Preview
1 Todd A. Jones (Bar No. 198024)
Gregory K. Federico (Bar No. 242184)
2 ARCHER NORRIS
A Professional Law Corporation
3 655 University Avenue, Suite 225
Sacramento, California 95825-6747
4 Telephone: 916.646.2480
Facsimile: 916.646.5696 NOV 9 2009
5
Attorneys for Defendants and Cross-Defendants
6 RICHARD KIRK RUYBALID, individually, and
dba CA CONSTRUCTION
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10
11 RODNEY ABBOTT and FLORENTINE Case No. 07AS04450
ABBOTT,
12 MEMORANDUM OF POINTS AND
Plaintiffs, AUTHORITIES IN SUPPORT OF
13 DEFENDANT CA CONSTRUCTION'S
v. REPLY TO PLAINTIFFS' OPPOSITION
14 TO MOTION TO STRIKE
RONALD PAUL BRITSCHGI, et al.,
15 Date: November 17, 2009
Defendants. Time: 9:00 a.m.
16 Dept: 54
17 Action Filed: September 24, 2007
18 AND ALL RELATED CROSS-ACTIONS.
19
I. INTRODUCTION
20
Defendant RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION
("CA CONSTRUCTION") hereby files this memorandum of points and authorities in support of
its reply to Plaintiffs FLORENTINE and RODNEY ABBOTT'S ("PLAINTIFFS") Opposition to
CA CONSTRUCTION'S Motion to Strike. As indicated in PLAINTIFFS' Opposition brief,
PLAINTIFFS' have filed one joint opposition to CA CONSTRUCTION'S demurrer and motion
to strike. CA CONSTRUCTION elects to file a separate reply brief to PLAINTIFFS' arguments
in opposition to the Motion to Strike contained in section II.G of PLAINTIFFS' brief
///
NIC34I/871698-I
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO STRIKE
II. ARGUMENT
A. Plaintiffs Filed No Opposition To CA Construction's Motion To Strike
. References ToToPersonal Injuries And
AndMold Exposure ToTo Unnamed Plai
Plaintiffs
CA CONSTRUCTION has moved to strike Paragraph 29, Page 10, Lines 14-15 of
4 H
PLAIN
PLAINTIFFS' Fifth Cause of Action against CA CONSTRUCTION. This section slates the
5
following: ".. .personal injuries to plaintiffs and their family members as a result of mold
6
damage,...". As stated in CA CONSTRUCTION'S moving papers, PLAINTIFFS claim personal
injury damages for the benefit of parties who have not been named as parties in the First
o
Amended Complaint. PLAINTIFFS allege that their "family members" have sustained personal
injuries due to mold exposure. As these family members are not named Plaintiffs, any and all
reference to them in the First Amended Complaint should be struck. PLAINTIFFS do not have
standing to seek claims on behalf of, and damages for, unnamed family members or other
unnamed Vparties.
13
PLAINTIFFS did not oppose CA CONSTRUCTION'S request that this material be struck
from the First Amended Complaint. Since there is no opposition, the Court should strike this
portion of the First Amended Complaint.
16
17 B. CA Construction's Motion To Strike Portions Of Plaintiffs' First Amended
Complaint Should Be Granted
18
A motion to strike can be used to remove "irrelevant, false or improper" subject matter.
19
Code of Civil Procedure §436. Irrelevant matter includes an immaterial allegation, which is
20
defined as "allegations not essential to the claim or defense" or ''allegations 'neither pertinent to
21
nor supported by an otherwise sufficient claim or defense'". Code of Civil Procedure §431.10(b).
22
1. The Motion To Strike Paragraph 31 At Page 10, Lines 24 Through 28 Should
Be Granted As Plaintiffs' Arguments On The Licensure Issue Must Fail
24 The Court may take notice of official acts of any state or federal legislative, executive or
25 judicial department, and a "court can take judicial notice of records and files of state
26 administrative agencies. Evidence Code § 452(c); See Fowler v. Howell (1996) 42 Cal.App.4th
27 1746, 1750. Pursuant to statutory and case law, this Court is permitted to take judicial notice of
28
N1C341/87I698-1 2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO STRIKE
1 the certified license history of CA CONSTRUCTION as referenced in its Request for Judicial
2 Notice, filed previously herein and incorporated by reference herein.
3 The certified license history states that CA CONSTRUCTION was licensed at all times
4 relevant and authorized to perform the work it contracted for with PLAINTIFFS As argued in its
5 motion to strike, CA CONSTRUCTION performed various construction activities on this project,
6 including concrete work, earthwork, paving, and placement of reinforcing steel. This work
7 encompasses the work of two or more unrelated trades as outlined in a class "B" license.
8 . As to the licensure issue, PLAINTIFFS simply allege that CA CONSTRUCTION was not
9 licensed, which is nothing more than a conclusion of law and legal contention that lacks factual
10 support. This legal conclusion constitutes "irrelevant, false or improper" subject matter, which is
11 subject to a motion to strike under Code of Civil Procedure §436.
12
2. The Motion To Strike Paragraph 32 At Page 11
10 Be Granted As It Contains Conclusory, Irrelevant, and False Information
Although PLAINTIFFS are permitted to argue that parties lack the requisite skill in
,~ connection with a negligence cause of action, PLAINTIFFS ignore the fact that the allegations in
Paragraph 32 relate to the PLAINTIFFS' vague, ambiguous and uncertain allegations for alleged
violations of the Business & Professions Code. PLAINTIFFS' Sixth Cause of Action broadly
alleges that CA CONSTRUCTION violated Business & Professions Code Sections 7109, 7026,
lo
Q 7028, 7031, and 7160. Each section relates to differing topics, contains separate elements, and
provides for specific and separate enumerated relief. Despite the distinction in each of these
provisions, PLAINTIFFS make one general allegation that all referenced sections were violated.
First, PLAINTIFFS' allegations at Paragraph 32 again represent nothing more than a legal
conclusion for which there are no accompanying material facts in support of the conclusion. The
-. legal conclusions in Paragraph 32 constitute "allegations not essential to the claim or defense" or
~<- "allegations 'neither pertinent to nor supported by an otherwise sufficient claim or defense"' as
defined in Code of Civil Procedure §431.10(b). As such, they should be struck.
27 Second, PLAINTIFFS have failed to respond to CA CONSTRUCTION'S argument that
Paragraph 32 contains false information. CA CONSTRUCTION was never ".. .aware that he
NIC341/871698-1 3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO STRIKE
1 lacked such skill and/or experience." Again, this is a legal conclusion that is unsupported by any
2 evidence. Further, it is incapable of being "borne out by the evidence" as argued by
3 PLAINTIFFS. It should be struck from the First Amended Complaint on this ground as well.
4
3. The Motion To Strike Paragraph 33 At Page 11, Lines 4 Through 10
5 " And Paragraph 34 At Page 11, Lines 11 Through 17 Should Be Granted
Because Plaintiffs Claims Regarding The Alleged False Or Fraudulent
6 Misrepresentations Are Wholly Devoid Of Factual Specificity
7 Causes of action asserting fraudulent activity "should be set out clearly, concisely, and
g with sufficient particularity to apprise the opposite party ... and to enable the court to determine
9 whether, on the facts pleaded, there is any foundation ... for the charge of fraud." Scafidi v.
10 Western Loan and Building Co. (1946) 72 Cal.App.2d 550, 553. CA CONSTRUCTION argues
11 that PLAINTIFFS have wholly failed to plead the material facts associated with the false and
12 fraudulent representations allegedly tendered by representatives of CA CONSTRUCTION.
13 Business and Professions Code Section 7160 contains a number of buzzwords, none of
14 which PLAINTIFFS address in the First Amended Complaint or their opposition papers. First,
15 PLAINTIFFS plead no material facts showing CA CONSTRUCTION'S state of mind that reveal
16 it "knowingly" made false or fraudulent statements. Second, PLAINTIFFS plead no material
17 facts indicating that any alleged statements were "false". Finally, PLAINTIFFS plead no material
13 facts that indicate that any alleged statements were tendered in a "fraudulent" manner.
19 PLAINTIFFS again have ignored the fact that PLAINTIFFS must be specific in their
20 allegations and must show the so-called "who, what, when, where, and how" as it pertains to the
21 alleged fraudulent misrepresentations. The First Amended Complaint only contains legal
22 conclusions, deductions, and PLAINTIFFS' own legal contentions. One is left to assume that
23 PLAINTIFFS lack the necessary factual support to substantiate this claim. Thus, these legal
24 conclusions and opinions constitute "irrelevant, false or improper" subject matter, which is
25 subject to a motion to strike under Code of Civil Procedure §436. Thus, Paragraph 34 should be
26 struck for the these reasons.
27 ///
28 ///
NIC341/87! 698-1 4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO STRIKE
1 III. CONCLUSION
2 Based on the aforementioned arguments, CA CONSTRUCTION respectfully requests that
3 this Court issue an order striking the above-referenced portions from PLAINTIFFS' First
4 Amended Complaint, as well as their respective prayers for relief throughout the First Amended
5 Complaint.
6 av
Dated: November . 2009 ARCHER NORRIS
7 "
8
9 Gregory K. Federico
Attorneys for Defendants and Cross-
10 Defendants RICHARD KIRK RUYBALID,
individually, and dba CA CONSTRUCTION
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
NIC341/871698-! 5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO STRIKE
1 PROOF OF SERVICE
2 Name of Action: Rodney Abbott, et al. v. Ronald Paul Britschgi, et al.
Court and Action No: Sacramento County Superior No. 07AS04450
3
I, Marie Cantrell, declare that I am over the age of 18 years and not a party to this action
4 or proceeding. My business address is 655 University Avenue, Suite 225, Sacramento, California
95825. On November 9, 2009,1 caused the following document(s) to be served:
5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA
6 CONSTRUCTION'S REPLY TO REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO
STRIKE
7
by placing a true copy of the documents listed above, enclosed in a sealed envelope,
addressed as set forth below, for collection and mailing on the date and at the business
address shown above following our ordinary business practices. I am readily familiar
with this business' practice for collection and processing of correspondence for
mailing with the United States Postal Service. On the same day that a sealed envelope
is placed for collection and mailing, it is deposited in the ordinary course of business
11 with the United States Postal Service with postage fully prepaid.
12 |—| by having a true copy of the document(s) listed above transmitted by facsimile to the
person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission
was reported as complete without error by a report issued by the transmitting facsimile
,4 machine.
15 [xl by placing a true copy of the document(s) listed above, in a box or other facility
regularly maintained by UPS, an express service carrier, or delivered to a courier or
16 driver authorized by the express service carrier to receive documents, in an envelope
designated by the express service carrier, with delivery fees paid or provided for,
addressed as set forth below.
18
[SEE ATTACHED SERVICE LIST]
20 n
I declare under penalty of perjury that the foregoing is true and correct. Executed on
21
November 9, 2009, at Sacramento, California.
22
23
/ \Ajyu I/L
24 Marie'Canfrell
25
26
27
28 n
N1C341/608293-1
PROOF OF SERVICE
Service List
VIA OVERNIGHT MAIL
Stephanie Finelli PLAINTIFFS
4 Law Offices of Stephanie J. Finelli
1007 Seventh Street, Suite 500 Tel1 (916)443-2144
5 Sacramento, CA 95814 Fax:(916)443-1511
E-mail: sfinelli700@yahoo.com
6
7 VIA REGULAR MAIL
8 Craig N.. Lundgren Counsel for RONALD PAUL BRITSCHGI,
LUNDGREN & REYNOLDS, LLP INDIVIDUALLY AND DBA BRITSCHGI
9 424 Second Street, Suite A CORPORATION
Davis, CA 95616
10 Tel: (530)297-5030
Fax: (530) 297-5077
11 E-mail: clundgren@lr-law net
12 Richard D. Sopp Counsel for CADRE DESIGN GROUP, INC.
Wheatley Sopp LLP
13 1004 River Rock Drive, Suite 245 Tel: (916) 988-3857
Folsom, CA 95630 Fax:{916) 988-5296
14 Email: rds@mwsblaw.com
15 Sean D Schwerdtfeger Counsel for CONSTRUCTION TESTING &
Joyati Tanya Schomee ENGINEERING, INC.
16 L/O OF SEAN D. SCHWERDTFEGER
501 West Broadway, Suite 1700 Tel: (619)595-3403
17 San Diego, CA 92101 Fax:(619)595-3404
Email: sean.schwerdtfeger@gmail com
18
19
20
21
22
23
24
25
26
27
28
NIC341/608293-!
SERVICE LIST
Preview
1 Todd A. Jones (Bar No. 198024) Gregory K. Federico (Bar No. 242184) 2 ARCHER NORRIS A Professional Law Corporation 3 655 University Avenue, Suite 225 Sacramento, California 95825-6747 4 Telephone: 916.646.2480 Facsimile: 916.646.5696 NOV 9 2009 5 Attorneys for Defendants and Cross-Defendants 6 RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 RODNEY ABBOTT and FLORENTINE Case No. 07AS04450 ABBOTT, 12 MEMORANDUM OF POINTS AND Plaintiffs, AUTHORITIES IN SUPPORT OF 13 DEFENDANT CA CONSTRUCTION'S v. REPLY TO PLAINTIFFS' OPPOSITION 14 TO MOTION TO STRIKE RONALD PAUL BRITSCHGI, et al., 15 Date: November 17, 2009 Defendants. Time: 9:00 a.m. 16 Dept: 54 17 Action Filed: September 24, 2007 18 AND ALL RELATED CROSS-ACTIONS. 19 I. INTRODUCTION 20 Defendant RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION ("CA CONSTRUCTION") hereby files this memorandum of points and authorities in support of its reply to Plaintiffs FLORENTINE and RODNEY ABBOTT'S ("PLAINTIFFS") Opposition to CA CONSTRUCTION'S Motion to Strike. As indicated in PLAINTIFFS' Opposition brief, PLAINTIFFS' have filed one joint opposition to CA CONSTRUCTION'S demurrer and motion to strike. CA CONSTRUCTION elects to file a separate reply brief to PLAINTIFFS' arguments in opposition to the Motion to Strike contained in section II.G of PLAINTIFFS' brief /// NIC34I/871698-I MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO STRIKE II. ARGUMENT A. Plaintiffs Filed No Opposition To CA Construction's Motion To Strike . References ToToPersonal Injuries And AndMold Exposure ToTo Unnamed Plai Plaintiffs CA CONSTRUCTION has moved to strike Paragraph 29, Page 10, Lines 14-15 of 4 H PLAIN PLAINTIFFS' Fifth Cause of Action against CA CONSTRUCTION. This section slates the 5 following: ".. .personal injuries to plaintiffs and their family members as a result of mold 6 damage,...". As stated in CA CONSTRUCTION'S moving papers, PLAINTIFFS claim personal injury damages for the benefit of parties who have not been named as parties in the First o Amended Complaint. PLAINTIFFS allege that their "family members" have sustained personal injuries due to mold exposure. As these family members are not named Plaintiffs, any and all reference to them in the First Amended Complaint should be struck. PLAINTIFFS do not have standing to seek claims on behalf of, and damages for, unnamed family members or other unnamed Vparties. 13 PLAINTIFFS did not oppose CA CONSTRUCTION'S request that this material be struck from the First Amended Complaint. Since there is no opposition, the Court should strike this portion of the First Amended Complaint. 16 17 B. CA Construction's Motion To Strike Portions Of Plaintiffs' First Amended Complaint Should Be Granted 18 A motion to strike can be used to remove "irrelevant, false or improper" subject matter. 19 Code of Civil Procedure §436. Irrelevant matter includes an immaterial allegation, which is 20 defined as "allegations not essential to the claim or defense" or ''allegations 'neither pertinent to 21 nor supported by an otherwise sufficient claim or defense'". Code of Civil Procedure §431.10(b). 22 1. The Motion To Strike Paragraph 31 At Page 10, Lines 24 Through 28 Should Be Granted As Plaintiffs' Arguments On The Licensure Issue Must Fail 24 The Court may take notice of official acts of any state or federal legislative, executive or 25 judicial department, and a "court can take judicial notice of records and files of state 26 administrative agencies. Evidence Code § 452(c); See Fowler v. Howell (1996) 42 Cal.App.4th 27 1746, 1750. Pursuant to statutory and case law, this Court is permitted to take judicial notice of 28 N1C341/87I698-1 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO STRIKE 1 the certified license history of CA CONSTRUCTION as referenced in its Request for Judicial 2 Notice, filed previously herein and incorporated by reference herein. 3 The certified license history states that CA CONSTRUCTION was licensed at all times 4 relevant and authorized to perform the work it contracted for with PLAINTIFFS As argued in its 5 motion to strike, CA CONSTRUCTION performed various construction activities on this project, 6 including concrete work, earthwork, paving, and placement of reinforcing steel. This work 7 encompasses the work of two or more unrelated trades as outlined in a class "B" license. 8 . As to the licensure issue, PLAINTIFFS simply allege that CA CONSTRUCTION was not 9 licensed, which is nothing more than a conclusion of law and legal contention that lacks factual 10 support. This legal conclusion constitutes "irrelevant, false or improper" subject matter, which is 11 subject to a motion to strike under Code of Civil Procedure §436. 12 2. The Motion To Strike Paragraph 32 At Page 11 10 Be Granted As It Contains Conclusory, Irrelevant, and False Information Although PLAINTIFFS are permitted to argue that parties lack the requisite skill in ,~ connection with a negligence cause of action, PLAINTIFFS ignore the fact that the allegations in Paragraph 32 relate to the PLAINTIFFS' vague, ambiguous and uncertain allegations for alleged violations of the Business & Professions Code. PLAINTIFFS' Sixth Cause of Action broadly alleges that CA CONSTRUCTION violated Business & Professions Code Sections 7109, 7026, lo Q 7028, 7031, and 7160. Each section relates to differing topics, contains separate elements, and provides for specific and separate enumerated relief. Despite the distinction in each of these provisions, PLAINTIFFS make one general allegation that all referenced sections were violated. First, PLAINTIFFS' allegations at Paragraph 32 again represent nothing more than a legal conclusion for which there are no accompanying material facts in support of the conclusion. The -. legal conclusions in Paragraph 32 constitute "allegations not essential to the claim or defense" or ~<- "allegations 'neither pertinent to nor supported by an otherwise sufficient claim or defense"' as defined in Code of Civil Procedure §431.10(b). As such, they should be struck. 27 Second, PLAINTIFFS have failed to respond to CA CONSTRUCTION'S argument that Paragraph 32 contains false information. CA CONSTRUCTION was never ".. .aware that he NIC341/871698-1 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO STRIKE 1 lacked such skill and/or experience." Again, this is a legal conclusion that is unsupported by any 2 evidence. Further, it is incapable of being "borne out by the evidence" as argued by 3 PLAINTIFFS. It should be struck from the First Amended Complaint on this ground as well. 4 3. The Motion To Strike Paragraph 33 At Page 11, Lines 4 Through 10 5 " And Paragraph 34 At Page 11, Lines 11 Through 17 Should Be Granted Because Plaintiffs Claims Regarding The Alleged False Or Fraudulent 6 Misrepresentations Are Wholly Devoid Of Factual Specificity 7 Causes of action asserting fraudulent activity "should be set out clearly, concisely, and g with sufficient particularity to apprise the opposite party ... and to enable the court to determine 9 whether, on the facts pleaded, there is any foundation ... for the charge of fraud." Scafidi v. 10 Western Loan and Building Co. (1946) 72 Cal.App.2d 550, 553. CA CONSTRUCTION argues 11 that PLAINTIFFS have wholly failed to plead the material facts associated with the false and 12 fraudulent representations allegedly tendered by representatives of CA CONSTRUCTION. 13 Business and Professions Code Section 7160 contains a number of buzzwords, none of 14 which PLAINTIFFS address in the First Amended Complaint or their opposition papers. First, 15 PLAINTIFFS plead no material facts showing CA CONSTRUCTION'S state of mind that reveal 16 it "knowingly" made false or fraudulent statements. Second, PLAINTIFFS plead no material 17 facts indicating that any alleged statements were "false". Finally, PLAINTIFFS plead no material 13 facts that indicate that any alleged statements were tendered in a "fraudulent" manner. 19 PLAINTIFFS again have ignored the fact that PLAINTIFFS must be specific in their 20 allegations and must show the so-called "who, what, when, where, and how" as it pertains to the 21 alleged fraudulent misrepresentations. The First Amended Complaint only contains legal 22 conclusions, deductions, and PLAINTIFFS' own legal contentions. One is left to assume that 23 PLAINTIFFS lack the necessary factual support to substantiate this claim. Thus, these legal 24 conclusions and opinions constitute "irrelevant, false or improper" subject matter, which is 25 subject to a motion to strike under Code of Civil Procedure §436. Thus, Paragraph 34 should be 26 struck for the these reasons. 27 /// 28 /// NIC341/87! 698-1 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO STRIKE 1 III. CONCLUSION 2 Based on the aforementioned arguments, CA CONSTRUCTION respectfully requests that 3 this Court issue an order striking the above-referenced portions from PLAINTIFFS' First 4 Amended Complaint, as well as their respective prayers for relief throughout the First Amended 5 Complaint. 6 av Dated: November . 2009 ARCHER NORRIS 7 " 8 9 Gregory K. Federico Attorneys for Defendants and Cross- 10 Defendants RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NIC341/871698-! 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO STRIKE 1 PROOF OF SERVICE 2 Name of Action: Rodney Abbott, et al. v. Ronald Paul Britschgi, et al. Court and Action No: Sacramento County Superior No. 07AS04450 3 I, Marie Cantrell, declare that I am over the age of 18 years and not a party to this action 4 or proceeding. My business address is 655 University Avenue, Suite 225, Sacramento, California 95825. On November 9, 2009,1 caused the following document(s) to be served: 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CA 6 CONSTRUCTION'S REPLY TO REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO STRIKE 7 by placing a true copy of the documents listed above, enclosed in a sealed envelope, addressed as set forth below, for collection and mailing on the date and at the business address shown above following our ordinary business practices. I am readily familiar with this business' practice for collection and processing of correspondence for mailing with the United States Postal Service. On the same day that a sealed envelope is placed for collection and mailing, it is deposited in the ordinary course of business 11 with the United States Postal Service with postage fully prepaid. 12 |—| by having a true copy of the document(s) listed above transmitted by facsimile to the person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission was reported as complete without error by a report issued by the transmitting facsimile ,4 machine. 15 [xl by placing a true copy of the document(s) listed above, in a box or other facility regularly maintained by UPS, an express service carrier, or delivered to a courier or 16 driver authorized by the express service carrier to receive documents, in an envelope designated by the express service carrier, with delivery fees paid or provided for, addressed as set forth below. 18 [SEE ATTACHED SERVICE LIST] 20 n I declare under penalty of perjury that the foregoing is true and correct. Executed on 21 November 9, 2009, at Sacramento, California. 22 23 / \Ajyu I/L 24 Marie'Canfrell 25 26 27 28 n N1C341/608293-1 PROOF OF SERVICE Service List VIA OVERNIGHT MAIL Stephanie Finelli PLAINTIFFS 4 Law Offices of Stephanie J. Finelli 1007 Seventh Street, Suite 500 Tel1 (916)443-2144 5 Sacramento, CA 95814 Fax:(916)443-1511 E-mail: sfinelli700@yahoo.com 6 7 VIA REGULAR MAIL 8 Craig N.. Lundgren Counsel for RONALD PAUL BRITSCHGI, LUNDGREN & REYNOLDS, LLP INDIVIDUALLY AND DBA BRITSCHGI 9 424 Second Street, Suite A CORPORATION Davis, CA 95616 10 Tel: (530)297-5030 Fax: (530) 297-5077 11 E-mail: clundgren@lr-law net 12 Richard D. Sopp Counsel for CADRE DESIGN GROUP, INC. Wheatley Sopp LLP 13 1004 River Rock Drive, Suite 245 Tel: (916) 988-3857 Folsom, CA 95630 Fax:{916) 988-5296 14 Email: rds@mwsblaw.com 15 Sean D Schwerdtfeger Counsel for CONSTRUCTION TESTING & Joyati Tanya Schomee ENGINEERING, INC. 16 L/O OF SEAN D. SCHWERDTFEGER 501 West Broadway, Suite 1700 Tel: (619)595-3403 17 San Diego, CA 92101 Fax:(619)595-3404 Email: sean.schwerdtfeger@gmail com 18 19 20 21 22 23 24 25 26 27 28 NIC341/608293-! SERVICE LIST