On September 24, 2007 a
Order
was filed
involving a dispute between
and
for (Breach of Contract/Warranty)
in the District Court of Sacramento County.
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SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SACRAMENTO
GORDON D SCHABER COURTHOUSE
MINUTE ORDER
Date: 11/20/2009 Time: 02:00:00 PM Dept: 53
Judicial Officer Presiding: Loren McMaster
Clerk: J. Hart
Reporter/ERM:
Bailiff/Court Attendant: A. Hughey
Case No: 07AS04450 Case Init. Date: 09/24/2007
Case Title: RODNEY ABBOTT. ET AL VS. RONALD PAUL BRITSCHGI. ET AL
Case Category: Civil - Unlimited
EVENT ID/DOCUMENT ID: 1301977
EVENT TYPE: Hearing on Demurrer - Civil Law and Motion - Demurrer/JOP
APPEARANCES
Nature of Proceeding: Hearing on Demurrer (Ronald Paul Britsschgi)
TENTATIVE RULING
Defendant Britsschgi's Demurrer to the 1st Amended Complaint is overruled.
Defendant's Request for Judicial Notice re Certificate of Records from the Contractor's State Licensing
Board is granted.
Plaintiffs seek damages from the general contractor who constructed their home. Plaintiffs allege causes
of action for negligence, breach of contract, and numerous Business & Professions Code sections.
Defendant has demurred to the claim for declaratory reliefon the ground for failure to state facts
sufficient to state a cause of action and for uncertainty.
3rd Cause of action for Declaratory Relief : Sustained with leave to amend for uncertainty. Defendant
contends this claim is defective because it contains a hodgepodge of allegations based on a number of
statutes that defendant "has violated or may have violated," and it is not clear what relief plaintiffs are
seeking. As to the claim that defendant violated B&P section 7110, regarding workers compensation,
defendant contends there is no private right of action, and that the statute forms a framework for the
Contractor State Licensing Board to conduct disciplinary proceedings.
In the Reply, Defendant concedes that the general demurrer should be overruled based on his
erroneous belief that there was no statute that requires that a contractor lose his contractor's license if
the employer does not provide workers compensation coverage to employees. Defendant maintains the
claims are still uncertain as to what other violations were committed. The Court finds that the allegations
are uncertain as to "as violated or may have violated." However, the allegations of fraud in the 6th cause
Date: 11/20/2009 MINUTE ORDER Page: 1
Dept: 53 Calendar No.:
Case Title: RODNEY ABBOTT. ET AL VS. RONALD Case No: 07AS04450
PAUL BRITSCHGI. ET AL
of action are sufficient because this is not a claim for common law fraud, but rather one under the B&P
code, which does not require the same specificity.
Motion to Strike
Granted as to Item 2, with leave to amend, and Item 4, without leave to amend, on the ground this is not
a home improvement contract.
Denied as to Items 6 and 8. The B&P code does not require fraud to be pleaded with the same
specificity as a common law fraud claim.
Plaintiffs to file and serve a 2nd amended complaint on or before November 30, 2009. Response to be
filed and served within 10 days of service of the amended complaint, 15 days if served by mail.
The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further
notice is required.
COURT RULING
There being no request for oral argument, the Court affirmed the tentative ruling.
Date: 11/20/2009 MINUTE ORDER Page: 2
Dept: 53 Calendar No.:
Document Filed Date
November 20, 2009
Case Filing Date
September 24, 2007
Category
(Breach of Contract/Warranty)
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO GORDON D SCHABER COURTHOUSE MINUTE ORDER Date: 11/20/2009 Time: 02:00:00 PM Dept: 53 Judicial Officer Presiding: Loren McMaster Clerk: J. Hart Reporter/ERM: Bailiff/Court Attendant: A. Hughey Case No: 07AS04450 Case Init. Date: 09/24/2007 Case Title: RODNEY ABBOTT. ET AL VS. RONALD PAUL BRITSCHGI. ET AL Case Category: Civil - Unlimited EVENT ID/DOCUMENT ID: 1301977 EVENT TYPE: Hearing on Demurrer - Civil Law and Motion - Demurrer/JOP APPEARANCES Nature of Proceeding: Hearing on Demurrer (Ronald Paul Britsschgi) TENTATIVE RULING Defendant Britsschgi's Demurrer to the 1st Amended Complaint is overruled. Defendant's Request for Judicial Notice re Certificate of Records from the Contractor's State Licensing Board is granted. Plaintiffs seek damages from the general contractor who constructed their home. Plaintiffs allege causes of action for negligence, breach of contract, and numerous Business & Professions Code sections. Defendant has demurred to the claim for declaratory reliefon the ground for failure to state facts sufficient to state a cause of action and for uncertainty. 3rd Cause of action for Declaratory Relief : Sustained with leave to amend for uncertainty. Defendant contends this claim is defective because it contains a hodgepodge of allegations based on a number of statutes that defendant "has violated or may have violated," and it is not clear what relief plaintiffs are seeking. As to the claim that defendant violated B&P section 7110, regarding workers compensation, defendant contends there is no private right of action, and that the statute forms a framework for the Contractor State Licensing Board to conduct disciplinary proceedings. In the Reply, Defendant concedes that the general demurrer should be overruled based on his erroneous belief that there was no statute that requires that a contractor lose his contractor's license if the employer does not provide workers compensation coverage to employees. Defendant maintains the claims are still uncertain as to what other violations were committed. The Court finds that the allegations are uncertain as to "as violated or may have violated." However, the allegations of fraud in the 6th cause Date: 11/20/2009 MINUTE ORDER Page: 1 Dept: 53 Calendar No.: Case Title: RODNEY ABBOTT. ET AL VS. RONALD Case No: 07AS04450 PAUL BRITSCHGI. ET AL of action are sufficient because this is not a claim for common law fraud, but rather one under the B&P code, which does not require the same specificity. Motion to Strike Granted as to Item 2, with leave to amend, and Item 4, without leave to amend, on the ground this is not a home improvement contract. Denied as to Items 6 and 8. The B&P code does not require fraud to be pleaded with the same specificity as a common law fraud claim. Plaintiffs to file and serve a 2nd amended complaint on or before November 30, 2009. Response to be filed and served within 10 days of service of the amended complaint, 15 days if served by mail. The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required. COURT RULING There being no request for oral argument, the Court affirmed the tentative ruling. Date: 11/20/2009 MINUTE ORDER Page: 2 Dept: 53 Calendar No.: