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1 STEPHANIE J. FINELLI, SBN 173462
Law Office of Stephanie J. Finelli
2 1007 - 7th Street, Suite 500
Sacramento, CA 95814 ON 2 k PM 3:3 J
3 tel 916-443-2144
fax 916-443-1511 COURTS
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. #53 #54
Attorney for Plaintiffs,
5 RODNEY and FLORENTINE ABBOTT
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7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 IN AND FOR THE COUNTY OF SACRAMENTO
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10 RODNEY ABBOT and FLORENTINE CaseNo.:07AS04450
ABBOTT,
tl NOTICE OF MOTION AND MOTION FOR
Plaintiffs,
LEAVE TO FILE FIRST AMENDED
12 COMPLAINT; DECLARATION OF
vs.
STEPHANIE J. FINELLI
13
RONALD PAUL BRITSCHGI, et. al.
14 Date: July 20, 2009
Defendants Time: 9:00 a.m.
15 Dept: 54
Trial: 6/7/10
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and related cross-actions
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NOTICE OF MOTION
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TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD:
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NOTICE IS HEREBY GIVEN THAT on July 20, 2009 at 9:00 a.m. or as soon thereafter
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as the matter may be heard, in Dept. 54 of the above-entitled court, located at 720 Ninth Street,
22 Sacramento, California, 95814, plaintiffs RODNEY ABBOTT and FLORENTINE ABBOTT
23 move the court for leave to file a First Amended Complaint, which is attached hereto and file<
24 herewith. This motion is made under Code of Civil Procedure sections 473(a)(l) and 576 on the
25 grounds that such amendment is in the interests of justice and will allow plaintiffs to bring all
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causes of action they may have against all defendants concerning the defective construction oi
their home.
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Motion for Leave to Amend Complaint - 1
i This motion is based on this notice, the attached memorandum of points and authorities,
2 the declaration of Stephanie J. Finelli and attached exhibits served and filed herewith, and the
3 pleadings, records and papers on file herein.
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5 Pursuant to Local Rule 3.04, the court will make a tentative ruling on
the merits of this matter by 2:00 p.m. the court day before the hearing.
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To receive the tentative ruling, call the department in which the matter is
7 to be heard at 916-448-8239 (Dept. 53) or 916-448-8234 (Dept. 54). If
you do not call the court and the opposing party by 4:00 p.m. the court
8 day before the hearing, no hearing will be held.
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Dated: June_^\ 2009
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12 Attorney for Plaintiffs,
RODNEY and FLO ABBOTT
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Motion for Leave to Amend Complaint - 2
1 POINTS AND AUTHORITIES
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3 I. INTRODUCTION
This is a construction defect case arising out of the construction of Plaintiffs' single-
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family custom home in 2005 to 2006. The complaint in this action was filed in September 2007.
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At that time, plaintiffs were represented by counsel. Thereafter, they were intermittently in pro
per or represented by counsel until November 2008 when present counsel substituted into the
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case. At that time, the case had a trial date of May 11, 2009.
At the time of the substitution, no depositions had been taken, and discovery was limite<
to some written discovery requests and an "informal" production of documents by plaintiffs t
the defendants. After November 2008, Plaintiffs took the depositions of the defendants, an
defendants deposed plaintiffs and certain other witnesses. On March 23, 2009, expert witnesses
were disclosed. Prior to that date, plaintiffs' experts, which included a licensed general building
contractor and a licensed landscape architect, had inspected the home. Following those
inspections and prior to the depositions, the experts began to suspect that uncompacted fill hac
been placed under the foundation of the home. This was based upon an evaluation anc
comparison of the topography of the land prior to any grading or construction and as it presently
stands.
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On April 9, 2009, Plaintiffs' house was inspected by a structural engineer as part of an
insurance claim. This engineer opined, among other things, that the soil under the house anc
garage slabs was not properly compacted. This report was prepared on April 18, 2009 anc
provided to Plaintiffs' counsel on May 19, 2009.
On April 15, 2009, defendants' experts conducted an on-site inspection of plaintiffs'
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home.
At his April 27, 2009 deposition, James "Robert" Lee testified that he believed there was!
uncompacted soil and fill under the house and garage, and that serious structural problems could
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result therefrom. Mark Smith had performed the grading of the lot, and CTE Construction
Testing and Engineering had certified to the County that the soil under the garage was sufficient.
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However, neither of these parties had been named in the complaint.
Motion for Leave to Amend Complaint - 3
The trial was set for May 11, 2009. Due to the lack of available courtrooms, the case was
assigned to the Honorable Brian Van Camp. Following a meeting with the judge, trial of this
matter was set for a date certain: June 7, 2010.
Because plaintiffs have recently discovered additional defects with the home, and that
additional defendants may be liable for these defects, they seek to amend the complaint to allege
these additional defects, as well as the two additional defendants. Plaintiffs also seek to adc
causes of action for violations of certain statutes in the Business & Professions Code based upon
information they obtained in the 2009 depositions of defendants.
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10 II. LEGAL ARGUMENT
11 A. THE AMENDED COMPLAINT SHOULD BE ALLOWED IN THE INTERESTS
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OF JUSTICE
13 Code of Civil Procedure section 473 provides as follows:
14 The court may, in furtherance of justice, and on any terms as may be proper,
allow a party to amend any pleading or proceeding by adding or striking out the
15 name of any party, or by correcting a mistake in the name of a party, or a mistake
in any other respect; and may, upon like terms, enlarge the time for answer or
demurrer. The court may likewise, in its discretion, after notice to the adverse
17 party, allow, upon any terms as may be just, an amendment to any pleading or
proceeding in other particulars; and may upon like terms allow an answer to be
18 made after the time limited by this code.
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(Code Civ.Proc. §473(a)(l)
It is judicial policy to resolve disputes between parties on their merits, and to allow for
the amendment of pleadings to put all such disputes at issue at the time of trial. (California
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Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 278.)
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While a motion to permit an amendment to a pleading to be filed is one addressed
25 to the discretion of the court, the exercise of this discretion must be sound and
reasonable and not arbitrary or capricious. [Citations.] And it is a rare case in
26 which "a court will be justified in refusing a party leave to amend his pleadings so
that he may properly present his case." [Citations.] If the motion to amend is
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timely made and the granting of the motion will not prejudice the opposing party,
28 it is error to refuse permission to amend and where the refusal also results in a
Motion for Leave to Amend Complaint - 4
party being deprived of the right to assert a meritorious cause of action or a
meritorious defense, it is not only error but an abuse of discretion.
(California Casualty, supra at p. 278.)
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Here, plaintiffs have recently determined that their house has additional defects (to wit,
uncompacted soil and structural problems arising therefrom) and that additional parties may be
liable (to wit, Mark Smith and CTE Construction Testing and Engineering), the should be
permitted to amend the complaint in the interests of justice. It makes no sense to require
plaintiffs to name these additional parties in a separate lawsuit. Moreover, since plaintiffs have
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only recently discovered that defendants violated certain Business & Professions Codes, the
complaint should be amended to include these additional allegations.
Defendants will not be prejudiced by this amendment. Trial of this matter is set for June
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7, 2010—almost one year from now. Additionally, plaintiffs are moving for leave to reopen
discovery. Defendants will have ample opportunity to discover the legal and factual bases foi
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plaintiffs' claims prior to trial. It is plaintiffs who will be prejudiced if this amendment is no
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permitted.
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III. CONCLUSION
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In the interests of justice, this Court should grant leave to file the first amended
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complaint, so that plaintiffs may adjudicate all matter arising out of and relating to the defective
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construction of their home.
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Dated: June , 2009 By:
23 Stephanie JTFinelli
Attorney for Plaintiffs
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Motion for Leave to Amend Complaint - 5
1 DECLARATION OF STEPHANIE J. FINELLI
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I, Stephanie J. Finelli, hereby declare under penalty of perjury, and if called as a witness,
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would and competently testify as follows:
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1. I am an attorney, duly licensed to practice in the State of California. I represent
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plaintiffs herein.
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2. Attached hereto is a proposed first amended complaint in this action.
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3. On June 22, 2009,1 faxed a copy of a first amended complaint to Craig Lundgren,
attorney for defendant Britschgi, and Gregory Federico, attorney for defendant CA Construction,
and asked if they would stipulate to allowing me to file it. On June 24, 2009, I emailed the
current version, which contained some minor changes. I have not had a response from eithei
attorney, although I note that Craig Lundgren is unavailable this week
4. Given that trial is not for almost another whole year, and that plaintiffs have
recently discovered additional defects to their home and that additional defendants may be liable,
it is imperative that plaintiffs be allowed to file the First Amended Complaint.
5. The effect of this amended complaint is to add factual and legal allegations to the
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causes of action for breach of contract and negligence against existing defendants Britschgi anc
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CA Construction; add allegations of violations of Business & Professions Code sections agains
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each of them; and state a cause of action for negligence against new defendants Mark Smith anc
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CTE Construction & Testing. These amendments are necessary and proper because plaintiffs
20 have recently discovered that their home may have far more defects—including structural defects
21 cause by it having been constructed on improper soil—than they had originally believed.
22 6. I substituted in as Plaintiffs' attorney of record on November 17, 2008. At that
23 time, no depositions had been taken, and discovery was limited to some written discovery
24 requests and an "informal" production of documents by plaintiffs to the defendants. Meaningful^
25 discovery did not really begin on this case until December 2008, when the first day of Florentine
26 Abbott's deposition was taken. In January and February 2009, I took defendants' depositions,
27 and defendants deposed plaintiffs and certain other witnesses. On March 23, 2009, expert
28 witnesses were disclosed. Shortly before then, plaintiffs' experts, including a licensed general
Motion for Leave to Amend Complaint - 6
building contractor and a licensed landscape architect, had inspected the home. Following those
2 inspections and prior to the depositions, the experts began to suspect that uncompacted fill hac
3 been placed under the foundation of the home. This was based upon an evaluation am
4 comparison of the topography of the land prior to any grading or construction and as it presently
5 stands.
6 7. On April 9, 2009, Plaintiffs' house was inspected by a structural engineer as part
7 of an insurance claim. This engineer opined, among other things, that the soil under the house
and garage slabs was not properly compacted. This report was prepared on April 18, 2009. The
9 Abbotts obtained a copy of that report on or about May 19, 2009 and immediately forwarded it to
10 me, and I immediately forwarded a copy to all defendants via email.
11 8. On April 15, 2009, less than one month from the trial date, defendants' experts
12 conducted an on-site inspection of plaintiffs' home.
13 9. At his April 27, 2009 deposition, James "Robert" Lee testified that he believec
14 there was uncompacted soil and fill under the house and garage, and that serious structura
15 problems could result therefrom.
16 10. The trial was set for May 11, 2009. Due to the lack of available courtrooms, the
17 case was assigned to the Honorable Brian Van Camp. Following a meeting with the judge, trial]
18 of this matter was set for a date certain: June 7,2010.
19 11. Other than immaterial grammatical changes, renumbering of paragraphs, anc
20 abbreviations for the names of the defendants, it differs from the original complaint in the
21 following particulars:
22 a. It removes Paragraphs IV and V which named Surety Company of the
Pacific and Western Surety Company as Defendants.
b. It adds Paragraph 4, which substitutes Mark Smith for Doe Defendant 1,
and Paragraph 5, which substitutes CTE Construction & Testing for Doe Defendant 2.
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c. Paragraph 8 substitutes the name "Fair Oaks" for "Sacramento" at line 21.
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d. It removes the allegations beginning with "During the course ofl
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construction" and ending with "plans and specifications" at page 4 lines 11-14 of the original
28 complaint.
Motion for Leave to Amend Complaint - 7
i e. It adds to Paragraph 11 (Paragraph V of the first cause of action in the
2 original complaint the following: to page 4, lines 24-28: "as well as the fact that the lot was
3 improperly graded, the house was built on uncompacted and insufficient soil the footings were
4 placed on unsuitable soil, insufficient gravel and/or fill was placed under the slab foundation oi
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the house and of the garage, vapor barriers were not properly installed, and the walls of the
garage were taller than were engineered under the plans;" to page 5 line 1: "and the other
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aforementioned damages were"; to page 5 lines 5-9: "the rendering of the property an attractive
nuisance, improper settling of the house, resulting in damage to the walls, cracking of the
concrete, the stucco, and other damage to the interior and exterior of the house, potential mol
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damage, instability of the structure due to it sitting on uncompacted soil; instability of the garage
10 walls, stucco is not properly adhering to the retaining wall, and the walls of the garage are tallei
11 than were engineered under the plans;" to page 5 lines 11-13: "costs to repair defective
12 construction work, the costs to repair consequential damages to non-defective property caused by
13 the breach of said contract, the diminished market value of their house, loss of use of the house,''
14 page 5 lines 13-14: "all payments made to said Defendant;" and page 5 lines 15-16: "Plaintiffs
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are also entitled to interest on all such economic damages at the legal rate."
f. Paragraph 12 changes paragraph I to the second cause of action in the
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original complaint to reallege "paragraphs 1-11 as set forth above."
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g. Paragraph 13 adds the phrase "and the applicable building codes" to what
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was Paragraph II to the second cause of action in the original complaint.
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h. It adds to Paragraph 15 (Paragraph IV of the second cause of action in the
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original complaint the following: at page 6, lines 8-12: "as well as the fact that the lot was
21 improperly graded, the house was built on uncompacted and insufficient soil, insufficient graved
22 fill was placed under the slab foundation of the house and of the garage, stucco is not properly
23 adhering to the retaining wall, and the walls of the garage were taller than were engineered under
24 the plans;" to page 6 line 13: "and the other aforementioned damages were"; to page 6 lines 17-
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21: "the rendering of the property an attractive nuisance, improper settling of the house, resulting
in damage to the walls, cracking of the concrete, the stucco, and other damage to the interior anc
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exterior of the house, potential mold damage to the interior of the home, instability of the
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structure due to it sitting on uncompacted soil; instability of the garage walls; stucco is not
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properly adhering to the retaining wall, and the walls of the garage are taller than were
Motion for Leave to Amend Complaint - 8
engineered under the plans," to page 6 lines 22-26: "costs to repair defective construction work,
2 the costs to repair consequential damages to non-defective property caused by the breach of said
3 contract, the diminished market value of their house, loss of use of the house ... all payments
4 made to said Defendant, personal injuries to plaintiffs as a result of mold damage;" to page 6 line
28: "Plaintiffs are also entitled to interest on all such economic damages at the legal rate."
i. The first amended complaint adds a claim for violation of Business &
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Professions Code against Bristchgi, which is the Third Cause of action and which appears at
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pages 7, lines 1 to 26 of the first amended complaint.
j. Paragraph 20 changes paragraph I to the third cause of action in the
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original complaint to reallege "paragraphs 1-6, set forth above."
10 k. Paragraph 22 changes paragraph III to the third cause of action in the
11 original complaint to add "County-approved" before the word "plans;" and to add "as well as
12 subsequently modified plans, which said Defendant participated in modifying, as well as a copy
13 of the County-approved plans for the construction of the cul-de-sac that was to be constructed
14 according to County specifications in front of the residence;" and to remove everything after
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"specifically performing his part of the contract."
1. Paragraph 23 changes paragraph IV to the third cause of action in the
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original complaint to add "at the correct elevations" to the first sentence; and to change the
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beginning of the second sentence to state, "Said Defendants further breached the contract by
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failing ..." and to add, "The foundation of the house and garage were constructed improperly
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and not according to the governing building codes and regulations, neither the house nor the
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garage were built at certain elevations to which they should have been constructed, the house
21 was built on uncompacted and insufficient soil, the footings were placed on unsuitable soil,
22 insufficient gravel and/or fill was placed under the slab foundation of the house and of the
23 garage, and vapor barriers were not properly installed," and to substitute the portion of the last
24 sentence beginning with "failed to perform . . ." with "failed to follow the plans and]
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specifications as given to him, failed to follow the building codes, and failed to follow Plaintiffs'
directives. Said Defendant also breached the contract by charging Plaintiffs more than was
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specified under the contract; requiring Plaintiffs to directly pay subcontractors and suppliers
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whom said Defendants were required to pay under the contract; and by invoicing Plaintiffs foi
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sums that were not due or owing under the contract."
Motion for Leave to Amend Complaint - 9
m. Paragraph 24 fully replaces paragraph V to the third cause of action in the
original complaint.
n. Paragraph 25 changes paragraph VI to the third cause of action in the
original complaint to add "other expenses including but not limited to, cost to repair, cost to
reconstruct, all payments made to said Defendant, payments made to third parties, and other
damages, the total amount of damages which is unknown at this time, the exact sum of which . .]
." as well as, "Plaintiffs are also entitled to interest on all such economic damages at the lega
rate, as well as attorney fees according to proof."
o. Paragraph 26 changes paragraph I to the fourth cause of action in the
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original complaint to reallege "paragraphs 1-6 and 21-25, set forth above."
10 p. Paragraph 27 changes paragraph II to the fourth cause of action in the
n original complaint to add "and in accordance with accepted standards in the construction
12 industry and the applicable building codes."
13 q. Paragraph 28 changes paragraph III to the fourth cause of action in the
14 original complaint to add to the first sentence, "or at certain elevations to which they should have
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been constructed, as well as the fact that the house was built on uncompacted and insufficient
soil, the footings were placed on unsuitable soil, insufficient gravel was placed under the slab
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foundation of the house and of the garage and vapor barriers were not properly installed, thus
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potentially causing mold damage to the interior of the home," and to add to the second sentence,
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"as originally drafted and as later modified and not in good and workmanlike manner, and in
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violation of building codes and regulations, and in a manner so as to render the house structurally
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unstable."
21 r. Paragraph 29 changes paragraph IV to the fourth cause of action in the
22 original complaint to add, "including the fact that Plaintiffs cannot use the garage for its intendec
23 purposes, drainage damage, the necessity of using stairs to the house and additional stairs to the
24 garage, potential mold damage to the interior of the home, instability of the structure due to iti
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sitting on uncompacted and/or unsuitable soil" and to add, "all payments made to said
Defendant, personal injuries to plaintiffs and their family members as a result of mold damage,']
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and to add as the last sentence, "Plaintiffs are also entitled to interest on all such economic
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damages at the legal rate."
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Motion for Leave to Amend Complaint -10
s. The first amended complaint adds a claim for violation of Business &
Professions Code against Ruybalid, which is the Sixth Cause of action and which appears al
pages 10 to 11 of the first amended complaint.
t. The first amended complaint adds a claim for negligence against
Defendant Mark Smith, which is the Seventh Cause of action and which appears at pages 11 to
13 of the first amended complaint.
u. The first amended complaint adds a claim for negligence against
Defendant CTE, which is the Eighth Cause of action and which appears at pages 13 to 14 of the
first amended complaint.
v. The first amended complaint omits the fifth and sixth causes of action in
10 that original complaint.
11 w. The first amended complaint sets forth in the "Prayer" portion the
12 damages sought on each individual cause of action.
13 12. These amendments are necessary and proper in that the evidence discoverec
14 shortly before the may 11, 2009 trial date (which is now set for June 7, 2010) shows thai
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Plaintiffs' house has additional defects that are not necessarily alleged in the original complaint;
that defendants violated certain Business & Professions Codes, and that certain other parties may
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be liable to plaintiffs.
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I declare under penalty of perjury under the laws of the State of California that the
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foregoing is true and correct.
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Dated: June^, 2009 By:
21 Stephanie J. Finelli
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Motion for Leave to Amend Complaint - 11
1 STEPHANIE J. FINELLI, SEN 173462
Law Office of Stephanie J. Finelli
2 1007 - 7th Street, Suite 500
Sacramento, CA 95814
3 tel 916-443-2144
fax 916-443-1511
4
Attorney for Plaintiffs,
5 RODNEY ABBOTT and
FLORENTINE ABBOTT
6
7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 IN AND FOR THE COUNTY OF SACRAMENTO
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10 RODNEY ABBOTT and FLORENTINEJCaseNo.: 07AS04450
ABBOTT,
11 FIRST AMENDED COMPLAINT FOR
DAMAGES FOR BREACH OF CONTRACT
12 Plaintiffs, NEGLIGENCE, AND VIOLATIONS OF
BUSINESS & PROFESSIONS CODE
13 vs.
14 RONALD PAUL BRITSCHGI, individually
and doing business as BRITSCHGI
15 CONSTRUCTION; RICHARD KIRK
RUYBALID, individually and doing business as
CA CONSTRUCTION; MARK SMITH,
17 individually and doing business a:
GROUNDBREAKERS; CONSTRUCTION)
18 TESTING & ENGINNERING, INC.; anc
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DOES 3 through 20, inclusive,
20 Defendants
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22 and related cross-actions
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24 Plaintiffs allege:
25 GENERAL ALLEGATIONS
26 1. At all times herein mentioned, Plaintiffs RODNEY ABBOTT and FLORENTINE
27 ABBOTT were owners of that parcel of real property located in the County of Sacramento, State
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First Amended Complaint -1
1 of California, and more particularly described as 8601 Rolling Green Way, Fair Oaks, California
2 95628.
3 2. Plaintiffs are informed and believe and upon such information and upon such
4 information and belief allege that at all times herein mentioned, Defendant RONALD PAUL
5 BRITSCHGI (hereinafter "BRITSCHGI"), is an individual doing business under that firm name
6 and style of BRITSCHGI CONSTRUCTION, and at all times herein mentioned, was and is
7 doing business in the County of Sacramento, State of California. Defendant BRITSCHGI was
8 duly licensed by the Contractor's State License Board of the State of California to conduct
9 business as a general building contractor within the State of California and to engage in the work
10 hereinafter described.
11 3. Plaintiffs are informed and believe and upon such information and upon such
12 information and belief allege that at all times herein mentioned, Defendant RICHARD KIRK
13 RUYBALID (hereinafter "RUYBALID") is an individual doing business under the firm name
14 and style of CA CONSTRUCTION and at all times herein mentioned did business in the City oi
15 Fair Oaks, County of Sacramento, State of California. Defendant RUYBALID was duly licensee
16 by the Contractor's State License Board of the State of California to conduct business as a
17 general building contractor within the State of California and to engage in the work hereinafter
18 described.
19 4. Plaintiffs are informed and believe and upon such information and upon such
20 information and belief allege that at all times herein mentioned, Defendant MARK SMITH
21 (hereinafter "SMITH") is an individual doing business as "Groundbreakers." Plaintiffs are
22 informed and believe that at the time relevant to this complaint, said Defendant was a licensee
23 general building contractor, but did not have a specialty contractor's license to perform
24 earthwork or grading. Said defendant is hereby substituted in place of DOE 1 in the origina
25 complaint. I
26 5. Plaintiffs are informed and believe and upon such information and upon such!
27 information and belief allege that at all times herein mentioned, Defendant CONSTRUCTION
28 TESTING & ENGINNERING, INC (hereinafter "CTE") is a corporation and at all times herein
First Amended Complaint - 2
1 mentioned did business in the County of Sacramento, State of California. Said defendant is
2 hereby substituted in place of DOE 2 in the original complaint.
3 6. Plaintiffs are ignorant of the true names and capacities of the Defendants suec
4 herein as DOES 3 through 20, inclusive, and therefore sues these Defendants by such fictitious
5 names. Plaintiffs will amend this Complaint to allege their true names and capacities wher
6 ascertained. Plaintiffs are informed and believe that each of these Defendants is an agent anc
7 employee of each and every other Defendant named or to be named in the above-entitled action]
and that each such DOE Defendant proximately caused Plaintiffs damages as herein allegec
9 while acting in such capacity. Plaintiffs are further informed and believe, and upon such
10 information and belief, allege that each of the DOE Defendants were somehow negligent and/or
11 at fault with respect to the work done on Plaintiffs' real property as more specifically referred to
12 herein and that said Doe Defendants somehow proximately caused the damages of which
13 Plaintiffs complain.
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15 FIRST CAUSE OF ACTION
(Breach of Oral Contract Against Defendant Britschgi)
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7. Plaintiffs5 hereby realleg
reallege and incorporate by reference all of the allegations set forth in
paragraphs 1-6 as set forth above.
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8. On or about October 1, 2005, Plaintiffs and Defendant BRITSCHGI entered an ora
contract in which said defendant agreed to help the plaintiffs build their personal residence which
is located in Fair Oaks, as more specifically described hereinabove. Said defendant, as a general
contractor, agreed to assist plaintiffs in the construction of their personal residence to the extent
! that said Defendant would assist, guide, and direct Plaintiffs and other contractors with respect to
certain stages of construction, namely the location for placement of the house on the lot, grading
of the lot for the purposes of construction, the pouring of concrete for the house and garage for
foundational purposes, with emphasis on proper elevation of that foundation as that foundation
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related to where the house and garage would sit on the lot in relation to the elevation of the street
and proposed streets in front of the lot, as well as the framing of the house, in addition to
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miscellaneous other duties. These miscellaneous other duties included the supervision of the
First Amended Complaint - 3
1 work done by other contractors working on the construction of the house. For these services,
2 Plaintiffs paid said Defendant the sum of approximately $13,658,00, the exact sum of which will]
3 be shown according to proof at the time of trial. Said defendant agreed to perform his duties sc
4 as to make sure that the house was constructed according to certain plans and specifications
5 given to said Defendant by Plaintiffs at the time he agreed to work with Plaintiffs as a genera
6 contractor assisting them in the construction of their personal residence. Said Defendant further
7 agreed to use his care and skill as a general contractor with respect to not only the work that he
was doing personally towards the construction of the residence, but also he agreed to use his care
9 and skill as a general contractor to supervise the work done by other subcontractors and to assure
10 that all such work was done in a good and workmanlike fashion, and done according to the
11 standards of construction within the construction industry, and according to certain plans anc
12 specifications. These oral agreements were entered into by and between Plaintiffs and saic
13 Defendant in a series of oral discussion which took place beginning on or about October 1, 2005.
14 9. Plaintiffs have performed all conditions, covenants and promises under the
15 contract with said Defendant to be performed on their part, including but not limited to, the
16 payment of $13,658.00 to said Defendant.
17 10. On or about September 15, 2006, Plaintiffs discovered that said Defendant
18 breached the contract with them by failing to properly supervise the work performed by other
19 contractors and to assure that the work was done adequately, diligently, and in a good anc
20 workmanlike fashion and according to certain plans and specifications.
21 11. As a result of said Defendant breaching the contract, plaintiffs have sufferec
22 certain damages in that Plaintiffs' house and garage were defectively constructed and no1
23 according to plans and specifications. Those damages include the fact that neither the house not
24 the garage were built at certain elevations to which they should have been constructed, as well as
25 the fact that the lot was improperly graded, the house was built on uncompacted and insufficient
26 soil, the footings were placed on unsuitable soil, insufficient gravel and/or fill was placed undeij
27 the slab foundation of the house and of the garage, vapor barriers were not properly installed, anc
28 the walls of the garage were taller than were engineered under the plans. The incorrect placing
First Amended Complaint - 4
1 of the house and garage on the lot at certain levels and the other aforementioned damages were
2 not according to plans and specifications thus resulting in certain damage to the house anc
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3 garage and surrounding property, including drainage damage, the necessity of using stairs to the
4 house and stairs to the garage, the inability to use the garage for the purposes for which it was
5 intended, the rendering of the property an attractive nuisance, improper settling of the house,
6 resulting in damage to the walls, cracking of the concrete, the stucco, and other damage to the
7 interior and exterior of the house, potential mold damage, instability of the structure due to it
sitting on uncompacted soil, instability of the garage walls, stucco is not properly adhering to the
9 retaining wall, and the walls of the garage are taller than were engineered under the plans, and
10 damages to the retaining walls as well as incurring other expenses including but not limited to
11 costs to repair defective construction work, the costs to repair consequential damages to non-r
!
12 defective property caused by the breach of said contract, the diminished market value of their
13 house, loss of use of the house, cost to repair, cost to reconstruct, all payments made to saic
14 Defendant, and other damages, the total amount of damages which is unknown at this time, the
15 exact sum of which will be shown according to proof at the time of trial. Plaintiffs are also
16 entitled to interest on all such economic damages at the legal rate.
17
18 SECOND CAUSE OF ACTION
(Negligence as to Defendant Britschgi)
19
12. Plaintiffs hereby reallege and incorporate by reference all of the allegations set]
forth in paragraphs 1-11 as set forth above.
13. Said Defendant had a duty to perform his construction services and other services
in good and workmanlike manner and in accordance with accepted standards in the construction
industry and the applicable building codes and in accordance with certain plans anc
specifications as given to him by Plaintiffs.
14. In performing the services as referenced herinabove, said Defendant actec
26
negligently in the performance of those services. The negligence manifested itself in certain
ways, including but not limited to, the fact that the house and the garage were not constructed in
28
a good and workmanlike fashion or according to accepted standards in the construction industry.
First Amended Complaint - 5
1 Further, the house and the garage were not constructed according to certain plans anc
2 specifications or in the manner as requested by Plaintiffs. Said defendant was further negligent
3 in his duties in not properly supervising the work done by other contractors, which supervision
4 he promised Plaintiffs he would perform.
5 15. As a result of the negligence of said Defendant, Plaintiffs have suffered certain
6 damages in that Plaintiffs' house and garage were defectively constructed and not according to
7 plans and specifications. Those damages include the fact that neither the house nor the garage
were built at certain elevations to which they should have been constructed, as well as the fact
9 that the lot was improperly graded, the house was built on uncompacted and insufficient soil, the
10 footings were placed on unsuitable soil, insufficient gravel and/or fill was placed under the slab
11 foundation of the house and of the garage, vapor barriers were not properly installed, and the
12 walls of the garage were taller than were engineered under the plans. The incorrect placing o:
13 the house and garage on the lot at certain levels and the other aforementioned damages were no
14 according to plans and specifications thus resulting in certain damage to the house and garage
15 and surrounding property, including drainage damage, the necessity of using stairs to the house
16 and stairs to the garage, the inability to use the garage for the purposes for which it was intended
17 the rendering of the property an attractive nuisance, improper settling of the house, resulting in
18 damage to the walls, cracking of the concrete, the stucco, and other damage to the interior anc
19 exterior of the house, potential mold damage, instability of the structure due to it sitting on
20 uncompacted soil, instability of the garage walls, stucco is not properly adhering to the retaining
21 wall, and the walls of the garage are taller than were engineered under the plans, and damages to
22 the retaining walls as well as incurring other expenses including but not limited to, costs to repair
23 defective construction work, the costs to repair consequential damages to non-defective property
24 caused by the negligence, the diminished market value of their house, loss of use of the house
25 cost to repair, cost to reconstruct, all payments made to said Defendant, personal injuries to
26 plaintiffs as a result of mold damage, and other damages, the total amount of damages which is
27 unknown at this time, the exact sum of which will be shown according to proof at the time oi|
28 trial. Plaintiffs are also entitled to interest on all such economic damages at the legal rate.
First Amended Complaint - 6
1 THIRD CAUSE OF ACTION
2
(Violation of Business & Professions Code Against Defendant Britschgi)
3 16. Plaintiffs hereby reallege and incorporate by reference all of the allegations set forth
4 in paragraphs 1-15 as set forth above.
5 17. Defendant Britschgi employed workers to assist him in performing work on the
6 Abbotts' property. At all times herein mentioned, defendant Britschgi claimed an exemption
7 form providing workers' compensation insurance based upon his claim that he had no
employees. At all times herein mentioned, Britschgi did not have the skill or the experience
9 necessary to properly perform under his agreement with plaintiffs, and was aware that he lacked]
10 such skill and/or experience.
11 18. Plaintiffs are informed and believe and thereon allege that Britschgi has violated,
12 or may have violated, a number of statutes, including but not limited to, Business & Profession;
13 Code section 7109 for willfully departing from accepted trade standards for good and
14 workmanlike construction; sections 7026, 7028, and 7031 for performing work as a genera
15 contractor while his license was suspended by operation of law; section 7159 for performing
16 work without a valid written contract that complied with that section; section 7110 for failing to
17 comply with workers' compensation laws; and section 7160 for knowingly making false or
18 fraudulent representations to Plaintiffs about his ability to properly perform the services he was
19 required to perform under the contract with Plaintiffs.
20 19. Plaintiffs have been damaged in the sum of at least $13,658.00, as the sums they
21 paid to Britschgi, plus interest thereon at the legal rate of 10% per annum. Plaintiffs are also
22 entitled to a $500 penalty and attorney fees pursuant to Business & Professions Code section
23 7160. Because said Defendant was acting as a contractor within the meaning of Business &
24 Professions Code section 7026 without a valid contractor's license as required by section 7028,
25 Plaintiffs are entitled to treble damages and attorney fees pursuant to Code of Civil Procedure
26 section 1029.8.
27
28
First Amended Complaint - 7
FOURTH CAUSE OF ACTION
(Breach of Written Contract Against Defendant Ruybalid)
20. Plaintiffs hereby reallege and incorporate herein by reference all of the allegations oi
paragraphs 1-6, set forth above.
21. On or about October 25, 2005, Plaintiffs and said Defendant entered into a written
construction contract, a copy of which is attached hereto marked as Exhibit A and incorporate
herein by reference.
22. Said defendant was given a copy of the County-approved plans and specification;
9 for the construction of the residence, as well as subsequently modified plans, which saic
10 Defendant participated in modifying, as well as a copy of the County-approved plans for the
11 construction of the cul-de-sac that was to be constructed according to County specifications in
12 front of the residence. He was so given those plans and specifications for the purpose oi
13 specifically performing his contract.
14 23. Said Defendant breached the contract in question by failing to properly place the
15 foundation for the house and garage at the correct elevations and on such a location on the lot as
16 called for pursuant to certain plans and specifications and as requested by Plaintiffs. Saic
17 Defendants further breached the contract by failing to properly lay, pour, and place the concrete
18 of the house and the garage as called for in the plans and specifications and as called foi
19 according to good and workmanlike standards within the construction industry. The foundation
20 of the house and garage were constructed improperly and not according to the governing
21 building codes and regulations, neither the house nor the garage were built at certain elevations
22 to which they should have been constructed, the house was built on uncompacted anc
23 insufficient soil, the footings were placed on unsuitable soil, insufficient gravel and/or fill was
24 placed under the slab foundation of the house and of the garage, and vapor barriers were not
25 properly installed. The foundation of the house and garage were constructed as such so as to
26 limit Plaintiffs' use and enjoyment of both the house and the garage because said Defendant
27 failed to follow the plans and specifications as given to him, failed to follow the building codes,
28 and failed to follow Plaintiffs' directives. Said Defendant also breached the contract by charging
Plaintiffs more than was specified under the contract; requiring Plaintiffs to directly pay
First Amended Complaint - 8
1 subcontractors and suppliers whom said Defendants were required to pay under the contract; anc
2 by invoicing Plaintiffs for sums that were not due or owing under the contract.
3 24. Plaintiffs have performed all conditions, covenants and promises under the
4 contract with said Defendant to be performed on their part, including but not limited to, the
5 payment of over $53,000.00 to said Defendant.
6 25. As a result of said Defendant's breach of the contract, Plaintiffs have been
7 damaged as more specifically referred to hereinabove, including, but not limited to, costs to
repair defective construction work, the costs to repair consequential damages to non-defective
9 property caused by the breach of said contract, the diminished market value of their house, loss
10 of use of the house, and other expenses including but not limited to, cost to repair, cost to
11 reconstruct, all payments made to said Defendant, payments made to third parties, and other
12 damages, the total amount of damages which is unknown at this time, the exact sum of which
13 will be shown according to proof at the time of trial. Plaintiffs are also entitled to interest on all
14 such economic damages at the legal rate, as well as attorney fees according to proof.
15
16 FIFTH CAUSE OF ACTION
17
(Negligence Against Defendant Ruybalid)
18
26. Plaintiffs hereby reallege and incorporate by reference all of the allegations ol
paragraphs 1 -6 and 21-25, set forth above.
27. Said Defendant had a duty to perform the construction services pursuant to the
terms of the construction contract as called for according to the plans and specifications anc
according to good and workmanlike standards as called for within the construction industry anc
in accordance with accepted standards in the construction industry and the applicable building
codes.
28. At all times herein mentioned, said Defendant knew or should have known that the
construction services he was performing were performed in such a manner so as to result in the
foundation for the house and garage not being constructed in accordance with certain plans anc
specifications, or at certain elevations to which they should have been constructed, as well as the
28
fact that the house was built on uncompacted and insufficient soil, the footings were placed on
Preview
1 STEPHANIE J. FINELLI, SBN 173462 Law Office of Stephanie J. Finelli 2 1007 - 7th Street, Suite 500 Sacramento, CA 95814 ON 2 k PM 3:3 J 3 tel 916-443-2144 fax 916-443-1511 COURTS 4 . #53 #54 Attorney for Plaintiffs, 5 RODNEY and FLORENTINE ABBOTT 6 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SACRAMENTO 9 10 RODNEY ABBOT and FLORENTINE CaseNo.:07AS04450 ABBOTT, tl NOTICE OF MOTION AND MOTION FOR Plaintiffs, LEAVE TO FILE FIRST AMENDED 12 COMPLAINT; DECLARATION OF vs. STEPHANIE J. FINELLI 13 RONALD PAUL BRITSCHGI, et. al. 14 Date: July 20, 2009 Defendants Time: 9:00 a.m. 15 Dept: 54 Trial: 6/7/10 16 and related cross-actions 17 18 NOTICE OF MOTION 19 TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD: 20 NOTICE IS HEREBY GIVEN THAT on July 20, 2009 at 9:00 a.m. or as soon thereafter 21 as the matter may be heard, in Dept. 54 of the above-entitled court, located at 720 Ninth Street, 22 Sacramento, California, 95814, plaintiffs RODNEY ABBOTT and FLORENTINE ABBOTT 23 move the court for leave to file a First Amended Complaint, which is attached hereto and file< 24 herewith. This motion is made under Code of Civil Procedure sections 473(a)(l) and 576 on the 25 grounds that such amendment is in the interests of justice and will allow plaintiffs to bring all i 26 causes of action they may have against all defendants concerning the defective construction oi their home. 27 28 Motion for Leave to Amend Complaint - 1 i This motion is based on this notice, the attached memorandum of points and authorities, 2 the declaration of Stephanie J. Finelli and attached exhibits served and filed herewith, and the 3 pleadings, records and papers on file herein. 4 5 Pursuant to Local Rule 3.04, the court will make a tentative ruling on the merits of this matter by 2:00 p.m. the court day before the hearing. 6 To receive the tentative ruling, call the department in which the matter is 7 to be heard at 916-448-8239 (Dept. 53) or 916-448-8234 (Dept. 54). If you do not call the court and the opposing party by 4:00 p.m. the court 8 day before the hearing, no hearing will be held. 9 10 Dated: June_^\ 2009 11 12 Attorney for Plaintiffs, RODNEY and FLO ABBOTT 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion for Leave to Amend Complaint - 2 1 POINTS AND AUTHORITIES 2 3 I. INTRODUCTION This is a construction defect case arising out of the construction of Plaintiffs' single- 5 family custom home in 2005 to 2006. The complaint in this action was filed in September 2007. 6 At that time, plaintiffs were represented by counsel. Thereafter, they were intermittently in pro per or represented by counsel until November 2008 when present counsel substituted into the 7 case. At that time, the case had a trial date of May 11, 2009. At the time of the substitution, no depositions had been taken, and discovery was limite< to some written discovery requests and an "informal" production of documents by plaintiffs t the defendants. After November 2008, Plaintiffs took the depositions of the defendants, an defendants deposed plaintiffs and certain other witnesses. On March 23, 2009, expert witnesses were disclosed. Prior to that date, plaintiffs' experts, which included a licensed general building contractor and a licensed landscape architect, had inspected the home. Following those inspections and prior to the depositions, the experts began to suspect that uncompacted fill hac been placed under the foundation of the home. This was based upon an evaluation anc comparison of the topography of the land prior to any grading or construction and as it presently stands. 18 On April 9, 2009, Plaintiffs' house was inspected by a structural engineer as part of an insurance claim. This engineer opined, among other things, that the soil under the house anc garage slabs was not properly compacted. This report was prepared on April 18, 2009 anc provided to Plaintiffs' counsel on May 19, 2009. On April 15, 2009, defendants' experts conducted an on-site inspection of plaintiffs' 24 home. At his April 27, 2009 deposition, James "Robert" Lee testified that he believed there was! uncompacted soil and fill under the house and garage, and that serious structural problems could 26 result therefrom. Mark Smith had performed the grading of the lot, and CTE Construction Testing and Engineering had certified to the County that the soil under the garage was sufficient. 28 However, neither of these parties had been named in the complaint. Motion for Leave to Amend Complaint - 3 The trial was set for May 11, 2009. Due to the lack of available courtrooms, the case was assigned to the Honorable Brian Van Camp. Following a meeting with the judge, trial of this matter was set for a date certain: June 7, 2010. Because plaintiffs have recently discovered additional defects with the home, and that additional defendants may be liable for these defects, they seek to amend the complaint to allege these additional defects, as well as the two additional defendants. Plaintiffs also seek to adc causes of action for violations of certain statutes in the Business & Professions Code based upon information they obtained in the 2009 depositions of defendants. 9 10 II. LEGAL ARGUMENT 11 A. THE AMENDED COMPLAINT SHOULD BE ALLOWED IN THE INTERESTS 12 OF JUSTICE 13 Code of Civil Procedure section 473 provides as follows: 14 The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the 15 name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse 17 party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be 18 made after the time limited by this code. 19 (Code Civ.Proc. §473(a)(l) It is judicial policy to resolve disputes between parties on their merits, and to allow for the amendment of pleadings to put all such disputes at issue at the time of trial. (California 22 Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 278.) 23 24 While a motion to permit an amendment to a pleading to be filed is one addressed 25 to the discretion of the court, the exercise of this discretion must be sound and reasonable and not arbitrary or capricious. [Citations.] And it is a rare case in 26 which "a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case." [Citations.] If the motion to amend is 27 timely made and the granting of the motion will not prejudice the opposing party, 28 it is error to refuse permission to amend and where the refusal also results in a Motion for Leave to Amend Complaint - 4 party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion. (California Casualty, supra at p. 278.) 4 Here, plaintiffs have recently determined that their house has additional defects (to wit, uncompacted soil and structural problems arising therefrom) and that additional parties may be liable (to wit, Mark Smith and CTE Construction Testing and Engineering), the should be permitted to amend the complaint in the interests of justice. It makes no sense to require plaintiffs to name these additional parties in a separate lawsuit. Moreover, since plaintiffs have 9 only recently discovered that defendants violated certain Business & Professions Codes, the complaint should be amended to include these additional allegations. Defendants will not be prejudiced by this amendment. Trial of this matter is set for June 12 7, 2010—almost one year from now. Additionally, plaintiffs are moving for leave to reopen discovery. Defendants will have ample opportunity to discover the legal and factual bases foi 14 plaintiffs' claims prior to trial. It is plaintiffs who will be prejudiced if this amendment is no 15 permitted. 16 17 III. CONCLUSION 18 In the interests of justice, this Court should grant leave to file the first amended 19 complaint, so that plaintiffs may adjudicate all matter arising out of and relating to the defective 20 construction of their home. 21 22 Dated: June , 2009 By: 23 Stephanie JTFinelli Attorney for Plaintiffs 24 25 26 27 28 Motion for Leave to Amend Complaint - 5 1 DECLARATION OF STEPHANIE J. FINELLI 2 I, Stephanie J. Finelli, hereby declare under penalty of perjury, and if called as a witness, 3 would and competently testify as follows: 4 1. I am an attorney, duly licensed to practice in the State of California. I represent 5 plaintiffs herein. 6 2. Attached hereto is a proposed first amended complaint in this action. 7 3. On June 22, 2009,1 faxed a copy of a first amended complaint to Craig Lundgren, attorney for defendant Britschgi, and Gregory Federico, attorney for defendant CA Construction, and asked if they would stipulate to allowing me to file it. On June 24, 2009, I emailed the current version, which contained some minor changes. I have not had a response from eithei attorney, although I note that Craig Lundgren is unavailable this week 4. Given that trial is not for almost another whole year, and that plaintiffs have recently discovered additional defects to their home and that additional defendants may be liable, it is imperative that plaintiffs be allowed to file the First Amended Complaint. 5. The effect of this amended complaint is to add factual and legal allegations to the 16 causes of action for breach of contract and negligence against existing defendants Britschgi anc 17 CA Construction; add allegations of violations of Business & Professions Code sections agains 18 each of them; and state a cause of action for negligence against new defendants Mark Smith anc 19 CTE Construction & Testing. These amendments are necessary and proper because plaintiffs 20 have recently discovered that their home may have far more defects—including structural defects 21 cause by it having been constructed on improper soil—than they had originally believed. 22 6. I substituted in as Plaintiffs' attorney of record on November 17, 2008. At that 23 time, no depositions had been taken, and discovery was limited to some written discovery 24 requests and an "informal" production of documents by plaintiffs to the defendants. Meaningful^ 25 discovery did not really begin on this case until December 2008, when the first day of Florentine 26 Abbott's deposition was taken. In January and February 2009, I took defendants' depositions, 27 and defendants deposed plaintiffs and certain other witnesses. On March 23, 2009, expert 28 witnesses were disclosed. Shortly before then, plaintiffs' experts, including a licensed general Motion for Leave to Amend Complaint - 6 building contractor and a licensed landscape architect, had inspected the home. Following those 2 inspections and prior to the depositions, the experts began to suspect that uncompacted fill hac 3 been placed under the foundation of the home. This was based upon an evaluation am 4 comparison of the topography of the land prior to any grading or construction and as it presently 5 stands. 6 7. On April 9, 2009, Plaintiffs' house was inspected by a structural engineer as part 7 of an insurance claim. This engineer opined, among other things, that the soil under the house and garage slabs was not properly compacted. This report was prepared on April 18, 2009. The 9 Abbotts obtained a copy of that report on or about May 19, 2009 and immediately forwarded it to 10 me, and I immediately forwarded a copy to all defendants via email. 11 8. On April 15, 2009, less than one month from the trial date, defendants' experts 12 conducted an on-site inspection of plaintiffs' home. 13 9. At his April 27, 2009 deposition, James "Robert" Lee testified that he believec 14 there was uncompacted soil and fill under the house and garage, and that serious structura 15 problems could result therefrom. 16 10. The trial was set for May 11, 2009. Due to the lack of available courtrooms, the 17 case was assigned to the Honorable Brian Van Camp. Following a meeting with the judge, trial] 18 of this matter was set for a date certain: June 7,2010. 19 11. Other than immaterial grammatical changes, renumbering of paragraphs, anc 20 abbreviations for the names of the defendants, it differs from the original complaint in the 21 following particulars: 22 a. It removes Paragraphs IV and V which named Surety Company of the Pacific and Western Surety Company as Defendants. b. It adds Paragraph 4, which substitutes Mark Smith for Doe Defendant 1, and Paragraph 5, which substitutes CTE Construction & Testing for Doe Defendant 2. 25 c. Paragraph 8 substitutes the name "Fair Oaks" for "Sacramento" at line 21. 26 d. It removes the allegations beginning with "During the course ofl 27 construction" and ending with "plans and specifications" at page 4 lines 11-14 of the original 28 complaint. Motion for Leave to Amend Complaint - 7 i e. It adds to Paragraph 11 (Paragraph V of the first cause of action in the 2 original complaint the following: to page 4, lines 24-28: "as well as the fact that the lot was 3 improperly graded, the house was built on uncompacted and insufficient soil the footings were 4 placed on unsuitable soil, insufficient gravel and/or fill was placed under the slab foundation oi 5 the house and of the garage, vapor barriers were not properly installed, and the walls of the garage were taller than were engineered under the plans;" to page 5 line 1: "and the other 6 aforementioned damages were"; to page 5 lines 5-9: "the rendering of the property an attractive nuisance, improper settling of the house, resulting in damage to the walls, cracking of the concrete, the stucco, and other damage to the interior and exterior of the house, potential mol 9 damage, instability of the structure due to it sitting on uncompacted soil; instability of the garage 10 walls, stucco is not properly adhering to the retaining wall, and the walls of the garage are tallei 11 than were engineered under the plans;" to page 5 lines 11-13: "costs to repair defective 12 construction work, the costs to repair consequential damages to non-defective property caused by 13 the breach of said contract, the diminished market value of their house, loss of use of the house,'' 14 page 5 lines 13-14: "all payments made to said Defendant;" and page 5 lines 15-16: "Plaintiffs 15 are also entitled to interest on all such economic damages at the legal rate." f. Paragraph 12 changes paragraph I to the second cause of action in the 16 original complaint to reallege "paragraphs 1-11 as set forth above." 17 g. Paragraph 13 adds the phrase "and the applicable building codes" to what 18 was Paragraph II to the second cause of action in the original complaint. 19 h. It adds to Paragraph 15 (Paragraph IV of the second cause of action in the 20 original complaint the following: at page 6, lines 8-12: "as well as the fact that the lot was 21 improperly graded, the house was built on uncompacted and insufficient soil, insufficient graved 22 fill was placed under the slab foundation of the house and of the garage, stucco is not properly 23 adhering to the retaining wall, and the walls of the garage were taller than were engineered under 24 the plans;" to page 6 line 13: "and the other aforementioned damages were"; to page 6 lines 17- 25 21: "the rendering of the property an attractive nuisance, improper settling of the house, resulting in damage to the walls, cracking of the concrete, the stucco, and other damage to the interior anc 26 exterior of the house, potential mold damage to the interior of the home, instability of the 27 structure due to it sitting on uncompacted soil; instability of the garage walls; stucco is not 28 properly adhering to the retaining wall, and the walls of the garage are taller than were Motion for Leave to Amend Complaint - 8 engineered under the plans," to page 6 lines 22-26: "costs to repair defective construction work, 2 the costs to repair consequential damages to non-defective property caused by the breach of said 3 contract, the diminished market value of their house, loss of use of the house ... all payments 4 made to said Defendant, personal injuries to plaintiffs as a result of mold damage;" to page 6 line 28: "Plaintiffs are also entitled to interest on all such economic damages at the legal rate." i. The first amended complaint adds a claim for violation of Business & 6 Professions Code against Bristchgi, which is the Third Cause of action and which appears at 7 pages 7, lines 1 to 26 of the first amended complaint. j. Paragraph 20 changes paragraph I to the third cause of action in the 9 original complaint to reallege "paragraphs 1-6, set forth above." 10 k. Paragraph 22 changes paragraph III to the third cause of action in the 11 original complaint to add "County-approved" before the word "plans;" and to add "as well as 12 subsequently modified plans, which said Defendant participated in modifying, as well as a copy 13 of the County-approved plans for the construction of the cul-de-sac that was to be constructed 14 according to County specifications in front of the residence;" and to remove everything after 15 "specifically performing his part of the contract." 1. Paragraph 23 changes paragraph IV to the third cause of action in the 16 original complaint to add "at the correct elevations" to the first sentence; and to change the 17 beginning of the second sentence to state, "Said Defendants further breached the contract by 18 failing ..." and to add, "The foundation of the house and garage were constructed improperly 19 and not according to the governing building codes and regulations, neither the house nor the 20 garage were built at certain elevations to which they should have been constructed, the house 21 was built on uncompacted and insufficient soil, the footings were placed on unsuitable soil, 22 insufficient gravel and/or fill was placed under the slab foundation of the house and of the 23 garage, and vapor barriers were not properly installed," and to substitute the portion of the last 24 sentence beginning with "failed to perform . . ." with "failed to follow the plans and] 25 specifications as given to him, failed to follow the building codes, and failed to follow Plaintiffs' directives. Said Defendant also breached the contract by charging Plaintiffs more than was 26 specified under the contract; requiring Plaintiffs to directly pay subcontractors and suppliers 27 whom said Defendants were required to pay under the contract; and by invoicing Plaintiffs foi 28 sums that were not due or owing under the contract." Motion for Leave to Amend Complaint - 9 m. Paragraph 24 fully replaces paragraph V to the third cause of action in the original complaint. n. Paragraph 25 changes paragraph VI to the third cause of action in the original complaint to add "other expenses including but not limited to, cost to repair, cost to reconstruct, all payments made to said Defendant, payments made to third parties, and other damages, the total amount of damages which is unknown at this time, the exact sum of which . .] ." as well as, "Plaintiffs are also entitled to interest on all such economic damages at the lega rate, as well as attorney fees according to proof." o. Paragraph 26 changes paragraph I to the fourth cause of action in the g original complaint to reallege "paragraphs 1-6 and 21-25, set forth above." 10 p. Paragraph 27 changes paragraph II to the fourth cause of action in the n original complaint to add "and in accordance with accepted standards in the construction 12 industry and the applicable building codes." 13 q. Paragraph 28 changes paragraph III to the fourth cause of action in the 14 original complaint to add to the first sentence, "or at certain elevations to which they should have 15 been constructed, as well as the fact that the house was built on uncompacted and insufficient soil, the footings were placed on unsuitable soil, insufficient gravel was placed under the slab 16 foundation of the house and of the garage and vapor barriers were not properly installed, thus 17 potentially causing mold damage to the interior of the home," and to add to the second sentence, 18 "as originally drafted and as later modified and not in good and workmanlike manner, and in 19 violation of building codes and regulations, and in a manner so as to render the house structurally 20 unstable." 21 r. Paragraph 29 changes paragraph IV to the fourth cause of action in the 22 original complaint to add, "including the fact that Plaintiffs cannot use the garage for its intendec 23 purposes, drainage damage, the necessity of using stairs to the house and additional stairs to the 24 garage, potential mold damage to the interior of the home, instability of the structure due to iti 25 sitting on uncompacted and/or unsuitable soil" and to add, "all payments made to said Defendant, personal injuries to plaintiffs and their family members as a result of mold damage,'] 26 and to add as the last sentence, "Plaintiffs are also entitled to interest on all such economic 27 damages at the legal rate." 28 Motion for Leave to Amend Complaint -10 s. The first amended complaint adds a claim for violation of Business & Professions Code against Ruybalid, which is the Sixth Cause of action and which appears al pages 10 to 11 of the first amended complaint. t. The first amended complaint adds a claim for negligence against Defendant Mark Smith, which is the Seventh Cause of action and which appears at pages 11 to 13 of the first amended complaint. u. The first amended complaint adds a claim for negligence against Defendant CTE, which is the Eighth Cause of action and which appears at pages 13 to 14 of the first amended complaint. v. The first amended complaint omits the fifth and sixth causes of action in 10 that original complaint. 11 w. The first amended complaint sets forth in the "Prayer" portion the 12 damages sought on each individual cause of action. 13 12. These amendments are necessary and proper in that the evidence discoverec 14 shortly before the may 11, 2009 trial date (which is now set for June 7, 2010) shows thai 15 Plaintiffs' house has additional defects that are not necessarily alleged in the original complaint; that defendants violated certain Business & Professions Codes, and that certain other parties may 16 be liable to plaintiffs. 17 I declare under penalty of perjury under the laws of the State of California that the 18 foregoing is true and correct. 19 20 Dated: June^, 2009 By: 21 Stephanie J. Finelli 22 23 24 25 26 27 28 Motion for Leave to Amend Complaint - 11 1 STEPHANIE J. FINELLI, SEN 173462 Law Office of Stephanie J. Finelli 2 1007 - 7th Street, Suite 500 Sacramento, CA 95814 3 tel 916-443-2144 fax 916-443-1511 4 Attorney for Plaintiffs, 5 RODNEY ABBOTT and FLORENTINE ABBOTT 6 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SACRAMENTO 9 10 RODNEY ABBOTT and FLORENTINEJCaseNo.: 07AS04450 ABBOTT, 11 FIRST AMENDED COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT 12 Plaintiffs, NEGLIGENCE, AND VIOLATIONS OF BUSINESS & PROFESSIONS CODE 13 vs. 14 RONALD PAUL BRITSCHGI, individually and doing business as BRITSCHGI 15 CONSTRUCTION; RICHARD KIRK RUYBALID, individually and doing business as CA CONSTRUCTION; MARK SMITH, 17 individually and doing business a: GROUNDBREAKERS; CONSTRUCTION) 18 TESTING & ENGINNERING, INC.; anc 19 DOES 3 through 20, inclusive, 20 Defendants 21 22 and related cross-actions 23 24 Plaintiffs allege: 25 GENERAL ALLEGATIONS 26 1. At all times herein mentioned, Plaintiffs RODNEY ABBOTT and FLORENTINE 27 ABBOTT were owners of that parcel of real property located in the County of Sacramento, State 28 First Amended Complaint -1 1 of California, and more particularly described as 8601 Rolling Green Way, Fair Oaks, California 2 95628. 3 2. Plaintiffs are informed and believe and upon such information and upon such 4 information and belief allege that at all times herein mentioned, Defendant RONALD PAUL 5 BRITSCHGI (hereinafter "BRITSCHGI"), is an individual doing business under that firm name 6 and style of BRITSCHGI CONSTRUCTION, and at all times herein mentioned, was and is 7 doing business in the County of Sacramento, State of California. Defendant BRITSCHGI was 8 duly licensed by the Contractor's State License Board of the State of California to conduct 9 business as a general building contractor within the State of California and to engage in the work 10 hereinafter described. 11 3. Plaintiffs are informed and believe and upon such information and upon such 12 information and belief allege that at all times herein mentioned, Defendant RICHARD KIRK 13 RUYBALID (hereinafter "RUYBALID") is an individual doing business under the firm name 14 and style of CA CONSTRUCTION and at all times herein mentioned did business in the City oi 15 Fair Oaks, County of Sacramento, State of California. Defendant RUYBALID was duly licensee 16 by the Contractor's State License Board of the State of California to conduct business as a 17 general building contractor within the State of California and to engage in the work hereinafter 18 described. 19 4. Plaintiffs are informed and believe and upon such information and upon such 20 information and belief allege that at all times herein mentioned, Defendant MARK SMITH 21 (hereinafter "SMITH") is an individual doing business as "Groundbreakers." Plaintiffs are 22 informed and believe that at the time relevant to this complaint, said Defendant was a licensee 23 general building contractor, but did not have a specialty contractor's license to perform 24 earthwork or grading. Said defendant is hereby substituted in place of DOE 1 in the origina 25 complaint. I 26 5. Plaintiffs are informed and believe and upon such information and upon such! 27 information and belief allege that at all times herein mentioned, Defendant CONSTRUCTION 28 TESTING & ENGINNERING, INC (hereinafter "CTE") is a corporation and at all times herein First Amended Complaint - 2 1 mentioned did business in the County of Sacramento, State of California. Said defendant is 2 hereby substituted in place of DOE 2 in the original complaint. 3 6. Plaintiffs are ignorant of the true names and capacities of the Defendants suec 4 herein as DOES 3 through 20, inclusive, and therefore sues these Defendants by such fictitious 5 names. Plaintiffs will amend this Complaint to allege their true names and capacities wher 6 ascertained. Plaintiffs are informed and believe that each of these Defendants is an agent anc 7 employee of each and every other Defendant named or to be named in the above-entitled action] and that each such DOE Defendant proximately caused Plaintiffs damages as herein allegec 9 while acting in such capacity. Plaintiffs are further informed and believe, and upon such 10 information and belief, allege that each of the DOE Defendants were somehow negligent and/or 11 at fault with respect to the work done on Plaintiffs' real property as more specifically referred to 12 herein and that said Doe Defendants somehow proximately caused the damages of which 13 Plaintiffs complain. 14 15 FIRST CAUSE OF ACTION (Breach of Oral Contract Against Defendant Britschgi) 16 7. Plaintiffs5 hereby realleg reallege and incorporate by reference all of the allegations set forth in paragraphs 1-6 as set forth above. 18 8. On or about October 1, 2005, Plaintiffs and Defendant BRITSCHGI entered an ora contract in which said defendant agreed to help the plaintiffs build their personal residence which is located in Fair Oaks, as more specifically described hereinabove. Said defendant, as a general contractor, agreed to assist plaintiffs in the construction of their personal residence to the extent ! that said Defendant would assist, guide, and direct Plaintiffs and other contractors with respect to certain stages of construction, namely the location for placement of the house on the lot, grading of the lot for the purposes of construction, the pouring of concrete for the house and garage for foundational purposes, with emphasis on proper elevation of that foundation as that foundation 26 related to where the house and garage would sit on the lot in relation to the elevation of the street and proposed streets in front of the lot, as well as the framing of the house, in addition to 28 miscellaneous other duties. These miscellaneous other duties included the supervision of the First Amended Complaint - 3 1 work done by other contractors working on the construction of the house. For these services, 2 Plaintiffs paid said Defendant the sum of approximately $13,658,00, the exact sum of which will] 3 be shown according to proof at the time of trial. Said defendant agreed to perform his duties sc 4 as to make sure that the house was constructed according to certain plans and specifications 5 given to said Defendant by Plaintiffs at the time he agreed to work with Plaintiffs as a genera 6 contractor assisting them in the construction of their personal residence. Said Defendant further 7 agreed to use his care and skill as a general contractor with respect to not only the work that he was doing personally towards the construction of the residence, but also he agreed to use his care 9 and skill as a general contractor to supervise the work done by other subcontractors and to assure 10 that all such work was done in a good and workmanlike fashion, and done according to the 11 standards of construction within the construction industry, and according to certain plans anc 12 specifications. These oral agreements were entered into by and between Plaintiffs and saic 13 Defendant in a series of oral discussion which took place beginning on or about October 1, 2005. 14 9. Plaintiffs have performed all conditions, covenants and promises under the 15 contract with said Defendant to be performed on their part, including but not limited to, the 16 payment of $13,658.00 to said Defendant. 17 10. On or about September 15, 2006, Plaintiffs discovered that said Defendant 18 breached the contract with them by failing to properly supervise the work performed by other 19 contractors and to assure that the work was done adequately, diligently, and in a good anc 20 workmanlike fashion and according to certain plans and specifications. 21 11. As a result of said Defendant breaching the contract, plaintiffs have sufferec 22 certain damages in that Plaintiffs' house and garage were defectively constructed and no1 23 according to plans and specifications. Those damages include the fact that neither the house not 24 the garage were built at certain elevations to which they should have been constructed, as well as 25 the fact that the lot was improperly graded, the house was built on uncompacted and insufficient 26 soil, the footings were placed on unsuitable soil, insufficient gravel and/or fill was placed undeij 27 the slab foundation of the house and of the garage, vapor barriers were not properly installed, anc 28 the walls of the garage were taller than were engineered under the plans. The incorrect placing First Amended Complaint - 4 1 of the house and garage on the lot at certain levels and the other aforementioned damages were 2 not according to plans and specifications thus resulting in certain damage to the house anc I 3 garage and surrounding property, including drainage damage, the necessity of using stairs to the 4 house and stairs to the garage, the inability to use the garage for the purposes for which it was 5 intended, the rendering of the property an attractive nuisance, improper settling of the house, 6 resulting in damage to the walls, cracking of the concrete, the stucco, and other damage to the 7 interior and exterior of the house, potential mold damage, instability of the structure due to it sitting on uncompacted soil, instability of the garage walls, stucco is not properly adhering to the 9 retaining wall, and the walls of the garage are taller than were engineered under the plans, and 10 damages to the retaining walls as well as incurring other expenses including but not limited to 11 costs to repair defective construction work, the costs to repair consequential damages to non-r ! 12 defective property caused by the breach of said contract, the diminished market value of their 13 house, loss of use of the house, cost to repair, cost to reconstruct, all payments made to saic 14 Defendant, and other damages, the total amount of damages which is unknown at this time, the 15 exact sum of which will be shown according to proof at the time of trial. Plaintiffs are also 16 entitled to interest on all such economic damages at the legal rate. 17 18 SECOND CAUSE OF ACTION (Negligence as to Defendant Britschgi) 19 12. Plaintiffs hereby reallege and incorporate by reference all of the allegations set] forth in paragraphs 1-11 as set forth above. 13. Said Defendant had a duty to perform his construction services and other services in good and workmanlike manner and in accordance with accepted standards in the construction industry and the applicable building codes and in accordance with certain plans anc specifications as given to him by Plaintiffs. 14. In performing the services as referenced herinabove, said Defendant actec 26 negligently in the performance of those services. The negligence manifested itself in certain ways, including but not limited to, the fact that the house and the garage were not constructed in 28 a good and workmanlike fashion or according to accepted standards in the construction industry. First Amended Complaint - 5 1 Further, the house and the garage were not constructed according to certain plans anc 2 specifications or in the manner as requested by Plaintiffs. Said defendant was further negligent 3 in his duties in not properly supervising the work done by other contractors, which supervision 4 he promised Plaintiffs he would perform. 5 15. As a result of the negligence of said Defendant, Plaintiffs have suffered certain 6 damages in that Plaintiffs' house and garage were defectively constructed and not according to 7 plans and specifications. Those damages include the fact that neither the house nor the garage were built at certain elevations to which they should have been constructed, as well as the fact 9 that the lot was improperly graded, the house was built on uncompacted and insufficient soil, the 10 footings were placed on unsuitable soil, insufficient gravel and/or fill was placed under the slab 11 foundation of the house and of the garage, vapor barriers were not properly installed, and the 12 walls of the garage were taller than were engineered under the plans. The incorrect placing o: 13 the house and garage on the lot at certain levels and the other aforementioned damages were no 14 according to plans and specifications thus resulting in certain damage to the house and garage 15 and surrounding property, including drainage damage, the necessity of using stairs to the house 16 and stairs to the garage, the inability to use the garage for the purposes for which it was intended 17 the rendering of the property an attractive nuisance, improper settling of the house, resulting in 18 damage to the walls, cracking of the concrete, the stucco, and other damage to the interior anc 19 exterior of the house, potential mold damage, instability of the structure due to it sitting on 20 uncompacted soil, instability of the garage walls, stucco is not properly adhering to the retaining 21 wall, and the walls of the garage are taller than were engineered under the plans, and damages to 22 the retaining walls as well as incurring other expenses including but not limited to, costs to repair 23 defective construction work, the costs to repair consequential damages to non-defective property 24 caused by the negligence, the diminished market value of their house, loss of use of the house 25 cost to repair, cost to reconstruct, all payments made to said Defendant, personal injuries to 26 plaintiffs as a result of mold damage, and other damages, the total amount of damages which is 27 unknown at this time, the exact sum of which will be shown according to proof at the time oi| 28 trial. Plaintiffs are also entitled to interest on all such economic damages at the legal rate. First Amended Complaint - 6 1 THIRD CAUSE OF ACTION 2 (Violation of Business & Professions Code Against Defendant Britschgi) 3 16. Plaintiffs hereby reallege and incorporate by reference all of the allegations set forth 4 in paragraphs 1-15 as set forth above. 5 17. Defendant Britschgi employed workers to assist him in performing work on the 6 Abbotts' property. At all times herein mentioned, defendant Britschgi claimed an exemption 7 form providing workers' compensation insurance based upon his claim that he had no employees. At all times herein mentioned, Britschgi did not have the skill or the experience 9 necessary to properly perform under his agreement with plaintiffs, and was aware that he lacked] 10 such skill and/or experience. 11 18. Plaintiffs are informed and believe and thereon allege that Britschgi has violated, 12 or may have violated, a number of statutes, including but not limited to, Business & Profession; 13 Code section 7109 for willfully departing from accepted trade standards for good and 14 workmanlike construction; sections 7026, 7028, and 7031 for performing work as a genera 15 contractor while his license was suspended by operation of law; section 7159 for performing 16 work without a valid written contract that complied with that section; section 7110 for failing to 17 comply with workers' compensation laws; and section 7160 for knowingly making false or 18 fraudulent representations to Plaintiffs about his ability to properly perform the services he was 19 required to perform under the contract with Plaintiffs. 20 19. Plaintiffs have been damaged in the sum of at least $13,658.00, as the sums they 21 paid to Britschgi, plus interest thereon at the legal rate of 10% per annum. Plaintiffs are also 22 entitled to a $500 penalty and attorney fees pursuant to Business & Professions Code section 23 7160. Because said Defendant was acting as a contractor within the meaning of Business & 24 Professions Code section 7026 without a valid contractor's license as required by section 7028, 25 Plaintiffs are entitled to treble damages and attorney fees pursuant to Code of Civil Procedure 26 section 1029.8. 27 28 First Amended Complaint - 7 FOURTH CAUSE OF ACTION (Breach of Written Contract Against Defendant Ruybalid) 20. Plaintiffs hereby reallege and incorporate herein by reference all of the allegations oi paragraphs 1-6, set forth above. 21. On or about October 25, 2005, Plaintiffs and said Defendant entered into a written construction contract, a copy of which is attached hereto marked as Exhibit A and incorporate herein by reference. 22. Said defendant was given a copy of the County-approved plans and specification; 9 for the construction of the residence, as well as subsequently modified plans, which saic 10 Defendant participated in modifying, as well as a copy of the County-approved plans for the 11 construction of the cul-de-sac that was to be constructed according to County specifications in 12 front of the residence. He was so given those plans and specifications for the purpose oi 13 specifically performing his contract. 14 23. Said Defendant breached the contract in question by failing to properly place the 15 foundation for the house and garage at the correct elevations and on such a location on the lot as 16 called for pursuant to certain plans and specifications and as requested by Plaintiffs. Saic 17 Defendants further breached the contract by failing to properly lay, pour, and place the concrete 18 of the house and the garage as called for in the plans and specifications and as called foi 19 according to good and workmanlike standards within the construction industry. The foundation 20 of the house and garage were constructed improperly and not according to the governing 21 building codes and regulations, neither the house nor the garage were built at certain elevations 22 to which they should have been constructed, the house was built on uncompacted anc 23 insufficient soil, the footings were placed on unsuitable soil, insufficient gravel and/or fill was 24 placed under the slab foundation of the house and of the garage, and vapor barriers were not 25 properly installed. The foundation of the house and garage were constructed as such so as to 26 limit Plaintiffs' use and enjoyment of both the house and the garage because said Defendant 27 failed to follow the plans and specifications as given to him, failed to follow the building codes, 28 and failed to follow Plaintiffs' directives. Said Defendant also breached the contract by charging Plaintiffs more than was specified under the contract; requiring Plaintiffs to directly pay First Amended Complaint - 8 1 subcontractors and suppliers whom said Defendants were required to pay under the contract; anc 2 by invoicing Plaintiffs for sums that were not due or owing under the contract. 3 24. Plaintiffs have performed all conditions, covenants and promises under the 4 contract with said Defendant to be performed on their part, including but not limited to, the 5 payment of over $53,000.00 to said Defendant. 6 25. As a result of said Defendant's breach of the contract, Plaintiffs have been 7 damaged as more specifically referred to hereinabove, including, but not limited to, costs to repair defective construction work, the costs to repair consequential damages to non-defective 9 property caused by the breach of said contract, the diminished market value of their house, loss 10 of use of the house, and other expenses including but not limited to, cost to repair, cost to 11 reconstruct, all payments made to said Defendant, payments made to third parties, and other 12 damages, the total amount of damages which is unknown at this time, the exact sum of which 13 will be shown according to proof at the time of trial. Plaintiffs are also entitled to interest on all 14 such economic damages at the legal rate, as well as attorney fees according to proof. 15 16 FIFTH CAUSE OF ACTION 17 (Negligence Against Defendant Ruybalid) 18 26. Plaintiffs hereby reallege and incorporate by reference all of the allegations ol paragraphs 1 -6 and 21-25, set forth above. 27. Said Defendant had a duty to perform the construction services pursuant to the terms of the construction contract as called for according to the plans and specifications anc according to good and workmanlike standards as called for within the construction industry anc in accordance with accepted standards in the construction industry and the applicable building codes. 28. At all times herein mentioned, said Defendant knew or should have known that the construction services he was performing were performed in such a manner so as to result in the foundation for the house and garage not being constructed in accordance with certain plans anc specifications, or at certain elevations to which they should have been constructed, as well as the 28 fact that the house was built on uncompacted and insufficient soil, the footings were placed on