Preview
RECEJVBD
1 DROP BOX
STEPHANIE J. FINELLI, SBN 173462
Law Office of Stephanie J. Finelli
2 1007 - 7th Street, Suite 500 2009 NOV- 3 AH 8:5!
I h~ -• -• I
Sacramento, CA 95814
3 tel 916-443-2144
fax 916-443-1511 SUPEH0B CtvRI' 0" CALIFORNIA
4 COUNTY OF SACRAMENTO
Attorney for Plaintiffs
5 RODNEY and FLORENTINE ABBOTT iCTez
By
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
ABBOTT, 5
11 LAINTIFFS' OPPOSITION TO
)EFENDANT BRITSCHGI'S MOTION TO
12 Plaintiffs, STRIKE AND DEMURRER
13 vs. )ate: 11/17/09
Time: 9:00 a.m.
14 RONALD PAUL BRITSCHGI et. al., )ept: 54
15 Defendants
16
17 and related cross-actions
18
19 I. INTRODUCTION
20 Defendant Britschgi's motion to strike and demurrer to the First Amended Complaint are
21 directed at only the Third Cause of Action thereto. The arguments as to the motion to strike and
22 demurrer are similar and overlapping. Thus, for ease of reference, Plaintiffs oppose the demurrei
23 and motion to strike in the same opposition.
24
25 II. LEGAL ARGUMENT
26 A. A Demurrer Is Limited to the Face of the Pleadings and Facts of Which This Court
May Take Judicial Notice
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A demurrer may only challenge those defects on the face of the complaint or which are
judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) No other extrinsic
Abbotts' Opposition to Britschgi's Motion to Strike and Demurrer - 1
1 evidence—such as declarations or other documents—may be considered. (Ion Equip. Corp. v.
2 Nelson (1980) 110 Cal.App.3d 868, 881.) The pleadings must be taken as true. (Aubrey v. Tri-
3 City Hospital District (1992) 2 Cal.4th 962, 966-967.) It is well settled that, in reviewing a
4 demurrer, the court assumes the truth of all properly pleaded material facts, regardless of how
5 unlikely or improbable. (Committee on Children's Television, Inc. v. General Foods Corp.
6 (1983) 35 Cal.3d 197, 213-214; Amid v. Hawthorne Community Medical Group. Inc. (1989) 212
7 Cal.App.3d 1383, 1386-1387.) The allegations of the complaint are liberally construed with an
eye toward substantial justice. (Stevens v. Superior Court (19991 75 Cal.App.4th 594. 601.) To
9 survive demurrer, the plaintiff need only plead facts showing entitlement to some relief. (Amid,
10 supra at p. 1387.)
11
12 B. Plaintiffs Have Properly Alleged That Britschgi's Contractor's License Was
Suspended as a Matter of Law, Which Requires Him to Refund Money Plaintiffs
13
Paid Him
14
Britschgi argues that the third cause of action is improper because there is no private righl
15
of action for violation of workers compensation law and because Britschgi was, in fact, licensed.
16
This argument is meritless. If Britschgi was without workers' compensation insurance, he was
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unlicensed as a matter of law, and required to refund all sums plaintiffs paid him.
18
The FAC alleges that Britschgi violated workers' compensation laws. (FAC 7:5-17.) In
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his demurrer, Britschgi disputes that he violated these laws, but concedes that "for purposes of
20
demurrer they must be taken as true." (Britschgi demurrer at p. 4:23-24.) These violations of the
21
workers' compensation laws, however, give rise to a cause of action on the part of plaintiffs for
22
return of the funds they paid to Britschgi.
23
Employers are required to carry workers' compensation insurance for their employees
24
(Bus. & Prof.Code §§7125, 7125.4.) The failure to carry such insurance, when required to do so
25
results in the automatic suspension of the contractor's license. (Bus. & Prof. Code §7125.
26
["The failure of a licensee to obtain or maintain workers' compensation insurance, if required
27
under this chapter, shall result in the automatic suspension of the license by operation of law in
28
accordance with the provisions of this section . . . ."]) A contractor who is unlicensed as a resul
Abbotts' Opposition to Britschgi's Motion to Strike and Demurrer - 2
1 of not carrying worker's compensation insurance is precluded, as a matter of law, from
2 recovering for any services rendered during the time of the suspension. (Wright v. Issak (2007)
3 149 Cal.App.4th 1116, 1122-1123.) The same is true in this case.
4 Moreover, per statute, an unlicensed contractor is not only precluded from collecting
5 unpaid sums, but is required to refund those sums collected.
6 Except as provided in subdivision (e), a person who utilizes the services of an
unlicensed contractor may bring an action in any court of competent jurisdiction
7
in this state to recover all compensation paid to the unlicensed contractor for
performance of any act or contract.
9
(Bus.& Prof.Code §7031 (a), (b), emphasis added.)
10
Britschgi argues that his license was valid during the time he rendered services to
11
plaintiffs, and asks that this Court take judicial notice of such licensure. First, such is not a
12
proper subject of judicial notice. More importantly, whether the California State Licensing
13
Board ("CSLB") actually revoked is license for hiring employees although without worker's
14
compensation insurance is irrelevant. Under Wright v. Issak, supra the CSLB need not give
15
notice or otherwise take any action before the contractor's license may be suspended under
16
Business & Professions Code section 7125.2. (Id. at pp. 1121-1123 ["In relevant summary
17
section 7125.2 states that a contractor's license is automatically suspended as of the date the
18
contractor was required to obtain workers' compensation insurance but did not. This language
19
cannot be clearer.") No notice by the CSLB is required where a contractor should have obtained
20
workers' compensation insurance but failed to, as the CSLB has no way of knowing that the
21
contractor has hired an employee, despite asserting that he has no employees. As such, the
22
existence of "proof of licensure" is irrelevant, as the suspension is automatic, not based upon
23
action by the CSLB. (See id at pp 1122-1123 and fn. 2.)
24
Plaintiffs have pled that Britschgi was improperly without worker's compensation
25
insurance during the time he worked on their house. These factual allegations must be taken as
26
true. Under Business & Professions Code section 7031 (b), plaintiffs are entitled to a refund oi
27
the money they paid Britschgi if he worked on their house during the time his license was
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automatically suspended as a result of his violation of the workers compensation laws. They
Abbotts' Opposition to Bntschgi's Motion to Strike and Demurrer - 3
1 have thus adequately pled a cause of action and resulting damages. Britschgi's demurrer to the
2 third cause of action must be overruled.
3
4 C. Plaintiffs Have Adequately Pled a Cause of Action for Violation of B&P Section
5
7160
6 This cause of action is not one for "fraud" which must be stated with particularity; rather,
7 it is a cause of action for violation of the Business & Professions Code section 7160, which
8 prohibits a contractor from making fraudulent or false representations about his ability to
9 perform under the contract. Plaintiffs have adequately pled that Britschgi's work was defective
10 (FAC at Tflf 11, 14, 15.) And they adequately pled that he violated B&P Code section 7160 by
11 knowingly making false or fraudulent statements about his ability to properly perform the work
12 This is sufficient to state a cause of action under Business & Professions Code section 7160.
13 Britschgi has cited no authority stating otherwise. If this pleading is insufficient, plaintiffs
14 request leave to amend to more specifically plead this element of the cause of action for breach
15 of the B&P Code.
16
17 D. Plaintiffs Have Pled Damages: the Sums They Paid Britschgi
18 As set forth above, plaintiffs are entitled under Busienss & Professions Code section
19 703 l(b) to recover all of the money they paid to Britschgi if he was unlicensed during the time
20 he worked on their property. These are the damages alleged; they are cognizable; and they are
21 properly pled. The demurrer for lack of damages must be overreuled.
22
23 E. This Court Must Overrule the Demurrer for Uncertainty
24 Britschgi's demurrer for "uncertainty" must also fail. Such demurrers are only sustained
25 where the complaint is so uncertain that defendant cannot reasonably respond. (Khoury v.
26 Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) And a demurrer made on this
27 ground must distinctly specify why, how and where the pleadings are uncertain. (See Fenton v.
28 Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809.) Britschgi has not
shown how the complaint is uncertain, why it is uncertain, or even where it is uncertain. The
Abbotts' Opposition to Britschgi's Motion to Strike and Demurrer - 4
1 only "uncertainty" he alleges is that the complaint states that he "violated or may have violated''
2 six different statutes. But the violation of any of these six statutes entitles plaintiffs to a refunc
3 of the money they paid Britschgi under the oral agreement. These violations are thus
4 appropriately included in one cause of action. This does not render the complaint—or even the
5 third cause of action—uncertain. The demurrer should be overruled.
6
7 G. The Motion to Strike Must Be Denied
8 As set forth above, plaintiffs have properly pled a valid cause of action against Britschgi
9 for a refund of the sums they paid him based upon his contractor's license having been
10 automatically suspended. Therefore, the phrases numbered 1, 3, 5, 7, and 9 may not be stricken.
11 Phrase 1 properly alleges that Britschgi claimed an exemption from worker's compensation
12 insurance, yet he employed workers to work on plaintiffs' property. This phrase properly lays
13 the foundation for the later allegations in Phrases 3 and 5 that Britschgi's license was
14 automatically suspended for this failure. Phrase 3 properly alleges that Britschgi violated certain
15 B&P Code sections for performing work as a general contractor while his license was suspended.
16 Phrase 5 alleges that h failed to comply with workers' compensation laws. Phrase 7 properly
17 sets forth the damages. And Phrase 9 properly sets forth other penalties for which Britschgi is
18 liable under the B&P Code.
19 Phrases 2 and 4 set forth another basis for the cause of action, that Britschgi violatec
20 B&P Code section 7109 by willfully departing from accepted trade standards, and that he
21 violated B&P Code section 7159 for working without a written contract. Nothing prevents
22 Plaintiffs from bringing a private right of action for these violations, the damages for which ar<
23 refund of sums plaintiffs paid. Phrase 6 alleges that Britschgi violated B&P Code section 716(
24 by improperly stating he could do the work when he could not. This statute provides for a
25 penalty of $500 plus attorney fees, as properly set forth in Phrase 8.
26 Each of these phrases allege that Britschgi was violating the B&P Code and set forth the
27 damages and/or penalties for those violations. The motion to strike must be denied as without
28 legal basis.
Abbotts' Opposition to Bntschgi's Motion to Strike and Demurrer - 5
1
2 H. If the Demurrer Is Sustained, It Should Be With Leave to Amend
3 If this Court sustains Britschgi's demurrer, it should grant plaintiffs leave to amend the
4 third cause of action in the complaint. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998)
5 19 Cal.4th 26, 39.) It would be error to sustain any such demurrer without granting leave to
6 amend. (Ibid.)
7
8 Dated: November 2, 2009 By:
Stephanie J. Fmelli,
Attorney for Plaintiffs,
10 Rodney and Florentine Abbott
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Abbotts' Opposition to Bntschgi's Motion to Strike and Demurrer - 6
PROOF OF SERVICE
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 times 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 November 3, 2009, pursuant to CCP §1013A(2), I served the following:
PLAINTIFFS' OPPOSITION TO DEFENDANT BRITSCHGI'S MOTION TO STRIKE
AND DEMURRER
BY FAX AND BY MAIL: by faxing and mailing a copy of said document to the following:
Craig Lundgren Richard Sopp
424 2nd Street, Suite A Maloney, Wheatley, Sopp & Brooks
Davis, C A 95616 1004 Moon River Rock Drive, Suite 245
fax 530-297-5077 Folsom, CA 95630
fax 916-988-5296
Gregory Federico
Archer Norris
655 University Ave., Suite 225
Sacramento, CA 95825
fax 916-646-5696
Sean Schwerdtfeger
501 West Broadway, Suite 1700
San Diego, C A 92101
fax 619-595-3404
I declare under penalty of perjury under the laws of the State of California the
foregoing is true and correct.
DATED: November 3, 2009
T^-Stephanie J. Finelli
PROOF OF SERVICE
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 times 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 November 3,2009, pursuant to CCP § 1013A(2), I served the following:
PLAINTIFFS' OPPOSITION TO DEFENDANT CA CONSTRUCTION'S MOTION TO
STRIKE AND DEMURRER
PLAINTIFFS' OPPOSITION TO DEFENDANT BRITSCHGI'S MOTION TO STRIKE
AND DEMURRER
BY MAIL: by faxing and mailing a copy of said document to the following:
Mark Smith
8549 Willow Valley Place
Granite bay, CA 95746
I declare under penalty of perjury under the laws of the State of California the
foregoing is true and correct.
DATED: November 3,2009
"Stephanie J.
Preview
RECEJVBD 1 DROP BOX STEPHANIE J. FINELLI, SBN 173462 Law Office of Stephanie J. Finelli 2 1007 - 7th Street, Suite 500 2009 NOV- 3 AH 8:5! I h~ -• -• I Sacramento, CA 95814 3 tel 916-443-2144 fax 916-443-1511 SUPEH0B CtvRI' 0" CALIFORNIA 4 COUNTY OF SACRAMENTO Attorney for Plaintiffs 5 RODNEY and FLORENTINE ABBOTT iCTez By 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 ABBOTT, 5 11 LAINTIFFS' OPPOSITION TO )EFENDANT BRITSCHGI'S MOTION TO 12 Plaintiffs, STRIKE AND DEMURRER 13 vs. )ate: 11/17/09 Time: 9:00 a.m. 14 RONALD PAUL BRITSCHGI et. al., )ept: 54 15 Defendants 16 17 and related cross-actions 18 19 I. INTRODUCTION 20 Defendant Britschgi's motion to strike and demurrer to the First Amended Complaint are 21 directed at only the Third Cause of Action thereto. The arguments as to the motion to strike and 22 demurrer are similar and overlapping. Thus, for ease of reference, Plaintiffs oppose the demurrei 23 and motion to strike in the same opposition. 24 25 II. LEGAL ARGUMENT 26 A. A Demurrer Is Limited to the Face of the Pleadings and Facts of Which This Court May Take Judicial Notice 27 28 A demurrer may only challenge those defects on the face of the complaint or which are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) No other extrinsic Abbotts' Opposition to Britschgi's Motion to Strike and Demurrer - 1 1 evidence—such as declarations or other documents—may be considered. (Ion Equip. Corp. v. 2 Nelson (1980) 110 Cal.App.3d 868, 881.) The pleadings must be taken as true. (Aubrey v. Tri- 3 City Hospital District (1992) 2 Cal.4th 962, 966-967.) It is well settled that, in reviewing a 4 demurrer, the court assumes the truth of all properly pleaded material facts, regardless of how 5 unlikely or improbable. (Committee on Children's Television, Inc. v. General Foods Corp. 6 (1983) 35 Cal.3d 197, 213-214; Amid v. Hawthorne Community Medical Group. Inc. (1989) 212 7 Cal.App.3d 1383, 1386-1387.) The allegations of the complaint are liberally construed with an eye toward substantial justice. (Stevens v. Superior Court (19991 75 Cal.App.4th 594. 601.) To 9 survive demurrer, the plaintiff need only plead facts showing entitlement to some relief. (Amid, 10 supra at p. 1387.) 11 12 B. Plaintiffs Have Properly Alleged That Britschgi's Contractor's License Was Suspended as a Matter of Law, Which Requires Him to Refund Money Plaintiffs 13 Paid Him 14 Britschgi argues that the third cause of action is improper because there is no private righl 15 of action for violation of workers compensation law and because Britschgi was, in fact, licensed. 16 This argument is meritless. If Britschgi was without workers' compensation insurance, he was 17 unlicensed as a matter of law, and required to refund all sums plaintiffs paid him. 18 The FAC alleges that Britschgi violated workers' compensation laws. (FAC 7:5-17.) In 19 his demurrer, Britschgi disputes that he violated these laws, but concedes that "for purposes of 20 demurrer they must be taken as true." (Britschgi demurrer at p. 4:23-24.) These violations of the 21 workers' compensation laws, however, give rise to a cause of action on the part of plaintiffs for 22 return of the funds they paid to Britschgi. 23 Employers are required to carry workers' compensation insurance for their employees 24 (Bus. & Prof.Code §§7125, 7125.4.) The failure to carry such insurance, when required to do so 25 results in the automatic suspension of the contractor's license. (Bus. & Prof. Code §7125. 26 ["The failure of a licensee to obtain or maintain workers' compensation insurance, if required 27 under this chapter, shall result in the automatic suspension of the license by operation of law in 28 accordance with the provisions of this section . . . ."]) A contractor who is unlicensed as a resul Abbotts' Opposition to Britschgi's Motion to Strike and Demurrer - 2 1 of not carrying worker's compensation insurance is precluded, as a matter of law, from 2 recovering for any services rendered during the time of the suspension. (Wright v. Issak (2007) 3 149 Cal.App.4th 1116, 1122-1123.) The same is true in this case. 4 Moreover, per statute, an unlicensed contractor is not only precluded from collecting 5 unpaid sums, but is required to refund those sums collected. 6 Except as provided in subdivision (e), a person who utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction 7 in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract. 9 (Bus.& Prof.Code §7031 (a), (b), emphasis added.) 10 Britschgi argues that his license was valid during the time he rendered services to 11 plaintiffs, and asks that this Court take judicial notice of such licensure. First, such is not a 12 proper subject of judicial notice. More importantly, whether the California State Licensing 13 Board ("CSLB") actually revoked is license for hiring employees although without worker's 14 compensation insurance is irrelevant. Under Wright v. Issak, supra the CSLB need not give 15 notice or otherwise take any action before the contractor's license may be suspended under 16 Business & Professions Code section 7125.2. (Id. at pp. 1121-1123 ["In relevant summary 17 section 7125.2 states that a contractor's license is automatically suspended as of the date the 18 contractor was required to obtain workers' compensation insurance but did not. This language 19 cannot be clearer.") No notice by the CSLB is required where a contractor should have obtained 20 workers' compensation insurance but failed to, as the CSLB has no way of knowing that the 21 contractor has hired an employee, despite asserting that he has no employees. As such, the 22 existence of "proof of licensure" is irrelevant, as the suspension is automatic, not based upon 23 action by the CSLB. (See id at pp 1122-1123 and fn. 2.) 24 Plaintiffs have pled that Britschgi was improperly without worker's compensation 25 insurance during the time he worked on their house. These factual allegations must be taken as 26 true. Under Business & Professions Code section 7031 (b), plaintiffs are entitled to a refund oi 27 the money they paid Britschgi if he worked on their house during the time his license was 28 automatically suspended as a result of his violation of the workers compensation laws. They Abbotts' Opposition to Bntschgi's Motion to Strike and Demurrer - 3 1 have thus adequately pled a cause of action and resulting damages. Britschgi's demurrer to the 2 third cause of action must be overruled. 3 4 C. Plaintiffs Have Adequately Pled a Cause of Action for Violation of B&P Section 5 7160 6 This cause of action is not one for "fraud" which must be stated with particularity; rather, 7 it is a cause of action for violation of the Business & Professions Code section 7160, which 8 prohibits a contractor from making fraudulent or false representations about his ability to 9 perform under the contract. Plaintiffs have adequately pled that Britschgi's work was defective 10 (FAC at Tflf 11, 14, 15.) And they adequately pled that he violated B&P Code section 7160 by 11 knowingly making false or fraudulent statements about his ability to properly perform the work 12 This is sufficient to state a cause of action under Business & Professions Code section 7160. 13 Britschgi has cited no authority stating otherwise. If this pleading is insufficient, plaintiffs 14 request leave to amend to more specifically plead this element of the cause of action for breach 15 of the B&P Code. 16 17 D. Plaintiffs Have Pled Damages: the Sums They Paid Britschgi 18 As set forth above, plaintiffs are entitled under Busienss & Professions Code section 19 703 l(b) to recover all of the money they paid to Britschgi if he was unlicensed during the time 20 he worked on their property. These are the damages alleged; they are cognizable; and they are 21 properly pled. The demurrer for lack of damages must be overreuled. 22 23 E. This Court Must Overrule the Demurrer for Uncertainty 24 Britschgi's demurrer for "uncertainty" must also fail. Such demurrers are only sustained 25 where the complaint is so uncertain that defendant cannot reasonably respond. (Khoury v. 26 Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) And a demurrer made on this 27 ground must distinctly specify why, how and where the pleadings are uncertain. (See Fenton v. 28 Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809.) Britschgi has not shown how the complaint is uncertain, why it is uncertain, or even where it is uncertain. The Abbotts' Opposition to Britschgi's Motion to Strike and Demurrer - 4 1 only "uncertainty" he alleges is that the complaint states that he "violated or may have violated'' 2 six different statutes. But the violation of any of these six statutes entitles plaintiffs to a refunc 3 of the money they paid Britschgi under the oral agreement. These violations are thus 4 appropriately included in one cause of action. This does not render the complaint—or even the 5 third cause of action—uncertain. The demurrer should be overruled. 6 7 G. The Motion to Strike Must Be Denied 8 As set forth above, plaintiffs have properly pled a valid cause of action against Britschgi 9 for a refund of the sums they paid him based upon his contractor's license having been 10 automatically suspended. Therefore, the phrases numbered 1, 3, 5, 7, and 9 may not be stricken. 11 Phrase 1 properly alleges that Britschgi claimed an exemption from worker's compensation 12 insurance, yet he employed workers to work on plaintiffs' property. This phrase properly lays 13 the foundation for the later allegations in Phrases 3 and 5 that Britschgi's license was 14 automatically suspended for this failure. Phrase 3 properly alleges that Britschgi violated certain 15 B&P Code sections for performing work as a general contractor while his license was suspended. 16 Phrase 5 alleges that h failed to comply with workers' compensation laws. Phrase 7 properly 17 sets forth the damages. And Phrase 9 properly sets forth other penalties for which Britschgi is 18 liable under the B&P Code. 19 Phrases 2 and 4 set forth another basis for the cause of action, that Britschgi violatec 20 B&P Code section 7109 by willfully departing from accepted trade standards, and that he 21 violated B&P Code section 7159 for working without a written contract. Nothing prevents 22 Plaintiffs from bringing a private right of action for these violations, the damages for which ar< 23 refund of sums plaintiffs paid. Phrase 6 alleges that Britschgi violated B&P Code section 716( 24 by improperly stating he could do the work when he could not. This statute provides for a 25 penalty of $500 plus attorney fees, as properly set forth in Phrase 8. 26 Each of these phrases allege that Britschgi was violating the B&P Code and set forth the 27 damages and/or penalties for those violations. The motion to strike must be denied as without 28 legal basis. Abbotts' Opposition to Bntschgi's Motion to Strike and Demurrer - 5 1 2 H. If the Demurrer Is Sustained, It Should Be With Leave to Amend 3 If this Court sustains Britschgi's demurrer, it should grant plaintiffs leave to amend the 4 third cause of action in the complaint. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 5 19 Cal.4th 26, 39.) It would be error to sustain any such demurrer without granting leave to 6 amend. (Ibid.) 7 8 Dated: November 2, 2009 By: Stephanie J. Fmelli, Attorney for Plaintiffs, 10 Rodney and Florentine Abbott 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Abbotts' Opposition to Bntschgi's Motion to Strike and Demurrer - 6 PROOF OF SERVICE 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 times 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 November 3, 2009, pursuant to CCP §1013A(2), I served the following: PLAINTIFFS' OPPOSITION TO DEFENDANT BRITSCHGI'S MOTION TO STRIKE AND DEMURRER BY FAX AND BY MAIL: by faxing and mailing a copy of said document to the following: Craig Lundgren Richard Sopp 424 2nd Street, Suite A Maloney, Wheatley, Sopp & Brooks Davis, C A 95616 1004 Moon River Rock Drive, Suite 245 fax 530-297-5077 Folsom, CA 95630 fax 916-988-5296 Gregory Federico Archer Norris 655 University Ave., Suite 225 Sacramento, CA 95825 fax 916-646-5696 Sean Schwerdtfeger 501 West Broadway, Suite 1700 San Diego, C A 92101 fax 619-595-3404 I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct. DATED: November 3, 2009 T^-Stephanie J. Finelli PROOF OF SERVICE 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 times 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 November 3,2009, pursuant to CCP § 1013A(2), I served the following: PLAINTIFFS' OPPOSITION TO DEFENDANT CA CONSTRUCTION'S MOTION TO STRIKE AND DEMURRER PLAINTIFFS' OPPOSITION TO DEFENDANT BRITSCHGI'S MOTION TO STRIKE AND DEMURRER BY MAIL: by faxing and mailing a copy of said document to the following: Mark Smith 8549 Willow Valley Place Granite bay, CA 95746 I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct. DATED: November 3,2009 "Stephanie J.