Preview
Froml'LUNDGREN/REYNOLDS 5302975077 08W2009 17:
D ENDORSED
l CRAIG N. LUNDGREN (State Bar # 148842)
LUNDGREN & REYNOLDS, LLP
2 424 -2ND Street, #A
Davis, CA 95616 -
« 3 (530) 297*5030
(530) 297-5077 FAX
4 t »
Attorneys for Defendant; •
5 Cross-Complainant and' Cross-Defendant
RONALD'PAUL BRITSCHGI'. '•
6 Individually and dba BRITSGHGI CONSTRUCTION
. 7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10 RODNEY ABBOTT arid FLORENTINE ) CASE NO. 07AS04450
ABBOTT,
11 ) DEFENDANT RONALD PAUL
Plaintiffs, ) BRITSCHGI'S NOTICE OF
12 ) HEARING ON DEMURRER;
v. ) DEMURRER TO FIRST AMENDED
13 ) COMPLAINT; MEMORANDUM OF
RONALD PAUL BRITSCHGI, et al., ) POINTS AND AUTHORITIES IN
14 ) SUPPORT OF DEMURRER;
Defendants. ) DECLARATION OF CRAIG N.
15 .) LUNDGREN
16 AND RELATED CROSS-ACTIONS. ) DATE: 11/17/09
) TIME: 9:00 A.M.
BY FAX
17 DEPT: 54
RESERVATION NO. 1268737
18
19 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
20 PLEASE TAKE NOTICE THAT on November 17, 2009, at 9:00 a.m. in Department
21 54 of this Court, located at 800 Ninth Street, Sacramento, California, defendant, cross-
22 complainant and cross-defendant RONALD PAUL BRITSCHGI, dba BRITSCHGI
23 CONSTRUCTION shall move this Court to sustain the demurrer to the First Amended
24 Complaint for Damages for Breach pf Contract, Negligence and Violations of Business &
25, Professions Code and, if granted, to provide the Plaintiffs ten (10) days The Third Cause.of Action for Declaratory Relief fails to state facts sufficient
4 to constitute a cause of action pursuant to CCP section 43 0.10(e). • , .
<' , • ' " .»
5 2. The Third Cause of-Action is uncertain, ambiguous and unintelligible; '*
' ' . ' • < ' '
6 'BRITSCHOi has no way of ascertaining any controversy'between, these, two parties'pursuamtv •
7i to CCP section 430.10(f). .
t ^
8 Dated: August 27,2009 ' • *' LUNDGREN & REYNOLDS, LLP < ' « '•
9
By_
10 CRAIG N. LUKDGREN
Attorneys for Defendant, Cross-Defendant,
11 Gross-Complainant RONALD BRTTSCHGI
dba BRTTSCHGI CONSTRUCTION
12
13 MEMORANDUM OF POINTS AND AUTHORITIES
14 I.
15 INTRODUCTION
16 Plaintiffs third cause of action is a hodgepodge of allegations, sketchy claims and
17 misapplied statutes. The shear number of inconsistent, inapposite claims makes the "cause of
18 action" difficult to describe, let alone demur to. Yet a demurrer is appropriate, because it does
19 not state a claim, but rather sows confusion.
20 The main gist of the "cause of action" seems to be that there were numerous violations
21 of statutes found in the Business and Professions Code and that these violations give rise to a
22 private right of action. This is simply not true. Most of the alleged violations do not give rise
23 to a private right of action. As to those which do provide a private right of action, the claim is
24 not properly pleaded. Because plaintiffs' cites eight different statutes in this one cause of
25 action, it takes some time to address each, but defendant will attempt to do -so below.
<
26
-z?"
28
3.. . BRlTSCBTGI'SJMO-niCE OF HEARING;
FIRST AMD COMPLAINT; POINTS AJMD ACT^.'; DECL'
". '. • .i-1 .;••». 1 . j » . • . . . . <
FromlLUNDGREN/REYNOLDS 5302975077 08/°^2009 17:57 #044 P.006/015
.1
2 A. THE USE OF THE PHRASE "VIOLATED OR MAY HAVE VIOLATED A
•3 NUMBER OF STATUTES" UNDERMINES THE ENTIRE CAUSE OF
4 *
4 ACTION. A - ( . . ' ' . - • ' ,
5 Paragraph 18 alleges that "Britschgi has violated or may have violated a number of
' ' • ' . ' » * ' ' •' '
6 statutes, including but not limited to..." and then goes on to allege in'conclusory terms that' •
i +
t * * ' »
•1 six different statutes were violated. This pleading is insufficient as a matter of law.
1 ^ *
• ' ^ . .' ',
8 ' Taken as true, all that has been alleged here is that Britschgi may have violated a» '
9 number of statutes. This does not form the basis of a cause of action. Taking the allegations
10 to be true, BRITSCHGI is just as likely to have complied with "a number of statutes" as to
11 have violated -them. This paragraph is the only-paragraph which purports to allege negligence
12 or malfeasance on the part of BRITSCHGI. Thus, the entire cause of action fails.
13 B. PLAINTIFFS HAVE FAILED TO ALLEGE A COGNIZABLE CLAIM FOR
14 BREACH OF B&P CODE SECTION 7110 AND THE LACK OF WORKERS
15 COMPENSATION INSURANCE.
16 Paragraphs 17,18 and 19 contain allegations that appear to have been intended to state
17 a claim based on Britschgi's failure to obtain workers compensation benefits for his laborers.
18 In summary, plaintiffs allege that Britschgi employed workers on the project, but did not have
19 workers compensation insurance. (FAC 7:5-8.) Plaintiffs then allege that Britschgi "may
20 have violated" (FAC 7:12) workers compensation laws in violation of Business & Professions
21 code section 7110 (see FAC 7:16-17). Plaintiffs finally allege that Britschgi's violation of
22 workers compensation laws led to plaintiffs being "damaged" because they paid defendant
23 Britschgi for his work under the contract (FAC 7:20-21.) Britschgi disputes that he violated
24 any workers compensation laws, but for purposes of demurrer they must be taken as true.
25 Taken as true, the allegations fail to state a claim.
'26 1. • . There is no private right of action for, violation of B&P Cotde section 7110..
•;27 , •• Review' 'of Bos'iness and Pfofessi6ns~Code ^B,&f .Code") Section 7110 reveals that - '" ?,;
•\
'28 the section does indeed prohibit the "willful or deliberate disregard and violation of...
JBRITSCpQrS NOTICE OF HEARDMQ; DE1SJ0RRER,TO
FIRST AMD COMPLAINT; POINTS AND AUTH.; DBCU .
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i compensation insurance laws." However, the remedy for such a violation is that it is "a cause
t * .
2 for disciplinary action" enforceable by the Registrar of the Contractors State Licensing Board.
* » * *
« 3 (See B&P Code section 7090, et seq.) Section 7L10 is one of many statutes located in
4 Division 33iChapter 9, Article 7 of the B&P Code ("Article 7"). Article 7S titled "Disciplinary
5 Proceedings" begins af*section 7090 and continues through 7124. It is a comp:e&ensive
4 * ' * » < ' * < .
• * * *
• k t * * > ' ^
•6 scheme pf discipline for contractors and it does not create an^express private right of action
* *
* • * « *
. 7 for the violation of section 7110, or any other statutes in that article.
.' ' i . * '.
8 In analyzingwherher statutes from the Article 7 can be used to create a private right of
9 action, the courts look to the legislative intent The seminal case applying this approach was
10 Moradi-Shalalv. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 305 (Moradi-
11 S7za/a/),jvhichLapplied,the do.ctrine in an analysis._of_whether a legislative scheme for the.
12 regulation of insurers created a private right of action in third parties. Courts interpreting
13 Moradi-Shalal have summarized the holding as follows: "A statute creates a private right of
14 action only if the enacting body so intended. (Moradi-Shalal v. Fireman's Fund Ins.
15 Companies (1988) 46 Cal.3d 287, 305, 250 Cal.Rptr. 116, 758 P.2d 58> "(Farmers Ins.
16 Exchange v. Superior Court (2006) 137 Cal.App.4th 842, 850.) Naturally, legislative intent is
17 determined by reading the words of the statutes and, if necessary, reviewing legislative
18 history.
-[A-]-statute-creates-a-private-right-of-action only if-the-statutory-language or-
19 legislative history affirmatively indicates such an intent ( Vikco Ins. Services,
Inc. v. Ohio Indemnity Co. (1999) 70 Cal.App.4th 55, 62, 82 Cal.Rptr.2d 442;
20 Crusader Ins. Co. v. Scottsdale Ins. Co., supra, 54 Cal.App.4th at pp. 132-133,
135-137, 62 Cal.Rptr.2d 620.) That intent need not necessarily be expressed
21 explicitly, but if not it must be strongly implied. (See Vikco, supra, at p. 62, 82
Cal.Rptr.2d 442; Crusader, supra, at p. 133, 62 Cal.Rptr.2d 620.) Particularly
22 when regulatory statutes provide a comprehensive scheme for enforcement by
an administrative agency, the courts ordinarily conclude that the Legislature
23 intended the administrative remedy to be exclusive unless the statutory
language or legislative history clearly indicates an intent to create a private
24 right of action. ( Moradi-Shalal, supra, 46 Cal.3d at pp. 294-295, 300, 250
CaLRptr. 116, 758 P.2d 58; Vikco, supra, 70 Cal.App.4th 55, 62-65, 82
25 Cal.Rptr.2d442.) ' ,
26 fanners Ins. Exchange v. -Superior Court- (2006) 137 Cal.App.4th 842, 850. , ' , .
,27 • -;The statutes:in "Articlp''7~"Disciphnary Pjoee7 7
i ^ /. % - BREACH OF B&P. CODE SECTtON;71v9.. '' ; ' : < • • • • ™- ' --' ~ ,
'28 •Plaintiffs allege that BRITSCHGI breached B&P Code section 7109. (FA'C 7:13)
BRTESCHGI'S NOTICE OF HEARINC* .DEMURRER TQ . .
, FIRST AMD COMPLAINT1; POINTS AND AUTB., ?>ECL
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i Section 7109, like section 7110, is part'of Article 7, a comprehensive scheme for contractor
V 1 ,
t - t
2 discipline by the Registrar of the Contractor's State License Board. Section 7109, like section
3, 7110, -provides that a violation
1 "constitutes a cause for .disciplinary action." As noted above,
* *
4 statutes such as this are part of a comprehensive scheme for the discipline of licensees and do
i '' • ,
5 not provide a private right of action.
''.'.', ' ' ' ,' \
6 ", Moreover,' as noted above, damages are an element of a'cause of action in tort* or
7 contract and plaintiffs have failed to alleged damages that result from the alleged violation. •
1
. •
8 D. PLAINTIFFS HAVE FAILED TO ALLEGE A COGNIZABLE CLAUM'FOR
9 BREACH OF SECTIONS 7026, 7028 AND 7031, WHICH ADDRESS CLAIMS
< i
10 AGAINST AN UNLICENSED CONTRACTOR,
11 Plaintiffs alleged that BRITSCHGI "perform[ed] work as a general contractor while
12 his license was suspended by operation of law." (FAC 7:15.) The allegation is wholly
13 without merit. Plaintiffhas been Licensed as a contractor since 1985. He has held that license
14 continuously, and there have been no actions on his license.
15 First, the court should note that plaintiffs alleged in then- first amended complaint, at
16 paragraph 2 that BRITSCHGI "was duly licensed by the Contractor's State License Board of
17 the state of California to conduct business as a general building contractor within the State of
18 California and to engage in the work hereinafter described." (FAC 2:8-10.) The pleading at
19 in paragraph 18 of the complaint is therefore inconsistent with the pleading in paragraph two
20 and should be disregarded.
21 Second, the court may take judicial notice of the fact of Britschgi's licensure at all
22 relevant times, i.e. 2005 and 2006, by review of a verified certificate of licensure, which will
23 be provided with a Request for Judicial Notice prior to the hearing in this matter. (See B&P
24 Code section 703 l(d) ["If licensure or proper licensure is controverted, then proof of licensure
, 25 pursuant to this section-shall be made by^production of a verified certificate of licensure form
. 26 the Contractors State License Board..,"], BRITSCHGI does not,"have this certificate at this,
i
, 2 7 ' tone, but his ccrunseMaas~ordered/4t an'. (See'LundgreriDecl.) " • . . . . < ,-,
7 • 'S NOTICE OF lOJARINg; DEMURRER Tt> ' _'.
FromlLUNDGREN/REYNOLDS 5302975077 . 08/^/2009' 17:57 #044 P.010/015
Plaintiffs attempt to avoid the fact of Britschgi's licensure by pleading that it was -
• 2 somehow "suspended by operation of law." However, 7031, provides that the verified
t
: 43 certificate of licensure "establishes that the individual or entity bringing the action was duly
. • 4 licensed. ..." Thus, the statute does not provide for. the court to ignore the CSLB's records or
' ...
•5 revoke the license nuncpro tune. When Brits'chgi provides the certificate, it will constitute
4 • . 4
• 6 irrefutable evidence of his, licensure. • ' • « _
4
7
i '
( * * V
« 8 Even if the court were inclined to hold that it could find the license was retroactively
9 revoked "by operation of law" the only statutory basis for any revocation by operation of law
i
10 is set out in the B&P Code. The relevant sections provide the specific exclusive
11 circumstances allowing for suspension of a license by operation of law. These are as follows:
12 (a) When a Licensee fails to notify the Registrar within 90 days of an unsatisfied
judgment entered against the licensee; or when the licensee does notify the
13
Registrar but fails to maintain a bond for the judgment. (B&P 7071(b)-(c).)
14 (b) When a Licensee doing business as a corporation fails to be registered in good
standing with the Secretary of State as a corporation. (B&P 7076.2.)
15 (c) When a Licensee fails to comply with an order to pay a civil penalty. (B&P
7090.1.)
16 (d) When a licensee fails to comply with an arbitration award; the suspended license
may be revoked automatically if the licensee fails to comply within 90 days of the
17
suspension. (B&P 7085.6.)
18
19 None of the above grounds have been alleged in plaintiffs complaint Thus, based on
20 judicially noticeable facts and the allegations of the complaint, no cause of action for violation
21 of sections 7026, 7028 and 7031 is stated.
22 E. PLAINTIFFS HAVE FAILED TO ALLEGE A COGNIZABLE CLAIM FOR
23 BREACH OF SECTIONS 7159, FOR PERFORMING WORK WITHOUT A
24 VALID WRITTEN CONTRACT.
' 25 Plaintiffs allege that BRITSCHGI failed to comply with B&P Code section 7159.
26 Section 7159 is part of a comprehensive scheme to regulate home improvement contracts, Set
•f ~ t «-"-*-'-"• ^~t * '« - , 4 *• ' 4 • - t i * ~ *
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1
- -i-* * fr 4 . . V Jl t t "
~~.IJ -out rn~Bevis}on3^Chap'ter 9* Article-10 of the-B&P^Code (rAiticle^O")/.Section'.7159(b> . '-
28 specifically states that a "'homedmprovement'contract''means'an agreement, whether "oral-or
„ g ,. ' BRrrSCHGr.S NOTICE OF HEARING; DEiytURRER TO
FIR^T AMD COMPLAINT; POINTS AND' AUTH.; DECL
FromlLUNDGREN/REYNOLDS 5302975077 08/07/2009 17:58 #044 F.011/015 '
i written.. ..for the performance of a home improvement, as defined in section 7151." Section
2 7151 states that "'home improvement' means the repairing, remodeling, altering, converting,
t t
3 or modernizing of,.-or adding to, residential property..." By its plain meaning it does not
t , *
1
4 address the construction of a whole new home or structure.
* '. • ' ' . ' ' ,
5 Plaintiff has alleged that the contract was to "help plaintiffs
4
build their personal
• ' . ' * (
•i i ' .' •
,6 residence .." E\TS AND AUT^-j
FromlLUNDGREN/REYNOLDS 5302975077 08/°"'2009 17:58 #044 P.013/015
i H.
*
PLAINTIFFS ARE NOT ENTITLED TO RELIEF PURSUANT TO CIVIL
' i »
2 CODE SECTION 1029.8.
3 Plaintiffs claim that they are entitled to relief pursuant to Code of Civil Procedure
I * *
t , 4 4
, 4 section
•
1029.8 "because BRJTSCHGI» did •not have 'a valid .contractor's
w
license As noted
* ' ' * ' t
''5 above, plaintiffs pleaded that BRlTSCHGI was licenced in paragraph two of the First
• * • >
' -6 Attended Complaint Furthermore, BRlTSCHGI will provide-a verified certificate of
1
i * *
7 licensure'prior to the^ hearing on tibis matter and there are no grounds to find that
•
the
i •' « i
• 8 Bntschgi's license could be revoked "by operation of law" ntmc pro tune. Consequently,
9 plaintiffs cannot state a claim under section 1029.8. ,
10 n
11 CONCLUSION
12 There are no claims of any sort properly alleged in plaintiffs' third cause of action.
13 Consequently the demurrer to the third cause of action to the First Amended Complaint
14 should be sustained.
15 Dated: August 27,2009 LUNDGREN & REYNOLDS, LLP
16
By_
17 CRAIG N. LUl^GREN .
Attorneys for Defendant, Cross-Defendant,
18 Cross-Complainant RONALD BRlTSCHGI
-dba-BRI-T-SGHGI-GONSIRUGTION—-—
19
20 DECLARATION OF CRAIG N. LUNDGREN
21 I CRAIG N. LUNDGREN declare as follows:
22 1. I am a partner in the law firm of Lundgren & Reynolds, LLP, counsel for defendant
23 Britschgi in the above-captioned action. I am licensed to practice law before all the courts of
24 the sta^e of California.
25 2. I have contacted the Contractor's State License Board for a verified certificate of
.26 Mr. Britschgi's.licensure.for the relevant time periods/1 have paid.the fees required for such
f
~2T "9~ceTtifiGatet~I"^expect"rts"'dQliyery in from threeto~'five~weeksr~I'wiU^subm-rt^the'certificateas -,
« ' :. ' • V ' ' , ' ' • ' , -1 > l ,• • if • • ', ' ' ' - «
28 soon as it arrives. ' • " '
11' •
,' '• FIRST AMD COMPLAINT; POINtS AND AUJH.;'DECL
. » • ' . ' • , • • ' ' ' • _ , . ' • . .
FromlLUNDGREN/REYNOLDS - 5302975077 08/°""2009 17:58 #044 P.014/015'
( •<« 1 ^ > * 1 .1* 4 » . » < 1 *
I
1 I declare under penalty of perjury that the foregoing is true and correct and thai if
2 called as a witness, I could testify competently thereto.
3 Executed this 27* day of August, 20.09, at Davis, California. .
4
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5
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*< * .' ' . ' • *' <<• • < \' • * ; •. ' . • • • , ' • ' ' . " • ' ; ' . , • . ; '
,. , . . '. ' ' . . . 12- BRITSCHGI'SIJOTiqp.OFHE/VRINGs^EMyiERER'TO '
.' '.- • . " "' , ,. FIRST AMD COMPLAINT; POINTS AND ATTTH.; bfeCL ,,
FromlLUNDGREN/REYNOLDS 5302975077 08/°""2009 17:58 #044 P.015/015
•1 Rodney Abbott, etaL V. Ronald Paul Britschgi, etal
Sacramento County Superior Court No. 07AS04450
2
DECLARATION OF SERVICE
' 3 .' ' • ' .' '•
I am a citizen of the United States, over the age of 18 years, and not a party to or
4 interested.in this action. I am an employee of Lundgren and Reynolds, LLP and my business
'aiddress, is 424 2nd Street, Suite A, Davis, California. On this day,I,caused to be served the
5 following document(s): '
, DEFENDANT RONALD PAUL BRITSCHGI'S NOTICE-OF HEARING ON
6 DEMURRER; DEMURRER; MEMORANDUM OF POINTS AND
' . AUTHORITIES IN SUPPORT; DECLARATION OF CRAIG N. LUNDGREN
7
[X] By placing a true copy, in a sealed envelope, with postage rally prepaid, in the United
8 Statds P'ost Office mail at Davis, California, addressed'as set f6rth' below. I am
familiar with this firm's practice whereby the mail, after being placed in a designated
9 area, is given the appropriate postage and is deposited in a-U.S. mail box after the
close of th'e day's business.
10
d By personal delivery of a true copy to the person indicated and at the address set forth
11 below.
12 |~~1 By Federal Express Mail to the person and at the address set forth below.
13 1X1 By transmitting a true copy by facsimile to the person and at the facsimile number set
forth below.
14
Stephanie J. Finelli Attorney for Plaintiffs
15 Law Office of Stephanie J. Finelli Rodney Abbott, Florentine Abbott
1007 Seventh Street, Suite 500
16 Sacramento, CA 95814
FAX (916) 443-1511
17
Gregory K. Federico Attorney for defendant, cross-
18 Archer Norris Defendant and cross-complainant
-655-University-Avenue,- #225 -Richard-Kirk-Ruybalidyindividually
19 Sacramento, CA 95825 and dba CA Construction
FAX (916) 646-5695
20
Richard D. Sopp Attorney for cross-defendant and
21 Wheatley Sopp, LLP cross-complainant
1004 River Rock Drive, Suite 245 Cadre Design Group, Inc.
22 Folsom, CA 95630
FAX (916) 988-5296
23
1 declare under penalty of perjury under the laws of the State of California that the
24
foregoing is true and correct.
25
.Executed on August _/2009, at Davis, California.
26
'll OJLATATCHETT .
'28
1 Xcraig's ctyeut fi)es\brnschg> (abboC w)\plsaduigs\pser ^6e « 1i
.' '' PROOF OF SERVICE '
Preview
Froml'LUNDGREN/REYNOLDS 5302975077 08W2009 17: D ENDORSED l CRAIG N. LUNDGREN (State Bar # 148842) LUNDGREN & REYNOLDS, LLP 2 424 -2ND Street, #A Davis, CA 95616 - « 3 (530) 297*5030 (530) 297-5077 FAX 4 t » Attorneys for Defendant; • 5 Cross-Complainant and' Cross-Defendant RONALD'PAUL BRITSCHGI'. '• 6 Individually and dba BRITSGHGI CONSTRUCTION . 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 RODNEY ABBOTT arid FLORENTINE ) CASE NO. 07AS04450 ABBOTT, 11 ) DEFENDANT RONALD PAUL Plaintiffs, ) BRITSCHGI'S NOTICE OF 12 ) HEARING ON DEMURRER; v. ) DEMURRER TO FIRST AMENDED 13 ) COMPLAINT; MEMORANDUM OF RONALD PAUL BRITSCHGI, et al., ) POINTS AND AUTHORITIES IN 14 ) SUPPORT OF DEMURRER; Defendants. ) DECLARATION OF CRAIG N. 15 .) LUNDGREN 16 AND RELATED CROSS-ACTIONS. ) DATE: 11/17/09 ) TIME: 9:00 A.M. BY FAX 17 DEPT: 54 RESERVATION NO. 1268737 18 19 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 20 PLEASE TAKE NOTICE THAT on November 17, 2009, at 9:00 a.m. in Department 21 54 of this Court, located at 800 Ninth Street, Sacramento, California, defendant, cross- 22 complainant and cross-defendant RONALD PAUL BRITSCHGI, dba BRITSCHGI 23 CONSTRUCTION shall move this Court to sustain the demurrer to the First Amended 24 Complaint for Damages for Breach pf Contract, Negligence and Violations of Business & 25, Professions Code and, if granted, to provide the Plaintiffs ten (10) days The Third Cause.of Action for Declaratory Relief fails to state facts sufficient 4 to constitute a cause of action pursuant to CCP section 43 0.10(e). • , . <' , • ' " .» 5 2. The Third Cause of-Action is uncertain, ambiguous and unintelligible; '* ' ' . ' • < ' ' 6 'BRITSCHOi has no way of ascertaining any controversy'between, these, two parties'pursuamtv • 7i to CCP section 430.10(f). . t ^ 8 Dated: August 27,2009 ' • *' LUNDGREN & REYNOLDS, LLP < ' « '• 9 By_ 10 CRAIG N. LUKDGREN Attorneys for Defendant, Cross-Defendant, 11 Gross-Complainant RONALD BRTTSCHGI dba BRTTSCHGI CONSTRUCTION 12 13 MEMORANDUM OF POINTS AND AUTHORITIES 14 I. 15 INTRODUCTION 16 Plaintiffs third cause of action is a hodgepodge of allegations, sketchy claims and 17 misapplied statutes. The shear number of inconsistent, inapposite claims makes the "cause of 18 action" difficult to describe, let alone demur to. Yet a demurrer is appropriate, because it does 19 not state a claim, but rather sows confusion. 20 The main gist of the "cause of action" seems to be that there were numerous violations 21 of statutes found in the Business and Professions Code and that these violations give rise to a 22 private right of action. This is simply not true. Most of the alleged violations do not give rise 23 to a private right of action. As to those which do provide a private right of action, the claim is 24 not properly pleaded. Because plaintiffs' cites eight different statutes in this one cause of 25 action, it takes some time to address each, but defendant will attempt to do -so below. < 26 -z?" 28 3.. . BRlTSCBTGI'SJMO-niCE OF HEARING; FIRST AMD COMPLAINT; POINTS AJMD ACT^.'; DECL' ". '. • .i-1 .;••». 1 . j » . • . . . . < FromlLUNDGREN/REYNOLDS 5302975077 08/°^2009 17:57 #044 P.006/015 .1 2 A. THE USE OF THE PHRASE "VIOLATED OR MAY HAVE VIOLATED A •3 NUMBER OF STATUTES" UNDERMINES THE ENTIRE CAUSE OF 4 * 4 ACTION. A - ( . . ' ' . - • ' , 5 Paragraph 18 alleges that "Britschgi has violated or may have violated a number of ' ' • ' . ' » * ' ' •' ' 6 statutes, including but not limited to..." and then goes on to allege in'conclusory terms that' • i + t * * ' » •1 six different statutes were violated. This pleading is insufficient as a matter of law. 1 ^ * • ' ^ . .' ', 8 ' Taken as true, all that has been alleged here is that Britschgi may have violated a» ' 9 number of statutes. This does not form the basis of a cause of action. Taking the allegations 10 to be true, BRITSCHGI is just as likely to have complied with "a number of statutes" as to 11 have violated -them. This paragraph is the only-paragraph which purports to allege negligence 12 or malfeasance on the part of BRITSCHGI. Thus, the entire cause of action fails. 13 B. PLAINTIFFS HAVE FAILED TO ALLEGE A COGNIZABLE CLAIM FOR 14 BREACH OF B&P CODE SECTION 7110 AND THE LACK OF WORKERS 15 COMPENSATION INSURANCE. 16 Paragraphs 17,18 and 19 contain allegations that appear to have been intended to state 17 a claim based on Britschgi's failure to obtain workers compensation benefits for his laborers. 18 In summary, plaintiffs allege that Britschgi employed workers on the project, but did not have 19 workers compensation insurance. (FAC 7:5-8.) Plaintiffs then allege that Britschgi "may 20 have violated" (FAC 7:12) workers compensation laws in violation of Business & Professions 21 code section 7110 (see FAC 7:16-17). Plaintiffs finally allege that Britschgi's violation of 22 workers compensation laws led to plaintiffs being "damaged" because they paid defendant 23 Britschgi for his work under the contract (FAC 7:20-21.) Britschgi disputes that he violated 24 any workers compensation laws, but for purposes of demurrer they must be taken as true. 25 Taken as true, the allegations fail to state a claim. '26 1. • . There is no private right of action for, violation of B&P Cotde section 7110.. •;27 , •• Review' 'of Bos'iness and Pfofessi6ns~Code ^B,&f .Code") Section 7110 reveals that - '" ?,; •\ '28 the section does indeed prohibit the "willful or deliberate disregard and violation of... JBRITSCpQrS NOTICE OF HEARDMQ; DE1SJ0RRER,TO FIRST AMD COMPLAINT; POINTS AND AUTH.; DBCU . FromiLUNDGREN/REYNOLDS 5302975077 08/°^2009 17:57 #044 P.007/015 i compensation insurance laws." However, the remedy for such a violation is that it is "a cause t * . 2 for disciplinary action" enforceable by the Registrar of the Contractors State Licensing Board. * » * * « 3 (See B&P Code section 7090, et seq.) Section 7L10 is one of many statutes located in 4 Division 33iChapter 9, Article 7 of the B&P Code ("Article 7"). Article 7S titled "Disciplinary 5 Proceedings" begins af*section 7090 and continues through 7124. It is a comp:e&ensive 4 * ' * » < ' * < . • * * * • k t * * > ' ^ •6 scheme pf discipline for contractors and it does not create an^express private right of action * * * • * « * . 7 for the violation of section 7110, or any other statutes in that article. .' ' i . * '. 8 In analyzingwherher statutes from the Article 7 can be used to create a private right of 9 action, the courts look to the legislative intent The seminal case applying this approach was 10 Moradi-Shalalv. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 305 (Moradi- 11 S7za/a/),jvhichLapplied,the do.ctrine in an analysis._of_whether a legislative scheme for the. 12 regulation of insurers created a private right of action in third parties. Courts interpreting 13 Moradi-Shalal have summarized the holding as follows: "A statute creates a private right of 14 action only if the enacting body so intended. (Moradi-Shalal v. Fireman's Fund Ins. 15 Companies (1988) 46 Cal.3d 287, 305, 250 Cal.Rptr. 116, 758 P.2d 58> "(Farmers Ins. 16 Exchange v. Superior Court (2006) 137 Cal.App.4th 842, 850.) Naturally, legislative intent is 17 determined by reading the words of the statutes and, if necessary, reviewing legislative 18 history. -[A-]-statute-creates-a-private-right-of-action only if-the-statutory-language or- 19 legislative history affirmatively indicates such an intent ( Vikco Ins. Services, Inc. v. Ohio Indemnity Co. (1999) 70 Cal.App.4th 55, 62, 82 Cal.Rptr.2d 442; 20 Crusader Ins. Co. v. Scottsdale Ins. Co., supra, 54 Cal.App.4th at pp. 132-133, 135-137, 62 Cal.Rptr.2d 620.) That intent need not necessarily be expressed 21 explicitly, but if not it must be strongly implied. (See Vikco, supra, at p. 62, 82 Cal.Rptr.2d 442; Crusader, supra, at p. 133, 62 Cal.Rptr.2d 620.) Particularly 22 when regulatory statutes provide a comprehensive scheme for enforcement by an administrative agency, the courts ordinarily conclude that the Legislature 23 intended the administrative remedy to be exclusive unless the statutory language or legislative history clearly indicates an intent to create a private 24 right of action. ( Moradi-Shalal, supra, 46 Cal.3d at pp. 294-295, 300, 250 CaLRptr. 116, 758 P.2d 58; Vikco, supra, 70 Cal.App.4th 55, 62-65, 82 25 Cal.Rptr.2d442.) ' , 26 fanners Ins. Exchange v. -Superior Court- (2006) 137 Cal.App.4th 842, 850. , ' , . ,27 • -;The statutes:in "Articlp''7~"Disciphnary Pjoee7 7 i ^ /. % - BREACH OF B&P. CODE SECTtON;71v9.. '' ; ' : < • • • • ™- ' --' ~ , '28 •Plaintiffs allege that BRITSCHGI breached B&P Code section 7109. (FA'C 7:13) BRTESCHGI'S NOTICE OF HEARINC* .DEMURRER TQ . . , FIRST AMD COMPLAINT1; POINTS AND AUTB., ?>ECL FromiLUNDGREN/REYNOLDS - 5302975077 17:57 #044 P-009/015 i Section 7109, like section 7110, is part'of Article 7, a comprehensive scheme for contractor V 1 , t - t 2 discipline by the Registrar of the Contractor's State License Board. Section 7109, like section 3, 7110, -provides that a violation 1 "constitutes a cause for .disciplinary action." As noted above, * * 4 statutes such as this are part of a comprehensive scheme for the discipline of licensees and do i '' • , 5 not provide a private right of action. ''.'.', ' ' ' ,' \ 6 ", Moreover,' as noted above, damages are an element of a'cause of action in tort* or 7 contract and plaintiffs have failed to alleged damages that result from the alleged violation. • 1 . • 8 D. PLAINTIFFS HAVE FAILED TO ALLEGE A COGNIZABLE CLAUM'FOR 9 BREACH OF SECTIONS 7026, 7028 AND 7031, WHICH ADDRESS CLAIMS < i 10 AGAINST AN UNLICENSED CONTRACTOR, 11 Plaintiffs alleged that BRITSCHGI "perform[ed] work as a general contractor while 12 his license was suspended by operation of law." (FAC 7:15.) The allegation is wholly 13 without merit. Plaintiffhas been Licensed as a contractor since 1985. He has held that license 14 continuously, and there have been no actions on his license. 15 First, the court should note that plaintiffs alleged in then- first amended complaint, at 16 paragraph 2 that BRITSCHGI "was duly licensed by the Contractor's State License Board of 17 the state of California to conduct business as a general building contractor within the State of 18 California and to engage in the work hereinafter described." (FAC 2:8-10.) The pleading at 19 in paragraph 18 of the complaint is therefore inconsistent with the pleading in paragraph two 20 and should be disregarded. 21 Second, the court may take judicial notice of the fact of Britschgi's licensure at all 22 relevant times, i.e. 2005 and 2006, by review of a verified certificate of licensure, which will 23 be provided with a Request for Judicial Notice prior to the hearing in this matter. (See B&P 24 Code section 703 l(d) ["If licensure or proper licensure is controverted, then proof of licensure , 25 pursuant to this section-shall be made by^production of a verified certificate of licensure form . 26 the Contractors State License Board..,"], BRITSCHGI does not,"have this certificate at this, i , 2 7 ' tone, but his ccrunseMaas~ordered/4t an'. (See'LundgreriDecl.) " • . . . . < ,-, 7 • 'S NOTICE OF lOJARINg; DEMURRER Tt> ' _'. FromlLUNDGREN/REYNOLDS 5302975077 . 08/^/2009' 17:57 #044 P.010/015 Plaintiffs attempt to avoid the fact of Britschgi's licensure by pleading that it was - • 2 somehow "suspended by operation of law." However, 7031, provides that the verified t : 43 certificate of licensure "establishes that the individual or entity bringing the action was duly . • 4 licensed. ..." Thus, the statute does not provide for. the court to ignore the CSLB's records or ' ... •5 revoke the license nuncpro tune. When Brits'chgi provides the certificate, it will constitute 4 • . 4 • 6 irrefutable evidence of his, licensure. • ' • « _ 4 7 i ' ( * * V « 8 Even if the court were inclined to hold that it could find the license was retroactively 9 revoked "by operation of law" the only statutory basis for any revocation by operation of law i 10 is set out in the B&P Code. The relevant sections provide the specific exclusive 11 circumstances allowing for suspension of a license by operation of law. These are as follows: 12 (a) When a Licensee fails to notify the Registrar within 90 days of an unsatisfied judgment entered against the licensee; or when the licensee does notify the 13 Registrar but fails to maintain a bond for the judgment. (B&P 7071(b)-(c).) 14 (b) When a Licensee doing business as a corporation fails to be registered in good standing with the Secretary of State as a corporation. (B&P 7076.2.) 15 (c) When a Licensee fails to comply with an order to pay a civil penalty. (B&P 7090.1.) 16 (d) When a licensee fails to comply with an arbitration award; the suspended license may be revoked automatically if the licensee fails to comply within 90 days of the 17 suspension. (B&P 7085.6.) 18 19 None of the above grounds have been alleged in plaintiffs complaint Thus, based on 20 judicially noticeable facts and the allegations of the complaint, no cause of action for violation 21 of sections 7026, 7028 and 7031 is stated. 22 E. PLAINTIFFS HAVE FAILED TO ALLEGE A COGNIZABLE CLAIM FOR 23 BREACH OF SECTIONS 7159, FOR PERFORMING WORK WITHOUT A 24 VALID WRITTEN CONTRACT. ' 25 Plaintiffs allege that BRITSCHGI failed to comply with B&P Code section 7159. 26 Section 7159 is part of a comprehensive scheme to regulate home improvement contracts, Set •f ~ t «-"-*-'-"• ^~t * '« - , 4 *• ' 4 • - t i * ~ * k - > -*'-.-- 1 - -i-* * fr 4 . . V Jl t t " ~~.IJ -out rn~Bevis}on3^Chap'ter 9* Article-10 of the-B&P^Code (rAiticle^O")/.Section'.7159(b> . '- 28 specifically states that a "'homedmprovement'contract''means'an agreement, whether "oral-or „ g ,. ' BRrrSCHGr.S NOTICE OF HEARING; DEiytURRER TO FIR^T AMD COMPLAINT; POINTS AND' AUTH.; DECL FromlLUNDGREN/REYNOLDS 5302975077 08/07/2009 17:58 #044 F.011/015 ' i written.. ..for the performance of a home improvement, as defined in section 7151." Section 2 7151 states that "'home improvement' means the repairing, remodeling, altering, converting, t t 3 or modernizing of,.-or adding to, residential property..." By its plain meaning it does not t , * 1 4 address the construction of a whole new home or structure. * '. • ' ' . ' ' , 5 Plaintiff has alleged that the contract was to "help plaintiffs 4 build their personal • ' . ' * ( •i i ' .' • ,6 residence .." E\TS AND AUT^-j FromlLUNDGREN/REYNOLDS 5302975077 08/°"'2009 17:58 #044 P.013/015 i H. * PLAINTIFFS ARE NOT ENTITLED TO RELIEF PURSUANT TO CIVIL ' i » 2 CODE SECTION 1029.8. 3 Plaintiffs claim that they are entitled to relief pursuant to Code of Civil Procedure I * * t , 4 4 , 4 section • 1029.8 "because BRJTSCHGI» did •not have 'a valid .contractor's w license As noted * ' ' * ' t ''5 above, plaintiffs pleaded that BRlTSCHGI was licenced in paragraph two of the First • * • > ' -6 Attended Complaint Furthermore, BRlTSCHGI will provide-a verified certificate of 1 i * * 7 licensure'prior to the^ hearing on tibis matter and there are no grounds to find that • the i •' « i • 8 Bntschgi's license could be revoked "by operation of law" ntmc pro tune. Consequently, 9 plaintiffs cannot state a claim under section 1029.8. , 10 n 11 CONCLUSION 12 There are no claims of any sort properly alleged in plaintiffs' third cause of action. 13 Consequently the demurrer to the third cause of action to the First Amended Complaint 14 should be sustained. 15 Dated: August 27,2009 LUNDGREN & REYNOLDS, LLP 16 By_ 17 CRAIG N. LUl^GREN . Attorneys for Defendant, Cross-Defendant, 18 Cross-Complainant RONALD BRlTSCHGI -dba-BRI-T-SGHGI-GONSIRUGTION—-— 19 20 DECLARATION OF CRAIG N. LUNDGREN 21 I CRAIG N. LUNDGREN declare as follows: 22 1. I am a partner in the law firm of Lundgren & Reynolds, LLP, counsel for defendant 23 Britschgi in the above-captioned action. I am licensed to practice law before all the courts of 24 the sta^e of California. 25 2. I have contacted the Contractor's State License Board for a verified certificate of .26 Mr. Britschgi's.licensure.for the relevant time periods/1 have paid.the fees required for such f ~2T "9~ceTtifiGatet~I"^expect"rts"'dQliyery in from threeto~'five~weeksr~I'wiU^subm-rt^the'certificateas -, « ' :. ' • V ' ' , ' ' • ' , -1 > l ,• • if • • ', ' ' ' - « 28 soon as it arrives. ' • " ' 11' • ,' '• FIRST AMD COMPLAINT; POINtS AND AUJH.;'DECL . » • ' . ' • , • • ' ' ' • _ , . ' • . . FromlLUNDGREN/REYNOLDS - 5302975077 08/°""2009 17:58 #044 P.014/015' ( •<« 1 ^ > * 1 .1* 4 » . » < 1 * I 1 I declare under penalty of perjury that the foregoing is true and correct and thai if 2 called as a witness, I could testify competently thereto. 3 Executed this 27* day of August, 20.09, at Davis, California. . 4 4 ' ' • ' ' ^ ~\/^\ ^ '' •' ' ' 'C^AIG^.LlwGkEN . 5 . "6 . • ' • • ' « • " . ' . . • ' . j' * ^• « 7 4 8 • * * 1 t • 9 • 10 • 11 12 , 13 14 15 16 17 • 18 ' 19 20 21 22 23 24 • 25 . , -- 26 t . i . / . i ' * t ' '. l < ' . . - , - i •' ' . / ' '-• .27 * • . • , • i ^ .._ ' - • ' . " ' ' . ' . " , , / %. •"<•••, • ^ i_ -._ • '.""'."',- , " • ' ; • ' ' ' .- ' • •.. , . ' ' " ' ;• ' ' • . • • ' ; , - ' \. ,,' 28 *< * .' ' . ' • *' <<• • < \' • * ; •. ' . • • • , ' • ' ' . " • ' ; ' . , • . ; ' ,. , . . '. ' ' . . . 12- BRITSCHGI'SIJOTiqp.OFHE/VRINGs^EMyiERER'TO ' .' '.- • . " "' , ,. FIRST AMD COMPLAINT; POINTS AND ATTTH.; bfeCL ,, FromlLUNDGREN/REYNOLDS 5302975077 08/°""2009 17:58 #044 P.015/015 •1 Rodney Abbott, etaL V. Ronald Paul Britschgi, etal Sacramento County Superior Court No. 07AS04450 2 DECLARATION OF SERVICE ' 3 .' ' • ' .' '• I am a citizen of the United States, over the age of 18 years, and not a party to or 4 interested.in this action. I am an employee of Lundgren and Reynolds, LLP and my business 'aiddress, is 424 2nd Street, Suite A, Davis, California. On this day,I,caused to be served the 5 following document(s): ' , DEFENDANT RONALD PAUL BRITSCHGI'S NOTICE-OF HEARING ON 6 DEMURRER; DEMURRER; MEMORANDUM OF POINTS AND ' . AUTHORITIES IN SUPPORT; DECLARATION OF CRAIG N. LUNDGREN 7 [X] By placing a true copy, in a sealed envelope, with postage rally prepaid, in the United 8 Statds P'ost Office mail at Davis, California, addressed'as set f6rth' below. I am familiar with this firm's practice whereby the mail, after being placed in a designated 9 area, is given the appropriate postage and is deposited in a-U.S. mail box after the close of th'e day's business. 10 d By personal delivery of a true copy to the person indicated and at the address set forth 11 below. 12 |~~1 By Federal Express Mail to the person and at the address set forth below. 13 1X1 By transmitting a true copy by facsimile to the person and at the facsimile number set forth below. 14 Stephanie J. Finelli Attorney for Plaintiffs 15 Law Office of Stephanie J. Finelli Rodney Abbott, Florentine Abbott 1007 Seventh Street, Suite 500 16 Sacramento, CA 95814 FAX (916) 443-1511 17 Gregory K. Federico Attorney for defendant, cross- 18 Archer Norris Defendant and cross-complainant -655-University-Avenue,- #225 -Richard-Kirk-Ruybalidyindividually 19 Sacramento, CA 95825 and dba CA Construction FAX (916) 646-5695 20 Richard D. Sopp Attorney for cross-defendant and 21 Wheatley Sopp, LLP cross-complainant 1004 River Rock Drive, Suite 245 Cadre Design Group, Inc. 22 Folsom, CA 95630 FAX (916) 988-5296 23 1 declare under penalty of perjury under the laws of the State of California that the 24 foregoing is true and correct. 25 .Executed on August _/2009, at Davis, California. 26 'll OJLATATCHETT . '28 1 Xcraig's ctyeut fi)es\brnschg> (abboC w)\plsaduigs\pser ^6e « 1i .' '' PROOF OF SERVICE '