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1 STEPHANIE J. FINELLI, SBN 173462 FILED
2
Law Office of Stephanie J. Finelli Superior Court Of {galifornia,
1007-7th Street, Suite 500 Sjtcrdmento
3 Sacramento, CA 95814
tel 916-443-2144 H/OS/2010
4
fax 916-443-1511
5
, Deputy
Attorney for Plaintiffs, Ca&a Humhai".
6 RODNEY ABBOTT and
FLORENTINE ABBOTT
7
8
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
IN AND FOR THE COUNTY OF SACRAMENTO
10
11
RODNEY ABBOTT and FLORENTINECaseNo.: 07AS04450
12 ABBOTT,
13 THIRD AMENDED COMPLAINT FOR
Plaintiffs, DAMAGES FOR BREACH OF CONTRACT,
14 NEGLIGENCE, AND VIOLATIONS OF
vs.
BUSINESS & PROFESSIONS CODE
15
RONALD PAUL BRITSCHGI, individually
16 and doing business as BRITSCHGI
CONSTRUCTION; RICHARD KIRK
17
RUYBALID, individually and doing business as
18
CA CONSTRUCTION; MARK SMITH
individually and doing business as
19 GROUNDBREAKERS; R4C0RP; and DOES 5
through 20, inclusive,
20
21 Defendants
22
23 and related cross-actions
24
25 Plaintiffs allege:
26 GENERAL ALLEGATIONS
27 1. At all times herein mentioned, Plaintiffs RODNEY ABBOTT and FLORENTINE
28 ABBOTT were owners of that parcel of real property located in the County of Sacramento, State
29
Second Amended Complaint - 1
1 of California, and more particularly described as 8601 Rolling Green Way, Fair Oaks, California
2 95628.
3 2. Plaintiffs are informed and believe and upon such information and upon such
4 information and belief allege that at all times herein mentioned. Defendant RONALD PAUL
5 BRITSCHGI (hereinafter "BRITSCHGI"), is an individual doing business under that firm name
6 and style of BRITSCHGI CONSTRUCTION, and at all times herein mentioned, was and is
7 doing business in the County of Sacramento, State of Califomia. Defendant BRITSCHGI was
8 duly licensed by the Contractor's State License Board of the State of Califomia to conduct
9 business as a general building contractor within the State ofCalifomia and to engage in the work
10 hereinafter described.
11 3. Plaintiffs are informed and believe and upon such information and upon such
12 information and belief allege that at all times herein mentioned. Defendant RICHARD KIRK
13 RUYBALID (hereinafter "RUYBALID") is an individual doing business under the firm name
14 and style of CA CONSTRUCTION and at all times herein mentioned did business in the City oi
15 Fair Oaks, County of Sacramento, State of California. Defendant RUYBALID was duly licensed
16 by the Contractor's State License Board of the State of Califomia to conduct business as a
17 general building contractor within the State of Califomia.
18 4. Plaintiffs are informed and believe and upon such information and upon such
19 information and belief allege that at all times herein mentioned. Defendant MARK SMITH
20 (hereinafter "SMITH") is an individual doing business as "Groundbreakers." Plaintiffs are
21 informed and believe that at the time relevant to this complaint, said Defendant was a licensed
22 general building contractor, but did not have a specialty contractor's license to perform
23 earthwork or grading. Said defendant is hereby substituted in place of DOE 1 in the original
24 complaint.
25 5. Plaintiffs are informed and believe and upon such information and upon such
26 information and belief allege that at all times herein mentioned, Defendant R4C0RP (hereinafter
27 "R4C0RP") is a corporation and at all times herein mentioned did business in the County of
28 Sacramento, State of Califomia. Said defendant is hereby substituted in place of DOE 4 in the
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Second Amended Complamt - 2
1 original complaint. Plaintiffs are informed and believe and thereon allege that R4C0RP is the
2 successor to the business interest of RICHARD RUYBALID doing business as CA
3 CONSTRUCTION and currently does business as CA CONSTRUCTION, having assumed all ol
4 the assets and liabilities of CA CONSTRUCTION in either 2007 or 2008, but after the wrongfiil
5 acts alleged herein were committed by defendant RUYBALID. R4Corp is thus named as a
6 defendant solely as a successor to defendant Ruybalid dba CA Constmction, and is included as a
7 defendant herein wherever said defendant is referred to herein as "Defendants Ruybalid."
8 6. Plaintiffs are ignorant of the tme names and capacities of the Defendants sued
9 herein as DOES 5 through 20, inclusive, and therefore sues these Defendants by such fictitious
10 names. Plaintiffs will amend this Complaint to allege their true names and capacities when
U ascertained. Plaintiffs are informed and believe that each of these Defendants is an agent and
12 employee of each and every other Defendant named or to be named in the above-entitled action
13 and that each such DOE Defendant proximately caused Plaintiffs damages as herein alleged
14 while acting in such capacity. Plaintiffs are further informed and believe, and upon such
15 information and belief, allege that each of the DOE Defendants were somehow negligent and/or
16 at fault with respect to the work done on Plaintiffs' real property as more specifically referred to
17 herein and that said Doe Defendants somehow proximately caused the damages of which
18 Plaintiffs complain.
19
FIRST CAUSE OF ACTION
20
(Breach of Oral Contract Against Defendant Britschgi)
21
7. Plaintiffs hereby reallege and incorporate by reference all ofthe allegations set forth in
22
paragraphs 1-6 as set forth above.
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8. On or about October 1, 2005, Plainfiffs and Defendant BRITSCHGI entered an oral
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contract in which said defendant agreed to help the plaintiffs build their personal residence which
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is located in Fair Oaks, as more specifically described hereinabove. Said defendant, as a general
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contractor, agreed to assist plaintiffs in the construction oftheir personal residence to the extent
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that said Defendant would assist, guide, and direct Plaintiffs and other contractors with respect to
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certain stages of constmction, namely the location for placement of the house on the lot, grading
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Second Amended Complaint - 3
1 of the lot for the purposes of constmction, the pouring of concrete for the house and garage for
2 foundational purposes, with emphasis on proper elevation of that foundation as that foundation
3 related to where the house and garage would sit on the lot in relation to the elevation ofthe street
4 and proposed streets in front of the lot, as well as the framing of the house, in addition to
5 miscellaneous other duties. These miscellaneous other duties included the supervision of the
6 work done by other contractors working on the constmction of the house. For these services
7 Plaintiffs paid said Defendant the sum of approximately $13,658,00, the exact sum of which will
8 be shovra according to proof at the time of trial. Said defendant agreed to perform his duties so
9 as to make sure that the house was constmcted according to certain plans and specifications
10 given to said Defendant by Plaintiffs at the time he agreed to work with Plaintiffs as a general
II contractor assisting them in the constmction of their personal residence. Said Defendant further
12 agreed to use his care and skill as a general contractor with respect to not only the work that he
13 was doing personally towards the constmction of the residence, but also he agreed to use his care
14 and skill as a general contractor to supervise the work done by other subcontractors and to assure
15 that all such work was done in a good and workmanlike fashion, and done according to the
16 standards of construction within the construction industry, and according to certain plans and
17 specifications. These oral agreements were entered into by and between Plaintiffs and said
18 Defendant in a series of oral discussion which took place begirming on or about October 1, 2005.
19 9. Plaintiffs have performed all conditions, covenants and promises under the
20 contract with said Defendant to be performed on their part, including but not limited to, the
21 payment of $13,658.00 to said Defendant.
22 10. On or about September 15, 2006, Plaintiffs discovered that said Defendant
23 breached the contract with them by failing to properly supervise the work performed by other
24 contractors and to assure that the work was done adequately, diligently, and in a good and
25 workmanlike fashion and according to certain plans and specifications.
26 11. As a result of said Defendant breaching the contract, plaintiffs have suffered
27 certain damages in that Plaintiffs' house and garage were defectively constructed and not
28 according to plans and specifications. Those damages include the fact that neither the house nor
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Second Amended Complaint - 4
the garage were built at certain elevations to which they should have been constmcted, as well as
the fact that the lot was improperly graded, the house was built on tmcompacted and insufficient
soil, the footings were placed on unsuitable soil, insufficient gravel and/or fill was placed under
the slab foundation ofthe house and ofthe garage, vapor barriers were not properly installed, and
the walls ofthe garage were taller than were engineered under the plans. The incorrect placing
of the house and garage on the lot at certain levels and the other aforementioned damages were
not according to plans and specifications thus resulting in certain damage to the house and
garage and surrounding property, including drainage damage, the necessity of using stairs to the
house and stairs to the garage, the inability to use the garage for the purposes for which it was
10 intended, the rendering of the property an attractive nuisance, improper settling of the house,
11 resulting in damage to the walls, cracking of the concrete, the stucco, and other damage to the
12 interior and exterior of the house, potential mold damage, instability of the structure due to it
13 sitting on uncompacted soil, instability of the garage walls, stucco is not properly adhering to the
14 retaining wall, and the walls of the garage are taller than were engineered under the plans, and
15 damages to the retaining walls as well as incurring other expenses including but not limited to,
16 costs to repair defective constmction work, the costs to repair consequential damages to non-
17 defective property caused by the breach of said contract, the diminished market value of their
18 house, loss of use of the house, cost to repair, cost to reconstmct, all payments made to said
19 Defendant, and other damages, the total amount of damages which is unknown at this time, the
20 exact sum of which will be shovra according to proof at the time of trial. Plaintiffs are also
21 entitled to interest on all such economic damages at the legal rate.
22
SECOND CAUSE OF ACTION
23
(NegUgence as to Defendant Britschgi)
24
12. Plaintiffs hereby reallege and incorporate by reference all ofthe allegations set
25
forth in paragraphs 1-11 as set forth above.
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13. Said Defendant had a duty to perform his constmction services and other services
27
in good and workmanlike marmer and in accordance with accepted standards in the constmction
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Second Amended Complaint - 5
1 industry and the applicable building codes and in accordance with certain plans and
2 specifications as given to him by Plaintiffs.
3 14. In performing the services as referenced herinabove, said Defendant acted
4 negligently in the performance of those services. The negligence manifested itself in certain
5 ways, including but not limited to, the fact that the house and the garage were not constructed in
6 a good and workmanlike fashion or according to accepted standards in the constmction industry
7 Further, the house and the garage were not constructed according to certain plans and
8 specifications or in the manner as requested by Plaintiffs. Said defendant was fiirther negligent
9 in his duties in not properly supervising the work done by other contractors, which supervision
10 he promised Plaintiffs he would perform.
11 15. As a result ofthe negligence of said Defendant, Plaintiffs have suffered certain
12 damages in that Plaintiffs' house and garage were defectively constructed and not according to
13 plans and specifications. Those damages include the fact that neither the house nor the garage
14 were built at certain elevations to which they should have been constmcted, as well as the fact
15 that the lot was improperly graded, the house was built on uncompacted and insufficient soil, the
16 footings were placed on unsuitable soil, insufficient gravel and/or fill was placed under the slab
17 foundation of the house and of the garage, vapor barriers were not properly installed, and the
18 walls of the garage were taller than were engineered under the plans. The incorrect placing ol
19 the house and garage on the lot at certain levels and the other aforementioned damages were not
20 according to plans and specifications thus resulting in certain damage to the house and garage
21 and surrounding property, including drainage damage, the necessity of using stairs to the house
22 and stairs to the garage, the inability to use the garage for the purposes for which it was intended,
23 the rendering of the property an attractive nuisance, improper settling of the house, resulting in
24 damage to the walls, cracking of the concrete, the stucco, and other damage to the interior and
25 exterior of the house, potential mold damage, instability of the structure due to it sitting on
26 uncompacted soil, instability of the garage walls, stucco is not properly adhering to the retaining
27 wall, and the walls ofthe garage are taller than were engineered under the plans, and damages to
28 the retaining walls as well as incurring other expenses including but not limited to, costs to repair
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Second Amended Complaint - 6
I defective constmction work, the costs to repair consequential damages to non-defective property
2 caused by the negligence, the diminished market value of their house, loss of use of the house,
3 cost to repair, cost to reconstmct, all payments made to said Defendant, personal injuries to
4 plaintiffs as a result of mold damage, and other damages, the total amount of damages which is
5 unknown at this time, the exact sum of which will be shown according to proof at the time ol
6 trial. Plaintiffs are also entitled to interest on all such economic damages at the legal rate.
7 THIRD CAUSE OF ACTION
(Violation of Business & Professions Code Against Defendant Britschgi)
8
9 16. Plaintiffs hereby reallege and incorporate by reference all ofthe allegations set forth
10 in paragraphs 1-15 as set forth above.
11 17. Defendant Britschgi employed workers to assist him in performing work on the
12 Abbotts' property. At all times herein mentioned, defendant Britschgi claimed an exemption
13 form providing workers' compensation insurance based upon his claim that he had no
14 employees. At all times herein mentioned, Britschgi did not have the skill or the experience
15 necessary to properly perform under his agreement with plaintiffs, and was aware that he lacked
16 such skill and/or experience.
17 18. Plaintiffs are informed and believe and thereon allege that Britschgi has violated
18 the following statutes: Business & Professions Code section 7109 for willfully departing from
19 accepted trade standards for good and workmanlike construction; sections 7026, 7028, and 7031
20 for performing work as a general contractor while his license was suspended by operation of law;
21 section 7110 for failing to comply with workers' compensation laws; and section 7160 for
22 knowingly making false or fraudulent representations to Plaintiffs about his ability to properly
23 perform the services he was required to perform under the contract with Plaintiffs.
24 19. Plaintiffs have been damaged in the sum of at least $13,658.00, as the sums they
25 paid to Britschgi, plus interest thereon at the legal rate of 10% per annum. Plaintiffs are also
26 entitled to a $500 penalty and attorney fees pursuant to Business & Professions Code section
27 7160. Because said Defendant was acting as a contractor within the meaning of Business &
28 Professions Code section 7026 without a valid contractor's license as required by section 7028,
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Second Amended Complaint - 7
1 Plaintiffs are entitled to treble damages and attorney fees pursuant to Code of Civil Procedure
2 section 1029.8.
3
4 FOURTH CAUSE OF ACTION
(Breach of Written Contract Against Defendants Ruybalid)
5
6 20. Plaintiffs hereby reallege and incorporate herein by reference all ofthe allegations oi
7 paragraphs 1-6, set forth above.
8 21. On or about October 25, 2005, Plaintiffs and Defendant Ruybalid entered into a
9 written construction contract, a copy of which was attached to the prior complaints as Exhibit A
10 and is incorporated herein by reference. Subsequent to the acts alleged herein. Defendant
11 Ruybalid incorporated as defendant R4Corp, and transferred all assets and liabilities of CA
12 Constmction, which was Ruybalid's dba, to R4 Corp. Plaintiffs are informed and believe and
13 thereon allege that defendant R4Corp is thus the successor to Ricahrd Ruybalid dba CA
14 Construction, and is thus liable for the acts of said defendant, as alleged herein, as a successor
15 thereto, and not for any acts committed by defendant R4Corp on its own.
16 22. Defendants Ruybalid were given a copy of the County-approved plans and
17 specifications for the constmction of the residence, as well as subsequently modified plans,
18 which said Defendants participated in modrfying, as well as a copy of the County-approved plans
19 for the construction of the cul-de-sac that was to be constructed according to County
20 specifications in front of the residence. Defendants Ruybalid were so given those plans and
21 specifications for the purpose of specifically performing the contract.
22 23. Defendants Ruybalid breached the contract in question by failing to properly
23 place the foundation for the house and garage at the correct elevations and on such a location on
24 the lot as called for pursuant to certain plans and specifications and as requested by Plaintiffs.
25 Said Defendants ftirther breached the contract by failing to properly lay, pour, and place the
26 concrete ofthe house and the garage as called for in the plans and specifications and as called for
27 according to good and workmanlike standards within the constmction industry. The foundation
28 of the house and garage were constmcted improperly and not according to the goveming
29 building codes and regulations, neither the house nor the garage were built at certain elevations
Second Amended Complaint - 8
1 to which they should have been constructed, the house was built on uncompacted and
2 insufficient soil, the footings were placed on unsuitable soil, insufficient gravel and/or fill was
3 placed under the slab foundation of the house and of the garage, and vapor barriers were not
4 properly installed. The foundation of the house and garage were constmcted as such so as to
5 limit Plaintiffs' use and enjoyment of both the house and the garage because said Defendants
6 failed to follow the plans and specifications as given to him, failed to follow the building codes
7 and failed to follow Plaintiffs' directives. Said Defendants also breached the contract by
8 charging Plaintiffs more than was specified under the contract; requiring Plaintiffs to directly pay
9 subcontractors and suppliers whom said Defendants were required to pay under the contract; and
10 by invoicing Plaintiffs for sums that were not due or owing under the contract.
11 24. Plaintiffs have performed all conditions, covenants and promises under the
12 contract with said Defendant to be performed on their part, including but not limited to, the
13 payment of over $53,000.00 to said Defendants.
14 25. As a result of said Defendants' breach of the contract, Plaintiffs have been
15 damaged as more specifically referred to hereinabove, including, but not limited to, costs to
16 repair defective constmction work, the costs to repair consequential damages to non-defective
17 property caused by the breach of said contract, the diminished market value of their house, loss
18 of use of the house, and other expenses including but not limited to, cost to repair, cost to
19 reconstmct, all payments made to said Defendants, payments made to third parties, and other
20 damages, the total amount of damages which is unknown at this time, the exact sum of which
21 will be shown according to proof at the time of trial. Plaintiffs are also entitled to interest on all
22 such economic damages at the legal rate, as well as attomey fees according to proof
23 FIFTH CAUSE OF ACTION
(Negligence Against Defendants Ruybalid)
24
26. Plaintiffs hereby reallege and incorporate by reference all of the allegations oi
25
paragraphs 1-6 and 21-25, set forth above.
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27. Defendants Ruybalid had a duty to perform the constmction services pursuant to
27
the terms of the constmction contract as called for according to the plans and specifications and
28
according to good and workmanlike standards as called for within the construction industry and
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Second Amended Complaint - 9
1 in accordance with accepted standards in the constmction industry and the applicable building
2 codes.
3 28. At all times herein mentioned, said Defendants knew or should have known that the
4 construction services they were performing were performed in such a manner so as to result in
5 the foimdation for the house and garage not being constmcted in accordance with certain plans
6 and specifications, or at certain elevations to which they should have been constructed, as well as
7 the fact that the house was built on uncompacted and insufficient soil, the footings were placed
8 on unsuitable soil, insufficient gravel was placed under the slab foimdation of the house and oi
9 the garage and vapor barriers were not properly installed, thus potentially causing mold damage
10 to the interior ofthe home. Said Defendants negligently caused the foundation to be poured and
11 placed in such a fashion so as to be contrary to the plans and specifications as originally drafted
12 and as later modified and not in good and workmanlike manner, and in violation of building
13 codes and regulations, and in a marmer so as to render the house stmcturally unstable.
14 29. As a proximate result of the negligence of said Defendants, plaintiffs have been
15 damaged as more specifically referred to hereinabove, including the fact that Plaintiffs carmot
16 use the garage for its intended purposes, drainage damage, the necessity of using stairs to the
17 house and additional stairs to the garage, potential mold damage to the interior of the home
18 instability of the structure due to it sitting on uncompacted and/or unsuitable soil. These
19 damages include the costs to repair defective constmction, the costs to repair consequential
20 damage to non-defective property, the diminished market value ofthe Plaintiffs' property, loss oi
21 use of the property, all payments made to said Defendants, personal injuries to plaintiffs and
22 their family members as a result of mold damage, and other damages, the total amount oi
23 damages which is unknown at this time, the exact sum of which will be shown according to
24 proof at the time of trial. Plaintiffs are also entitled to interest on all such economic damages at
25 the legal rate.
26 SIXTH CAUSE OF ACTION
27
(Violation of Business & Professions Code Against Defendants Ruybalid)
28 30. Plaintiffs hereby reallege and incorporate by reference all ofthe allegations set forth
29 in paragraphs 1 -6 and 21-29 as set forth above.
Second Amended Complaint - 10
31. The aforementioned contract between Defendants Ruybalid and Plaintiffs was
2 solely for foundation work, and thus required a C-8 contractor's license to perform. At all times
3 herein relevant, Defendants Ruybalid dba CA Constmction did not have a valid C-8 license. Nor
4 did said Defendants subcontract with a specialty C-8 contractor to perform the work under said
5 contract.
6 32. At all times herein mentioned, Defendants Ruybalid did not have the skill or the
7 experience necessary to properly perform under his agreement with plaintiffs, and was aware that
8 he lacked such skill and/or experience.
9 33. Plaintiffs are informed and believe and thereon allege that Defendants Ruybalid
10 have violated, or may have violated, a number of statutes, including but not limited to. Business
11 & Professions Code section 7109 for willfiilly departing from accepted trade standards for good
12 and workmanlike constmction; sections 7026, 7028, and 7031 for performing work as a concrete
13 contractor without a valid C-8 license; and section 7160 for knowingly making false or
14 fraudulent representations to Plaintiffs about their ability to properly perform the services he was
15 required to perform under the contract with Plaintiffs.
16 34. Plaintiffs have been damaged in the sum of at least $53,206.88, as the sums they
17 paid to Defendants Ruybalid, plus interest thereon at the legal rate of 10% per armum. Plaintiffs
18 are also entitled to a $500 penalty and attomey fees pursuant to Business & Professions Code
19 section 7160. Because said Defendants were acting as a contractor within the meaning oi
20 Business & Professions Code section 7026 without a valid contractor's license as required by
21 section 7028, Plaintiffs are entitled to treble damages and attomey fees pursuant to Code ofCivil
22 Procedure section 1029.8.
23 SEVENTH CAUSE OF ACTION
(Negligence Against Defendant Smith)
24
35. Plaintiffs hereby reallege and incorporate by reference all ofthe allegations set forth
25
in paragraphs 1 -6 as set forth above.
26
36. In October 2005, Smith, doing business as Groundbreakers, performed grading
27
services at Plaintiffs' property. Said Defendant was negligent and violated building codes in that
28
he graded the lot without a grading permit; he cut more dirt than may be legally cut from
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Second Amended Complaint - 11
1 property without a grading permit; he did not check or ask for the elevations of the house and
2 cul-de-sac before performing the grading work; and he filled in areas of the lot where the house
3 was to sit without properly compacting the soil and without requiring a compaction report.
4 37. In or about December 2005 to January 2006, said Defendant performed additional
5 work at Plaintiffs' property, including loading gravel and fill for the slab for the house and the
6 garage, and backfilling dirt against the retaining walls. Said Defendant was negligent and
7 violated building codes in that he did not inquire as to whether there was a compaction report or
8 a soils report before loading the gravel or the fill; he did not properly compact the fill under the
9 slab or that he used to backfill against the retaining walls; and the fill he used was not proper, but
10 contained trash, uncompacted soil, and other miscellaneous items.
11 38. At the time he performed this work, said Defendant did not have a specialty
12 contractor's license to perform earthwork or grade property, and Plaintiffs are informed and
13 believe and thereon allege that said Defendant had an employee perform the work, without
14 providing worker's compensation insurance for said employee, thus rendering said Defendant
15 unlicensed for the work performed on behalf of Plaintiffs.
16 39. Plaintiffs paid said Defendant in fiill for his services, in the sum of $1,300.00 for
17 the October 2005 work, and approximately $1,280 for the later work, for a total of $2,580.00.
18 40. Said Defendant had a duty to perform the grading services in accordance with
19 applicable building codes, according to the plans and specifications for plaintiffs' house, and
20 according to good and workmanlike standards as called for within the constmction industry.
21 41. At all times herein mentioned, said Defendant knew or should have known that the
22 grading services he was performing were performed in such a manner so as to result in the
23 foundation for the house and garage not being constructed in accordance with certain plans and
24 specifications, or at certain elevations to which they should have been constructed, and not in
25 compliance with applicable building codes, and that the house was built on uncompacted and
26 insufficient fill and soil, insufficient gravel was placed under the slab foundation of the house
27 and ofthe garage, thus potentially causing mold damage to the interior ofthe home.
28
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Second Amended Complaint - 12
1 41. As a proximate result of the negligence of said Defendant, plaintiffs have been
2 damaged as more specifically referred to hereinabove, including the fact that Plaintiffs carmot
3 use the garage for its intended purposes, drainage damage, the necessity of using stairs to the
4 house and stairs to the garage, potential mold damage to the interior of the home, instability oi
5 the stmcture due to it sitting on uncompacted soil. These damages include the costs to repair
6 defective constmction, the costs to repair consequential damage to non-defective property, the
7 diminished market value of the Plaintiffs' property, loss of use of the property, all payments
8 made to said Defendant, and other damages, the total amount of damages which is unknown at
9 this time, the exact sum of which will be shown according to proof at the time of trial. Plaintiffs
10 are also entitled to interest on all such economic damages at the legal rate.
11 42. Because said Defendant was acting as a contractor within the meaning oi
12 Business & Professions Code section 7026 without a valid contractor's license as required by
13 section 7028, Plaintiffs are entitled to treble damages and attomey fees pursuant to Code ofCivil
14 Procedure section 1029.8.
15
16 WHEREFORE, Plaintiffs pray judgment against Defendants, and each of them, as
17 follows:
18 First Cause of Action:
19 1. For compensatory damages according to proof at trial, including a refund of all sums
20 paid;
21 2. For interest thereon at the legal rate;
22 3. For costs of suit; and
23 4. For such other, fiirther or different relief as the court deems just and proper.
24 Second 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
29
Second Amended Complaint - 13
1 4. For such other, further or different relief as the court deems just and proper.
2 Third Cause of Action
3 1. For compensatory damages according to proof at trial, including a refund of all sums
4 paid;
5 2. For interest thereon at the legal rate;
6 3. For a penalty of $500;
7 4. For treble damages;
8 5. For costs of suit;
9 6. For attomeys' fees; and
10 7. For such other, ftirther or different relief as the court deems just and proper.
11 Fourth Cause of Action
12 1. For compensatory damages according to proof at trial, including a refund of all sums
13 paid;
14 2. For interest thereon at the legal rate;
15 3. For costs of suit;
16 4. For attorney fees; and
17 5. For such other, further or different relief as the court deems just and proper.
18 Fifth Cause of Action
19 1. For compensatory damages according to proof at trial, including a refund of all sums
20 paid;
21 2. For interest thereon at the legal rate;
22 3. For costs of suit;
23 4. For attorneys' fees; and
24 5. For such other, further or different relief as the court deems just and proper.
25 Sixth Cause of Action
26 1. For compensatory damages according to proof at trial, including a refund of all sums
27 paid;
28 2. For interest thereon at the legal rate;
29
Second Amended Complaint -14
1 3. For a penalty of $500;
2 4. For treble damages;
3 5. For costs of suit;
4 6. For attomeys' fees; and
5 7. For such other, ftirther or different relief as the court deems just and proper
6 Seventh Cause of Action
7 1. For compensatory damages according to proof at trial, including a refund of all sums
8 paid;
9 2. For interest thereon at the legal rate;
10 3. For costs of suit; and
11 4. For such other, fiirther or different relief as the court d^ems just ai^li proper.
12
13 Dated: November 5, 2010 By: (
14
Stepname J Finelli,
Attomey for Plaintiffs
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Second Amended Complaint - 15
PROOF OF SERVICE BY MAIL
CASE NAME: Abbott v. Britschgi
CASE NUMBER: Sacramento County Superior Court 07AS04450
I declare that:
I am a citizen ofthe United States and a resident ofthe County of Sacramento. I am,
and at all times mentioned herein was, an active member of the State Bar of Califomia and
not a party to the above-entitied cause My business address is 1007 Seventh Street, Suite
500, Sacramento, Califomia 95814.
On November 5,2010, pursuant to CCP §1013A(2), I served the following:
THIRD 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,
Califomia, in a sealed envelope, with postage ftilly prepaid, addressed as follows:
Gregory Federico
Archer Norris
301 University Ave., Suite 110
Sacramento, CA 95825
Richard Sopp
Maloney, Wheatley, Sopp & Brooks
1004 Moon River Rock Drive, Suite 245
Folsom, CA 95630
Mark Smith
8549 Willow Valley Place
Granite Bay, CA 95746
I declare under penalty of perjury under the laws of the St^te of
foregoing is tme and correct.
Dated: November 5,2010 , w ^ v
Stephanie J. Finel
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1 STEPHANIE J. FINELLI, SBN 173462 FILED 2 Law Office of Stephanie J. Finelli Superior Court Of {galifornia, 1007-7th Street, Suite 500 Sjtcrdmento 3 Sacramento, CA 95814 tel 916-443-2144 H/OS/2010 4 fax 916-443-1511 5 , Deputy Attorney for Plaintiffs, Ca&a Humhai". 6 RODNEY ABBOTT and FLORENTINE ABBOTT 7 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SACRAMENTO 10 11 RODNEY ABBOTT and FLORENTINECaseNo.: 07AS04450 12 ABBOTT, 13 THIRD AMENDED COMPLAINT FOR Plaintiffs, DAMAGES FOR BREACH OF CONTRACT, 14 NEGLIGENCE, AND VIOLATIONS OF vs. BUSINESS & PROFESSIONS CODE 15 RONALD PAUL BRITSCHGI, individually 16 and doing business as BRITSCHGI CONSTRUCTION; RICHARD KIRK 17 RUYBALID, individually and doing business as 18 CA CONSTRUCTION; MARK SMITH individually and doing business as 19 GROUNDBREAKERS; R4C0RP; and DOES 5 through 20, inclusive, 20 21 Defendants 22 23 and related cross-actions 24 25 Plaintiffs allege: 26 GENERAL ALLEGATIONS 27 1. At all times herein mentioned, Plaintiffs RODNEY ABBOTT and FLORENTINE 28 ABBOTT were owners of that parcel of real property located in the County of Sacramento, State 29 Second Amended Complaint - 1 1 of California, and more particularly described as 8601 Rolling Green Way, Fair Oaks, California 2 95628. 3 2. Plaintiffs are informed and believe and upon such information and upon such 4 information and belief allege that at all times herein mentioned. Defendant RONALD PAUL 5 BRITSCHGI (hereinafter "BRITSCHGI"), is an individual doing business under that firm name 6 and style of BRITSCHGI CONSTRUCTION, and at all times herein mentioned, was and is 7 doing business in the County of Sacramento, State of Califomia. Defendant BRITSCHGI was 8 duly licensed by the Contractor's State License Board of the State of Califomia to conduct 9 business as a general building contractor within the State ofCalifomia and to engage in the work 10 hereinafter described. 11 3. Plaintiffs are informed and believe and upon such information and upon such 12 information and belief allege that at all times herein mentioned. Defendant RICHARD KIRK 13 RUYBALID (hereinafter "RUYBALID") is an individual doing business under the firm name 14 and style of CA CONSTRUCTION and at all times herein mentioned did business in the City oi 15 Fair Oaks, County of Sacramento, State of California. Defendant RUYBALID was duly licensed 16 by the Contractor's State License Board of the State of Califomia to conduct business as a 17 general building contractor within the State of Califomia. 18 4. Plaintiffs are informed and believe and upon such information and upon such 19 information and belief allege that at all times herein mentioned. Defendant MARK SMITH 20 (hereinafter "SMITH") is an individual doing business as "Groundbreakers." Plaintiffs are 21 informed and believe that at the time relevant to this complaint, said Defendant was a licensed 22 general building contractor, but did not have a specialty contractor's license to perform 23 earthwork or grading. Said defendant is hereby substituted in place of DOE 1 in the original 24 complaint. 25 5. Plaintiffs are informed and believe and upon such information and upon such 26 information and belief allege that at all times herein mentioned, Defendant R4C0RP (hereinafter 27 "R4C0RP") is a corporation and at all times herein mentioned did business in the County of 28 Sacramento, State of Califomia. Said defendant is hereby substituted in place of DOE 4 in the 29 Second Amended Complamt - 2 1 original complaint. Plaintiffs are informed and believe and thereon allege that R4C0RP is the 2 successor to the business interest of RICHARD RUYBALID doing business as CA 3 CONSTRUCTION and currently does business as CA CONSTRUCTION, having assumed all ol 4 the assets and liabilities of CA CONSTRUCTION in either 2007 or 2008, but after the wrongfiil 5 acts alleged herein were committed by defendant RUYBALID. R4Corp is thus named as a 6 defendant solely as a successor to defendant Ruybalid dba CA Constmction, and is included as a 7 defendant herein wherever said defendant is referred to herein as "Defendants Ruybalid." 8 6. Plaintiffs are ignorant of the tme names and capacities of the Defendants sued 9 herein as DOES 5 through 20, inclusive, and therefore sues these Defendants by such fictitious 10 names. Plaintiffs will amend this Complaint to allege their true names and capacities when U ascertained. Plaintiffs are informed and believe that each of these Defendants is an agent and 12 employee of each and every other Defendant named or to be named in the above-entitled action 13 and that each such DOE Defendant proximately caused Plaintiffs damages as herein alleged 14 while acting in such capacity. Plaintiffs are further informed and believe, and upon such 15 information and belief, allege that each of the DOE Defendants were somehow negligent and/or 16 at fault with respect to the work done on Plaintiffs' real property as more specifically referred to 17 herein and that said Doe Defendants somehow proximately caused the damages of which 18 Plaintiffs complain. 19 FIRST CAUSE OF ACTION 20 (Breach of Oral Contract Against Defendant Britschgi) 21 7. Plaintiffs hereby reallege and incorporate by reference all ofthe allegations set forth in 22 paragraphs 1-6 as set forth above. 23 8. On or about October 1, 2005, Plainfiffs and Defendant BRITSCHGI entered an oral 24 contract in which said defendant agreed to help the plaintiffs build their personal residence which 25 is located in Fair Oaks, as more specifically described hereinabove. Said defendant, as a general 26 contractor, agreed to assist plaintiffs in the construction oftheir personal residence to the extent 27 that said Defendant would assist, guide, and direct Plaintiffs and other contractors with respect to 28 certain stages of constmction, namely the location for placement of the house on the lot, grading 29 Second Amended Complaint - 3 1 of the lot for the purposes of constmction, the pouring of concrete for the house and garage for 2 foundational purposes, with emphasis on proper elevation of that foundation as that foundation 3 related to where the house and garage would sit on the lot in relation to the elevation ofthe street 4 and proposed streets in front of the lot, as well as the framing of the house, in addition to 5 miscellaneous other duties. These miscellaneous other duties included the supervision of the 6 work done by other contractors working on the constmction of the house. For these services 7 Plaintiffs paid said Defendant the sum of approximately $13,658,00, the exact sum of which will 8 be shovra according to proof at the time of trial. Said defendant agreed to perform his duties so 9 as to make sure that the house was constmcted according to certain plans and specifications 10 given to said Defendant by Plaintiffs at the time he agreed to work with Plaintiffs as a general II contractor assisting them in the constmction of their personal residence. Said Defendant further 12 agreed to use his care and skill as a general contractor with respect to not only the work that he 13 was doing personally towards the constmction of the residence, but also he agreed to use his care 14 and skill as a general contractor to supervise the work done by other subcontractors and to assure 15 that all such work was done in a good and workmanlike fashion, and done according to the 16 standards of construction within the construction industry, and according to certain plans and 17 specifications. These oral agreements were entered into by and between Plaintiffs and said 18 Defendant in a series of oral discussion which took place begirming on or about October 1, 2005. 19 9. Plaintiffs have performed all conditions, covenants and promises under the 20 contract with said Defendant to be performed on their part, including but not limited to, the 21 payment of $13,658.00 to said Defendant. 22 10. On or about September 15, 2006, Plaintiffs discovered that said Defendant 23 breached the contract with them by failing to properly supervise the work performed by other 24 contractors and to assure that the work was done adequately, diligently, and in a good and 25 workmanlike fashion and according to certain plans and specifications. 26 11. As a result of said Defendant breaching the contract, plaintiffs have suffered 27 certain damages in that Plaintiffs' house and garage were defectively constructed and not 28 according to plans and specifications. Those damages include the fact that neither the house nor 29 Second Amended Complaint - 4 the garage were built at certain elevations to which they should have been constmcted, as well as the fact that the lot was improperly graded, the house was built on tmcompacted and insufficient soil, the footings were placed on unsuitable soil, insufficient gravel and/or fill was placed under the slab foundation ofthe house and ofthe garage, vapor barriers were not properly installed, and the walls ofthe garage were taller than were engineered under the plans. The incorrect placing of the house and garage on the lot at certain levels and the other aforementioned damages were not according to plans and specifications thus resulting in certain damage to the house and garage and surrounding property, including drainage damage, the necessity of using stairs to the house and stairs to the garage, the inability to use the garage for the purposes for which it was 10 intended, the rendering of the property an attractive nuisance, improper settling of the house, 11 resulting in damage to the walls, cracking of the concrete, the stucco, and other damage to the 12 interior and exterior of the house, potential mold damage, instability of the structure due to it 13 sitting on uncompacted soil, instability of the garage walls, stucco is not properly adhering to the 14 retaining wall, and the walls of the garage are taller than were engineered under the plans, and 15 damages to the retaining walls as well as incurring other expenses including but not limited to, 16 costs to repair defective constmction work, the costs to repair consequential damages to non- 17 defective property caused by the breach of said contract, the diminished market value of their 18 house, loss of use of the house, cost to repair, cost to reconstmct, all payments made to said 19 Defendant, and other damages, the total amount of damages which is unknown at this time, the 20 exact sum of which will be shovra according to proof at the time of trial. Plaintiffs are also 21 entitled to interest on all such economic damages at the legal rate. 22 SECOND CAUSE OF ACTION 23 (NegUgence as to Defendant Britschgi) 24 12. Plaintiffs hereby reallege and incorporate by reference all ofthe allegations set 25 forth in paragraphs 1-11 as set forth above. 26 13. Said Defendant had a duty to perform his constmction services and other services 27 in good and workmanlike marmer and in accordance with accepted standards in the constmction 28 29 Second Amended Complaint - 5 1 industry and the applicable building codes and in accordance with certain plans and 2 specifications as given to him by Plaintiffs. 3 14. In performing the services as referenced herinabove, said Defendant acted 4 negligently in the performance of those services. The negligence manifested itself in certain 5 ways, including but not limited to, the fact that the house and the garage were not constructed in 6 a good and workmanlike fashion or according to accepted standards in the constmction industry 7 Further, the house and the garage were not constructed according to certain plans and 8 specifications or in the manner as requested by Plaintiffs. Said defendant was fiirther negligent 9 in his duties in not properly supervising the work done by other contractors, which supervision 10 he promised Plaintiffs he would perform. 11 15. As a result ofthe negligence of said Defendant, Plaintiffs have suffered certain 12 damages in that Plaintiffs' house and garage were defectively constructed and not according to 13 plans and specifications. Those damages include the fact that neither the house nor the garage 14 were built at certain elevations to which they should have been constmcted, as well as the fact 15 that the lot was improperly graded, the house was built on uncompacted and insufficient soil, the 16 footings were placed on unsuitable soil, insufficient gravel and/or fill was placed under the slab 17 foundation of the house and of the garage, vapor barriers were not properly installed, and the 18 walls of the garage were taller than were engineered under the plans. The incorrect placing ol 19 the house and garage on the lot at certain levels and the other aforementioned damages were not 20 according to plans and specifications thus resulting in certain damage to the house and garage 21 and surrounding property, including drainage damage, the necessity of using stairs to the house 22 and stairs to the garage, the inability to use the garage for the purposes for which it was intended, 23 the rendering of the property an attractive nuisance, improper settling of the house, resulting in 24 damage to the walls, cracking of the concrete, the stucco, and other damage to the interior and 25 exterior of the house, potential mold damage, instability of the structure due to it sitting on 26 uncompacted soil, instability of the garage walls, stucco is not properly adhering to the retaining 27 wall, and the walls ofthe garage are taller than were engineered under the plans, and damages to 28 the retaining walls as well as incurring other expenses including but not limited to, costs to repair 29 Second Amended Complaint - 6 I defective constmction work, the costs to repair consequential damages to non-defective property 2 caused by the negligence, the diminished market value of their house, loss of use of the house, 3 cost to repair, cost to reconstmct, all payments made to said Defendant, personal injuries to 4 plaintiffs as a result of mold damage, and other damages, the total amount of damages which is 5 unknown at this time, the exact sum of which will be shown according to proof at the time ol 6 trial. Plaintiffs are also entitled to interest on all such economic damages at the legal rate. 7 THIRD CAUSE OF ACTION (Violation of Business & Professions Code Against Defendant Britschgi) 8 9 16. Plaintiffs hereby reallege and incorporate by reference all ofthe allegations set forth 10 in paragraphs 1-15 as set forth above. 11 17. Defendant Britschgi employed workers to assist him in performing work on the 12 Abbotts' property. At all times herein mentioned, defendant Britschgi claimed an exemption 13 form providing workers' compensation insurance based upon his claim that he had no 14 employees. At all times herein mentioned, Britschgi did not have the skill or the experience 15 necessary to properly perform under his agreement with plaintiffs, and was aware that he lacked 16 such skill and/or experience. 17 18. Plaintiffs are informed and believe and thereon allege that Britschgi has violated 18 the following statutes: Business & Professions Code section 7109 for willfully departing from 19 accepted trade standards for good and workmanlike construction; sections 7026, 7028, and 7031 20 for performing work as a general contractor while his license was suspended by operation of law; 21 section 7110 for failing to comply with workers' compensation laws; and section 7160 for 22 knowingly making false or fraudulent representations to Plaintiffs about his ability to properly 23 perform the services he was required to perform under the contract with Plaintiffs. 24 19. Plaintiffs have been damaged in the sum of at least $13,658.00, as the sums they 25 paid to Britschgi, plus interest thereon at the legal rate of 10% per annum. Plaintiffs are also 26 entitled to a $500 penalty and attorney fees pursuant to Business & Professions Code section 27 7160. Because said Defendant was acting as a contractor within the meaning of Business & 28 Professions Code section 7026 without a valid contractor's license as required by section 7028, 29 Second Amended Complaint - 7 1 Plaintiffs are entitled to treble damages and attorney fees pursuant to Code of Civil Procedure 2 section 1029.8. 3 4 FOURTH CAUSE OF ACTION (Breach of Written Contract Against Defendants Ruybalid) 5 6 20. Plaintiffs hereby reallege and incorporate herein by reference all ofthe allegations oi 7 paragraphs 1-6, set forth above. 8 21. On or about October 25, 2005, Plaintiffs and Defendant Ruybalid entered into a 9 written construction contract, a copy of which was attached to the prior complaints as Exhibit A 10 and is incorporated herein by reference. Subsequent to the acts alleged herein. Defendant 11 Ruybalid incorporated as defendant R4Corp, and transferred all assets and liabilities of CA 12 Constmction, which was Ruybalid's dba, to R4 Corp. Plaintiffs are informed and believe and 13 thereon allege that defendant R4Corp is thus the successor to Ricahrd Ruybalid dba CA 14 Construction, and is thus liable for the acts of said defendant, as alleged herein, as a successor 15 thereto, and not for any acts committed by defendant R4Corp on its own. 16 22. Defendants Ruybalid were given a copy of the County-approved plans and 17 specifications for the constmction of the residence, as well as subsequently modified plans, 18 which said Defendants participated in modrfying, as well as a copy of the County-approved plans 19 for the construction of the cul-de-sac that was to be constructed according to County 20 specifications in front of the residence. Defendants Ruybalid were so given those plans and 21 specifications for the purpose of specifically performing the contract. 22 23. Defendants Ruybalid breached the contract in question by failing to properly 23 place the foundation for the house and garage at the correct elevations and on such a location on 24 the lot as called for pursuant to certain plans and specifications and as requested by Plaintiffs. 25 Said Defendants ftirther breached the contract by failing to properly lay, pour, and place the 26 concrete ofthe house and the garage as called for in the plans and specifications and as called for 27 according to good and workmanlike standards within the constmction industry. The foundation 28 of the house and garage were constmcted improperly and not according to the goveming 29 building codes and regulations, neither the house nor the garage were built at certain elevations Second Amended Complaint - 8 1 to which they should have been constructed, the house was built on uncompacted and 2 insufficient soil, the footings were placed on unsuitable soil, insufficient gravel and/or fill was 3 placed under the slab foundation of the house and of the garage, and vapor barriers were not 4 properly installed. The foundation of the house and garage were constmcted as such so as to 5 limit Plaintiffs' use and enjoyment of both the house and the garage because said Defendants 6 failed to follow the plans and specifications as given to him, failed to follow the building codes 7 and failed to follow Plaintiffs' directives. Said Defendants also breached the contract by 8 charging Plaintiffs more than was specified under the contract; requiring Plaintiffs to directly pay 9 subcontractors and suppliers whom said Defendants were required to pay under the contract; and 10 by invoicing Plaintiffs for sums that were not due or owing under the contract. 11 24. Plaintiffs have performed all conditions, covenants and promises under the 12 contract with said Defendant to be performed on their part, including but not limited to, the 13 payment of over $53,000.00 to said Defendants. 14 25. As a result of said Defendants' breach of the contract, Plaintiffs have been 15 damaged as more specifically referred to hereinabove, including, but not limited to, costs to 16 repair defective constmction work, the costs to repair consequential damages to non-defective 17 property caused by the breach of said contract, the diminished market value of their house, loss 18 of use of the house, and other expenses including but not limited to, cost to repair, cost to 19 reconstmct, all payments made to said Defendants, payments made to third parties, and other 20 damages, the total amount of damages which is unknown at this time, the exact sum of which 21 will be shown according to proof at the time of trial. Plaintiffs are also entitled to interest on all 22 such economic damages at the legal rate, as well as attomey fees according to proof 23 FIFTH CAUSE OF ACTION (Negligence Against Defendants Ruybalid) 24 26. Plaintiffs hereby reallege and incorporate by reference all of the allegations oi 25 paragraphs 1-6 and 21-25, set forth above. 26 27. Defendants Ruybalid had a duty to perform the constmction services pursuant to 27 the terms of the constmction contract as called for according to the plans and specifications and 28 according to good and workmanlike standards as called for within the construction industry and 29 Second Amended Complaint - 9 1 in accordance with accepted standards in the constmction industry and the applicable building 2 codes. 3 28. At all times herein mentioned, said Defendants knew or should have known that the 4 construction services they were performing were performed in such a manner so as to result in 5 the foimdation for the house and garage not being constmcted in accordance with certain plans 6 and specifications, or at certain elevations to which they should have been constructed, as well as 7 the fact that the house was built on uncompacted and insufficient soil, the footings were placed 8 on unsuitable soil, insufficient gravel was placed under the slab foimdation of the house and oi 9 the garage and vapor barriers were not properly installed, thus potentially causing mold damage 10 to the interior ofthe home. Said Defendants negligently caused the foundation to be poured and 11 placed in such a fashion so as to be contrary to the plans and specifications as originally drafted 12 and as later modified and not in good and workmanlike manner, and in violation of building 13 codes and regulations, and in a marmer so as to render the house stmcturally unstable. 14 29. As a proximate result of the negligence of said Defendants, plaintiffs have been 15 damaged as more specifically referred to hereinabove, including the fact that Plaintiffs carmot 16 use the garage for its intended purposes, drainage damage, the necessity of using stairs to the 17 house and additional stairs to the garage, potential mold damage to the interior of the home 18 instability of the structure due to it sitting on uncompacted and/or unsuitable soil. These 19 damages include the costs to repair defective constmction, the costs to repair consequential 20 damage to non-defective property, the diminished market value ofthe Plaintiffs' property, loss oi 21 use of the property, all payments made to said Defendants, personal injuries to plaintiffs and 22 their family members as a result of mold damage, and other damages, the total amount oi 23 damages which is unknown at this time, the exact sum of which will be shown according to 24 proof at the time of trial. Plaintiffs are also entitled to interest on all such economic damages at 25 the legal rate. 26 SIXTH CAUSE OF ACTION 27 (Violation of Business & Professions Code Against Defendants Ruybalid) 28 30. Plaintiffs hereby reallege and incorporate by reference all ofthe allegations set forth 29 in paragraphs 1 -6 and 21-29 as set forth above. Second Amended Complaint - 10 31. The aforementioned contract between Defendants Ruybalid and Plaintiffs was 2 solely for foundation work, and thus required a C-8 contractor's license to perform. At all times 3 herein relevant, Defendants Ruybalid dba CA Constmction did not have a valid C-8 license. Nor 4 did said Defendants subcontract with a specialty C-8 contractor to perform the work under said 5 contract. 6 32. At all times herein mentioned, Defendants Ruybalid did not have the skill or the 7 experience necessary to properly perform under his agreement with plaintiffs, and was aware that 8 he lacked such skill and/or experience. 9 33. Plaintiffs are informed and believe and thereon allege that Defendants Ruybalid 10 have violated, or may have violated, a number of statutes, including but not limited to. Business 11 & Professions Code section 7109 for willfiilly departing from accepted trade standards for good 12 and workmanlike constmction; sections 7026, 7028, and 7031 for performing work as a concrete 13 contractor without a valid C-8 license; and section 7160 for knowingly making false or 14 fraudulent representations to Plaintiffs about their ability to properly perform the services he was 15 required to perform under the contract with Plaintiffs. 16 34. Plaintiffs have been damaged in the sum of at least $53,206.88, as the sums they 17 paid to Defendants Ruybalid, plus interest thereon at the legal rate of 10% per armum. Plaintiffs 18 are also entitled to a $500 penalty and attomey fees pursuant to Business & Professions Code 19 section 7160. Because said Defendants were acting as a contractor within the meaning oi 20 Business & Professions Code section 7026 without a valid contractor's license as required by 21 section 7028, Plaintiffs are entitled to treble damages and attomey fees pursuant to Code ofCivil 22 Procedure section 1029.8. 23 SEVENTH CAUSE OF ACTION (Negligence Against Defendant Smith) 24 35. Plaintiffs hereby reallege and incorporate by reference all ofthe allegations set forth 25 in paragraphs 1 -6 as set forth above. 26 36. In October 2005, Smith, doing business as Groundbreakers, performed grading 27 services at Plaintiffs' property. Said Defendant was negligent and violated building codes in that 28 he graded the lot without a grading permit; he cut more dirt than may be legally cut from 29 Second Amended Complaint - 11 1 property without a grading permit; he did not check or ask for the elevations of the house and 2 cul-de-sac before performing the grading work; and he filled in areas of the lot where the house 3 was to sit without properly compacting the soil and without requiring a compaction report. 4 37. In or about December 2005 to January 2006, said Defendant performed additional 5 work at Plaintiffs' property, including loading gravel and fill for the slab for the house and the 6 garage, and backfilling dirt against the retaining walls. Said Defendant was negligent and 7 violated building codes in that he did not inquire as to whether there was a compaction report or 8 a soils report before loading the gravel or the fill; he did not properly compact the fill under the 9 slab or that he used to backfill against the retaining walls; and the fill he used was not proper, but 10 contained trash, uncompacted soil, and other miscellaneous items. 11 38. At the time he performed this work, said Defendant did not have a specialty 12 contractor's license to perform earthwork or grade property, and Plaintiffs are informed and 13 believe and thereon allege that said Defendant had an employee perform the work, without 14 providing worker's compensation insurance for said employee, thus rendering said Defendant 15 unlicensed for the work performed on behalf of Plaintiffs. 16 39. Plaintiffs paid said Defendant in fiill for his services, in the sum of $1,300.00 for 17 the October 2005 work, and approximately $1,280 for the later work, for a total of $2,580.00. 18 40. Said Defendant had a duty to perform the grading services in accordance with 19 applicable building codes, according to the plans and specifications for plaintiffs' house, and 20 according to good and workmanlike standards as called for within the constmction industry. 21 41. At all times herein mentioned, said Defendant knew or should have known that the 22 grading services he was performing were performed in such a manner so as to result in the 23 foundation for the house and garage not being constructed in accordance with certain plans and 24 specifications, or at certain elevations to which they should have been constructed, and not in 25 compliance with applicable building codes, and that the house was built on uncompacted and 26 insufficient fill and soil, insufficient gravel was placed under the slab foundation of the house 27 and ofthe garage, thus potentially causing mold damage to the interior ofthe home. 28 29 Second Amended Complaint - 12 1 41. As a proximate result of the negligence of said Defendant, plaintiffs have been 2 damaged as more specifically referred to hereinabove, including the fact that Plaintiffs carmot 3 use the garage for its intended purposes, drainage damage, the necessity of using stairs to the 4 house and stairs to the garage, potential mold damage to the interior of the home, instability oi 5 the stmcture due to it sitting on uncompacted soil. These damages include the costs to repair 6 defective constmction, the costs to repair consequential damage to non-defective property, the 7 diminished market value of the Plaintiffs' property, loss of use of the property, all payments 8 made to said Defendant, and other damages, the total amount of damages which is unknown at 9 this time, the exact sum of which will be shown according to proof at the time of trial. Plaintiffs 10 are also entitled to interest on all such economic damages at the legal rate. 11 42. Because said Defendant was acting as a contractor within the meaning oi 12 Business & Professions Code section 7026 without a valid contractor's license as required by 13 section 7028, Plaintiffs are entitled to treble damages and attomey fees pursuant to Code ofCivil 14 Procedure section 1029.8. 15 16 WHEREFORE, Plaintiffs pray judgment against Defendants, and each of them, as 17 follows: 18 First Cause of Action: 19 1. For compensatory damages according to proof at trial, including a refund of all sums 20 paid; 21 2. For interest thereon at the legal rate; 22 3. For costs of suit; and 23 4. For such other, fiirther or different relief as the court deems just and proper. 24 Second 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 29 Second Amended Complaint - 13 1 4. For such other, further or different relief as the court deems just and proper. 2 Third Cause of Action 3 1. For compensatory damages according to proof at trial, including a refund of all sums 4 paid; 5 2. For interest thereon at the legal rate; 6 3. For a penalty of $500; 7 4. For treble damages; 8 5. For costs of suit; 9 6. For attomeys' fees; and 10 7. For such other, ftirther or different relief as the court deems just and proper. 11 Fourth Cause of Action 12 1. For compensatory damages according to proof at trial, including a refund of all sums 13 paid; 14 2. For interest thereon at the legal rate; 15 3. For costs of suit; 16 4. For attorney fees; and 17 5. For such other, further or different relief as the court deems just and proper. 18 Fifth Cause of Action 19 1. For compensatory damages according to proof at trial, including a refund of all sums 20 paid; 21 2. For interest thereon at the legal rate; 22 3. For costs of suit; 23 4. For attorneys' fees; and 24 5. For such other, further or different relief as the court deems just and proper. 25 Sixth Cause of Action 26 1. For compensatory damages according to proof at trial, including a refund of all sums 27 paid; 28 2. For interest thereon at the legal rate; 29 Second Amended Complaint -14 1 3. For a penalty of $500; 2 4. For treble damages; 3 5. For costs of suit; 4 6. For attomeys' fees; and 5 7. For such other, ftirther or different relief as the court deems just and proper 6 Seventh Cause of Action 7 1. For compensatory damages according to proof at trial, including a refund of all sums 8 paid; 9 2. For interest thereon at the legal rate; 10 3. For costs of suit; and 11 4. For such other, fiirther or different relief as the court d^ems just ai^li proper. 12 13 Dated: November 5, 2010 By: ( 14 Stepname J Finelli, Attomey for Plaintiffs 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Second Amended Complaint - 15 PROOF OF SERVICE BY MAIL CASE NAME: Abbott v. Britschgi CASE NUMBER: Sacramento County Superior Court 07AS04450 I declare that: I am a citizen ofthe United States and a resident ofthe County of Sacramento. I am, and at all times mentioned herein was, an active member of the State Bar of Califomia and not a party to the above-entitied cause My business address is 1007 Seventh Street, Suite 500, Sacramento, Califomia 95814. On November 5,2010, pursuant to CCP §1013A(2), I served the following: THIRD 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, Califomia, in a sealed envelope, with postage ftilly prepaid, addressed as follows: Gregory Federico Archer Norris 301 University Ave., Suite 110 Sacramento, CA 95825 Richard Sopp Maloney, Wheatley, Sopp & Brooks 1004 Moon River Rock Drive, Suite 245 Folsom, CA 95630 Mark Smith 8549 Willow Valley Place Granite Bay, CA 95746 I declare under penalty of perjury under the laws of the St^te of foregoing is tme and correct. Dated: November 5,2010 , w ^ v Stephanie J. Finel