacity to sue.
13 ... (e) The pleading does not state facts sufficient to constitute a cause of action.
(f) The pleading is uncertain. As used in this subdivision, "uncertain" includes
15 ambiguous and unintelligible...."
1 fi On a demurrer, the Court will admit all material facts which are properly asserted.
,7 However, it will not assume the truth of "contentions, deductions or conclusions of fact or law."
lg See Stansfield v. Starkev (1990) 220 Cal.App.3d 59, 72. In Enestrom v. Kallins (1996} 49
,g Cal.App.4th 773, 778, the Court stated that when ruling on a demurrer, it must "treat the demurrer
~0 as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of
21 act or law." Also, in Levine v. Jessup (1958) 161 Cal.App.2d 59,69, the Court stated:
22 The purpose of a complaint is to furnish the defendants with certain
definite charges which can be intelligently met. Mere general
23 assertions by way of conclusion or those indefinite in character...
cannot be deemed sufficient compliance with the long established
24 rules of pleading.
~<- A complaint "must contain 'a statement of the facts constituting the cause of action in
~,- ordinary and concise language' [CCP §425.10]" See Weil & Brown, California Practice Guide,
27 Civil Procedure Before Trial §6:120. The "facts to be pleaded are those upon which liability
20 depends (i.e., 'the facts constituting the cause of action'). These are commonly referred to as
NIC341/840763-1 3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
DEMURRER TO PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT
1 'ultimate facts.'" See Weil & Brown, California Practice Guide, supra at §6:127. "Failure to
2 plead ultimate facts subject the complaint to demurrer for 'failure to state facts constituting the
3 cause of action.' [CCP §430.10(e)] See Weil & Brown, California Practice Guide, supra at
4 §6:127. Finally, if under substantive law no liability exists, it is not an abuse of discretion for a
5 court to sustain a demurrer without leave to amend. Berkeley Police Association v. City of
6 Berkeley (1978) 76 Cal.App.3d 931,943.
7 III. LEGAL ARGUMENT
8
A. Plaintiffs Do Not Have The Legal Capacity To Sue For Violations of Business
g and Professions Code Sections
n The issue of whether a statute creates a private right of action is a question of statutory
construction depending on the intent of the enacting body. "A statute creates a private right of
action only if the enacting body so intended." Moradi-Shalal v. Fireman's Fund Ins. Companies
13 (1988) 46 Cal.3d 287, 305; Crusader Ins. Co. v. Scottsdale Ins. Co. (1997) 54 Cal.App.4th 121,
1 . 131. In Moradi-Shalal, the California Supreme Court held that the Legislature did not intend to
create a private right of action to enforce Section 790.03(h) and the Court overruled Royal Globe
Ins. Co. v. Superior Court (1979) 23 Cal.3d 880. Section 790.03(h) of the Unfair Trade Practices
._ Act prohibits unfair claims settlement practices, authorizes the Commissioner to investigate
.0 violations, conduct hearings, impose penalties, and provides for judicial review.
lo
.Q In Moradi-Shalal, the Court adopted statements by the Royal Globe dissent that if the
»„ Legislature had intended to create a private right of action, " '.. .one would reasonably have
_. expected that the Legislature simply would have directly imposed such liability in clear,
~~ understandable, unmistakable terms, as it has done in numerous other statutes.' " Moradi-Shalal,
23 supra, 46 Cal.3d at pp. 294-295, quoting Royal Globe, supra, 23 Cal.3d at p. 896.
~4 Further, in Farmers Ins. Exchange v. Superior Court (2006) 137 Cal. App. 4th 842, the
«<- Court considered whether voters, through Proposition 103, intended to create a private cause of
»fi action as it relates to Insurance Code §1861.10(a). Section 1861.10(a) governs a proceeding on
27 an application to increase insurance rates or any proceeding established pursuant to Chapter 9 of
20 the Insurance Code. It states "Any person may initiate or intervene in any proceeding permitted
NIC341/840763-1 - 4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
DEMURRER TO PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT
or established pursuant to this chapter." Insurance Code §1861.10(a). The Court reviewed this
provision and determined that it did not create a private cause of action because the statute did not
expressly create such a right and the insurance commissioner was charged with enforcing a
comprehensive administrative and regulatory scheme as it relates to insurance.
In its ruling, the Farmers Ins. Exchange Court discussed the subsequent opinions by the
Courts of Appeal that have held that "a statute creates a private right of action only if the statutory
language or legislative history affirmatively indicates such an intent. Vikco Ins. Services, Inc. v.
Ohio Indemnity Co. (1999) 70 Cal.App.4th 55, 62; Crusader Ins. Co. v. Scottsdale Ins. Co..
supra, 54 Cal.App.4th at pp. 132-133, 135-137. That intent need not necessarily be expressed
10 explicitly, but if not it must be strongly implied. See Vikco, supra, at p. 62; Crusader, supra, at
11 p. 133. When regulatory statutes provide a comprehensive scheme for enforcement by an
12 administrative agency, the courts ordinarily conclude that the Legislature intended the
13 administrative remedy to be exclusive unless the statutory language or legislative history clearly
14 indicates an intent to create a private right of action. Moradi-Shalal. supra, 46 Cal.3d at pp. 294-
15 295, 300; Vikco, supra, 70 Cal.App.4th 55, 62-65.
16 Here, PLAINTIFFS lack the legal capacity to bring a cause of action for alleged violations
17 of sections of the California Business & Professions Code. Sections 7109, 7026, 7028, 7031, and
18 7160 do not provide PLAINTIFFS with a private right of action. If the legislature had intended
19 that individual plaintiffs would have the authority to enforce these provisions, it would have
20 specifically provided that remedy in the statutes. As discussed by the Moradi-Shalal Court, the
21 legislature has not affirmatively indicated an intention to create a private right of action.
22 1. Business & Professions Code § 7109(b):
23 Business & Professions Code § 7109(b) generally states that a willful departure from
24 accepted trade standards for good and workmanlike construction or a willful departure from or
25 disregard of plans or specifications constitutes ".. .a cause for disciplinary action." Business &
26 Professions Code § 7109(b). Not only have PLAINTIFFS failed to demonstrate any willful
27 behavior on the part of CA CONSTRUCTION, the statute specifically states "disciplinary
28 action." A disciplinary action would be initiated by the Contractors State Licensing Board.
NIC341/840763-1 5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
DEMURRER TO PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT
1 2. Business & Professions Code § 7028(a):
2 Business & Professions Code § 7028(a) states that it is a ".. .misdemeanor for any person
3 to engage in the business or act in the capacity of a contractor within this state without having a
4 license therefor, unless the person is particularly exempted from the provisions of this chapter."
5 Business & Professions Code § 7028(a). Sections 7028(b) and (c) discuss applicable fines and
6 jail sentences related to multiple convictions of contracting without a license. Finally, Section
7 7028(f) discusses statutes of limitations and states that "...an indictment for any violation of this
8 section by the unlicensed contractor shall be found or an information or complaint filed within
9 four years from the date of the contract proposal, contract, completion, or abandonment of the
10 work, whichever occurs last." The indictment and information reference implies proceedings
11 initiated by the criminal authorities, and the reference to "complaint filed" contemplates civil
12 proceedings initiated by the authority created to regulate contractors, the Contractors' State
13 Licensing Board ("CSLB"). It is completely silent as to private plaintiffs.
14 3. Comprehensive Enforcement Scheme:
15 California has created a comprehensive scheme for the regulation of contractors - the
16 CSLB. The CSLB protects consumers by licensing and regulating California's construction
17 industry. The CSLB edcates consumers about contractors and construction law, administers
18 examinations to test prospective licensees, issues licenses, investigates complaints against
19 licensed and unlicensed contractors, issues citations, suspends or revokes licenses, and seeks
20 administrative, criminal, and civil sanctions against violators. See http://www.cslb.ca.gov/.
21 Also, Business & Professions Code §7011.4 discusses the enforcement of licensing provisions
22 and expressly creates a separate enforcement unit that is charged with the duty of rigorously
23 enforcing all provisions that prohibit forms of unlicensed activity. Business & Professions Code
24 §7011.4. The CSLB is vested with this authority and not private Plaintiffs.
25 Based on the foregoing, the demurrer as to the Sixth Cause of Action should be sustained
26 without leave to amend.
77
B. Plaintiffs' Complaint Is Uncertain, Vague, Ambiguous And Unintelligible
2g Because Defendant CA Construction Is A Licensed Contractor
NIC341/840763-1 6
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
DEMURRER TO PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT
1 In ruling on a demurrer the Court is not limited to the four corners of the Complaint. The
2 Court may consider any matter of which the court is required to or may take judicial notice. Code
3 of Civil Procedure § 430.30.
4 In determining the sufficiency of a complaint against demurrer, a
court will consider matters that may be judicially noticed.
5 Accordingly, a complaint otherwise good on its face is subject to
demurrer when facts judicially noticed render it defective. (Joslin
6 v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374).
7 The Court may also take judicial notice of facts not reasonably subject to dispute and
8 "capable of immediate and accurate verification by resort to sources of reasonably indisputable
9 accuracy." Evidence Code § 452(h). Further, the Court may take notice of official acts of any
10 state or federal legislative, executive or judicial department, and a "court can take judicial notice
11 of records and files of state administrative agencies. Evidence Code § 452(c); See Fowler v.
12 Howell (1996) 42 Cal.App.4th 1746,1750.
13 The laws that regulate contractors are designed to protect consumers from unscrupulous
14 contractors who perform construction activities without any proper licensing. At all times during
15 construction of PLAINTIFFS' home, CA CONSTRUCTION held an active "B" general
16 contractor's license. Business & Professions Code §7057 states that "A general building
17 contractor shall not take a subcontract involving trades other than framing or carpentry, unless the
18 subcontract requires at least two unrelated trades or crafts other than framing or carpentry, or
19 unless the general building contractor holds the appropriate license classification." In Exhibit "A"
20 attached to the First Amended Complaint, the contract required CA CONSTRUCTION to
21 "excavate, form, place and finish concrete...". This scope of work includes the work of a
22 concrete contractor (C-9 Classification; California Code of Regulations, Reg. 832.08), the work
23 of an earthwork and paving contractor (C-12 Classification; California Code of Regulations, Reg.
24 832.12), and a reinforcing steel contractor (C-50 Classification; California Code of Regulations,
25 Reg. 832.50). Thus, the work includes the work of two or more unrelated trades. By the terms of
26 its "B" license status, CA CONSTRUCTION was well versed and authorized to perform the work
27 outlined in the contract. If PLAINTIFFS had a concern over CA CONSTRUCTION'S license
28 and their ability to do the type of work required by the contract, they would have surely raised
NIC341/840763-1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
DEMURRER TO PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT
1 this issue with the CSLB as it is the entity charged with investigating such complaints.
2 Pursuant to Evidence Code §452, CA CONSTRUCTION requests that the Court take
3 judicial notice of the Certified License History as issued by the CSLB for CA CONSTRUCTION
4 as evidenced in the documents attached as Exhibit "A" to the Request for Judicial Notice, filed
5 concurrently herewith and incorporated by reference herein.
6
C. The Sixth Cause Of Action Must Fail As It Fails To Specifically Plead A
7 Fraud Based Cause Of Action
8 1. The Sixth Cause Of Action Does Not Contain Facts Sufficient To
Constitute A Cause Of Action
9
California Civil Code § 3294(c)(3) defines fraud as "...an intentional misrepresentation,
10
deceit, or concealment of a material fact known to the defendants with the intention on the part of
11
the defendant of thereby depriving a person of property or legal rights or otherwise causing
12
injury." Civil Code § 3294(c)(3). Causes of action asserting fraudulent activity "should be set out
13
clearly, concisely, and with sufficient particularity to apprise the opposite party ... and to enable
14
the court to determine whether, on the facts pleaded, there is any foundation ... for the charge of
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fraud." Scafidi v. Western Loan and Building Co. (1946) 72 Cal.App.2d 550, 553.
16
. . . The effect of this rule is twofold: (1) general pleading of the
17 legal conclusion of 'fraud' is insufficient; the facts constituting
fraud must be alleged in the proper manner (i.e., factually and
18 specifically), and (2) the policy of liberal construction of the
pleadings . . . will not ordinarily be invoked to sustain a pleading
19 defective in any material respect.
20
5 Witkin, California Procedure (4th Ed.), Pleading § 669. [Emphasis added]
21
At Paragraph 33 on page 11, lines 4 through 10 of the First Amended Complaint,
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PLAINTIFFS allege that CA CONSTRUCTION violated Business and Professions Code § 7160
23
by ".. .knowingly making false or fraudulent representations to Plaintiffs about his ability to
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properly perform the services he was required to perform under the contract with Plaintiffs."
25
Although the cause of action is labeled as a violation of various Business and Professions Code
26
sections, it essentially alleges that CA CONSTRUCTION engaged in fraud or some variety of
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intentional misrepresentation with respect to the contract for construction at PLAINTIFFS' home.
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NIC341/840763-1 8
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
DEMURRER TO PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT
1 The particularity requirement for causes of action based on fraudulent behavior necessitates
2 pleading facts that "show how, when, where, to whom, and by what means the representations
3 were tendered." Lazar v. SUP. Ct. (Rvkoff-Sexton. Inc.) (1996) 12 Cal.4th 631, 645. See also
4 Fallbrook Public Utility Dist v. Martin (1957) 151 Cal.App.2d 84, 94 ("It is a cardinal rule of
5 pleading that fraud must be pleaded in specific language descriptive of the acts which are relied
6 upon...It is not sufficient to allege it in ...terms which amount to mere conclusions").
7 PLAINTIFFS' cause of action regarding an alleged violation of Business and Professions
8 Code § 7160 consists of improper conclusions that lack any factual support. The allegations fail
9 to plead any facts regarding what statements were fraudulent or false, who made the fraudulent
10 and false statements, when the statements were made, to whom the statements were made, how
11 the statements induced the PLAINTIFFS to act, or the context in which they were made. The
12 Sixth Cause of Action fails to allege the "how, when, where, to whom, and by what means..." as
13 contemplated by the Court in Lazar. As such, it fails to state a cause of action for which relief
14 may be had. Thus, this demurrer should be sustained without leave to amend.
2. The Sixth Cause Of Action Is Uncertain, Vague, And Ambiguous
16 PLAINTIFFS have failed to set forth any facts related to the false or fraudulent statements
17
by CA CONSTRUCTION and/or its representatives. The First Amended Complaint also fails to
1° furnish certain definite charges that can be intelligently met. It is hornbook law that the purposes
19 of a complaint is to furnish the defendants with certain definite charges which can be intelligently
2® met,. .the point is that the accuser must place his finger squarely and directly upon whatever
21 dereliction is relied upon [by plaintiff]. Zumbrun v. Univ. of So. California (1972) 25 Cal.App.3d
22 1,8 citing to Lavine v. Jessup (1958) 161 Cal.App.2d 59, 69. Mere recitals, references to or
23 allegations of material facts, which may be left to surmise, are subject to special demurrer.
24
Corum v. Hartford Accident & Indemnity Co. (1945) 67 Cal.App.2d 891, 894-895.
25 PLAINTIFFS have alleged a fraud based cause of action against CA CONSTRUCTION.
2^ The Sixth Cause of Action is uncertain, vague, ambiguous, and unintelligible because it fails to
27 allege the "how, when, where, to whom, and by what means..." the false or fraudulent statements
28
NIC341/840763-1 9
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
DEMURRER TO PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT
1 were made by CA CONSTRUCTION. Thus, the demurrer should be sustained on this ground.
2 D. Plaintiffs Should Not be Permitted to Amend Their Complaint
3 PLAINTIFFS have failed to demonstrate that they can prove any sets of facts that would
4 entitle them to the relief they seek. Thus, this Court should sustain CA CONSTRUCTION'S
5 demurrer to PLAINTIFFS' Sixth Cause of Action without leave to amend. Leave to amend may
6 only be granted if there is a "reasonable possibility that the defect can be cured by amendment."
7 Blank v. Kirwan (1985) 39 Cal.3d 311,318 (plaintiffs burden to establish with reasonable
8 particularity that a pleading defect could be cured by further amendment).
9 If PLAINTIFFS had any specific knowledge of a specific act, omission, or statement by
10 CA CONSTRUCTION and/or its representatives that constituted an intentional or fraudulent
11 misrepresentation, PLAINTIFFS would have surely set forth those allegations in their First
12 Amended Complaint. The absence of such in the First Amended Complaint implies that
13 PLAINTIFFS know of no such acts, omissions, statements, claims or allegations.
14 Absent a showing by PLAINTIFFS that they can reasonably cure the defects in the First
15 Amended Complaint, PLAINTIFFS should not be allowed to amend. As such, CA
16 CONSTRUCTION'S demurrer should be sustained without leave to amend.
17 III. CONCLUSION
18 Based on the foregoing, CA CONSTRUCTION respectfully requests that its demurrer to
19 PLAINTIFFS' Sixth Cause of Action in the First Amended Complaint should be sustained.
20 Furthermore, since PLAINTIFFS' are unable to cure the defects in their First Amended
21 Complaint, CA CONSTRUCTION'S demurrer should be sustained without leave to amend.
22
Dated: August 77 , 2009 ARCHER NO
23
24
Gregory K. Federico
Attorneys for Defendants and Cross-
26 Defendants RICHARD KIRK RUYBALID,
individually, and dba CA CONSTRUCTION
27
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NIC341/840763-1 10
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
DEMURRER TO PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT
Preview
2 1 Todd A. Jones (Bar No. 198024) Gregory K. Federico (Bar No. 242184) ARCHER NORRIS A Professional Law Corporation r^-g^-i 3 655 University Avenue, Suite 225 Sacramento, California 95825-6747 AUG 28 2009 4 Telephone: 916.646.2480 Facsimile: 916.646.5696 B 5 L V ~~2L^r u uonnel1 Attorneys for Defendants and Cross-Defendants 1 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. DEMURRER TO PLAINTIFFS' 14 UNVERIFIED FIRST AMENDED RONALD PAUL BRITSCHGI, et al., COMPLAINT 15 Defendants. Date: November 17, 2009 16 Time: 9:00 a.m. Dept: 54 17 Action Filed: September 24, 2007 18 AND ALL RELATED CROSS-ACTIONS. 19 20 21 22 23 24 25 26 27 28 N1C34 1/840763-1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S DEMURRER TO PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT 1 I. INTRODUCTION 2 This case involves allegations of construction defects at a custom single-family home 3 located at 8601 Rolling Green Way in Fair Oaks, California. Plaintiffs RODNEY ABBOTT and 4 FLORENTINE ABBOTT (hereinafter "PLAINTIFFS") are the owners of the subject home. 5 Florence Abbott acted as the owner/builder for all phases of construction of the subject home. 6 PLAINTIFFS hired Defendant Ronald Paul Britschgi (hereinafter "BRITSCHGI") as the general 7 contractor for the construction of the home through the framing stage. PLAINTIFFS hired 8 Defendant RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 9 (hereinafter "CA CONSTRUCTION") to supply and install the concrete foundation and garage 10 slab per plans and specifications. Finally, Cross-Defendant CADRE DESIGN GROUP, INC. 11 (hereinafter "CADRE") designed the home with substantial input from PLAINTIFFS. 12 PLAINTIFFS allege, among other things, that BRITSCHGI and CA CONSTRUCTION 13 failed to properly place the house and garage on the lot, particularly with regard to the elevation, 14 as called for pursuant to the plans and specifications and as requested by Florence Abbott. In 15 addition, PLAINTIFFS allege that BRITSCHGI and CA CONSTRUCTION breached their 16 respective contracts, failed to comply with applicable building codes, and failed to comply with 17 the standard of care within the relevant industry. More recently, PLAINTIFFS allege that the fill 18 and soils beneath the garage slab, and potentially the house, were improperly compacted. 19 PLAINTIFFS filed their original complaint on September 24,2007 against BRITSCHGI 20 and CA CONSTRUCTION. PLAINTIFFS' original complaint alleged various tort and contract 21 claims related to the construction of PLAINTIFFS' home. On June 24, 2009, PLAINTIFFS filed 22 a motion for leave to file a First Amended Complaint. PLAINTIFFS' First Amended Complaint 23 adds personal injury claims for mold exposure, new factual allegations and causes of action 24 against BRITSCHGI and CA CONSTRUCTION, and two new parties. The new parties are 25 Defendant Mark Smith, an individual doing business as Groundbreakers (hereinafter "SMITH") 26 and CONSTRUCTION TESTING & ENGINEERING, INC. (hereinafter "CTE"). SMITH was 27 hired by PLAINTIFFS and provided grading and earth movement for the subject property. 28 PLAINTIFFS' hired and paid CTE to perform the soil/compaction tests on the subject property. NIC341/840763-1 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S DEMURRER TO PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT On July 20, 2009, the Court granted PLAINTIFFS' motion and provided leave for PLAINTIFFS to file the First Amended Complaint. The First Amended Complaint was filed on July 23, 2009 and served on all parties via United States mail. In PLAINTIFFS' unverified First Amended Complaint, PLAINTIFFS allege eight causes of action. As to CA CONSTRUCTION, PLAINTIFFS allege the following: (1) The Fourth Cause of Action for Breach of Written Contract; (2) The Fifth Cause of Action for Negligence; and (3) The Sixth Cause of Action for Violation of Business & Professions Code Sections. The Sixth Cause of Action is particularly defective and is therefore subject to demurrer. First, PLAINTIFFS lack the legal capacity to sue for violations of the Business & Professions 10 Code Sections. Business & Professions Code Sections, including sections 7109, 7026, 7028, 11 7031, and 7160, do not provide PLAINTIFFS with a private right of action as these sections 12 represent a comprehensive scheme for enforcement by an administrative agency. Second, CA 13 CONSTRUCTION is a licensed contractor and authorized to perform the work at issue. Third, 14 PLAINTIFFS' claim that CA CONSTRUCTION violated Business & Professions Code §7160 is 15 an action sounding in fraud and must be specifically pled. PLAINTIFFS' claim is devoid of any 16 factual allegations describing the false or fraudulent statements made by CA CONSTRUCTION 17 or its representatives. The First Amended Complaint merely recites conclusions that lack factual 18 support and it is uncertain, vague, ambiguous and unintelligible. Finally, the First Amended 19 Complaint, as pled, fails to state a cause of action based in fraud. Thus, CA CONSTRUCTION 20 respectfully requests this court sustain its demurrer without leave to amend. 21 Defendant CA CONSTRUCTION has concurrently moved to strike the following sections 22 from the First Amended Complaint: 23 1. Paragraph 29, at 10:14 to 15; 24 2. Paragraph 31, at 10:24 to 28; . 25 3. Paragraph 32, at 11:1 to 3; 26 4. Paragraph 33, at 11:4 to 10; 27 5. Paragraph 34, at 11:11 to 17; and 28 6. Prayer as to the Sixth Cause of Action: Page 15, lines 15-23 NIC341/840763-1 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S DEMURRER TO PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT 1 As such, CA CONSTRUCTION hereby incorporates by reference herein, its Motion to 2 Strike portions of PLAINTIFFS' First Amended Complaint filed concurrently herewith. 3 On August 26, 2009, counsel for CA CONSTRUCTION met and conferred with counsel 4 for PLAINTIFFS and requested that PLAINTIFFS withdraw their Sixth Cause of Action based 5 on the fact that the cause of action was subject to a demurrer and motion to strike. As of the date 6 of filing this demurrer, PLAINTIFFS have not agreed to withdraw the Sixth Cause of Action. 7 II. STATUTORY AND LEGAL AUTHORITY FOR DEMURRER 8 The statutory authority for a demurrer is contained in California Code of Civil Procedure 9 §430.10. This section states in pertinent part: "The party against whom a complaint or cross-complaint has been filed may object by demurrer or answer as provided in Section 430.30 to the pleading on 11 any one or more of the following grounds: 12 • • -(b) The person who filed the pleading does not have the legal capacity to sue. 13 ... (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, "uncertain" includes 15 ambiguous and unintelligible...." 1 fi On a demurrer, the Court will admit all material facts which are properly asserted. ,7 However, it will not assume the truth of "contentions, deductions or conclusions of fact or law." lg See Stansfield v. Starkev (1990) 220 Cal.App.3d 59, 72. In Enestrom v. Kallins (1996} 49 ,g Cal.App.4th 773, 778, the Court stated that when ruling on a demurrer, it must "treat the demurrer ~0 as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of 21 act or law." Also, in Levine v. Jessup (1958) 161 Cal.App.2d 59,69, the Court stated: 22 The purpose of a complaint is to furnish the defendants with certain definite charges which can be intelligently met. Mere general 23 assertions by way of conclusion or those indefinite in character... cannot be deemed sufficient compliance with the long established 24 rules of pleading. ~<- A complaint "must contain 'a statement of the facts constituting the cause of action in ~,- ordinary and concise language' [CCP §425.10]" See Weil & Brown, California Practice Guide, 27 Civil Procedure Before Trial §6:120. The "facts to be pleaded are those upon which liability 20 depends (i.e., 'the facts constituting the cause of action'). These are commonly referred to as NIC341/840763-1 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S DEMURRER TO PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT 1 'ultimate facts.'" See Weil & Brown, California Practice Guide, supra at §6:127. "Failure to 2 plead ultimate facts subject the complaint to demurrer for 'failure to state facts constituting the 3 cause of action.' [CCP §430.10(e)] See Weil & Brown, California Practice Guide, supra at 4 §6:127. Finally, if under substantive law no liability exists, it is not an abuse of discretion for a 5 court to sustain a demurrer without leave to amend. Berkeley Police Association v. City of 6 Berkeley (1978) 76 Cal.App.3d 931,943. 7 III. LEGAL ARGUMENT 8 A. Plaintiffs Do Not Have The Legal Capacity To Sue For Violations of Business g and Professions Code Sections n The issue of whether a statute creates a private right of action is a question of statutory construction depending on the intent of the enacting body. "A statute creates a private right of action only if the enacting body so intended." Moradi-Shalal v. Fireman's Fund Ins. Companies 13 (1988) 46 Cal.3d 287, 305; Crusader Ins. Co. v. Scottsdale Ins. Co. (1997) 54 Cal.App.4th 121, 1 . 131. In Moradi-Shalal, the California Supreme Court held that the Legislature did not intend to create a private right of action to enforce Section 790.03(h) and the Court overruled Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal.3d 880. Section 790.03(h) of the Unfair Trade Practices ._ Act prohibits unfair claims settlement practices, authorizes the Commissioner to investigate .0 violations, conduct hearings, impose penalties, and provides for judicial review. lo .Q In Moradi-Shalal, the Court adopted statements by the Royal Globe dissent that if the »„ Legislature had intended to create a private right of action, " '.. .one would reasonably have _. expected that the Legislature simply would have directly imposed such liability in clear, ~~ understandable, unmistakable terms, as it has done in numerous other statutes.' " Moradi-Shalal, 23 supra, 46 Cal.3d at pp. 294-295, quoting Royal Globe, supra, 23 Cal.3d at p. 896. ~4 Further, in Farmers Ins. Exchange v. Superior Court (2006) 137 Cal. App. 4th 842, the «<- Court considered whether voters, through Proposition 103, intended to create a private cause of »fi action as it relates to Insurance Code §1861.10(a). Section 1861.10(a) governs a proceeding on 27 an application to increase insurance rates or any proceeding established pursuant to Chapter 9 of 20 the Insurance Code. It states "Any person may initiate or intervene in any proceeding permitted NIC341/840763-1 - 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S DEMURRER TO PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT or established pursuant to this chapter." Insurance Code §1861.10(a). The Court reviewed this provision and determined that it did not create a private cause of action because the statute did not expressly create such a right and the insurance commissioner was charged with enforcing a comprehensive administrative and regulatory scheme as it relates to insurance. In its ruling, the Farmers Ins. Exchange Court discussed the subsequent opinions by the Courts of Appeal that have held that "a statute creates a private right of action only if the statutory language or legislative history affirmatively indicates such an intent. Vikco Ins. Services, Inc. v. Ohio Indemnity Co. (1999) 70 Cal.App.4th 55, 62; Crusader Ins. Co. v. Scottsdale Ins. Co.. supra, 54 Cal.App.4th at pp. 132-133, 135-137. That intent need not necessarily be expressed 10 explicitly, but if not it must be strongly implied. See Vikco, supra, at p. 62; Crusader, supra, at 11 p. 133. When regulatory statutes provide a comprehensive scheme for enforcement by an 12 administrative agency, the courts ordinarily conclude that the Legislature intended the 13 administrative remedy to be exclusive unless the statutory language or legislative history clearly 14 indicates an intent to create a private right of action. Moradi-Shalal. supra, 46 Cal.3d at pp. 294- 15 295, 300; Vikco, supra, 70 Cal.App.4th 55, 62-65. 16 Here, PLAINTIFFS lack the legal capacity to bring a cause of action for alleged violations 17 of sections of the California Business & Professions Code. Sections 7109, 7026, 7028, 7031, and 18 7160 do not provide PLAINTIFFS with a private right of action. If the legislature had intended 19 that individual plaintiffs would have the authority to enforce these provisions, it would have 20 specifically provided that remedy in the statutes. As discussed by the Moradi-Shalal Court, the 21 legislature has not affirmatively indicated an intention to create a private right of action. 22 1. Business & Professions Code § 7109(b): 23 Business & Professions Code § 7109(b) generally states that a willful departure from 24 accepted trade standards for good and workmanlike construction or a willful departure from or 25 disregard of plans or specifications constitutes ".. .a cause for disciplinary action." Business & 26 Professions Code § 7109(b). Not only have PLAINTIFFS failed to demonstrate any willful 27 behavior on the part of CA CONSTRUCTION, the statute specifically states "disciplinary 28 action." A disciplinary action would be initiated by the Contractors State Licensing Board. NIC341/840763-1 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S DEMURRER TO PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT 1 2. Business & Professions Code § 7028(a): 2 Business & Professions Code § 7028(a) states that it is a ".. .misdemeanor for any person 3 to engage in the business or act in the capacity of a contractor within this state without having a 4 license therefor, unless the person is particularly exempted from the provisions of this chapter." 5 Business & Professions Code § 7028(a). Sections 7028(b) and (c) discuss applicable fines and 6 jail sentences related to multiple convictions of contracting without a license. Finally, Section 7 7028(f) discusses statutes of limitations and states that "...an indictment for any violation of this 8 section by the unlicensed contractor shall be found or an information or complaint filed within 9 four years from the date of the contract proposal, contract, completion, or abandonment of the 10 work, whichever occurs last." The indictment and information reference implies proceedings 11 initiated by the criminal authorities, and the reference to "complaint filed" contemplates civil 12 proceedings initiated by the authority created to regulate contractors, the Contractors' State 13 Licensing Board ("CSLB"). It is completely silent as to private plaintiffs. 14 3. Comprehensive Enforcement Scheme: 15 California has created a comprehensive scheme for the regulation of contractors - the 16 CSLB. The CSLB protects consumers by licensing and regulating California's construction 17 industry. The CSLB edcates consumers about contractors and construction law, administers 18 examinations to test prospective licensees, issues licenses, investigates complaints against 19 licensed and unlicensed contractors, issues citations, suspends or revokes licenses, and seeks 20 administrative, criminal, and civil sanctions against violators. See http://www.cslb.ca.gov/. 21 Also, Business & Professions Code §7011.4 discusses the enforcement of licensing provisions 22 and expressly creates a separate enforcement unit that is charged with the duty of rigorously 23 enforcing all provisions that prohibit forms of unlicensed activity. Business & Professions Code 24 §7011.4. The CSLB is vested with this authority and not private Plaintiffs. 25 Based on the foregoing, the demurrer as to the Sixth Cause of Action should be sustained 26 without leave to amend. 77 B. Plaintiffs' Complaint Is Uncertain, Vague, Ambiguous And Unintelligible 2g Because Defendant CA Construction Is A Licensed Contractor NIC341/840763-1 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S DEMURRER TO PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT 1 In ruling on a demurrer the Court is not limited to the four corners of the Complaint. The 2 Court may consider any matter of which the court is required to or may take judicial notice. Code 3 of Civil Procedure § 430.30. 4 In determining the sufficiency of a complaint against demurrer, a court will consider matters that may be judicially noticed. 5 Accordingly, a complaint otherwise good on its face is subject to demurrer when facts judicially noticed render it defective. (Joslin 6 v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374). 7 The Court may also take judicial notice of facts not reasonably subject to dispute and 8 "capable of immediate and accurate verification by resort to sources of reasonably indisputable 9 accuracy." Evidence Code § 452(h). Further, the Court may take notice of official acts of any 10 state or federal legislative, executive or judicial department, and a "court can take judicial notice 11 of records and files of state administrative agencies. Evidence Code § 452(c); See Fowler v. 12 Howell (1996) 42 Cal.App.4th 1746,1750. 13 The laws that regulate contractors are designed to protect consumers from unscrupulous 14 contractors who perform construction activities without any proper licensing. At all times during 15 construction of PLAINTIFFS' home, CA CONSTRUCTION held an active "B" general 16 contractor's license. Business & Professions Code §7057 states that "A general building 17 contractor shall not take a subcontract involving trades other than framing or carpentry, unless the 18 subcontract requires at least two unrelated trades or crafts other than framing or carpentry, or 19 unless the general building contractor holds the appropriate license classification." In Exhibit "A" 20 attached to the First Amended Complaint, the contract required CA CONSTRUCTION to 21 "excavate, form, place and finish concrete...". This scope of work includes the work of a 22 concrete contractor (C-9 Classification; California Code of Regulations, Reg. 832.08), the work 23 of an earthwork and paving contractor (C-12 Classification; California Code of Regulations, Reg. 24 832.12), and a reinforcing steel contractor (C-50 Classification; California Code of Regulations, 25 Reg. 832.50). Thus, the work includes the work of two or more unrelated trades. By the terms of 26 its "B" license status, CA CONSTRUCTION was well versed and authorized to perform the work 27 outlined in the contract. If PLAINTIFFS had a concern over CA CONSTRUCTION'S license 28 and their ability to do the type of work required by the contract, they would have surely raised NIC341/840763-1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S DEMURRER TO PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT 1 this issue with the CSLB as it is the entity charged with investigating such complaints. 2 Pursuant to Evidence Code §452, CA CONSTRUCTION requests that the Court take 3 judicial notice of the Certified License History as issued by the CSLB for CA CONSTRUCTION 4 as evidenced in the documents attached as Exhibit "A" to the Request for Judicial Notice, filed 5 concurrently herewith and incorporated by reference herein. 6 C. The Sixth Cause Of Action Must Fail As It Fails To Specifically Plead A 7 Fraud Based Cause Of Action 8 1. The Sixth Cause Of Action Does Not Contain Facts Sufficient To Constitute A Cause Of Action 9 California Civil Code § 3294(c)(3) defines fraud as "...an intentional misrepresentation, 10 deceit, or concealment of a material fact known to the defendants with the intention on the part of 11 the defendant of thereby depriving a person of property or legal rights or otherwise causing 12 injury." Civil Code § 3294(c)(3). Causes of action asserting fraudulent activity "should be set out 13 clearly, concisely, and with sufficient particularity to apprise the opposite party ... and to enable 14 the court to determine whether, on the facts pleaded, there is any foundation ... for the charge of 15 fraud." Scafidi v. Western Loan and Building Co. (1946) 72 Cal.App.2d 550, 553. 16 . . . The effect of this rule is twofold: (1) general pleading of the 17 legal conclusion of 'fraud' is insufficient; the facts constituting fraud must be alleged in the proper manner (i.e., factually and 18 specifically), and (2) the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading 19 defective in any material respect. 20 5 Witkin, California Procedure (4th Ed.), Pleading § 669. [Emphasis added] 21 At Paragraph 33 on page 11, lines 4 through 10 of the First Amended Complaint, 22 PLAINTIFFS allege that CA CONSTRUCTION violated Business and Professions Code § 7160 23 by ".. .knowingly making false or fraudulent representations to Plaintiffs about his ability to 24 properly perform the services he was required to perform under the contract with Plaintiffs." 25 Although the cause of action is labeled as a violation of various Business and Professions Code 26 sections, it essentially alleges that CA CONSTRUCTION engaged in fraud or some variety of 27 intentional misrepresentation with respect to the contract for construction at PLAINTIFFS' home. 28 NIC341/840763-1 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S DEMURRER TO PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT 1 The particularity requirement for causes of action based on fraudulent behavior necessitates 2 pleading facts that "show how, when, where, to whom, and by what means the representations 3 were tendered." Lazar v. SUP. Ct. (Rvkoff-Sexton. Inc.) (1996) 12 Cal.4th 631, 645. See also 4 Fallbrook Public Utility Dist v. Martin (1957) 151 Cal.App.2d 84, 94 ("It is a cardinal rule of 5 pleading that fraud must be pleaded in specific language descriptive of the acts which are relied 6 upon...It is not sufficient to allege it in ...terms which amount to mere conclusions"). 7 PLAINTIFFS' cause of action regarding an alleged violation of Business and Professions 8 Code § 7160 consists of improper conclusions that lack any factual support. The allegations fail 9 to plead any facts regarding what statements were fraudulent or false, who made the fraudulent 10 and false statements, when the statements were made, to whom the statements were made, how 11 the statements induced the PLAINTIFFS to act, or the context in which they were made. The 12 Sixth Cause of Action fails to allege the "how, when, where, to whom, and by what means..." as 13 contemplated by the Court in Lazar. As such, it fails to state a cause of action for which relief 14 may be had. Thus, this demurrer should be sustained without leave to amend. 2. The Sixth Cause Of Action Is Uncertain, Vague, And Ambiguous 16 PLAINTIFFS have failed to set forth any facts related to the false or fraudulent statements 17 by CA CONSTRUCTION and/or its representatives. The First Amended Complaint also fails to 1° furnish certain definite charges that can be intelligently met. It is hornbook law that the purposes 19 of a complaint is to furnish the defendants with certain definite charges which can be intelligently 2® met,. .the point is that the accuser must place his finger squarely and directly upon whatever 21 dereliction is relied upon [by plaintiff]. Zumbrun v. Univ. of So. California (1972) 25 Cal.App.3d 22 1,8 citing to Lavine v. Jessup (1958) 161 Cal.App.2d 59, 69. Mere recitals, references to or 23 allegations of material facts, which may be left to surmise, are subject to special demurrer. 24 Corum v. Hartford Accident & Indemnity Co. (1945) 67 Cal.App.2d 891, 894-895. 25 PLAINTIFFS have alleged a fraud based cause of action against CA CONSTRUCTION. 2^ The Sixth Cause of Action is uncertain, vague, ambiguous, and unintelligible because it fails to 27 allege the "how, when, where, to whom, and by what means..." the false or fraudulent statements 28 NIC341/840763-1 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S DEMURRER TO PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT 1 were made by CA CONSTRUCTION. Thus, the demurrer should be sustained on this ground. 2 D. Plaintiffs Should Not be Permitted to Amend Their Complaint 3 PLAINTIFFS have failed to demonstrate that they can prove any sets of facts that would 4 entitle them to the relief they seek. Thus, this Court should sustain CA CONSTRUCTION'S 5 demurrer to PLAINTIFFS' Sixth Cause of Action without leave to amend. Leave to amend may 6 only be granted if there is a "reasonable possibility that the defect can be cured by amendment." 7 Blank v. Kirwan (1985) 39 Cal.3d 311,318 (plaintiffs burden to establish with reasonable 8 particularity that a pleading defect could be cured by further amendment). 9 If PLAINTIFFS had any specific knowledge of a specific act, omission, or statement by 10 CA CONSTRUCTION and/or its representatives that constituted an intentional or fraudulent 11 misrepresentation, PLAINTIFFS would have surely set forth those allegations in their First 12 Amended Complaint. The absence of such in the First Amended Complaint implies that 13 PLAINTIFFS know of no such acts, omissions, statements, claims or allegations. 14 Absent a showing by PLAINTIFFS that they can reasonably cure the defects in the First 15 Amended Complaint, PLAINTIFFS should not be allowed to amend. As such, CA 16 CONSTRUCTION'S demurrer should be sustained without leave to amend. 17 III. CONCLUSION 18 Based on the foregoing, CA CONSTRUCTION respectfully requests that its demurrer to 19 PLAINTIFFS' Sixth Cause of Action in the First Amended Complaint should be sustained. 20 Furthermore, since PLAINTIFFS' are unable to cure the defects in their First Amended 21 Complaint, CA CONSTRUCTION'S demurrer should be sustained without leave to amend. 22 Dated: August 77 , 2009 ARCHER NO 23 24 Gregory K. Federico Attorneys for Defendants and Cross- 26 Defendants RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 27 28 NIC341/840763-1 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S DEMURRER TO PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT