Preview
1 Todd A. Jones (Bar No. 198024)
tjones(§archernoms.com
FlLED/eNDOB^E:D
2 Gregory K. Federico (Bar No. 242184)
gfederico(§archemorris.com P
3 ARCHER NORRIS NOV - 2 20101
A Professional Law Corporation ^
4 301 University Avenue, Suite 110 Ry hyWAmimA
Sacramento, California 95825-5537 ^ ^Dy^yt^rW^ 1
5 Telephone: 916.646.2480
Facsimile: 916,646.5696
6
Attomeys for Defendants and Cross-Defendants
7 RICHARD KIRK RUYBALID, individually, and
dba CA CONSTRUCTION
8
9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF SACRAMENTO
U
12 RODNEY ABBOTT and FLORENTINE Case No. 07AS04450
ABBOTT,
13 FURTHER SUPPLEMENTAL
Plaintiffs, OPPOSITION TO PLAINTIFFS' REPLY
14 REGARDING PLAINTIFFS' MOTION
FOR JUDGMENT ON THE PLEADINGS
15 (per Court's 10/21/10 Tentative Ruling)
RONALD PAUL BRITSCHGI, et al,
16 Date: November 16,2010 (con't.)
Defendants. Time: 2:00 p.m.
17 Dept: 53
18 Action Filed: September 24, 2007
Trial Date: January 11,2011
19
20 AND RELATED CROSS-ACTIONS.
21
22 I. 0^.
INTRODUCTION L J
23
Pursuant to the October 21, 2010 tentative ruling as issued by this Court, Defendant/
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Cross-Complamant RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION
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("CA CONSTRUCTION") hereby submits this further Supplemental Opposition to Plaintiffs
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RODNEY and FLORENTINE ABBOTT'S ("Plaintiffs") Motion for Judgment on the Pleadings.
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For the sake of brevity and to avoid redundancy, CA CONSTRUCTION hereby incorporates by
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N1C341/1043396-I
FURTHER SUPPLEMENTAL OPPOSITION TO PLAINTIFFS' REPLY
1 reference the summary and arguments contained in Sections I, II.A, II C, and III to its Opposition
2 to Plaintiffs' Motion for Judgment on the Pleadings currently on file with the Court.
3 IL
4 ARGUMENT
5 A. The Cross-Complaint Alleges Facts Sufficient To State A Cause Of Action As To
Plaintiffs In Order To Defeat Plaintiffs' Common-Law Motion For Judgment On
g The Pleadings
_ Plaintiffs argue that the cross-complaint fails to state a cause of action and fails to set forth
J, facts sufficient to constitute a cause of action against Plaintiffs. Plaintiffs' motion amounts to a
g general demurrer. See McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.
.^ A general demurrer may be upheld "only if the complaint fails to state a cause of action under
., any possible legal theory " (emphasis added). See Sheehan v San Francisco 49ers, Ltd. (2009)
.- Cal.4th 992,998. If a contract set out in the complaint (or attached as an exhibit) is ambiguous,
plaintiffs (cross-complainant herein) interpretation must be accepted as correct in testing the
13
sufficient of the complaint (cross-complaint herein): "(A) general demurrer to the complaint
14
admits not only the contents of the instrument but also any pleaded meaning to which the
15
.^ instrument is reasonably susceptible." Aragon-Haas v. Family Security Ins Services, Inc (1991)
.J 231 CaI.App.3d 232, 239. In Aragon-Haas, the Court ruled that interpretation of an employment
,^ contract and its termination clause could not be resolved on a demurrer hearing. Id. at 239
.Q Here, the cross-complaint alleges the following at Paragraph 7, 8 and 9, respectively:
20 7. Cross-Complainant is informed and believes, and thereon
alleges, that the cross-defendants, and each of them, were
21 negligently, legally and statutorily responsible in some manner
for the events and happenings referred to in plaintiffs' Complaint
22 and proximately caused the injuries and damages therein alleged.
23 8. If plaintiffs were damaged as alleged, said damages were
primarily and actively caused by cross-defendants, and each of
24 them. Cross-Complainant is therefore entitled to be
indemnified by cross-defendants and each of them.
25
9. Cross-Complainant has incurred, and will continue to
26 incur, attorney's fees and court costs in defending RODNEY
ABBOTT and FLORENTINE ABBOTT's complaint and
27 resulting cross-complaints, the exact amount of which is unknown
at this time. When said amount has been ascertained, leave of this
2g Court will be sought to amend this Cross-Complaint to set forth
NIC341/1043396-1 2
FURTHER SUPPLEMENTAL OPPOSITION TO PLAINTIFFS' REPLY
1 said amount.
2 As an initial matter, CA CONSTRUCTION must only establish that a single cause of
3 action is properly alleged as to Plaintiffs to defeat a general demurrer. The first cause of action
4 for implied equitable indemnity properly alleges a cause of action as to Plaintiffs. Each cause of
5 action in the cross-complaint thereafter echoes similar allegations as it relates to Plaintiffs' own
6 active involvement in causing the damages alleged in their complaint. Also, each paragraph
7 incorporates by reference all other paragraphs to the cross-complaint, including the Moe Cross-
8 Defendant allegations in Paragraph 3 of the charging allegations. Thus, a cause of action for
9 implied equitable indemnity, among others, is adequately pled as to Plaintiffs.
10 Moreover, CA CONSTRUCTION'S cross-complaint was filed as a result of Plaintiffs'
11 complaint and the contents contained therein, including the contract that was attached as Exhibit
12 "A" to the complaint. As discussed in Aragon-Haas. the Court can consider the pleadings
13 contained in the Court file, which would include the subject contract between the parties as it was
14 part of Plaintiffs' own allegations. As stated in Aragon-Haas. Plaintiffs' general demurrer would
15 admit the contents of CA CONSTRUCTION'S cross-complaint. Plaintiffs' own complaint, and
16 the contract that was attached to Plaintiffs' complaint. This would include any meaning to which
17 the contract is reasonably susceptible - that Plaintiffs' played an active role in the supervision,
18 design and construction of their home. Thus, the interpretation of the contract and Plaintiffs'
19 potential active contribution in causing the damages at issue, cannot be resolved at a hearing on a
20 general demurrer/motion for judgment on the pleadings
21 B. Plaintiffs'Interpretation of Daon Is Misplaced
22 Plaintiffs filed this action stemming from alleged construction defects at their home.
23 Plaintiffs have been named in CA CONSTRUCTION'S cross-complaint for the other role they
24 fulfilled during the construction of their home - they were the owner-builder and de-facto general
25 contractor on this project
26 In Daon, the appellate court ruled that Daon could maintain a cross-complaint for partial
27 or total indemnity for the individual owners' damages, and for those damages Daon was required
28 to pay for, which were caused by the Homeowner's Association's failure to carry out its duties
N1C341/1043396-1 3
FURTHER SUPPLEMENTAL OPPOSITION TO PLAINTIFFS' REPLY
1 Here, Plaintiff FLORENTINE ABBOTT, as owner-builder, failed to carry out her duties.
2 That is the focus of the cross-complaint. An owner-builder is akin to a general contractor, both of
3 which owe similar design, management, and supervisory duties to themselves and the parties they
4 hire to complete a project. The fact that Plaintiffs sue in their individual capacities is irrelevant to
5 the subject of the cross-complaint. If Plaintiffs' reasoning applied, a subcontractor would never
6 have a cause of action for either contractual or equitable indemnity against a general contractor,
7 or in this case the owner-builder, if the general contractor or owner-builder negligently failed to
8 perform its duties thus causing the damages at issue in the pleadings. This reasoning defies logic
9 Plaintiffs' reliance on Lauriedale is misplaced. In Paragon Real Estate Group ofSan
10 Francisco. Inc v Peter Hansen, the Lauriedale decision was discussed and distinguished. In
11 Paragon, real estate brokers representing a buyer in a real estate transaction sought review of an
12 order sustaining a demurrer to an equitable indemnity cross-complaint brought against the seller's
13 broker for failing to disclose an easement The Court differentiated the cases by pointing out that
14 the Lauriedale court was primarily concerned that allowing a cross-complaint for equitable
15 indemnity against individual condominium owners would "jeopardize the special relationship
16 between the Association and its members, one characterized as fiduciary in nature. See
17 Lauriedale at 1445. The Paragon court reasoned that where there is no concern over a special
18 relationship, a cross-complaint should be allowed against another tortfeasor. "No California case
19 has been brought to our attention that has refused to allow a defendant the right to seek equitable
20 indemnity from another alleged tortfeasor simply because the defendant is able to assert a
21 comparative negligence affirmative defense at trial in the underlying action. Id. at 185-186. The
22 Paragon court cited Piatt for the proposition that without a corresponding special relationship, a
23 cross-complaint for equitable indemnity is not subject to dismissal solely because apportionment
24 of fault IS available through the assertion of affirmative defenses. Id, at 187, See also Piatt v,
25 Coldwell Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1446.
26 Plaintiffs appear to argue that CA CONSTRUCTION is already adequately protected by
27 virtue of the principles of comparative negligence and its own affirmative defenses However, as
28 explained above, this is a case where the Plaintiffs are wearing two (2) separate and distinct hats -
N1C341/1043396-1 4
FURTHER SUPPLEMENTAL OPPOSITION TO PLAINTIFFS' REPLY
1 the homeowner and the owner-builder/general contractor. There is no special relationship concern
2 in this case, which was the focus in the Lauriedale case. Thus, it does not apply. Moreover, CA
3 CONSTRUCTION would suffer prejudice if its cross-complaint against Plaintiffs was dismissed
4 and it was relegated to only a comparative negligence defense at trial.
^ C. If The Motion Is Granted, The Motion Should Be Granted With Leave To Amend
r To Allow CA Construction To Amend Its Cross-Complaint
Should the Court grant Plaintiffs' Motion for Judgment on the Pleadings, the Court should
7
grant CA Construction leave to amend its cross-complaint consistent with the facts discovered
8
during the discovery process that relate to Plaintiffs' liability.
9
On a motion for judgment on the pleadings, the same standards apply in granting leave to
10
amend as for demurrers, and leave is routinely granted. See People v. $20,000 U.S. Currency
11
(1991) 235 Cal.App. 3d 682, 692. "Where a demurrer is sustained or a motion for judgment on
12
the pleadings is granted as to the original complaint, denial of leave to amend constitutes an abuse
13
of discretion if the pleading does not show on its face that it is incapable of amendment " Virginia
14
G V ABC Unified School Dist (1993) 15 Cal.App 4th 1848,1852. Pleaders should have the
15
same opportunity to cure defects in their pleadings as they would have had after a normal ruling
16
on demurrer. Maclsaac v Pozzo (1945) 26 Cal.2d 809, 815.
17
Here, the cross-complaint does not show on its face that it is incapable of amendment
18
The cross-complaint was filed early in the case. The matters pertaining to Plaintiffs' liability
19
were alleged upon information and belief and given the procedural posture of the case, they had
20
not been confirmed through discovery. As stated in its opposition. Plaintiff Florentine Abbott has
21
declared in several forums, both of which have been under penalty of perjury, that she acted as
22
the owner-builder for all phases of construction of the subject home. (See Exhibits "A" & "B" to
23
Request for Judicial Notice, as well as Exhibit "E" to the Declaration of Gregory Federico filed
24
with the CA CONSTRUCTION'S original opposition). Her status as an owner-builder on the
25
project, akin to a general contractor, is undisputed and creates a duty to all parties involved in the
26
construction of the home. Both of these declarations by Mrs. Abbott were discovered after the
27
cross-complaint was filed, and they support matters alleged in CA CONSTRUCTION'S cross-
28
NIC341/1043396-1 5
FURTHER SUPPLEMENTAL OPPOSITION TO PLAINTIFFS' REPLY
1 complaint as to the liability of Plaintiffs. CA CONSTRUCTION must be allowed to allege its
2 claims that Plaintiffs were negligent in their supervision of the construction project, as well as
3 negligent in coordinating the design for the subject home.
4 m.
CONCLUSION
5
For the reasons outlined above and based on the arguments contained in its original
6
opposition, Plaintiffs' Motion for Judgment on the Pleadings should be denied. In the
7
alternative, CA CONSTRUCTION requests that this Court grant it leave to amend its cross-
8
complaint as to Plaintiffs RODNEY and FLORENTINE ABBOTT.
9
Dated: November _ J , 2010 ARCHER NORRIS
10
11
19 1'
Gregory
AttomeysK.forFederico
Defendants/Cross-Defendants
^^ RICHARD KIRK RUYBALID, individually,
J4 and dba CA CONSTRUCTION
15
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17
IS
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NIC34I/I043396-1 6
FURTHER SUPPLEMENTAL OPPOSITION TO PLAINTIFFS' REPLY
1 PROOF OF SERVICE
2 Nameof 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 301 University Avenue, Suite 110, Sacramento, Califomia
95825. On November 2, 2010,1 caused the following document(s) to be served:
5
FURTHER SUPPLEMENTAL OPPOSITION TO PLAINTIFFS' REPLY REGARDING
6 PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS
7 |3cl 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
Q 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
10 is placed for collection and mailing, it is deposited in the ordinary course of business
with the United States Postal Service with postage fully prepaid.
11
j I By having a tme copy of the document(s) listed above transmitted by facsimile to the
12 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
machine.
14
By placing a tme copy of the document(s) listed above, in a box or other facility
15 '~~' regularly maintained by UPS, an express service carrier, or delivered to a courier or
driver authorized by the express service carrier to receive documents, in an envelope
16 designated by the express service carrier, with delivery fees paid or provided for,
addressed as set forth below.
18 n by having personal dehverv bv FIRST LEGAL SUPPORT SERVICES a tme copy of
the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the
19 address(es) set forth below.
20
[SEE ATTACHED SERVICE LIST]
21
22
I declare under penalty of perjury that the foregoing is tme and correct. Executed on
23 November 2,2010, at Sacramento, California.
24
25 ITmlQpiA
Marie C&ntrell
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NIC341/608293-1
PROOF OF SERVICE
1 Service List
2
VIA OVERNIGHT MAIL
3 Stephanie Finelii PLAINTIFFS
Law Offices of Stephanie J. Finelli
4 1007 Seventh Street, Suite 500 Tel. (916) 443-2144
Sacramento, CA 95814 Fax: (916) 443-1511
5 E-mail sfinelli700@yahoo com
6
VIA REGULAR MAIL
7 Richard D. Sopp Counsel for CADRE DESIGN GROUP, INC.
Wheatley Sopp LLP
8 1004 River Rock Drive, Suite 245 Tel (916)988-3857
Folsom, CA 95630 Fax: (916) 988-5296
9 Email rds@mwsblaw com
10 1 Mari< Smith In Pro Per
8549 Willow Valley Place
11 Granite Bay, CA 95746
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NIC341/608293-I 2
SERVICE LIST
Preview
1 Todd A. Jones (Bar No. 198024) tjones(§archernoms.com FlLED/eNDOB^E:D 2 Gregory K. Federico (Bar No. 242184) gfederico(§archemorris.com P 3 ARCHER NORRIS NOV - 2 20101 A Professional Law Corporation ^ 4 301 University Avenue, Suite 110 Ry hyWAmimA Sacramento, California 95825-5537 ^ ^Dy^yt^rW^ 1 5 Telephone: 916.646.2480 Facsimile: 916,646.5696 6 Attomeys for Defendants and Cross-Defendants 7 RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SACRAMENTO U 12 RODNEY ABBOTT and FLORENTINE Case No. 07AS04450 ABBOTT, 13 FURTHER SUPPLEMENTAL Plaintiffs, OPPOSITION TO PLAINTIFFS' REPLY 14 REGARDING PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS 15 (per Court's 10/21/10 Tentative Ruling) RONALD PAUL BRITSCHGI, et al, 16 Date: November 16,2010 (con't.) Defendants. Time: 2:00 p.m. 17 Dept: 53 18 Action Filed: September 24, 2007 Trial Date: January 11,2011 19 20 AND RELATED CROSS-ACTIONS. 21 22 I. 0^. INTRODUCTION L J 23 Pursuant to the October 21, 2010 tentative ruling as issued by this Court, Defendant/ 24 Cross-Complamant RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 25 ("CA CONSTRUCTION") hereby submits this further Supplemental Opposition to Plaintiffs 26 RODNEY and FLORENTINE ABBOTT'S ("Plaintiffs") Motion for Judgment on the Pleadings. 27 For the sake of brevity and to avoid redundancy, CA CONSTRUCTION hereby incorporates by 28 N1C341/1043396-I FURTHER SUPPLEMENTAL OPPOSITION TO PLAINTIFFS' REPLY 1 reference the summary and arguments contained in Sections I, II.A, II C, and III to its Opposition 2 to Plaintiffs' Motion for Judgment on the Pleadings currently on file with the Court. 3 IL 4 ARGUMENT 5 A. The Cross-Complaint Alleges Facts Sufficient To State A Cause Of Action As To Plaintiffs In Order To Defeat Plaintiffs' Common-Law Motion For Judgment On g The Pleadings _ Plaintiffs argue that the cross-complaint fails to state a cause of action and fails to set forth J, facts sufficient to constitute a cause of action against Plaintiffs. Plaintiffs' motion amounts to a g general demurrer. See McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77. .^ A general demurrer may be upheld "only if the complaint fails to state a cause of action under ., any possible legal theory " (emphasis added). See Sheehan v San Francisco 49ers, Ltd. (2009) .- Cal.4th 992,998. If a contract set out in the complaint (or attached as an exhibit) is ambiguous, plaintiffs (cross-complainant herein) interpretation must be accepted as correct in testing the 13 sufficient of the complaint (cross-complaint herein): "(A) general demurrer to the complaint 14 admits not only the contents of the instrument but also any pleaded meaning to which the 15 .^ instrument is reasonably susceptible." Aragon-Haas v. Family Security Ins Services, Inc (1991) .J 231 CaI.App.3d 232, 239. In Aragon-Haas, the Court ruled that interpretation of an employment ,^ contract and its termination clause could not be resolved on a demurrer hearing. Id. at 239 .Q Here, the cross-complaint alleges the following at Paragraph 7, 8 and 9, respectively: 20 7. Cross-Complainant is informed and believes, and thereon alleges, that the cross-defendants, and each of them, were 21 negligently, legally and statutorily responsible in some manner for the events and happenings referred to in plaintiffs' Complaint 22 and proximately caused the injuries and damages therein alleged. 23 8. If plaintiffs were damaged as alleged, said damages were primarily and actively caused by cross-defendants, and each of 24 them. Cross-Complainant is therefore entitled to be indemnified by cross-defendants and each of them. 25 9. Cross-Complainant has incurred, and will continue to 26 incur, attorney's fees and court costs in defending RODNEY ABBOTT and FLORENTINE ABBOTT's complaint and 27 resulting cross-complaints, the exact amount of which is unknown at this time. When said amount has been ascertained, leave of this 2g Court will be sought to amend this Cross-Complaint to set forth NIC341/1043396-1 2 FURTHER SUPPLEMENTAL OPPOSITION TO PLAINTIFFS' REPLY 1 said amount. 2 As an initial matter, CA CONSTRUCTION must only establish that a single cause of 3 action is properly alleged as to Plaintiffs to defeat a general demurrer. The first cause of action 4 for implied equitable indemnity properly alleges a cause of action as to Plaintiffs. Each cause of 5 action in the cross-complaint thereafter echoes similar allegations as it relates to Plaintiffs' own 6 active involvement in causing the damages alleged in their complaint. Also, each paragraph 7 incorporates by reference all other paragraphs to the cross-complaint, including the Moe Cross- 8 Defendant allegations in Paragraph 3 of the charging allegations. Thus, a cause of action for 9 implied equitable indemnity, among others, is adequately pled as to Plaintiffs. 10 Moreover, CA CONSTRUCTION'S cross-complaint was filed as a result of Plaintiffs' 11 complaint and the contents contained therein, including the contract that was attached as Exhibit 12 "A" to the complaint. As discussed in Aragon-Haas. the Court can consider the pleadings 13 contained in the Court file, which would include the subject contract between the parties as it was 14 part of Plaintiffs' own allegations. As stated in Aragon-Haas. Plaintiffs' general demurrer would 15 admit the contents of CA CONSTRUCTION'S cross-complaint. Plaintiffs' own complaint, and 16 the contract that was attached to Plaintiffs' complaint. This would include any meaning to which 17 the contract is reasonably susceptible - that Plaintiffs' played an active role in the supervision, 18 design and construction of their home. Thus, the interpretation of the contract and Plaintiffs' 19 potential active contribution in causing the damages at issue, cannot be resolved at a hearing on a 20 general demurrer/motion for judgment on the pleadings 21 B. Plaintiffs'Interpretation of Daon Is Misplaced 22 Plaintiffs filed this action stemming from alleged construction defects at their home. 23 Plaintiffs have been named in CA CONSTRUCTION'S cross-complaint for the other role they 24 fulfilled during the construction of their home - they were the owner-builder and de-facto general 25 contractor on this project 26 In Daon, the appellate court ruled that Daon could maintain a cross-complaint for partial 27 or total indemnity for the individual owners' damages, and for those damages Daon was required 28 to pay for, which were caused by the Homeowner's Association's failure to carry out its duties N1C341/1043396-1 3 FURTHER SUPPLEMENTAL OPPOSITION TO PLAINTIFFS' REPLY 1 Here, Plaintiff FLORENTINE ABBOTT, as owner-builder, failed to carry out her duties. 2 That is the focus of the cross-complaint. An owner-builder is akin to a general contractor, both of 3 which owe similar design, management, and supervisory duties to themselves and the parties they 4 hire to complete a project. The fact that Plaintiffs sue in their individual capacities is irrelevant to 5 the subject of the cross-complaint. If Plaintiffs' reasoning applied, a subcontractor would never 6 have a cause of action for either contractual or equitable indemnity against a general contractor, 7 or in this case the owner-builder, if the general contractor or owner-builder negligently failed to 8 perform its duties thus causing the damages at issue in the pleadings. This reasoning defies logic 9 Plaintiffs' reliance on Lauriedale is misplaced. In Paragon Real Estate Group ofSan 10 Francisco. Inc v Peter Hansen, the Lauriedale decision was discussed and distinguished. In 11 Paragon, real estate brokers representing a buyer in a real estate transaction sought review of an 12 order sustaining a demurrer to an equitable indemnity cross-complaint brought against the seller's 13 broker for failing to disclose an easement The Court differentiated the cases by pointing out that 14 the Lauriedale court was primarily concerned that allowing a cross-complaint for equitable 15 indemnity against individual condominium owners would "jeopardize the special relationship 16 between the Association and its members, one characterized as fiduciary in nature. See 17 Lauriedale at 1445. The Paragon court reasoned that where there is no concern over a special 18 relationship, a cross-complaint should be allowed against another tortfeasor. "No California case 19 has been brought to our attention that has refused to allow a defendant the right to seek equitable 20 indemnity from another alleged tortfeasor simply because the defendant is able to assert a 21 comparative negligence affirmative defense at trial in the underlying action. Id. at 185-186. The 22 Paragon court cited Piatt for the proposition that without a corresponding special relationship, a 23 cross-complaint for equitable indemnity is not subject to dismissal solely because apportionment 24 of fault IS available through the assertion of affirmative defenses. Id, at 187, See also Piatt v, 25 Coldwell Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1446. 26 Plaintiffs appear to argue that CA CONSTRUCTION is already adequately protected by 27 virtue of the principles of comparative negligence and its own affirmative defenses However, as 28 explained above, this is a case where the Plaintiffs are wearing two (2) separate and distinct hats - N1C341/1043396-1 4 FURTHER SUPPLEMENTAL OPPOSITION TO PLAINTIFFS' REPLY 1 the homeowner and the owner-builder/general contractor. There is no special relationship concern 2 in this case, which was the focus in the Lauriedale case. Thus, it does not apply. Moreover, CA 3 CONSTRUCTION would suffer prejudice if its cross-complaint against Plaintiffs was dismissed 4 and it was relegated to only a comparative negligence defense at trial. ^ C. If The Motion Is Granted, The Motion Should Be Granted With Leave To Amend r To Allow CA Construction To Amend Its Cross-Complaint Should the Court grant Plaintiffs' Motion for Judgment on the Pleadings, the Court should 7 grant CA Construction leave to amend its cross-complaint consistent with the facts discovered 8 during the discovery process that relate to Plaintiffs' liability. 9 On a motion for judgment on the pleadings, the same standards apply in granting leave to 10 amend as for demurrers, and leave is routinely granted. See People v. $20,000 U.S. Currency 11 (1991) 235 Cal.App. 3d 682, 692. "Where a demurrer is sustained or a motion for judgment on 12 the pleadings is granted as to the original complaint, denial of leave to amend constitutes an abuse 13 of discretion if the pleading does not show on its face that it is incapable of amendment " Virginia 14 G V ABC Unified School Dist (1993) 15 Cal.App 4th 1848,1852. Pleaders should have the 15 same opportunity to cure defects in their pleadings as they would have had after a normal ruling 16 on demurrer. Maclsaac v Pozzo (1945) 26 Cal.2d 809, 815. 17 Here, the cross-complaint does not show on its face that it is incapable of amendment 18 The cross-complaint was filed early in the case. The matters pertaining to Plaintiffs' liability 19 were alleged upon information and belief and given the procedural posture of the case, they had 20 not been confirmed through discovery. As stated in its opposition. Plaintiff Florentine Abbott has 21 declared in several forums, both of which have been under penalty of perjury, that she acted as 22 the owner-builder for all phases of construction of the subject home. (See Exhibits "A" & "B" to 23 Request for Judicial Notice, as well as Exhibit "E" to the Declaration of Gregory Federico filed 24 with the CA CONSTRUCTION'S original opposition). Her status as an owner-builder on the 25 project, akin to a general contractor, is undisputed and creates a duty to all parties involved in the 26 construction of the home. Both of these declarations by Mrs. Abbott were discovered after the 27 cross-complaint was filed, and they support matters alleged in CA CONSTRUCTION'S cross- 28 NIC341/1043396-1 5 FURTHER SUPPLEMENTAL OPPOSITION TO PLAINTIFFS' REPLY 1 complaint as to the liability of Plaintiffs. CA CONSTRUCTION must be allowed to allege its 2 claims that Plaintiffs were negligent in their supervision of the construction project, as well as 3 negligent in coordinating the design for the subject home. 4 m. CONCLUSION 5 For the reasons outlined above and based on the arguments contained in its original 6 opposition, Plaintiffs' Motion for Judgment on the Pleadings should be denied. In the 7 alternative, CA CONSTRUCTION requests that this Court grant it leave to amend its cross- 8 complaint as to Plaintiffs RODNEY and FLORENTINE ABBOTT. 9 Dated: November _ J , 2010 ARCHER NORRIS 10 11 19 1' Gregory AttomeysK.forFederico Defendants/Cross-Defendants ^^ RICHARD KIRK RUYBALID, individually, J4 and dba CA CONSTRUCTION 15 16 17 IS 19 20 21 22 23 24 25 26 27 28 NIC34I/I043396-1 6 FURTHER SUPPLEMENTAL OPPOSITION TO PLAINTIFFS' REPLY 1 PROOF OF SERVICE 2 Nameof 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 301 University Avenue, Suite 110, Sacramento, Califomia 95825. On November 2, 2010,1 caused the following document(s) to be served: 5 FURTHER SUPPLEMENTAL OPPOSITION TO PLAINTIFFS' REPLY REGARDING 6 PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS 7 |3cl 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 Q 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 10 is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service with postage fully prepaid. 11 j I By having a tme copy of the document(s) listed above transmitted by facsimile to the 12 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 machine. 14 By placing a tme copy of the document(s) listed above, in a box or other facility 15 '~~' regularly maintained by UPS, an express service carrier, or delivered to a courier or driver authorized by the express service carrier to receive documents, in an envelope 16 designated by the express service carrier, with delivery fees paid or provided for, addressed as set forth below. 18 n by having personal dehverv bv FIRST LEGAL SUPPORT SERVICES a tme copy of the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the 19 address(es) set forth below. 20 [SEE ATTACHED SERVICE LIST] 21 22 I declare under penalty of perjury that the foregoing is tme and correct. Executed on 23 November 2,2010, at Sacramento, California. 24 25 ITmlQpiA Marie C&ntrell 26 27 28 NIC341/608293-1 PROOF OF SERVICE 1 Service List 2 VIA OVERNIGHT MAIL 3 Stephanie Finelii PLAINTIFFS Law Offices of Stephanie J. Finelli 4 1007 Seventh Street, Suite 500 Tel. (916) 443-2144 Sacramento, CA 95814 Fax: (916) 443-1511 5 E-mail sfinelli700@yahoo com 6 VIA REGULAR MAIL 7 Richard D. Sopp Counsel for CADRE DESIGN GROUP, INC. Wheatley Sopp LLP 8 1004 River Rock Drive, Suite 245 Tel (916)988-3857 Folsom, CA 95630 Fax: (916) 988-5296 9 Email rds@mwsblaw com 10 1 Mari< Smith In Pro Per 8549 Willow Valley Place 11 Granite Bay, CA 95746 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NIC341/608293-I 2 SERVICE LIST