Preview
1 STEPHANIE J. FINELLI, SBN 173462
Law Office of Stephanie J. Finelii
2 1007-7th Street, Suite 500
Sacramento, CA 95814
3 tel 916-443-2144 DEC 1 7 2010
fax 916-443-1511
4
Attomey for Plaintiffs, By L Whitf'Sld
Cepuly Clerk
5
FLORENTINE and RODNEY ABBOTT
6
7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 IN AND FOR THE COUNTY OF SACRAMENTO
9
10 FLORENTINE AND RODNEY ABBOTT, CaseNo.:07AS04450
11 Plaintiffs, PLAINTIFFS' MOTION IN LIMINE 2 TO
BIFURCATE THE ISSUE OF CA
12 vs. CONSTRUCTION'S BUSINESS &
PROFESSION CODE VIOLATIONS
13 RONALD BRITSCHGI, et. al..
Hearing on Motion- January 7,2011 l O ^ a k
14 Defendants Trial Date: January 18, 2011 >* ' ^
Judge: Brian Van Camp
15
16 and related cross-actions
17
18 The issue of whether CA Construction violated Business & Professions Code sections
19 7028 and 7031 should be bifurcated from the main phase ofthe trial and decided by the court
20 (not thejury) at the beginning ofthe trial.
21 The issue of whether defendant Ruybalid dba cA Construction violated Business &
22 Professions Code sections 7028 and 7031 is a legal one that does not require determination by
23 the jury, but should be made by the Court. It is also a simple issue that requires the introduction
24 of limited evidence.
25 Business & Professions Code section 7057 provides in relevant part as follows:
26 A general building contractor may take a prime contract or a subcontract for a
framing or carpentry project. However, a general building contractor shall not
27
take a prime contract for any project involving trades other than framing or
28 carpentry unless the prime contract requires at least two unrelated building
trades or crafts other than framing or carpentry, or unless the general building
Motion in Limine - 1
1 contractor holds the appropriate license classification or subcontracts with an
appropriately licensed contractor to perform the work A general building
2
contractor shall not take a subcontract involving trades other than framing or
3 carpentry, unless the subcontract requires at least two unrelated trades or crafts
other than frammg or carpentry, or unless the general building contractor holds
4 the appropriate license classification. The general building contractor may not
count framing or carpentry in calculating the two unrelated trades necessary in
5
order for the general building contractor to be able to take a prime contract or
6 subcontract for a project involving other trades.
7
(Bus.& Prof. Code §7057(b), emphasis added.)
8 Here, CA Construction had a contract with plaintiffs to install the foundation of their
9 home. Regardless of whether this contract is deemed a prime contract or a subcontract, under
10 section 7057(b), CA Construction could only enter into such contract if it involved two unrelated
11 building trades or crafts other than framing or carpentry or CA held the appropriate license
12 classification.
13 Neither of these apply. A Certificate of License History from the CSLB demonstrates
14 that CA Construction only obtained its C-8 certification for concrete in March 2009—well aftei
15 its work on the Abbott house was completed. As such, CA did not hold the appropriate license
16 classification at the time ofthe job. And the construction ofthe foundation did not involve two
17 unrelated trades other than framing or carpentry; it involved only one trade: concrete foundation
18 work.
19 According to the CSLB classifications, a C-8 Concrete classification is as follows:
20 A concrete contractor forms, pours, places, finishes and installs specified mass,
21
pavement, flat and other concrete work; and places and sets screeds for pavements
or flatwork. This class shall not include contractors whose sole contracting
22 business is the application of plaster coatings or the placing and erecting of steel
or bars for the reinforcing of mass, pavement, flat and other concrete work.
23
24 (Califomia Code of Regulations Title 16, Division 8, Article 3. Classifications.)
25 This is precisely what CA Constmction did for the Abbotts, and what its contract with the
26 Abbotts specifies as its scope ofwork.
27 The Abbotts having asserted that CA Constmction was not properly licensed to act solely
28
as the foundation contractor means that CA has the burden of proving that it was so licensed.
Motion in Limine - 2
1 (Bus. & Prof Code §7031(d) ["When licensure or proper licensure is controverted, the burden ol
2 proof to establish licensure or proper licensure shall be on the licensee."])
3 The issue of whether CA Constmction was properly licensed to perform the foundation
4 work is a legal issue that may and should be resolved by the court. Plaintiffs request that
5 following submission of evidence showing that CA Constmction was not properly classified to
6 perform this work and that the work did not involve two or more unrelated trades, this Court
7 make the determination as to whether CA violated Califomia Business & Professions Code
8 sections 7028 and/or 7031.
9 If CA was not properly licensed, the Abbotts are entitled to a refimd of all sums paid to
10 CA. (Bus.&Prof Code §7031(b) ["Except as provided in subdivision (e), a person who utilizes
11 the services of an unlicensed contractor may bring an action in any court of competent
12 jurisdiction in this state to recover all compensation paid to the unlicensed contractor foi
13 performance of any act or contract."]) The determination of these damages should also be
14 determined by this Court.
15 Moreover, if CA was not properly licensed, the Abbotts are entitled to treble damages up
16 to $10,000.00, as well as attomey fees. (Code Civ.Proc. §1029.8.) The trebling ofthe damages
17 should occur by this Court after the trier of fact has determined the damages, as should the award
18 of costs and attomey fees.
19
20 Dated: December 8, 2010 . _
Stephanie
21
Attomey for Plaintiffs,
22 Flo and Rodney Abbott
23
24
25
26
27
28
Motion in Limine - 3
PROOF OF SERVICE BY MAIL
CASE NAME: Abbott v. Britschgi
CASE NUMBER: Sacramento County Superior Court 07AS04450
I declare that:
I am a citizen ofthe United States and a resident ofthe County of Sacramento. I am,
and at all times mentioned herein was, an active member of the State Bar of Califomia and
not a party to the above-entitled cause. My business address is 1007 Seventh Street, Suite
500, Sacramento, Califomia 95814.
On December 8,2010, pursuant to CCP §1013A(2), I served the following:
PLAINTIFFS' MOTION IN LIMINE 2 TO BIFURCATE THE ISSUE OF CA
CONSTRUCTION'S BUSINESS & PROFESSION CODE VIOLATIONS
BY MAIL: by depositing a copy ofsaid document in the Umted States mail in Sacramento,
Califomia, in a sealed envelope, with postagefiallyprepaid, addressed as follows:
Gregory Federico
Archer Norris
301 University Ave., Suite 110
Sacramento, CA 95825
Richard Sopp
Maloney, Wheatley, Sopp & Brooks
1004 Moon River Rock Drive, Suite 245
Folsom, CA 95630
Mark Smith
8549 Willow Valley Place
Granite Bay, CA 95746
Richard W. Freeman, Jr.
Wood, Smith, Henning & Berman
1401 Willow Pass Road, Suite 700
Concord, CA 94520-7982
I declare under penalty of perjury under the laws of the State of Califomia the
foregoing is tme and correct.
Dated. December 8, 2010
Preview
1 STEPHANIE J. FINELLI, SBN 173462 Law Office of Stephanie J. Finelii 2 1007-7th Street, Suite 500 Sacramento, CA 95814 3 tel 916-443-2144 DEC 1 7 2010 fax 916-443-1511 4 Attomey for Plaintiffs, By L Whitf'Sld Cepuly Clerk 5 FLORENTINE and RODNEY ABBOTT 6 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SACRAMENTO 9 10 FLORENTINE AND RODNEY ABBOTT, CaseNo.:07AS04450 11 Plaintiffs, PLAINTIFFS' MOTION IN LIMINE 2 TO BIFURCATE THE ISSUE OF CA 12 vs. CONSTRUCTION'S BUSINESS & PROFESSION CODE VIOLATIONS 13 RONALD BRITSCHGI, et. al.. Hearing on Motion- January 7,2011 l O ^ a k 14 Defendants Trial Date: January 18, 2011 >* ' ^ Judge: Brian Van Camp 15 16 and related cross-actions 17 18 The issue of whether CA Construction violated Business & Professions Code sections 19 7028 and 7031 should be bifurcated from the main phase ofthe trial and decided by the court 20 (not thejury) at the beginning ofthe trial. 21 The issue of whether defendant Ruybalid dba cA Construction violated Business & 22 Professions Code sections 7028 and 7031 is a legal one that does not require determination by 23 the jury, but should be made by the Court. It is also a simple issue that requires the introduction 24 of limited evidence. 25 Business & Professions Code section 7057 provides in relevant part as follows: 26 A general building contractor may take a prime contract or a subcontract for a framing or carpentry project. However, a general building contractor shall not 27 take a prime contract for any project involving trades other than framing or 28 carpentry unless the prime contract requires at least two unrelated building trades or crafts other than framing or carpentry, or unless the general building Motion in Limine - 1 1 contractor holds the appropriate license classification or subcontracts with an appropriately licensed contractor to perform the work A general building 2 contractor shall not take a subcontract involving trades other than framing or 3 carpentry, unless the subcontract requires at least two unrelated trades or crafts other than frammg or carpentry, or unless the general building contractor holds 4 the appropriate license classification. The general building contractor may not count framing or carpentry in calculating the two unrelated trades necessary in 5 order for the general building contractor to be able to take a prime contract or 6 subcontract for a project involving other trades. 7 (Bus.& Prof. Code §7057(b), emphasis added.) 8 Here, CA Construction had a contract with plaintiffs to install the foundation of their 9 home. Regardless of whether this contract is deemed a prime contract or a subcontract, under 10 section 7057(b), CA Construction could only enter into such contract if it involved two unrelated 11 building trades or crafts other than framing or carpentry or CA held the appropriate license 12 classification. 13 Neither of these apply. A Certificate of License History from the CSLB demonstrates 14 that CA Construction only obtained its C-8 certification for concrete in March 2009—well aftei 15 its work on the Abbott house was completed. As such, CA did not hold the appropriate license 16 classification at the time ofthe job. And the construction ofthe foundation did not involve two 17 unrelated trades other than framing or carpentry; it involved only one trade: concrete foundation 18 work. 19 According to the CSLB classifications, a C-8 Concrete classification is as follows: 20 A concrete contractor forms, pours, places, finishes and installs specified mass, 21 pavement, flat and other concrete work; and places and sets screeds for pavements or flatwork. This class shall not include contractors whose sole contracting 22 business is the application of plaster coatings or the placing and erecting of steel or bars for the reinforcing of mass, pavement, flat and other concrete work. 23 24 (Califomia Code of Regulations Title 16, Division 8, Article 3. Classifications.) 25 This is precisely what CA Constmction did for the Abbotts, and what its contract with the 26 Abbotts specifies as its scope ofwork. 27 The Abbotts having asserted that CA Constmction was not properly licensed to act solely 28 as the foundation contractor means that CA has the burden of proving that it was so licensed. Motion in Limine - 2 1 (Bus. & Prof Code §7031(d) ["When licensure or proper licensure is controverted, the burden ol 2 proof to establish licensure or proper licensure shall be on the licensee."]) 3 The issue of whether CA Constmction was properly licensed to perform the foundation 4 work is a legal issue that may and should be resolved by the court. Plaintiffs request that 5 following submission of evidence showing that CA Constmction was not properly classified to 6 perform this work and that the work did not involve two or more unrelated trades, this Court 7 make the determination as to whether CA violated Califomia Business & Professions Code 8 sections 7028 and/or 7031. 9 If CA was not properly licensed, the Abbotts are entitled to a refimd of all sums paid to 10 CA. (Bus.&Prof Code §7031(b) ["Except as provided in subdivision (e), a person who utilizes 11 the services of an unlicensed contractor may bring an action in any court of competent 12 jurisdiction in this state to recover all compensation paid to the unlicensed contractor foi 13 performance of any act or contract."]) The determination of these damages should also be 14 determined by this Court. 15 Moreover, if CA was not properly licensed, the Abbotts are entitled to treble damages up 16 to $10,000.00, as well as attomey fees. (Code Civ.Proc. §1029.8.) The trebling ofthe damages 17 should occur by this Court after the trier of fact has determined the damages, as should the award 18 of costs and attomey fees. 19 20 Dated: December 8, 2010 . _ Stephanie 21 Attomey for Plaintiffs, 22 Flo and Rodney Abbott 23 24 25 26 27 28 Motion in Limine - 3 PROOF OF SERVICE BY MAIL CASE NAME: Abbott v. Britschgi CASE NUMBER: Sacramento County Superior Court 07AS04450 I declare that: I am a citizen ofthe United States and a resident ofthe County of Sacramento. I am, and at all times mentioned herein was, an active member of the State Bar of Califomia and not a party to the above-entitled cause. My business address is 1007 Seventh Street, Suite 500, Sacramento, Califomia 95814. On December 8,2010, pursuant to CCP §1013A(2), I served the following: PLAINTIFFS' MOTION IN LIMINE 2 TO BIFURCATE THE ISSUE OF CA CONSTRUCTION'S BUSINESS & PROFESSION CODE VIOLATIONS BY MAIL: by depositing a copy ofsaid document in the Umted States mail in Sacramento, Califomia, in a sealed envelope, with postagefiallyprepaid, addressed as follows: Gregory Federico Archer Norris 301 University Ave., Suite 110 Sacramento, CA 95825 Richard Sopp Maloney, Wheatley, Sopp & Brooks 1004 Moon River Rock Drive, Suite 245 Folsom, CA 95630 Mark Smith 8549 Willow Valley Place Granite Bay, CA 95746 Richard W. Freeman, Jr. Wood, Smith, Henning & Berman 1401 Willow Pass Road, Suite 700 Concord, CA 94520-7982 I declare under penalty of perjury under the laws of the State of Califomia the foregoing is tme and correct. Dated. December 8, 2010