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1 STEPHANIE J. FINELLI, SBN 173462
Law Office of Stephanie J. Finelli lUD/ENDORSEI)
2 1007-7th Street, Suite 500
Sacramento, CA 95814
3 tel 916-443-2144 OCT - 8 2010
fax 916-443-1511
4
Attomey for Plaintiffs, By: L.KENNEDY
5 DEPUTY CLERK
FLORENTINE and RODNEY ABBOTT
6
7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 IN AND FOR THE COUNTY OF SACRAMENTO
9
10 FLORENTINE AND RODNEY ABBOTT, CaseNo.: 07AS04450
II Plaintiffs, REPLY TO OPPOSITION TO MOTION FOR
JUDGMENT ON THE PLEADINGS AS TO
12 vs. CA CONSTRUCTION'S CROSS-
COMPLAINT AGAINST THE ABBOTTS
13 RONALD BRITSCHGI, et. al.,
Date: October 21, 2010
14 Defendants Time: 2:00 p.m.
Dept: 53
15
Resv #1387661
16 and related cross-actions
17
18 A. The Motion Is Timely
19 CA Construction asserts that the motion is untimely under Code of Civil Procedure
20 section 438, as it was not brought more than 30 days before the action was initially set for trial.
21 However, the Abbotts' motion forjudgment on the pleadings was not brought under section 438;
22 nowhere in the movmg papers is that section even cited. The motion was properly brought on
23 non-statutory grounds (Sofias v. Bank of America (1985) 172 Cal.App.3d 583, 586.) Thus, the
24 statutory time limit does not apply.
25 A complaint's failure to state a cause ofaction is never waived, and can be raised by the
26 defendant at any time. (See Henry v Associated Indemnity Corp. (1990) 217 Cal.App.3d 1405
27 1413 at fn. 8 [permitted litigant to raise issue for first time on appeal].)
28 This motion may not be denied as untimely.
Reply to Opposition to Motion for Judgment on the Pleadings - 1
1 B. Plaintiffs Cannot Be Named as Cross-defendants Based Upon Negligence That
2
Allegedly Contributed to Their Own Damages
3 In support of their opposition, CA Construction cites Daon Corp. v Place Homeowners
4 Assn (1989) 207 Cal.App.3d 1449. That case only further demonstrates why the cross-complaint
5
is legally improper and must be dismissed.
In Daon, plaintiff and cross-defendant was a condominium homeowners' association
6
(HOA) that filed suit against Daon, a construction company for structural defects to the complex
7
(207 Cal.App.3d at pp. 1451-1452.) Daon cross-complained against the HOA for indemnity
8
alleging that it had negligently performing its duties owed the condominium owners under the
9
CC&R's. (Id. at pp. 1452-1453.) The HOA demurred to the cross-complaint on grounds that it
10 was being named as "a cross-defendant in the same capacity as it has filed suit as plaintiff,'
11 which was sustained. (Id. at p. 1453.) On appeal, Daon argued that the HOA had two capacities:
12 one as a "surrogate plaintiff for the owners ofthe condominiums, which is the capacity in which
13 it filed the action; and another in its own capacity as an entity that owed certain duties to the
14
individual owners, which was the capacity in which it was sued as a cross-defendant. (Id. at p
1453.) The appellate court held that Daon could maintain a cross-complaint against the HOA for
15
indemnity for damages that individual condominium owners suffered, and for which Daon was
16
required to pay, if those damages were cause by the HOA's failure to properly carry out its duties
17
to those condominium owners.
18
19 In its cross-complaint Daon seeks indemnity for that portion ofthe injury which is
the "direct and proximate result of the wrongful conduct" of the Association.
20
Daon has, under the rule set out in American Motorcycle, cross-complained
21
against the Association for indemnity on the theory that the Association's own
negligence in performing its management duties makes it ajoint tortfeasor. In this
22 context the Association acts, sues, and is liable solely in its own right and not as a
surrogate for its members, the unit owners. Thus, because the Association's
23 second amended complaint states causes of action to which Daon may
24
appropriately seek partial or total indemnity from the Association, Daon's cross-
complaint against the Association was proper.
25
Because the Association is a plaintiff both in its capacity as the "management
26
entity" of the condominium and in its capacity as a representative of individual
27 unit owners, but is a cross-defendant only in its management capacity, the premise
upon which the Association demurred is faulty. The Association which is named
28 as a cross-defendant is the same entity, but is not always acting in the same
capacity as the Association as plaintiff
Reply to Opposition to Motion for Judgment on the Pleadings - 2
(Id. atp. 1455.)
CA Construction argues that, because Plaintiffs Florentine and Rodney Abbott were
owner/builders of their own house, they are somehow acting in "more than one capacity." But in
contrast to Daon, Florentine and Rodney Abbott are not suing on behalf of anyone; they are the
piaintiffs in their individual capacities. CA is not alleging that the Abbotts owed a duty to
anyone. Indeed, CA's cross-complaint for indemnity is based solely on the Abbott's alleged
negligence that contributed to their own damages. Thus, if proven, such negligence will, under
the principles of comparative negligence, proportionately reduce CA's liability to them.
Launedale Associates, Ltd. v. Wilson (1992) 7 Cal.App.4th 1439 further demonstrates
these principles. There, the developers of a condominium complex, who were sued for
10
construction defects by a homeowners association, cross-complained against individual unit
11 owners for equitable indemnity. The appellate court affirmed the sustaining of a demurrer to that
12 cross-complaint without leave to amend, holding that such cross-complaint was inappropriate
13 and unnecessary "because equivalent relief is available through affirmative defenses appellants
14 have asserted."
15
In response to the allegation that they were responsible for defects at the complex,
16 appellants alleged by affirmative defense that any damage was caused by
mdividual unit owners who misused the property. The Association has conceded
17 that the legal effect of this affirmative defense is to hold it responsible for damage
18
caused by present and past unit ovmers. Thus, to the extent appellants can prove
their affirmative defense, the Association's recovery will be diminished under
19 principles of comparative negligence. (See, generally, American Motorcycle Assn
V Supenor Court (1978) 20 Cal.3d 578, 598.)
20
21 (Lauriedale, supra at p. 1444.)
22
This is almost precisely the situation in the instant case. Although instead of being one
step removed from the plaintiff, the cross-defendants herein are the plaintiffs
23
Plaintiffs and cross-defendants Florentine and Rodney Abbott are entitled to judgment on
24
the pleadings as to CA Construction's cross-complaint.
25
26
Dated- October 8, 2010
27 Stephanie J. Fine
Attomey for Plaintiffs and Cross-defendants
28 Florentine and Rodney Abbott
Reply to Opposition to Motion for Judgment on the Pleadings - 3
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-entitled cause. My business address is 1007 Seventh Street, Suite
500, Sacramento, Califomia 95814.
On October 8, 2010, pursuant to CCP §1013A(2), I served the following:
REPLY TO OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS AS
TO CA CONSTRUCTION'S CROSS-COMPLAINT AGAINST THE ABBOTTS
BY MAIL: by depositing a copy ofsaid document in the United States mail in Sacramento,
Califomia, in a sealed envelope, with postage fully prepaid, addressed as follows:
Gregory Federico
Archer Norris
301 University Ave., Suite UO
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 HJIQ State o^ California th^
foregoing is tme and correct.
Dated: October 8,2010
Stephanie J
Preview
1 STEPHANIE J. FINELLI, SBN 173462 Law Office of Stephanie J. Finelli lUD/ENDORSEI) 2 1007-7th Street, Suite 500 Sacramento, CA 95814 3 tel 916-443-2144 OCT - 8 2010 fax 916-443-1511 4 Attomey for Plaintiffs, By: L.KENNEDY 5 DEPUTY CLERK FLORENTINE and RODNEY ABBOTT 6 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SACRAMENTO 9 10 FLORENTINE AND RODNEY ABBOTT, CaseNo.: 07AS04450 II Plaintiffs, REPLY TO OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS AS TO 12 vs. CA CONSTRUCTION'S CROSS- COMPLAINT AGAINST THE ABBOTTS 13 RONALD BRITSCHGI, et. al., Date: October 21, 2010 14 Defendants Time: 2:00 p.m. Dept: 53 15 Resv #1387661 16 and related cross-actions 17 18 A. The Motion Is Timely 19 CA Construction asserts that the motion is untimely under Code of Civil Procedure 20 section 438, as it was not brought more than 30 days before the action was initially set for trial. 21 However, the Abbotts' motion forjudgment on the pleadings was not brought under section 438; 22 nowhere in the movmg papers is that section even cited. The motion was properly brought on 23 non-statutory grounds (Sofias v. Bank of America (1985) 172 Cal.App.3d 583, 586.) Thus, the 24 statutory time limit does not apply. 25 A complaint's failure to state a cause ofaction is never waived, and can be raised by the 26 defendant at any time. (See Henry v Associated Indemnity Corp. (1990) 217 Cal.App.3d 1405 27 1413 at fn. 8 [permitted litigant to raise issue for first time on appeal].) 28 This motion may not be denied as untimely. Reply to Opposition to Motion for Judgment on the Pleadings - 1 1 B. Plaintiffs Cannot Be Named as Cross-defendants Based Upon Negligence That 2 Allegedly Contributed to Their Own Damages 3 In support of their opposition, CA Construction cites Daon Corp. v Place Homeowners 4 Assn (1989) 207 Cal.App.3d 1449. That case only further demonstrates why the cross-complaint 5 is legally improper and must be dismissed. In Daon, plaintiff and cross-defendant was a condominium homeowners' association 6 (HOA) that filed suit against Daon, a construction company for structural defects to the complex 7 (207 Cal.App.3d at pp. 1451-1452.) Daon cross-complained against the HOA for indemnity 8 alleging that it had negligently performing its duties owed the condominium owners under the 9 CC&R's. (Id. at pp. 1452-1453.) The HOA demurred to the cross-complaint on grounds that it 10 was being named as "a cross-defendant in the same capacity as it has filed suit as plaintiff,' 11 which was sustained. (Id. at p. 1453.) On appeal, Daon argued that the HOA had two capacities: 12 one as a "surrogate plaintiff for the owners ofthe condominiums, which is the capacity in which 13 it filed the action; and another in its own capacity as an entity that owed certain duties to the 14 individual owners, which was the capacity in which it was sued as a cross-defendant. (Id. at p 1453.) The appellate court held that Daon could maintain a cross-complaint against the HOA for 15 indemnity for damages that individual condominium owners suffered, and for which Daon was 16 required to pay, if those damages were cause by the HOA's failure to properly carry out its duties 17 to those condominium owners. 18 19 In its cross-complaint Daon seeks indemnity for that portion ofthe injury which is the "direct and proximate result of the wrongful conduct" of the Association. 20 Daon has, under the rule set out in American Motorcycle, cross-complained 21 against the Association for indemnity on the theory that the Association's own negligence in performing its management duties makes it ajoint tortfeasor. In this 22 context the Association acts, sues, and is liable solely in its own right and not as a surrogate for its members, the unit owners. Thus, because the Association's 23 second amended complaint states causes of action to which Daon may 24 appropriately seek partial or total indemnity from the Association, Daon's cross- complaint against the Association was proper. 25 Because the Association is a plaintiff both in its capacity as the "management 26 entity" of the condominium and in its capacity as a representative of individual 27 unit owners, but is a cross-defendant only in its management capacity, the premise upon which the Association demurred is faulty. The Association which is named 28 as a cross-defendant is the same entity, but is not always acting in the same capacity as the Association as plaintiff Reply to Opposition to Motion for Judgment on the Pleadings - 2 (Id. atp. 1455.) CA Construction argues that, because Plaintiffs Florentine and Rodney Abbott were owner/builders of their own house, they are somehow acting in "more than one capacity." But in contrast to Daon, Florentine and Rodney Abbott are not suing on behalf of anyone; they are the piaintiffs in their individual capacities. CA is not alleging that the Abbotts owed a duty to anyone. Indeed, CA's cross-complaint for indemnity is based solely on the Abbott's alleged negligence that contributed to their own damages. Thus, if proven, such negligence will, under the principles of comparative negligence, proportionately reduce CA's liability to them. Launedale Associates, Ltd. v. Wilson (1992) 7 Cal.App.4th 1439 further demonstrates these principles. There, the developers of a condominium complex, who were sued for 10 construction defects by a homeowners association, cross-complained against individual unit 11 owners for equitable indemnity. The appellate court affirmed the sustaining of a demurrer to that 12 cross-complaint without leave to amend, holding that such cross-complaint was inappropriate 13 and unnecessary "because equivalent relief is available through affirmative defenses appellants 14 have asserted." 15 In response to the allegation that they were responsible for defects at the complex, 16 appellants alleged by affirmative defense that any damage was caused by mdividual unit owners who misused the property. The Association has conceded 17 that the legal effect of this affirmative defense is to hold it responsible for damage 18 caused by present and past unit ovmers. Thus, to the extent appellants can prove their affirmative defense, the Association's recovery will be diminished under 19 principles of comparative negligence. (See, generally, American Motorcycle Assn V Supenor Court (1978) 20 Cal.3d 578, 598.) 20 21 (Lauriedale, supra at p. 1444.) 22 This is almost precisely the situation in the instant case. Although instead of being one step removed from the plaintiff, the cross-defendants herein are the plaintiffs 23 Plaintiffs and cross-defendants Florentine and Rodney Abbott are entitled to judgment on 24 the pleadings as to CA Construction's cross-complaint. 25 26 Dated- October 8, 2010 27 Stephanie J. Fine Attomey for Plaintiffs and Cross-defendants 28 Florentine and Rodney Abbott Reply to Opposition to Motion for Judgment on the Pleadings - 3 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-entitled cause. My business address is 1007 Seventh Street, Suite 500, Sacramento, Califomia 95814. On October 8, 2010, pursuant to CCP §1013A(2), I served the following: REPLY TO OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS AS TO CA CONSTRUCTION'S CROSS-COMPLAINT AGAINST THE ABBOTTS BY MAIL: by depositing a copy ofsaid document in the United States mail in Sacramento, Califomia, in a sealed envelope, with postage fully prepaid, addressed as follows: Gregory Federico Archer Norris 301 University Ave., Suite UO 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 HJIQ State o^ California th^ foregoing is tme and correct. Dated: October 8,2010 Stephanie J