Preview
1 Todd A. Jones (Bar No. 198024)
Gregory K. Federico (Bar No. 242184)
2 ARCHER NORRIS
A Professional Law Corporation
3 655 University Avenue, Suite 225
Sacramento, California 95825-6747
4 Telephone: 916.646.2480
Facsimile: 916.646.5696
5
Attorneys for Defendants and Cross-Defendants
6 RICHARD KIRK RUYBALID, individually, and
dba CA CONSTRUCTION
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10
11 RODNEY ABBOTT and FLORENTINE Case No. 07AS04450
ABBOTT,
12 DECLARATION OF GREGORY K.
Plaintiffs, FEDERICO IN SUPPORT OF
13 DEFENDANT CA CONSTRUCTION'S
v. MOTION TO STRIKE PORTIONS OF
14 PLAINTIFFS' UNVERIFIED FIRST
RONALD PAUL BRITSCHGI, et al., AMENDED COMPLAINT
15
Defendants. Date: November 17, 2009
16 Time: 9:00 a.m.
Dept: 54
17
Action Filed: September 24, 2007
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AND ALL RELATED CROSS-ACTIONS.
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20 I, Gregory K. Federico, declare as follows:
21 1. I am an attorney duly licensed to practice before all the Courts in the State of
22 California and am an associate with Archer Norris, attorneys of record for Defendant RICHARD
23 KIRK RUYBALID, individually, and dba CA CONSTRUCTION ("CA CONSTRUCTION"). I
24 have personal knowledge of the matters set forth herein except where stated on information and
25 belief. If called upon as a witness in this matter, I could and would competently testify thereto.
26 2. The document attached hereto as Exhibit "A" is a true and correct copy of
27 PLAINTIFFS' First Amended Complaint as served upon my offices.
28 3. On August 26, 2009, counsel for CA CONSTRUCTION met and conferred with
NIC341/841202-1
DECLARATION OF GREGORY K. FEDERICO IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
MOTION TO STRIKE PORTIONS OF PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT
1 counsel for PLAINTIFFS and requested that PLAINTIFFS withdraw their Sixth Cause of Action
2 based on the fact that the cause of action was subject to a demurrer and motion to strike. As of
3 the date of the filing of this Motion to Strike, PLAINTIFFS have not agreed to withdraw the Sixth
4 Cause of Action. Hence, it is necessary for me to proceed with the Motion to Strike. The
5 document attached hereto as Exhibit "B" is a copy of the meet and confer letter I sent to counsel
6 for PLAINTIFFS.
7 I declare under penalty of perjury under the laws of the State of California that the
8 foregoing is true and correct. Executed this 27th day of August, 2009, at Sacramento, California.
9
10 B
11 GREGORY K. FEDERICO
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NIC341/841202-1 2
DECLARATION OF GREGORY K. FEDERICO IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S
MOTION TO STRIKE PORTIONS OF PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT
1 STEPHANIE J. FINELLI, SBN 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 FLORENTINElCaseNo.: 07AS04450
ABBOTT,
11 FIRST AMENDED COMPLAINT FOR
DAMAGES FOR BREACH OF CONTRACT
12 Plaintiffs, NEGLIGENCE, AND VIOLATIONS O
BUSINESS & PROFESSIONS CODE
13 vs.
14 RONALD PAUL BRITSCHGI, individually
and doing business' as BRITSCHGI
15 CONSTRUCTION; RICHARD KIRK
16
RUYBALID, individually and doing business as
CA CONSTRUCTION; MARK SMITH
17 individually and doing business as
GROUNDBREAKERS; CONSTRUCTION
18 TESTING & ENGINNERING, INC.; and
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
EXHIBIT.
of California, and more particularly described as 8601 Rolling Green Way, Fair Oaks, Californi
95628.
2. Plaintiffs are informed and believe and upon such information and upon sue
information and belief allege that at all times herein mentioned, Defendant RONALD PAUL
BRITSCHGI (hereinafter "BPJTSCHGI"), is an individual doing business under that firm nam
and style of BRITSCHGI CONSTRUCTION, and at all times herein mentioned, was and i
doing business in the County of Sacramento, State of California. Defendant BRITSCHGI wa
duly licensed by the Contractor's State License Board of the State of California to conduc
business as a general building contractor within the State of California and to engage in the wor)
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 narm
14 and style of CA CONSTRUCTION and at all times herein mentioned did business in the City o
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 hereinafte
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 SMITF
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 specially contractor's license to perform
24 earthwork or grading. Said defendant is hereby substituted in place of DOE 1 in the original
25 complaint.
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 i
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 sue<
4 herein as DOES 3 through 20, inclusive, and therefore sues these Defendants by such fictitiou
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 an
7 employee of each and every other Defendant named or to be named in the above-entitled action
8 and that each such DOE Defendant proximately caused Plaintiffs damages as herein allege
9 while acting in such capacity. Plaintiffs are further informed and believe, and upon sue
10 information and belief, allege that each of the DOE Defendants were somehow negligent and/o
11 at fault with respect to the work done on Plaintiffs' real property as more specifically referred tc
12 herein and that said Doe Defendants somehow proximately caused the damages of which
13 Plaintiffs complain. o
14
15 FIRST CAUSE OF ACTION
(Breach of Oral Contract Against Defendant Britschgi)
16
7. Plaintiffs hereby reallege and incorporate by reference all of the allegations set forth in
17
paragraphs 1 -6 as set forth above.
18
8. On or about October 1, 2005, Plaintiffs and Defendant BRITSCHGI entered an ora
19
contract in which said defendant agreed to help the plaintiffs build their personal residence which
20
is located in Fair Oaks, as more specifically described hereinabove. Said defendant, as a genera
21
contractor, agreed to assist plaintiffs in the construction of their personal residence to the exten
22
that said Defendant would assist, guide, and direct Plaintiffs and other contractors with respect to
23
certain stages of construction, namely the location for placement of the house on the lot, grading
24
of the lot for the purposes of construction, the pouring of concrete for the house and garage foi
25
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
27
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
work done by other contractors working on the construction of the house For these services
Plaintiffs paid said Defendant the sum of approximately $13,658,00, the exact sum of which wi
be shown according to proof at the time of trial. Said defendant agreed to perform his duties s
as to make sure that the house was constructed according to certain plans and specification
given to said Defendant by Plaintiffs at the time he agreed to work with Plaintiffs as a genera
contractor assisting them in the construction of their personal residence. Said Defendant furthe
agreed to use his care and skill as a general contractor with respect to not only the work that h
was doing personally towards the construction of the residence, but also he agreed to use his can
and skill as a general contractor to supervise the work done by other subcontractors and to assun
10 that all such work was done in a good and workmanlike fashion, and done according to tfa
11 standards of construction within the construction industry, and according to certain plans and
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 th
15 contract with said Defendant to be performed on their part, including but not limited to, th
16 payment of $13,658.00 to said Defendant.
17 10 On or about September 15, 2006, Plaintiffs discovered that said Defendan
18 breached the contract with them by failing to properly supervise the work performed by othe:
19 contractors and to assure that the work was done adequately, diligently, and in a good and
20 workmanlike fashion and according to certain plans and specifications.
21 11. Asa result of said Defendant breaching the contract, plaintiffs have suffered
22 certain damages in that Plaintiffs' house and garage were defectively constructed and no
23 according to plans and specifications. Those damages include the fact that neither the house no:
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 insufficien1
26 soil, the footings were placed on unsuitable soil, insufficient gravel and/or fill was placed under
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
of the house and garage on the lot at certain levels and the other aforementioned damages wer
not according to plans and specifications thus resulting in certain damage to the house ani
garage and surrounding property, including drainage damage, the necessity of using stairs to th
house and stairs to the garage, the inability to use the garage for the purposes for which it wa
intended, 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 th<
interior and exterior of the house, potential mold damage, instability of the structure due to i
sitting on uncompacted soil, instability of the garage walls, stucco is not properly adhering to tb
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
1] costs to repair defective construction work, the costs to repair consequential damages to non
12 defective property caused by the breach of said contract, the diminished market value of thei
13 house, loss of use of the house, cost to repair, cost to reconstruct, all payments made to said
14 Defendant, and other damages, the total amount of damages which is unknown at this time, th<
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 se
20
forth in paragraphs 1-11 as set forth above.
21
13. Said Defendant had a duty to perform his construction services and other services
22
in good and workmanlike manner and in accordance with accepted standards in the construction
23
industry and the applicable building codes and in accordance with certain plans anc
24
specifications as given to him by Plaintiffs.
25
14. In performing the services as referenced herinabove, said Defendant acted
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negligently in the performance of those services. The negligence manifested itself in certain
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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
Further, the house and the garage were not constructed according to certain plans anc
specifications or in the manner as requested by Plaintiffs. Said defendant was further negligen
in his duties in not properly supervising the work done by other contractors, which supervisio:
he promised Plaintiffs he would perform.
15. As a result of the negligence of said Defendant, Plaintiffs have suffered certai^
damages in that Plaintiffs' house and garage were defectively constructed and not according t<
plans and specifications. Those damages include the fact that neither the house nor the garag
were built at certain elevations to which they should have been constructed, as well as the fac
that the lot was improperly graded, the house was built on uncompacted and insufficient soil, tfo
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 tb
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 garagi
15 and surrounding property, including drainage damage, the necessity of using stairs to the housi
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 and
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 i:
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
THIRD CAUSE OF ACTION
(Violation of Business & Professions Code Against Defendant Britschgi)
16. Plaintiffs hereby reallege and incorporate by reference all of the allegations set forth
in paragraphs 1-15 as set forth above.
17. Defendant Britschgi employed workers to assist him in performing work on th
Abbotts' property. At all times herein mentioned, defendant Britschgi claimed an exemption
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
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 & Professions
13 Code section 7109 for willfully departing from accepted trade standards for good anc
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 01
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 o
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
for the construction of the residence, as well as subsequently modified plans, which said
10 Defendant participated in modifying, as well as a copy of the County-approved plans for th
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 o
13 specifically performing his contract.
14 23. Said Defendant breached the contract in question by failing to properly place th<
15 foundation for die house and garage at the correct elevations and on such a location on the lot a:
16 called for pursuant to certain plans and specifications and as requested by Plaintiffs. Said
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 for
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 elevation;
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 no'
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 Defendan'
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;
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 th
4 contract with said Defendant to be performed on their part, including but not limited to, th
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 t<
8 repair defective construction work, the costs to repair consequential damages to non-defectivi
9 property caused by the breach of said contract, the diminished market value of their house, los:
10 of use of the house, and other expenses including but not limited to, cost to repair, cost to
II reconstruct, all payments made to said Defendant, payments made to third parties, and othe
12 damages, the total amount of damages which is unknown at this time, the exact sum of whicl
13 will be shown according to proof at the time of trial. Plaintiffs are also entitled to interest on al
14 such economic damages at the legal rate, as well as attorney fees according to proof.
15
16 FIFTH CAUSE OF ACTION
(Negligence Against Defendant Ruybalid)
17
26. Plaintiffs hereby reallege and incorporate by reference all of the allegations ol
18
paragraphs 1-6 and 21-25, set forth above.
19
27. Said Defendant had a duty to perform the construction services pursuant to the
20
terms of the construction contract as called for according to the plans and specifications anc
21
according to good and workmanlike standards as called for within the construction industry anc
22
in accordance with accepted standards in the construction industry and the applicable building
23
24
codes.
28. At all times herein mentioned, said Defendant knew or should have known that the
25
construction services he was performing were performed in such a manner so as to result in the
26
foundation for the house and garage not being constructed in accordance with certain plans and
27
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
First Amended Complaint - 9
unsuitable soil, insufficient gravel was placed under the slab foundation of the house and of tto
garage and vapor barriers were not properly installed, thus potentially causing mold damage to
the interior of the home. Said Defendant negligently caused the foundation to be poured and
placed in such a fashion so as to be contrary to the plans and specifications as originally draftee
and as later modified and not in good and workmanlike manner, and in violation of building
codes and regulations, and in a manner so as to render the house structurally unstable.
29. As a proximate result of the negligence of said Defendant, plaintiffs have been
damaged as more specifically referred to hereinabove, including the fact that Plaintiffs canno
use the garage for its intended purposes, drainage damage, the necessity of using stairs to the
10 house and additional stairs to the garage, potential mold damage to the interior of the home
11 instability of the structure due to it sitting on uncompacted and/or unsuitable soil. These
12 damages include the costs to repair defective construction, the costs to repair consequentia
13 damage to non-defective property, the diminished market value of the Plaintiffs' property, loss o
14 use of the property, all payments made to said Defendant, personal injuries to plaintiffs and thei
15 family members as a result of mold damage, and other damages, the total amount of damage;
16 which is unknown at this time, the exact sum of which will be shown according to proof at the
17 time of trial. Plaintiffs are also entitled to interest on all such economic damages at the legal
18 rate.
19
20 SIXTH CAUSE OF ACTION
(Violation of Business & Professions Code Against Defendant Ruybalid)
21
22 30. Plaintiffs hereby reallege and incorporate by reference all of the allegations set forth
23 in paragraphs 1 -6 and 21-29 as set forth above.
24 31. The aforementioned contract between Defendant Ruybalid and Plaintiffs was
25 solely for foundation work, and thus required a C-8 contractor's license to perform. At all times
26 herein relevant, Defendant Ruybalid dba CA Construction did not have a valid C-8 license. Noi
27 did said Defendants subcontract with a specialty C-8 contractor to perform the work under said
28 contract.
First Amended Complaint -10
32. At all times herein mentioned, Ruybalid did not have the skill or the experienc
necessary to properly perform under his agreement with plaintiffs, and was aware that he lacke
3 such skill and/or experience.
4 33. Plaintiffs are informed and believe and thereon allege that Ruybalid has violatec
5 or may have violated, a number of statutes, including but not limited to, Business & Profession
Code section 7109 for willfully departing from accepted trade standards for good an
workmanlike construction; sections 7026, 7028, and 7031 for performing work as a concret
contractor without a valid C-8 license; and section 7160 for knowingly making false o
fraudulent representations to Plaintiffs about his ability to properly perform the services he wa
10 required to perform under the contract with Plaintiffs.
11 34. Plaintiffs have been damaged in the sum of at least $53,206.88, as the sums the)
12 paid to Ruybalid, plus interest thereon at the legal rate of 10% per annum. Plaintiffs are als
13 entitled to a $500 penalty and attorney fees pursuant to Business & Professions Code section
14 7160. Because said Defendant was acting as a contractor within the meaning of Business &
15 Professions Code section 7026 without a valid contractor's license as required by section 7028
16 Plaintiffs are entitled to treble damages and attorney fees pursuant to Code of Civil Proceduri
17 section 1029.8.
18 SEVENTH CAUSE OF ACTION
(Negligence
egligence Against Defendant Smit
Smith)
35. Plaintiffs hereby reallege and incorporate by reference all of the allegations set forth
in paragraphs 1 -6 as set forth above.
36. In October 2005, Smith, doing business as Groundbreakers, performed grading
services at Plaintiffs' property. Said Defendant was negligent and violated building codes in tha
he graded the lot without a grading permit; he cut more dirt than may be legally cut from
property without a grading permit; he did not check or ask for the elevations of the house anc
cul-de-sac before performing the grading work; and he filled in areas of the lot where the house
26
was to sit without properly compacting the soil and without requiring a compaction report.
37. In or about December 2005 to January 2006, said Defendant performed additional
work at Plaintiffs' property, including loading gravel and fill for the slab for the house and the
First Amended Complaint •
garage, and backfilling dirt against the retaining walls Said Defendant was negligent and
violated building codes in that he did not inquire as to whether there was a compaction report o
a soils report before loading the gravel or the fill; he did not properly compact the fill under th<
slab or that he used to backfill against the retaining walls; and the fill he used was not proper, bu
contained trash, uncompacted soil, and other miscellaneous items.
38. At the time he performed this work, said Defendant did not have,a specialt)
contractor's license to perform earthwork or grade property, and Plaintiffs are informed and
believe and thereon allege that said Defendant had an employee perform the work, withou
providing worker's compensation insurance for said employee, thus rendering said Defendan
10 unlicensed for the work performed on behalf of Plaintiffs.
11 39. Plaintiffs paid said Defendant in full for Us services, in the sum of $1,300.00 foi
12 the October 2005 work, and approximately $1,280 for the later work, for a total of $2,580.00.
13 40. Said Defendant had a duty to perform the grading services in accordance with
14 applicable building codes, according to the plans and specifications for plaintiffs' house, anc
15 according to good and workmanlike standards as called for within the construction industry.
16 41. At all times herein mentioned, said Defendant knew or should have known that the
17 grading services he was performing were performed in such a manner so as to result in the
18 foundation for the house and garage not being constructed in accordance with certain plans and
19 specifications, or at certain elevations to which they should have been constructed, and not in
20 compliance with applicable building codes, and that the house was built on uncompacted anc
21 insufficient fill and soil, insufficient gravel was placed under the slab foundation of the house
22 and of the garage, thus potentially causing mold damage to the interior of the home.
23 41. As a proximate result of the negligence of said Defendant, plaintiffs have been
24 damaged as more specifically referred to hereinabove, including the fact that Plaintiffs cannot
25 use the garage for its intended purposes, drainage damage, the necessity of using stairs to the
26 house and stairs to the garage, potential mold damage to the interior of the home, instability oJ
27 the structure due to it sitting on uncompacted soil. These damages include the costs to repair
28 defective construction, the costs to repair consequential damage to non-defective property, the
First Amended Complaint - 12
1 diminished market value of the Plaintiffs' property, loss of use of the property, all payment
2 made to said Defendant, and other damages, the total amount of damages which is unknown a
3 this time, the exact sum of which will be shown according to proof at the time of trial. Plaintiff
4 are also entitled to interest on all such economic damages at the legal rate.
5 42. Because said Defendant was acting as a contractor within the meaning o
6 Business & Professions Code section 7026 without a valid contractor's license as required b>
7 section 7028, Plaintiffs are entitled to treble damages and attorney fees pursuant to Code of Civi
8 Procedure section 1029.8.
9
EIGHTH CAUSE OF ACTION
10
(Negligence Against Defendant CTE)
11
43. Plaintiffs hereby reallege and incorporate by reference all of the allegations set forth
12
in paragraphs 1-42 as set forth above.
13
44. In or about December 2005 and January 2006, Defendant CTE was hired by CA
14
Construction for the benefit of Plaintiffs and as required by Sacramento County to perform
15
testing services on Plaintiffs' property. Specifically, CTE was to provide an inspection report to
16
determine whether the soil under the garage was suitable and was properly compacted and filled
17
with gravel before the slab was poured.
18
45. Defendant CTE had a duty to Plaintiffs, as the homeowners, to ensure that thei:
19
inspection report was accurate and that they did not approve soil compaction or gravel fill tha
20
was in violation of building codes or was otherwise insufficient or unsuitable for Plaintiffs
21
garage.
22
46. Defendant CTE breached their duty in that they did not properly inspect the soi
23
for compaction or suitability, nor did they even ensure that sufficient gravel was being placed
24
under the slab of the garage.
25
47 As a proximate result of the negligence of said Defendant, plaintiffs have been
26
damaged as more specifically referred to hereinabove, including the potential mold damage to
27
the interior of the home, the insufficiency of gravel under the garage, and the instability of the
28
structure due to it sitting on uncompacted soil. These damages include the costs to repair
First Amended Complaint - 13
defective construction, the costs to repair consequential damage to non-defective property, thi
diminished market value of the Plaintiffs' property, loss of use of the property, all payment:
made to said Defendant, and other damages, the total amount of damages which is unknown a
this time, the exact sum of which will be shown according to proof at the time of trial. Plaintiff:
are also entitled to interest on all such economic damages at the legal rate.
WHEREFORE, Plaintiffs pray judgment against Defendants, and each of them, as
follows-
First Cause of Action:
1. For compensatory damages according to proof at trial, including a refund of all sum
10 paid;
11 2. For interest thereon at the legal rate;
12 3. For costs of suit; and
13 4. For such other, further or different relief as the court deems just and proper.
14 Second Cause of Action
15 1. For compensatory damages according to proof at trial, including a refund of all sum,
16 paid;
17 2. For interest thereon at the legal rate;
18> 3. For costs of suit; and
19 4. For such other, further or different relief as the court deems just and proper.
20 Third Cause of Action
21 1. For compensatory damages according to proof at trial, including a refund of all sum:
22 paid;
23 2. For interest thereon at the legal rate;
24 3. For a penalty of $500;
25 4. For treble damages;
26 5. For costs of suit;
27 6. For attorneys' fees; and
28 7. For such other, further or different relief as the court deems just and proper.
First Amended Complaint - 14
Fourth Cause of Action
1. For compensatory damages according to proof at trial, including a refund of all sum:
paid;
2. For interest thereon at the legal rate;
3. For costs of suit;
4. For attorney fees; and
5. For such other, further or different relief as the court deems just and proper.
Fifth Cause of Action
1. For compensatory damages according to proof at trial, including a refund of all sum
10 paid;
11 2. For interest thereon at the legal rate,
12 3. For costs of suit;
13 4. For attorneys' fees; and
14 5. For such other, further or different relief as the court deems just and proper.
15 Sixth Cause of Action
16 1. For compensatory damages according to proof at trial, including a refund of all sum;
17 paid;
18 2. For interest thereon at the legal rate,
19 3. For a penalty of $500;
20 4. For treble damages;
21 5. For costs of suit;
22 6. For attorneys' fees; and
23 7. For such other, further or different relief as the court deems just and proper.
24 Seventh Cause of Action
25 1. For compensatory damages according to proof at trial, including a refund of all sums
26 paid;
27 2. For interest thereon at the legal rate;
28 3. For costs of suit; and
First Amended Complaint - 15
4. For such other, further or different relief as the court deems just and proper
2
3 Dated: June 24, 2009
Stephanie J. Ip
4
Attorney for Plaintiffs
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
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27
28
First Amended Complaint - 16
PROOF OF SERVICE BY MAIL
CASE NAME: Abbott v. Britschgi
CASE NUMBER: Sacramento County Superior Court 07AS04450
I declare that:
I am a citizen of the United States and a resident of the County of Sacramento. I am,
and at all rimes mentioned herein was, an active member of the State Bar of California and
not a party to the above-entitled cause. My business address is 1007 Seventh Street, Suite
500, Sacramento, California 95814.
On July 23,2009, pursuant to CCP §1013A(2), I served the following:
FIRST AMENDED COMPLAINT FOR DAMAGES FOR BREACH OF
CONTRACT, NEGLIGENCE, AND VIOLATIONS OF BUSINESS &
PROFESSIONS CODE
BY MAIL: by depositing a copy of said document in the United States mail in Sacramento,
California, in a sealed envelope, with postage fully prepaid, addressed as follows:
Craig Lundgren
424 2nd Street, Suite A
Davis, CA 95616
Gregory Federico
Archer Norris
655 University Ave., Suite 225
Sacramento, CA 95825
Richard Sopp
Maloney, Wheatley, Sopp & Brooks
1004 Moon River Rock Drive, Suite 245
Folsom, CA 95630
I declare under penalty of perjury under the laws of the State of California the
foregoing is true and correct.
DATED: July 23, 2009
^j,—
Stephanie JT
STEPHANIE J. FINELLI, SBN 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 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 FLORENTINE CaseNo.:07AS04450
11
ABBOTT,
EXHIBIT A TO FIRST AMENDED
12 OMPLAINT
Plaintiffs,
13
vs.
14
RONALD PAUL BRITSCHGI, et. al.,
15
Defendants
16
17
and related cross-actions
18
19
Attached hereto is "Exhibit A" to the First Amended Complaint that was filed on July 23
20
2009. Plaintiffs neglected to attach the Exhibit to the First Amended Complaint. This documen
21
is incorporated by reference into that First Amended Complaint as Exhibit A thereto.
22
23
Dated: July 30, 2009 By:
24 J. FTneili,
Attorney for Plaintiffs
25
26
27
28
Exhibit A to First Amended Complaint -1
10/2V2005 11.57 91&-962-1S40 Aaron Otsen PAGE 2/7
Construction CA ContractoB License #53673.5
Gerarjl Building Contractor
Proposal
10/24/05
Submitted To: Owner/Builder To Be Performed At:
Rodney & Florentine Abbott 8601 Rolling Green Way
3341 Corvtna Dr Fair Oaks, Ca 95628
Rancho Cordova, Ca 9S670
851-9707 C Plans dated: u/k
851-9708 F
Project: Foundation
Scope of Work: Excavate, form, place and finish concrete for new home and garage as per plans and
specifications.
Builder or builders agent shall specify previous to excavation and verify previous to pour, location and elevation
of finished floor, garage slab and piers Builders certification and approval shall be in writing.
Any structural or layout changes shall be documented inspected and approved. CA Construction shaJl supply and
locate all hold-down anchors with general contractor.
Exclusions: Everything not included herein, included but not limited to: Driveway and apron. Porches, patios,
walkways, stoops. Grading or removal of dirt from site.
Total labor and material Time &. Material + 25% (Not to exceed $53,000)
Schedule of payments:$l 5,000 upon request of footing inspection. Balance upon completion of job.
Any unpaid debts shall be subject to penalties including all legal fees, collection costs, and interest
charges in the amount of l/365th of 18% compounded daily commencing the due date enacted retroactive at 30
days delinquency. All invoices are due within 24 hours upon receipt or as allowed for in "Schedule of payments"
if so included in this contract, and shall be payable at contractors place of business by 5.00 PM PST of the day
following the receipt of invoice. Failure to pay as agreed shall constitute a breech of contract at which time
contractor shall cease work until the dispute is remedied.
Schedule of work: Contractor shall commence and perform the work in a timely manor. Work to commence
within 3 working days of receipt of contract. Project shall reach substantial completion within 15 days of
commencement. Contractor shall not be responsible for delays due to conditions out of our direct control
including but not limited to: change orders, building inspections, strikes, weather and unavailability of materials.
Notice: Failure to commence work within 20 days of the approximate date specified is a violation of the
Conti actors State License Law.
CA. Construction/Valley Cabinets
9332 Fair Oaks Blvd., Fair Oaks, CA 95628 Ph: 916-962-1206 Fax- 916-962-1640
iu/«/'<;ou3 11 o/ 916-952-1640 Aaron Olsen PAGE 3/7
Construction CA. Conttaclon License #536735
Gfiltfijal f^irfHiflg OmTyap^ny
Responsibility of owner/builder: Cost of permits and any local, state or Federal taxes and fees. It is the
responsibility of the owner/builder to provide protection from loss due to, Fire, theft, vandalism and any natural
disasters. The occurrence of loss does not relieve the buyer of any financial obligation to contractor for work
completed or materials delivered to job.
Work by others: Contractor shall not be responsible for any work performed by other than its employees or
agents.
We propose to perform all the labor and supply all the equipment necessary for the completion of the
above named project as described herein for the total sum stated herein. Any unforeseen costs due to
inaccessibility during inspection or additional work requests shall be in writing and will be billed as extras which
are due and payable upon their completion.
This quote shall be valid for 30 days and may be withdrawn without
Preview
1 Todd A. Jones (Bar No. 198024) Gregory K. Federico (Bar No. 242184) 2 ARCHER NORRIS A Professional Law Corporation 3 655 University Avenue, Suite 225 Sacramento, California 95825-6747 4 Telephone: 916.646.2480 Facsimile: 916.646.5696 5 Attorneys for Defendants and Cross-Defendants 6 RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 RODNEY ABBOTT and FLORENTINE Case No. 07AS04450 ABBOTT, 12 DECLARATION OF GREGORY K. Plaintiffs, FEDERICO IN SUPPORT OF 13 DEFENDANT CA CONSTRUCTION'S v. MOTION TO STRIKE PORTIONS OF 14 PLAINTIFFS' UNVERIFIED FIRST RONALD PAUL BRITSCHGI, et al., AMENDED COMPLAINT 15 Defendants. Date: November 17, 2009 16 Time: 9:00 a.m. Dept: 54 17 Action Filed: September 24, 2007 18 AND ALL RELATED CROSS-ACTIONS. 19 20 I, Gregory K. Federico, declare as follows: 21 1. I am an attorney duly licensed to practice before all the Courts in the State of 22 California and am an associate with Archer Norris, attorneys of record for Defendant RICHARD 23 KIRK RUYBALID, individually, and dba CA CONSTRUCTION ("CA CONSTRUCTION"). I 24 have personal knowledge of the matters set forth herein except where stated on information and 25 belief. If called upon as a witness in this matter, I could and would competently testify thereto. 26 2. The document attached hereto as Exhibit "A" is a true and correct copy of 27 PLAINTIFFS' First Amended Complaint as served upon my offices. 28 3. On August 26, 2009, counsel for CA CONSTRUCTION met and conferred with NIC341/841202-1 DECLARATION OF GREGORY K. FEDERICO IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S MOTION TO STRIKE PORTIONS OF PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT 1 counsel for PLAINTIFFS and requested that PLAINTIFFS withdraw their Sixth Cause of Action 2 based on the fact that the cause of action was subject to a demurrer and motion to strike. As of 3 the date of the filing of this Motion to Strike, PLAINTIFFS have not agreed to withdraw the Sixth 4 Cause of Action. Hence, it is necessary for me to proceed with the Motion to Strike. The 5 document attached hereto as Exhibit "B" is a copy of the meet and confer letter I sent to counsel 6 for PLAINTIFFS. 7 I declare under penalty of perjury under the laws of the State of California that the 8 foregoing is true and correct. Executed this 27th day of August, 2009, at Sacramento, California. 9 10 B 11 GREGORY K. FEDERICO 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NIC341/841202-1 2 DECLARATION OF GREGORY K. FEDERICO IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S MOTION TO STRIKE PORTIONS OF PLAINTIFFS' UNVERIFIED FIRST AMENDED COMPLAINT 1 STEPHANIE J. FINELLI, SBN 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 FLORENTINElCaseNo.: 07AS04450 ABBOTT, 11 FIRST AMENDED COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT 12 Plaintiffs, NEGLIGENCE, AND VIOLATIONS O BUSINESS & PROFESSIONS CODE 13 vs. 14 RONALD PAUL BRITSCHGI, individually and doing business' as BRITSCHGI 15 CONSTRUCTION; RICHARD KIRK 16 RUYBALID, individually and doing business as CA CONSTRUCTION; MARK SMITH 17 individually and doing business as GROUNDBREAKERS; CONSTRUCTION 18 TESTING & ENGINNERING, INC.; and 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 EXHIBIT. of California, and more particularly described as 8601 Rolling Green Way, Fair Oaks, Californi 95628. 2. Plaintiffs are informed and believe and upon such information and upon sue information and belief allege that at all times herein mentioned, Defendant RONALD PAUL BRITSCHGI (hereinafter "BPJTSCHGI"), is an individual doing business under that firm nam and style of BRITSCHGI CONSTRUCTION, and at all times herein mentioned, was and i doing business in the County of Sacramento, State of California. Defendant BRITSCHGI wa duly licensed by the Contractor's State License Board of the State of California to conduc business as a general building contractor within the State of California and to engage in the wor) 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 narm 14 and style of CA CONSTRUCTION and at all times herein mentioned did business in the City o 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 hereinafte 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 SMITF 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 specially contractor's license to perform 24 earthwork or grading. Said defendant is hereby substituted in place of DOE 1 in the original 25 complaint. 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 i 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 sue< 4 herein as DOES 3 through 20, inclusive, and therefore sues these Defendants by such fictitiou 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 an 7 employee of each and every other Defendant named or to be named in the above-entitled action 8 and that each such DOE Defendant proximately caused Plaintiffs damages as herein allege 9 while acting in such capacity. Plaintiffs are further informed and believe, and upon sue 10 information and belief, allege that each of the DOE Defendants were somehow negligent and/o 11 at fault with respect to the work done on Plaintiffs' real property as more specifically referred tc 12 herein and that said Doe Defendants somehow proximately caused the damages of which 13 Plaintiffs complain. o 14 15 FIRST CAUSE OF ACTION (Breach of Oral Contract Against Defendant Britschgi) 16 7. Plaintiffs hereby reallege and incorporate by reference all of the allegations set forth in 17 paragraphs 1 -6 as set forth above. 18 8. On or about October 1, 2005, Plaintiffs and Defendant BRITSCHGI entered an ora 19 contract in which said defendant agreed to help the plaintiffs build their personal residence which 20 is located in Fair Oaks, as more specifically described hereinabove. Said defendant, as a genera 21 contractor, agreed to assist plaintiffs in the construction of their personal residence to the exten 22 that said Defendant would assist, guide, and direct Plaintiffs and other contractors with respect to 23 certain stages of construction, namely the location for placement of the house on the lot, grading 24 of the lot for the purposes of construction, the pouring of concrete for the house and garage foi 25 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 27 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 work done by other contractors working on the construction of the house For these services Plaintiffs paid said Defendant the sum of approximately $13,658,00, the exact sum of which wi be shown according to proof at the time of trial. Said defendant agreed to perform his duties s as to make sure that the house was constructed according to certain plans and specification given to said Defendant by Plaintiffs at the time he agreed to work with Plaintiffs as a genera contractor assisting them in the construction of their personal residence. Said Defendant furthe agreed to use his care and skill as a general contractor with respect to not only the work that h was doing personally towards the construction of the residence, but also he agreed to use his can and skill as a general contractor to supervise the work done by other subcontractors and to assun 10 that all such work was done in a good and workmanlike fashion, and done according to tfa 11 standards of construction within the construction industry, and according to certain plans and 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 th 15 contract with said Defendant to be performed on their part, including but not limited to, th 16 payment of $13,658.00 to said Defendant. 17 10 On or about September 15, 2006, Plaintiffs discovered that said Defendan 18 breached the contract with them by failing to properly supervise the work performed by othe: 19 contractors and to assure that the work was done adequately, diligently, and in a good and 20 workmanlike fashion and according to certain plans and specifications. 21 11. Asa result of said Defendant breaching the contract, plaintiffs have suffered 22 certain damages in that Plaintiffs' house and garage were defectively constructed and no 23 according to plans and specifications. Those damages include the fact that neither the house no: 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 insufficien1 26 soil, the footings were placed on unsuitable soil, insufficient gravel and/or fill was placed under 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 of the house and garage on the lot at certain levels and the other aforementioned damages wer not according to plans and specifications thus resulting in certain damage to the house ani garage and surrounding property, including drainage damage, the necessity of using stairs to th house and stairs to the garage, the inability to use the garage for the purposes for which it wa intended, 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 th< interior and exterior of the house, potential mold damage, instability of the structure due to i sitting on uncompacted soil, instability of the garage walls, stucco is not properly adhering to tb 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 1] costs to repair defective construction work, the costs to repair consequential damages to non 12 defective property caused by the breach of said contract, the diminished market value of thei 13 house, loss of use of the house, cost to repair, cost to reconstruct, all payments made to said 14 Defendant, and other damages, the total amount of damages which is unknown at this time, th< 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 se 20 forth in paragraphs 1-11 as set forth above. 21 13. Said Defendant had a duty to perform his construction services and other services 22 in good and workmanlike manner and in accordance with accepted standards in the construction 23 industry and the applicable building codes and in accordance with certain plans anc 24 specifications as given to him by Plaintiffs. 25 14. In performing the services as referenced herinabove, said Defendant acted 26 negligently in the performance of those services. The negligence manifested itself in certain 27 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 Further, the house and the garage were not constructed according to certain plans anc specifications or in the manner as requested by Plaintiffs. Said defendant was further negligen in his duties in not properly supervising the work done by other contractors, which supervisio: he promised Plaintiffs he would perform. 15. As a result of the negligence of said Defendant, Plaintiffs have suffered certai^ damages in that Plaintiffs' house and garage were defectively constructed and not according t< plans and specifications. Those damages include the fact that neither the house nor the garag were built at certain elevations to which they should have been constructed, as well as the fac that the lot was improperly graded, the house was built on uncompacted and insufficient soil, tfo 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 tb 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 garagi 15 and surrounding property, including drainage damage, the necessity of using stairs to the housi 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 and 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 i: 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 THIRD CAUSE OF ACTION (Violation of Business & Professions Code Against Defendant Britschgi) 16. Plaintiffs hereby reallege and incorporate by reference all of the allegations set forth in paragraphs 1-15 as set forth above. 17. Defendant Britschgi employed workers to assist him in performing work on th Abbotts' property. At all times herein mentioned, defendant Britschgi claimed an exemption 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 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 & Professions 13 Code section 7109 for willfully departing from accepted trade standards for good anc 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 01 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 o 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 for the construction of the residence, as well as subsequently modified plans, which said 10 Defendant participated in modifying, as well as a copy of the County-approved plans for th 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 o 13 specifically performing his contract. 14 23. Said Defendant breached the contract in question by failing to properly place th< 15 foundation for die house and garage at the correct elevations and on such a location on the lot a: 16 called for pursuant to certain plans and specifications and as requested by Plaintiffs. Said 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 for 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 elevation; 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 no' 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 Defendan' 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; 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 th 4 contract with said Defendant to be performed on their part, including but not limited to, th 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 t< 8 repair defective construction work, the costs to repair consequential damages to non-defectivi 9 property caused by the breach of said contract, the diminished market value of their house, los: 10 of use of the house, and other expenses including but not limited to, cost to repair, cost to II reconstruct, all payments made to said Defendant, payments made to third parties, and othe 12 damages, the total amount of damages which is unknown at this time, the exact sum of whicl 13 will be shown according to proof at the time of trial. Plaintiffs are also entitled to interest on al 14 such economic damages at the legal rate, as well as attorney fees according to proof. 15 16 FIFTH CAUSE OF ACTION (Negligence Against Defendant Ruybalid) 17 26. Plaintiffs hereby reallege and incorporate by reference all of the allegations ol 18 paragraphs 1-6 and 21-25, set forth above. 19 27. Said Defendant had a duty to perform the construction services pursuant to the 20 terms of the construction contract as called for according to the plans and specifications anc 21 according to good and workmanlike standards as called for within the construction industry anc 22 in accordance with accepted standards in the construction industry and the applicable building 23 24 codes. 28. At all times herein mentioned, said Defendant knew or should have known that the 25 construction services he was performing were performed in such a manner so as to result in the 26 foundation for the house and garage not being constructed in accordance with certain plans and 27 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 First Amended Complaint - 9 unsuitable soil, insufficient gravel was placed under the slab foundation of the house and of tto garage and vapor barriers were not properly installed, thus potentially causing mold damage to the interior of the home. Said Defendant negligently caused the foundation to be poured and placed in such a fashion so as to be contrary to the plans and specifications as originally draftee and as later modified and not in good and workmanlike manner, and in violation of building codes and regulations, and in a manner so as to render the house structurally unstable. 29. As a proximate result of the negligence of said Defendant, plaintiffs have been damaged as more specifically referred to hereinabove, including the fact that Plaintiffs canno use the garage for its intended purposes, drainage damage, the necessity of using stairs to the 10 house and additional stairs to the garage, potential mold damage to the interior of the home 11 instability of the structure due to it sitting on uncompacted and/or unsuitable soil. These 12 damages include the costs to repair defective construction, the costs to repair consequentia 13 damage to non-defective property, the diminished market value of the Plaintiffs' property, loss o 14 use of the property, all payments made to said Defendant, personal injuries to plaintiffs and thei 15 family members as a result of mold damage, and other damages, the total amount of damage; 16 which is unknown at this time, the exact sum of which will be shown according to proof at the 17 time of trial. Plaintiffs are also entitled to interest on all such economic damages at the legal 18 rate. 19 20 SIXTH CAUSE OF ACTION (Violation of Business & Professions Code Against Defendant Ruybalid) 21 22 30. Plaintiffs hereby reallege and incorporate by reference all of the allegations set forth 23 in paragraphs 1 -6 and 21-29 as set forth above. 24 31. The aforementioned contract between Defendant Ruybalid and Plaintiffs was 25 solely for foundation work, and thus required a C-8 contractor's license to perform. At all times 26 herein relevant, Defendant Ruybalid dba CA Construction did not have a valid C-8 license. Noi 27 did said Defendants subcontract with a specialty C-8 contractor to perform the work under said 28 contract. First Amended Complaint -10 32. At all times herein mentioned, Ruybalid did not have the skill or the experienc necessary to properly perform under his agreement with plaintiffs, and was aware that he lacke 3 such skill and/or experience. 4 33. Plaintiffs are informed and believe and thereon allege that Ruybalid has violatec 5 or may have violated, a number of statutes, including but not limited to, Business & Profession Code section 7109 for willfully departing from accepted trade standards for good an workmanlike construction; sections 7026, 7028, and 7031 for performing work as a concret contractor without a valid C-8 license; and section 7160 for knowingly making false o fraudulent representations to Plaintiffs about his ability to properly perform the services he wa 10 required to perform under the contract with Plaintiffs. 11 34. Plaintiffs have been damaged in the sum of at least $53,206.88, as the sums the) 12 paid to Ruybalid, plus interest thereon at the legal rate of 10% per annum. Plaintiffs are als 13 entitled to a $500 penalty and attorney fees pursuant to Business & Professions Code section 14 7160. Because said Defendant was acting as a contractor within the meaning of Business & 15 Professions Code section 7026 without a valid contractor's license as required by section 7028 16 Plaintiffs are entitled to treble damages and attorney fees pursuant to Code of Civil Proceduri 17 section 1029.8. 18 SEVENTH CAUSE OF ACTION (Negligence egligence Against Defendant Smit Smith) 35. Plaintiffs hereby reallege and incorporate by reference all of the allegations set forth in paragraphs 1 -6 as set forth above. 36. In October 2005, Smith, doing business as Groundbreakers, performed grading services at Plaintiffs' property. Said Defendant was negligent and violated building codes in tha he graded the lot without a grading permit; he cut more dirt than may be legally cut from property without a grading permit; he did not check or ask for the elevations of the house anc cul-de-sac before performing the grading work; and he filled in areas of the lot where the house 26 was to sit without properly compacting the soil and without requiring a compaction report. 37. In or about December 2005 to January 2006, said Defendant performed additional work at Plaintiffs' property, including loading gravel and fill for the slab for the house and the First Amended Complaint • garage, and backfilling dirt against the retaining walls Said Defendant was negligent and violated building codes in that he did not inquire as to whether there was a compaction report o a soils report before loading the gravel or the fill; he did not properly compact the fill under th< slab or that he used to backfill against the retaining walls; and the fill he used was not proper, bu contained trash, uncompacted soil, and other miscellaneous items. 38. At the time he performed this work, said Defendant did not have,a specialt) contractor's license to perform earthwork or grade property, and Plaintiffs are informed and believe and thereon allege that said Defendant had an employee perform the work, withou providing worker's compensation insurance for said employee, thus rendering said Defendan 10 unlicensed for the work performed on behalf of Plaintiffs. 11 39. Plaintiffs paid said Defendant in full for Us services, in the sum of $1,300.00 foi 12 the October 2005 work, and approximately $1,280 for the later work, for a total of $2,580.00. 13 40. Said Defendant had a duty to perform the grading services in accordance with 14 applicable building codes, according to the plans and specifications for plaintiffs' house, anc 15 according to good and workmanlike standards as called for within the construction industry. 16 41. At all times herein mentioned, said Defendant knew or should have known that the 17 grading services he was performing were performed in such a manner so as to result in the 18 foundation for the house and garage not being constructed in accordance with certain plans and 19 specifications, or at certain elevations to which they should have been constructed, and not in 20 compliance with applicable building codes, and that the house was built on uncompacted anc 21 insufficient fill and soil, insufficient gravel was placed under the slab foundation of the house 22 and of the garage, thus potentially causing mold damage to the interior of the home. 23 41. As a proximate result of the negligence of said Defendant, plaintiffs have been 24 damaged as more specifically referred to hereinabove, including the fact that Plaintiffs cannot 25 use the garage for its intended purposes, drainage damage, the necessity of using stairs to the 26 house and stairs to the garage, potential mold damage to the interior of the home, instability oJ 27 the structure due to it sitting on uncompacted soil. These damages include the costs to repair 28 defective construction, the costs to repair consequential damage to non-defective property, the First Amended Complaint - 12 1 diminished market value of the Plaintiffs' property, loss of use of the property, all payment 2 made to said Defendant, and other damages, the total amount of damages which is unknown a 3 this time, the exact sum of which will be shown according to proof at the time of trial. Plaintiff 4 are also entitled to interest on all such economic damages at the legal rate. 5 42. Because said Defendant was acting as a contractor within the meaning o 6 Business & Professions Code section 7026 without a valid contractor's license as required b> 7 section 7028, Plaintiffs are entitled to treble damages and attorney fees pursuant to Code of Civi 8 Procedure section 1029.8. 9 EIGHTH CAUSE OF ACTION 10 (Negligence Against Defendant CTE) 11 43. Plaintiffs hereby reallege and incorporate by reference all of the allegations set forth 12 in paragraphs 1-42 as set forth above. 13 44. In or about December 2005 and January 2006, Defendant CTE was hired by CA 14 Construction for the benefit of Plaintiffs and as required by Sacramento County to perform 15 testing services on Plaintiffs' property. Specifically, CTE was to provide an inspection report to 16 determine whether the soil under the garage was suitable and was properly compacted and filled 17 with gravel before the slab was poured. 18 45. Defendant CTE had a duty to Plaintiffs, as the homeowners, to ensure that thei: 19 inspection report was accurate and that they did not approve soil compaction or gravel fill tha 20 was in violation of building codes or was otherwise insufficient or unsuitable for Plaintiffs 21 garage. 22 46. Defendant CTE breached their duty in that they did not properly inspect the soi 23 for compaction or suitability, nor did they even ensure that sufficient gravel was being placed 24 under the slab of the garage. 25 47 As a proximate result of the negligence of said Defendant, plaintiffs have been 26 damaged as more specifically referred to hereinabove, including the potential mold damage to 27 the interior of the home, the insufficiency of gravel under the garage, and the instability of the 28 structure due to it sitting on uncompacted soil. These damages include the costs to repair First Amended Complaint - 13 defective construction, the costs to repair consequential damage to non-defective property, thi diminished market value of the Plaintiffs' property, loss of use of the property, all payment: made to said Defendant, and other damages, the total amount of damages which is unknown a this time, the exact sum of which will be shown according to proof at the time of trial. Plaintiff: are also entitled to interest on all such economic damages at the legal rate. WHEREFORE, Plaintiffs pray judgment against Defendants, and each of them, as follows- First Cause of Action: 1. For compensatory damages according to proof at trial, including a refund of all sum 10 paid; 11 2. For interest thereon at the legal rate; 12 3. For costs of suit; and 13 4. For such other, further or different relief as the court deems just and proper. 14 Second Cause of Action 15 1. For compensatory damages according to proof at trial, including a refund of all sum, 16 paid; 17 2. For interest thereon at the legal rate; 18> 3. For costs of suit; and 19 4. For such other, further or different relief as the court deems just and proper. 20 Third Cause of Action 21 1. For compensatory damages according to proof at trial, including a refund of all sum: 22 paid; 23 2. For interest thereon at the legal rate; 24 3. For a penalty of $500; 25 4. For treble damages; 26 5. For costs of suit; 27 6. For attorneys' fees; and 28 7. For such other, further or different relief as the court deems just and proper. First Amended Complaint - 14 Fourth Cause of Action 1. For compensatory damages according to proof at trial, including a refund of all sum: paid; 2. For interest thereon at the legal rate; 3. For costs of suit; 4. For attorney fees; and 5. For such other, further or different relief as the court deems just and proper. Fifth Cause of Action 1. For compensatory damages according to proof at trial, including a refund of all sum 10 paid; 11 2. For interest thereon at the legal rate, 12 3. For costs of suit; 13 4. For attorneys' fees; and 14 5. For such other, further or different relief as the court deems just and proper. 15 Sixth Cause of Action 16 1. For compensatory damages according to proof at trial, including a refund of all sum; 17 paid; 18 2. For interest thereon at the legal rate, 19 3. For a penalty of $500; 20 4. For treble damages; 21 5. For costs of suit; 22 6. For attorneys' fees; and 23 7. For such other, further or different relief as the court deems just and proper. 24 Seventh Cause of Action 25 1. For compensatory damages according to proof at trial, including a refund of all sums 26 paid; 27 2. For interest thereon at the legal rate; 28 3. For costs of suit; and First Amended Complaint - 15 4. For such other, further or different relief as the court deems just and proper 2 3 Dated: June 24, 2009 Stephanie J. Ip 4 Attorney for Plaintiffs 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 First Amended Complaint - 16 PROOF OF SERVICE BY MAIL CASE NAME: Abbott v. Britschgi CASE NUMBER: Sacramento County Superior Court 07AS04450 I declare that: I am a citizen of the United States and a resident of the County of Sacramento. I am, and at all rimes mentioned herein was, an active member of the State Bar of California and not a party to the above-entitled cause. My business address is 1007 Seventh Street, Suite 500, Sacramento, California 95814. On July 23,2009, pursuant to CCP §1013A(2), I served the following: FIRST AMENDED COMPLAINT FOR DAMAGES FOR BREACH OF CONTRACT, NEGLIGENCE, AND VIOLATIONS OF BUSINESS & PROFESSIONS CODE BY MAIL: by depositing a copy of said document in the United States mail in Sacramento, California, in a sealed envelope, with postage fully prepaid, addressed as follows: Craig Lundgren 424 2nd Street, Suite A Davis, CA 95616 Gregory Federico Archer Norris 655 University Ave., Suite 225 Sacramento, CA 95825 Richard Sopp Maloney, Wheatley, Sopp & Brooks 1004 Moon River Rock Drive, Suite 245 Folsom, CA 95630 I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct. DATED: July 23, 2009 ^j,— Stephanie JT STEPHANIE J. FINELLI, SBN 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 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 FLORENTINE CaseNo.:07AS04450 11 ABBOTT, EXHIBIT A TO FIRST AMENDED 12 OMPLAINT Plaintiffs, 13 vs. 14 RONALD PAUL BRITSCHGI, et. al., 15 Defendants 16 17 and related cross-actions 18 19 Attached hereto is "Exhibit A" to the First Amended Complaint that was filed on July 23 20 2009. Plaintiffs neglected to attach the Exhibit to the First Amended Complaint. This documen 21 is incorporated by reference into that First Amended Complaint as Exhibit A thereto. 22 23 Dated: July 30, 2009 By: 24 J. FTneili, Attorney for Plaintiffs 25 26 27 28 Exhibit A to First Amended Complaint -1 10/2V2005 11.57 91&-962-1S40 Aaron Otsen PAGE 2/7 Construction CA ContractoB License #53673.5 Gerarjl Building Contractor Proposal 10/24/05 Submitted To: Owner/Builder To Be Performed At: Rodney & Florentine Abbott 8601 Rolling Green Way 3341 Corvtna Dr Fair Oaks, Ca 95628 Rancho Cordova, Ca 9S670 851-9707 C Plans dated: u/k 851-9708 F Project: Foundation Scope of Work: Excavate, form, place and finish concrete for new home and garage as per plans and specifications. Builder or builders agent shall specify previous to excavation and verify previous to pour, location and elevation of finished floor, garage slab and piers Builders certification and approval shall be in writing. Any structural or layout changes shall be documented inspected and approved. CA Construction shaJl supply and locate all hold-down anchors with general contractor. Exclusions: Everything not included herein, included but not limited to: Driveway and apron. Porches, patios, walkways, stoops. Grading or removal of dirt from site. Total labor and material Time &. Material + 25% (Not to exceed $53,000) Schedule of payments:$l 5,000 upon request of footing inspection. Balance upon completion of job. Any unpaid debts shall be subject to penalties including all legal fees, collection costs, and interest charges in the amount of l/365th of 18% compounded daily commencing the due date enacted retroactive at 30 days delinquency. All invoices are due within 24 hours upon receipt or as allowed for in "Schedule of payments" if so included in this contract, and shall be payable at contractors place of business by 5.00 PM PST of the day following the receipt of invoice. Failure to pay as agreed shall constitute a breech of contract at which time contractor shall cease work until the dispute is remedied. Schedule of work: Contractor shall commence and perform the work in a timely manor. Work to commence within 3 working days of receipt of contract. Project shall reach substantial completion within 15 days of commencement. Contractor shall not be responsible for delays due to conditions out of our direct control including but not limited to: change orders, building inspections, strikes, weather and unavailability of materials. Notice: Failure to commence work within 20 days of the approximate date specified is a violation of the Conti actors State License Law. CA. Construction/Valley Cabinets 9332 Fair Oaks Blvd., Fair Oaks, CA 95628 Ph: 916-962-1206 Fax- 916-962-1640 iu/«/'<;ou3 11 o/ 916-952-1640 Aaron Olsen PAGE 3/7 Construction CA. Conttaclon License #536735 Gfiltfijal f^irfHiflg OmTyap^ny Responsibility of owner/builder: Cost of permits and any local, state or Federal taxes and fees. It is the responsibility of the owner/builder to provide protection from loss due to, Fire, theft, vandalism and any natural disasters. The occurrence of loss does not relieve the buyer of any financial obligation to contractor for work completed or materials delivered to job. Work by others: Contractor shall not be responsible for any work performed by other than its employees or agents. We propose to perform all the labor and supply all the equipment necessary for the completion of the above named project as described herein for the total sum stated herein. Any unforeseen costs due to inaccessibility during inspection or additional work requests shall be in writing and will be billed as extras which are due and payable upon their completion. This quote shall be valid for 30 days and may be withdrawn without