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1 Todd A. Jones (Bar No. 198024)
tjones(garchemorris.com
2 GregoryK. Federico (BarNo. 242184)
gfedenco@archemorris.com
3 ARCHERNORRIS
A Professional Law Corporation
4 655 University Avenue, Suite 225 ^ED/ENDORSED
Sacramento, (Ilalifomia 95825-6747
5 Telephone: 916.646.2480
Facsimile: 916.646.5696
6
Attomeys for Defendant
7 R4C0RP, INC., a Califomia Corporation
8
SUPERIOR COURT OF CALIFORNIA
9
COUNTY OF SACRAMENTO
10
11
RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
12 ABBOTT,
MEMORANDUM OF POINTS AND
13 Plaintiffs, AUTHORITIES IN SUPPORT OF
R4CORP, INC.'S DEMURRER TO
14 PLAINTIFFS' SECOND AMENDED
v. COMPLAINT
15 E3^rs
RONALD PAUL BRITSCHGI, et al.. Date: October 29,2010
16 Defendants. Time: 2:00 p.m.
Dept: 53
17
Action Filed: September 24,2007
18 AND RELATED CROSS-ACTIONS.
19
20 COMES NOW R4C0RP, INC., a Califomia corporation, who demurs to the Second
21 Amended Complaint on file herein as follows:
22 I.
INTRODUCTION
23
This matter is a constmction defect suit brought by the owner/builder FLORENTINE
24
ABBOTT and her husband RODNEY ABBOTT (hereinafter collectively "ABBOTT" or
25
"PLAINTIFFS"), with respect to the constmction oftheir single family residence at 8601 Rolling
26
Green Way in Fair Oaks, Sacramento County, Califomia. ABBOTT hired Defendant RONALD
27
PAUL BRITSCHGI as the general contractor for all aspects of constmction through framing.
28
N1C549/973522-1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
1 On October 25,2005, ABBOTT signed a written contiract witii Defendant RICHARD K.
2 RUYBALID dba CA CONSTRUCTION, a sole proprietorship (hereinafter "CA
3 CONSTRUCTION") whereby CA CONSTRUCTION would supply and installtiieconcrete
4 foundation and garage slab per plans and specifications provided by ABBOTT. Mr. Ruybaiid is
5 the sole corporate officer of Moving Party/Defendant R4C0RP, INC., which was not organized
6 under the laws ofthe State of Califomia until March 21,2006, almost five (5) months after the
7 ABBOTT/CA CONSTRUCTION contiract was executed (See Declaration of Gregory K.
8 Federico, attached hereto and incorporated by reference herein, Exhibit-A; See Request for
9 Judicial Notice, Exhibit-A, filed concurrently herewith). R4C0RP, INC. was not a party to the
10 contiact between ABBOTT and CA CONSTRUCTION. (See Declaration of Richard K.
11 Ruybalid, Tf4, attached hereto and incorporate by reference hererin.) R4C0RP, INC. has never
12 entered into either a written or oral contract with ABBOTT for any type of constmction services
13 at the ABBOTT residence. (See Declaration ofRichard K. Ruybalid, ^5, attached hereto and
14 incorporated by reference herein). Further, R4C0RP, DSIC. performed no work at the ABBOTT
15 home at any point in time. (See Declaration of Richard K. Ruybalid, ^6, attached hereto and
16 incorporated by reference herein.)
17 PLAINTIFFS allege, among other things, that BRITSCHGI and CA CONSTRUCTION
18 failed to properly place the house and garage on the lot, particularly with regard to the elevation,
19 as called for pursuant to the plans and specifications and as requested by FLORENTINE
20 ABBOTT. In addition, PLAINTIFFS allegetiiatBRITSCHGI and CA CONSTRUCTION
21 breached their respective contracts, failed to comply with applicable building codes, and failed to
22 comply with the standard of care within the relevant industry. More recently, PLAINTIFFS
23 allege that the fill and soils beneath the garage slab, and potentially the house, were improperly
24 compacted.
25 PLAINTIFFSfiledtiieiroriginal complaint on September 24, 2007 against BRITSCHGI
26 and CA CONSTRUCTION (See Declaration of Gregory K. Federico, Exhibit-B). PLAINTIFFS'
27 original complaint alleged various tort and contiact claims related to the constmction of
28 PLAINTIFFS' home.
NIC549/973522-I 2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
1 On July 23,2009, PLAINTIFFS filed a First Amended Complaint ("FAC") which added
2 personal injury claims for mold exposure, new factual allegations and causes ofaction against
3 BRITSCHGI and CA CONSTRUCTION, and two new parties. The new parties were Defendant
4 MARK SMTH, an individual doing business as GROUNDBREAKERS (hereinafter "SMITH")
5 and CONSTRUCTION TESTING & ENGINEERING, INC. (hereinafler "CTE"). SMITH was
6 hired by PLAINTIFFS and provided grading and earth movement for the subject property.
7 PLAINTIFFS' hired and paid CTE to perform the soil/compaction tests on the subject property.
8 See Declaration of Gregory K. Federico, Exhibit-C.
9 On December 4,2009, Plaintiffs filed a Second Amended Complaint ("SAC").(See
10 Declaration of Gregory K. Federico, Exhibit-D). Nowhere in the original complaint, the FAC or
11 the SAC is Defendant/Moving Party R4C0RP, INC. named as a direct defendant. On May 11,
12 2010, Plaintiff improperly served die bookkeeper of R4C0RP, INC. with a 'DOE' amendment to
13 the SAC, which named defendant/Moving Party R4C0RP, INC. (See Motion to Quash/Strike
14 Service of DOE Amendment and to Dismiss filed concurrently herewith.)
15 R4C0RP, INC. now demurs to the Second Amended Complaint.
16 II.
STANDARD OF REVIEW
17
18 Califomia Code ofCivil Procedure § 430.10 provides, in relevant part:
19
The party against whom a complaint or cross-complaint has been
20 filed may object, by demurrer.. .to the pleading on any one or more
ofthe following groimds:
21
(e) The pleading does not state facts sufficient to constitute a cause
22 of action.
23 (f) The pleading is uncertain. As used in this subdivision,
'uncertain' includes ambiguous and unintelligible. (Cal. Code of
24 Civ.Proc. §430.10).
„^ Plaintiffs carry the burden of showing a complaint alleges facts sufficient to establish
^. every element ofeach cause ofaction. Blankv. Kirwan (1985) 39 Cal.3d 311, 318, Rakestraw v.
^r. California Physicians' Service (2000) 81 Cal.App.4th 39, 43. Plaintiffs must plead each cause of
„ J. action with "cleamess and precision, so that nothing is left to surmise." Ankeny v Lockheed
N1C549/973522-I 3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
1 Missile & Space Co. (1979) 88 Cal.App.3d 531, 537.
2 As explained by the Court of Appeal in Amid v. Hawthorne Community Medical Group,
3 Inc. (1989) 212 Cal.App.3d 1383,1386-1387:
4 While a demurrer admits all material and issuable facts, properly
pleaded, it does not admit contentions, deductions or conclusions of
5 law. And where an allegation is contiary to law or to a fact to
which a court may take judicial notice, it is treated as a nullity
6 [intemal quotations omitted].
7 If under substantive law no liability exists, a demurrer is proper and it is not an abuse of
8 discretion for a Court to deny a party leave to amend. Berkeley Police Ass 'n v. City ofBerkeley
9 (1978)76Cal.App.3d931,943.
10
m.
11 ARGUMENT
j2 A. THE SAC FAILS TO STATE A CLAIM UPON WfflCH RELIEF CAN BE
GRANTED AS PLAINTIFFS HAVE FAILED TO PROPERLY PLEAD
13 THE "DOE" ALLEGATIONS AS TO MOVING PARTY.
14 "A plaintiff ignorant of the identity of a party responsible for damages may name that
15 person in a fictitious capacity, a Doe defendant, and that tkne limit prescribed by the applicable
15 statute of limitations is extended as to the unknovra defendant" {Winding Creek et al. v.
17 McGlashan (1996) 44 Cal App.4tii 933, 940). Here, PLAINTIFFS fail to properly plead tiie
lg predicate requirements to support a "Doe" amendment. Therefore, the allegations ofthe SAC do
\9 not "relate" back to the filing ofthe original complaint.
20 The defect in the SAC is uniform, PLAINTIFFS fail to plead any ofthe causes ofaction
21 against "DOES". Rather, the SAC names individual defendants by name and with precision,
22 with no provision for "DOES" alleged or set forth. The First Cause of Action ofthe SAC is
23 pleaded directly against only "Defendant Britschgi". (See Decl. of Gregory K. Federico, Exhibit-
24 D, SAC, pg. 3:14-18). The Second Cause of Action ofthe SAC is pleaded directiy against only
25 "Defendant Britschgi". (See Decl. of Gregory K. Federico, Exhibit-D, SAC, pg. 5:17-21). The
26 Third Cause of Action is pleaded against only "Defendant Britschgi"(See Decl. of Gregory K.
27 Federico, Exhibit-D, SAC, pg. 7.1 -5). The Fourth Cause of Action is pleaded only against
28 Defendant Ruybalid (See Decl. of Gregory K. Federico, Exhibit-D, SAC, pg. 7:25-26). The Fiftii
NIC549/973522-1 4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
1 Cause of Action is pleaded only against "Defendant Ruybalid" (See Decl. of Gregory K.
2 Federico, Exhibit-D, SAC, pg. 9:13-14). The Sixth Cause of Action is pleaded only against
3 "Defendant Ruybalid"(See Decl. of Gregory K. Federico, Exhibit-D, SAC, pg. 10:16-17). The
4 Seventh Cause of Action is pleaded only against "Defendant Smith"(See Decl. of Gregory K.
5 Federico, Exhibit-D, SAC,pg. 11:13-17). The Eighth Cause of Action is pleaded only against
6 "Defendant CTE" (See Decl. of Gregory K. Federico, Exhibit-D, SAC, pg. 13:5-9).
7 The same is tme oftiie original complaint filed on October 2,2007. That is, each cause of
8 action names individual defendants by specific name and does not name, or provide for "DOES"
9 in the specific causes of action (See Decl. of Gregory K. Federico, Exhibit-B, Pg. 3:15-21; 5:19-
10 25; 6:23-28,7:1-4; 8:6-12; 9:3-9;10:17-23;). The same is alsotirueoftiie FAC.
11 "The complaint must state a cause of action against each Doe defendant." (Fireman's
12 Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal App.4tii 1135,1143; Bernson v.
13 Browning-Ferris Industries (1994) 7 Cal.4tii 926, 930). Therefore, PLAINTIFFS' SAC fails to
14 comply with the requirements of CCP§ 474 and there is no "relation back" ofsaid claims, all of
15 which now are barred by the statute of liinitations. For this reason, the demurrer should be
16 granted without leave to amend.
17 B. THE SAC IS UNCERTAIN AS TO WfflCH CAUSE OF ACTION APPLIES
^g TO THE MOVING/DEMURRING PARTY.
1° "The purpose of a complaint is tofiimishthe defendants with certain definite charges
2^ which can be intelligently met.. .The point is that the accuser must place hisfingersquarely and
^^ directly upon whatever dereliction is relied upon [by plaintiffj" (Zumbrun v. Univ. ofSo.
22 Califorma (1972) 25 Cal.App.3d 1,8). A party may demurrer to a complaint on the ground that
23 the complaint, as drafted, is uncertain (CCP§ 430.10(f)). Even after extensive study ofthe SAC,
24 it is factually and legally impossible for defendant/Moving Party R4C0RP, INC. to determine
25 which, if any, of the causes of action apply to Moving Party.
26 By way of example, the First Cause of Action is pleaded directly against only Defendant
2'7 Britschgi and alleges an oral agreement entered into on October 1,2005, with no allegations that
28
N1C549/973522-1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
1 "DOE" defendants were involved (See Decl. of Gregory K. Federico, Exhibit-D, SAC, pg. 3:14-
2 19). Not only does the cause of action not apply to R4C0RP, INC.; it is legally and factually
3 impossible for Defendant/Moving Party R4C0RP, INC. to have entered into the alleged oral
4 agreement on the date alleged because R4C0RP, INC. was not legally created until March 21.
5 2006(^ee Request for Judicial Notice, Exhibit-A; Decl. of Gregory K. Federico, Exhibit-D).^
6 The Second Cause of Action is pleaded directly against onlv Defendant Britschsi and it
7 is based on the contractual duty of Britschgi to manage the constiruction as alleged m the First
8 Cause of Action (See Decl. of Gregory K. Federico, Exhibit-D, SAC, pg.3:18-29,4:1-13). Again,
9 Moving Party R4C0RP, INC. was not legally created until well after the contract at issue was
10 entered into so it was not a party to this agreement. Thus, it could have no legal "duty" to
11 perform under the alleged agreement of October 1,2005.
12 The Third Cause of Action is pleaded against only Defendant Britschgi and speaks only
13 to Britschgi's violation of various sections ofthe Business and Professions Code applying to
14 licensed contiactors. Since R4C0RP, INC. was not a party to the contract as alleged in the First
15 Cause of Action, was not legally created at the time of the contract and is not alleged to be a
16 licensed contiactor, the Third Cause of Action could not apply to R4C0RP.(See Decl. of (jregory
17 K. Federico, Exhibit-D, SAC, pg. 7:1-2,11-17).
18 Further, PLAINTIFFS' First, Second and Third Causes of Action against Defendant
19 Britschgi were already dismissed, with prejudice, on April 23,2010. Thus, these causes ofaction
20 cannot apply to R4C0RP, INC.
21 The Fourth Cause of Action is pleaded against only Defendant Ruybalid and alleges a
22 contract entered into on October 25, 2005. The "contiact" alleged is attached as Exhibit-A to the
23 SAC and references only CA CONSTRUCTION. The contract makes absolutely no reference to
24 R4C0RP, INC. or that it is in anyway involved in the work that is the subject ofthe contiact.
25 (See Decl. of Gregory K. Federico, Exhibit-D, SAC; See Exhibit-A to SAC - contiact witii CA
26 Constmction). Similarly, the SAC does not allege that R4C0RP, INC. was involved in any way
27
' When ruling on a demurrer, the court looks to the face ofthe complaint, attached exhibits, and to matters ofwhich
28 the court takes judicial notice. Franz v Blackwell (1987) 189 Cal.App.3d 91, 94.
NIC549/973522-1 6
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
1 witii die work at PLAINTIFFS' home. Thus, it cannot apply to R4C0RP, INC.
2 The Fifth Cause of Action is pleaded only against Defendant Ruybalid and alleges that
3 Ruybalid ".. .had a duty to perform the constraction services pursuant to the terms ofthe
4 constiruction contiact..." (See Decl. of Gregory K. Federico, Exhibit-D, SAC, pg.9:13-18). As set
5 forth above, R4C0RP, INC. was not a party to said contiract because it was not in existence at the
6 time of said contracting and could not have had any duty to perform under the contiact. Thus,
7 this cause of action caimot apply to R4C0RP, INC.
8 The Sixth Cause of Action is pleaded only against Defendant Ruybalid and alleges that
9 Ruybahd did not have a vaUd contractor's license. It was never alleged that R4C0RP, INC. did
10 not have a valid contractor's license and it could not be so alleged smce R4C0RP, INC. was not
11 even in existence at the time ofsaid contiacting. (See Decl. of Gregory K. Federico, Exhibit-D,
12 SAC, pg. 10:16-24.). Thus, this cause of action cannot apply to R4C0RP, INC.
13 The Seventh Cause of Acfion is pleaded only against Defendant Smith and alleges that
14 "services" performed by Smith at the PLAINTIFFS' property were negligentiy performed in
15 October 2005 (See Decl. of Gregory K. Federico, Exhibit-D, SAC, pg. 11:13-18). Again, as set
16 forth above, R4C0RP, INC. was not in existence in October of 2005 and could not have
17 performed any services at the PLAINTIFFS' property. This cause of action cannot apply to
18 R4C0RP, INC.
19 The Eighth Cause of Action is pleaded only against Defendant CTE and alleges that
20 CTE was hired by C A CONSTRUCTION on or about December of 2005 and January 2006 to
21 perform testing services at the PLAINTIFFS' property and did so in a negligent fashion (See
22 Decl. of Gregory K. Federico, Exhibit-D, SAC, pg. 13:5-11,14-20). Again, as set fortii above,
23 R4C0RP, INC. was not in existence in December of 2005 and January of 2006, and it could not
24 have performed any services at the PLAINTIFFS' property. Finally, PLAINTIFFS have already
25 dismissed their Eighth Cause of Action against CTE on December 17,2006. Thus, this cause of
26 action cannot apply to R4C0RP, INC.
27 PLAINTIFFS have failed to plead their SAC such that neither this Court nor Moving
28 Party can determine, with any clarity, the claims that are alleged against Moving Party. As such,
NIC549/973522-1 7
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
1 responding to such claims is impossible Moreover, given the fact it performed no work, did not
2 contract for services, or was even in existence at the time ofthis project, PLAINTIFFS cannot
3 amend their SAC to properly plead any such causes of action against this Moving Party. Thus,
4 the demurrer should be granted without leave to amend.
5 IV.
6 CONCLUSION
7 For the foregoing reasons. Moving Party respectfully requests that this Court grant this
8 demurrer without leave to amend smce it is abundantly clear that PLAINTIFFS cannot amend the
9 pleading to properly plead facts showing that R4C0RP, INC. was legally in existence at the time
10 ofthe contracting for and constiruction ofthe PLAINTIFFS' residence. R4C0RP, INC. played no
11 role whatsoever in the constmction activities givingriseto the lawsuit at issue herein.
12 Dated: June J ^ 2010 ARCHER NORRIS
13
14 AA
Gregory K. Federico
15 Attomeys for Defendant R4C0RP, INC., a
Califomia Corporation
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NICS49/973522-1 8
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
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1 Todd A. Jones (Bar No. 198024) tjones(garchemorris.com 2 GregoryK. Federico (BarNo. 242184) gfedenco@archemorris.com 3 ARCHERNORRIS A Professional Law Corporation 4 655 University Avenue, Suite 225 ^ED/ENDORSED Sacramento, (Ilalifomia 95825-6747 5 Telephone: 916.646.2480 Facsimile: 916.646.5696 6 Attomeys for Defendant 7 R4C0RP, INC., a Califomia Corporation 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 12 ABBOTT, MEMORANDUM OF POINTS AND 13 Plaintiffs, AUTHORITIES IN SUPPORT OF R4CORP, INC.'S DEMURRER TO 14 PLAINTIFFS' SECOND AMENDED v. COMPLAINT 15 E3^rs RONALD PAUL BRITSCHGI, et al.. Date: October 29,2010 16 Defendants. Time: 2:00 p.m. Dept: 53 17 Action Filed: September 24,2007 18 AND RELATED CROSS-ACTIONS. 19 20 COMES NOW R4C0RP, INC., a Califomia corporation, who demurs to the Second 21 Amended Complaint on file herein as follows: 22 I. INTRODUCTION 23 This matter is a constmction defect suit brought by the owner/builder FLORENTINE 24 ABBOTT and her husband RODNEY ABBOTT (hereinafter collectively "ABBOTT" or 25 "PLAINTIFFS"), with respect to the constmction oftheir single family residence at 8601 Rolling 26 Green Way in Fair Oaks, Sacramento County, Califomia. ABBOTT hired Defendant RONALD 27 PAUL BRITSCHGI as the general contractor for all aspects of constmction through framing. 28 N1C549/973522-1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER 1 On October 25,2005, ABBOTT signed a written contiract witii Defendant RICHARD K. 2 RUYBALID dba CA CONSTRUCTION, a sole proprietorship (hereinafter "CA 3 CONSTRUCTION") whereby CA CONSTRUCTION would supply and installtiieconcrete 4 foundation and garage slab per plans and specifications provided by ABBOTT. Mr. Ruybaiid is 5 the sole corporate officer of Moving Party/Defendant R4C0RP, INC., which was not organized 6 under the laws ofthe State of Califomia until March 21,2006, almost five (5) months after the 7 ABBOTT/CA CONSTRUCTION contiract was executed (See Declaration of Gregory K. 8 Federico, attached hereto and incorporated by reference herein, Exhibit-A; See Request for 9 Judicial Notice, Exhibit-A, filed concurrently herewith). R4C0RP, INC. was not a party to the 10 contiact between ABBOTT and CA CONSTRUCTION. (See Declaration of Richard K. 11 Ruybalid, Tf4, attached hereto and incorporate by reference hererin.) R4C0RP, INC. has never 12 entered into either a written or oral contract with ABBOTT for any type of constmction services 13 at the ABBOTT residence. (See Declaration ofRichard K. Ruybalid, ^5, attached hereto and 14 incorporated by reference herein). Further, R4C0RP, DSIC. performed no work at the ABBOTT 15 home at any point in time. (See Declaration of Richard K. Ruybalid, ^6, attached hereto and 16 incorporated by reference herein.) 17 PLAINTIFFS allege, among other things, that BRITSCHGI and CA CONSTRUCTION 18 failed to properly place the house and garage on the lot, particularly with regard to the elevation, 19 as called for pursuant to the plans and specifications and as requested by FLORENTINE 20 ABBOTT. In addition, PLAINTIFFS allegetiiatBRITSCHGI and CA CONSTRUCTION 21 breached their respective contracts, failed to comply with applicable building codes, and failed to 22 comply with the standard of care within the relevant industry. More recently, PLAINTIFFS 23 allege that the fill and soils beneath the garage slab, and potentially the house, were improperly 24 compacted. 25 PLAINTIFFSfiledtiieiroriginal complaint on September 24, 2007 against BRITSCHGI 26 and CA CONSTRUCTION (See Declaration of Gregory K. Federico, Exhibit-B). PLAINTIFFS' 27 original complaint alleged various tort and contiact claims related to the constmction of 28 PLAINTIFFS' home. NIC549/973522-I 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER 1 On July 23,2009, PLAINTIFFS filed a First Amended Complaint ("FAC") which added 2 personal injury claims for mold exposure, new factual allegations and causes ofaction against 3 BRITSCHGI and CA CONSTRUCTION, and two new parties. The new parties were Defendant 4 MARK SMTH, an individual doing business as GROUNDBREAKERS (hereinafter "SMITH") 5 and CONSTRUCTION TESTING & ENGINEERING, INC. (hereinafler "CTE"). SMITH was 6 hired by PLAINTIFFS and provided grading and earth movement for the subject property. 7 PLAINTIFFS' hired and paid CTE to perform the soil/compaction tests on the subject property. 8 See Declaration of Gregory K. Federico, Exhibit-C. 9 On December 4,2009, Plaintiffs filed a Second Amended Complaint ("SAC").(See 10 Declaration of Gregory K. Federico, Exhibit-D). Nowhere in the original complaint, the FAC or 11 the SAC is Defendant/Moving Party R4C0RP, INC. named as a direct defendant. On May 11, 12 2010, Plaintiff improperly served die bookkeeper of R4C0RP, INC. with a 'DOE' amendment to 13 the SAC, which named defendant/Moving Party R4C0RP, INC. (See Motion to Quash/Strike 14 Service of DOE Amendment and to Dismiss filed concurrently herewith.) 15 R4C0RP, INC. now demurs to the Second Amended Complaint. 16 II. STANDARD OF REVIEW 17 18 Califomia Code ofCivil Procedure § 430.10 provides, in relevant part: 19 The party against whom a complaint or cross-complaint has been 20 filed may object, by demurrer.. .to the pleading on any one or more ofthe following groimds: 21 (e) The pleading does not state facts sufficient to constitute a cause 22 of action. 23 (f) The pleading is uncertain. As used in this subdivision, 'uncertain' includes ambiguous and unintelligible. (Cal. Code of 24 Civ.Proc. §430.10). „^ Plaintiffs carry the burden of showing a complaint alleges facts sufficient to establish ^. every element ofeach cause ofaction. Blankv. Kirwan (1985) 39 Cal.3d 311, 318, Rakestraw v. ^r. California Physicians' Service (2000) 81 Cal.App.4th 39, 43. Plaintiffs must plead each cause of „ J. action with "cleamess and precision, so that nothing is left to surmise." Ankeny v Lockheed N1C549/973522-I 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER 1 Missile & Space Co. (1979) 88 Cal.App.3d 531, 537. 2 As explained by the Court of Appeal in Amid v. Hawthorne Community Medical Group, 3 Inc. (1989) 212 Cal.App.3d 1383,1386-1387: 4 While a demurrer admits all material and issuable facts, properly pleaded, it does not admit contentions, deductions or conclusions of 5 law. And where an allegation is contiary to law or to a fact to which a court may take judicial notice, it is treated as a nullity 6 [intemal quotations omitted]. 7 If under substantive law no liability exists, a demurrer is proper and it is not an abuse of 8 discretion for a Court to deny a party leave to amend. Berkeley Police Ass 'n v. City ofBerkeley 9 (1978)76Cal.App.3d931,943. 10 m. 11 ARGUMENT j2 A. THE SAC FAILS TO STATE A CLAIM UPON WfflCH RELIEF CAN BE GRANTED AS PLAINTIFFS HAVE FAILED TO PROPERLY PLEAD 13 THE "DOE" ALLEGATIONS AS TO MOVING PARTY. 14 "A plaintiff ignorant of the identity of a party responsible for damages may name that 15 person in a fictitious capacity, a Doe defendant, and that tkne limit prescribed by the applicable 15 statute of limitations is extended as to the unknovra defendant" {Winding Creek et al. v. 17 McGlashan (1996) 44 Cal App.4tii 933, 940). Here, PLAINTIFFS fail to properly plead tiie lg predicate requirements to support a "Doe" amendment. Therefore, the allegations ofthe SAC do \9 not "relate" back to the filing ofthe original complaint. 20 The defect in the SAC is uniform, PLAINTIFFS fail to plead any ofthe causes ofaction 21 against "DOES". Rather, the SAC names individual defendants by name and with precision, 22 with no provision for "DOES" alleged or set forth. The First Cause of Action ofthe SAC is 23 pleaded directly against only "Defendant Britschgi". (See Decl. of Gregory K. Federico, Exhibit- 24 D, SAC, pg. 3:14-18). The Second Cause of Action ofthe SAC is pleaded directiy against only 25 "Defendant Britschgi". (See Decl. of Gregory K. Federico, Exhibit-D, SAC, pg. 5:17-21). The 26 Third Cause of Action is pleaded against only "Defendant Britschgi"(See Decl. of Gregory K. 27 Federico, Exhibit-D, SAC, pg. 7.1 -5). The Fourth Cause of Action is pleaded only against 28 Defendant Ruybalid (See Decl. of Gregory K. Federico, Exhibit-D, SAC, pg. 7:25-26). The Fiftii NIC549/973522-1 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER 1 Cause of Action is pleaded only against "Defendant Ruybalid" (See Decl. of Gregory K. 2 Federico, Exhibit-D, SAC, pg. 9:13-14). The Sixth Cause of Action is pleaded only against 3 "Defendant Ruybalid"(See Decl. of Gregory K. Federico, Exhibit-D, SAC, pg. 10:16-17). The 4 Seventh Cause of Action is pleaded only against "Defendant Smith"(See Decl. of Gregory K. 5 Federico, Exhibit-D, SAC,pg. 11:13-17). The Eighth Cause of Action is pleaded only against 6 "Defendant CTE" (See Decl. of Gregory K. Federico, Exhibit-D, SAC, pg. 13:5-9). 7 The same is tme oftiie original complaint filed on October 2,2007. That is, each cause of 8 action names individual defendants by specific name and does not name, or provide for "DOES" 9 in the specific causes of action (See Decl. of Gregory K. Federico, Exhibit-B, Pg. 3:15-21; 5:19- 10 25; 6:23-28,7:1-4; 8:6-12; 9:3-9;10:17-23;). The same is alsotirueoftiie FAC. 11 "The complaint must state a cause of action against each Doe defendant." (Fireman's 12 Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal App.4tii 1135,1143; Bernson v. 13 Browning-Ferris Industries (1994) 7 Cal.4tii 926, 930). Therefore, PLAINTIFFS' SAC fails to 14 comply with the requirements of CCP§ 474 and there is no "relation back" ofsaid claims, all of 15 which now are barred by the statute of liinitations. For this reason, the demurrer should be 16 granted without leave to amend. 17 B. THE SAC IS UNCERTAIN AS TO WfflCH CAUSE OF ACTION APPLIES ^g TO THE MOVING/DEMURRING PARTY. 1° "The purpose of a complaint is tofiimishthe defendants with certain definite charges 2^ which can be intelligently met.. .The point is that the accuser must place hisfingersquarely and ^^ directly upon whatever dereliction is relied upon [by plaintiffj" (Zumbrun v. Univ. ofSo. 22 Califorma (1972) 25 Cal.App.3d 1,8). A party may demurrer to a complaint on the ground that 23 the complaint, as drafted, is uncertain (CCP§ 430.10(f)). Even after extensive study ofthe SAC, 24 it is factually and legally impossible for defendant/Moving Party R4C0RP, INC. to determine 25 which, if any, of the causes of action apply to Moving Party. 26 By way of example, the First Cause of Action is pleaded directly against only Defendant 2'7 Britschgi and alleges an oral agreement entered into on October 1,2005, with no allegations that 28 N1C549/973522-1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER 1 "DOE" defendants were involved (See Decl. of Gregory K. Federico, Exhibit-D, SAC, pg. 3:14- 2 19). Not only does the cause of action not apply to R4C0RP, INC.; it is legally and factually 3 impossible for Defendant/Moving Party R4C0RP, INC. to have entered into the alleged oral 4 agreement on the date alleged because R4C0RP, INC. was not legally created until March 21. 5 2006(^ee Request for Judicial Notice, Exhibit-A; Decl. of Gregory K. Federico, Exhibit-D).^ 6 The Second Cause of Action is pleaded directly against onlv Defendant Britschsi and it 7 is based on the contractual duty of Britschgi to manage the constiruction as alleged m the First 8 Cause of Action (See Decl. of Gregory K. Federico, Exhibit-D, SAC, pg.3:18-29,4:1-13). Again, 9 Moving Party R4C0RP, INC. was not legally created until well after the contract at issue was 10 entered into so it was not a party to this agreement. Thus, it could have no legal "duty" to 11 perform under the alleged agreement of October 1,2005. 12 The Third Cause of Action is pleaded against only Defendant Britschgi and speaks only 13 to Britschgi's violation of various sections ofthe Business and Professions Code applying to 14 licensed contiactors. Since R4C0RP, INC. was not a party to the contract as alleged in the First 15 Cause of Action, was not legally created at the time of the contract and is not alleged to be a 16 licensed contiactor, the Third Cause of Action could not apply to R4C0RP.(See Decl. of (jregory 17 K. Federico, Exhibit-D, SAC, pg. 7:1-2,11-17). 18 Further, PLAINTIFFS' First, Second and Third Causes of Action against Defendant 19 Britschgi were already dismissed, with prejudice, on April 23,2010. Thus, these causes ofaction 20 cannot apply to R4C0RP, INC. 21 The Fourth Cause of Action is pleaded against only Defendant Ruybalid and alleges a 22 contract entered into on October 25, 2005. The "contiact" alleged is attached as Exhibit-A to the 23 SAC and references only CA CONSTRUCTION. The contract makes absolutely no reference to 24 R4C0RP, INC. or that it is in anyway involved in the work that is the subject ofthe contiact. 25 (See Decl. of Gregory K. Federico, Exhibit-D, SAC; See Exhibit-A to SAC - contiact witii CA 26 Constmction). Similarly, the SAC does not allege that R4C0RP, INC. was involved in any way 27 ' When ruling on a demurrer, the court looks to the face ofthe complaint, attached exhibits, and to matters ofwhich 28 the court takes judicial notice. Franz v Blackwell (1987) 189 Cal.App.3d 91, 94. NIC549/973522-1 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER 1 witii die work at PLAINTIFFS' home. Thus, it cannot apply to R4C0RP, INC. 2 The Fifth Cause of Action is pleaded only against Defendant Ruybalid and alleges that 3 Ruybalid ".. .had a duty to perform the constraction services pursuant to the terms ofthe 4 constiruction contiact..." (See Decl. of Gregory K. Federico, Exhibit-D, SAC, pg.9:13-18). As set 5 forth above, R4C0RP, INC. was not a party to said contiract because it was not in existence at the 6 time of said contracting and could not have had any duty to perform under the contiact. Thus, 7 this cause of action caimot apply to R4C0RP, INC. 8 The Sixth Cause of Action is pleaded only against Defendant Ruybalid and alleges that 9 Ruybahd did not have a vaUd contractor's license. It was never alleged that R4C0RP, INC. did 10 not have a valid contractor's license and it could not be so alleged smce R4C0RP, INC. was not 11 even in existence at the time ofsaid contiacting. (See Decl. of Gregory K. Federico, Exhibit-D, 12 SAC, pg. 10:16-24.). Thus, this cause of action cannot apply to R4C0RP, INC. 13 The Seventh Cause of Acfion is pleaded only against Defendant Smith and alleges that 14 "services" performed by Smith at the PLAINTIFFS' property were negligentiy performed in 15 October 2005 (See Decl. of Gregory K. Federico, Exhibit-D, SAC, pg. 11:13-18). Again, as set 16 forth above, R4C0RP, INC. was not in existence in October of 2005 and could not have 17 performed any services at the PLAINTIFFS' property. This cause of action cannot apply to 18 R4C0RP, INC. 19 The Eighth Cause of Action is pleaded only against Defendant CTE and alleges that 20 CTE was hired by C A CONSTRUCTION on or about December of 2005 and January 2006 to 21 perform testing services at the PLAINTIFFS' property and did so in a negligent fashion (See 22 Decl. of Gregory K. Federico, Exhibit-D, SAC, pg. 13:5-11,14-20). Again, as set fortii above, 23 R4C0RP, INC. was not in existence in December of 2005 and January of 2006, and it could not 24 have performed any services at the PLAINTIFFS' property. Finally, PLAINTIFFS have already 25 dismissed their Eighth Cause of Action against CTE on December 17,2006. Thus, this cause of 26 action cannot apply to R4C0RP, INC. 27 PLAINTIFFS have failed to plead their SAC such that neither this Court nor Moving 28 Party can determine, with any clarity, the claims that are alleged against Moving Party. As such, NIC549/973522-1 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER 1 responding to such claims is impossible Moreover, given the fact it performed no work, did not 2 contract for services, or was even in existence at the time ofthis project, PLAINTIFFS cannot 3 amend their SAC to properly plead any such causes of action against this Moving Party. Thus, 4 the demurrer should be granted without leave to amend. 5 IV. 6 CONCLUSION 7 For the foregoing reasons. Moving Party respectfully requests that this Court grant this 8 demurrer without leave to amend smce it is abundantly clear that PLAINTIFFS cannot amend the 9 pleading to properly plead facts showing that R4C0RP, INC. was legally in existence at the time 10 ofthe contracting for and constiruction ofthe PLAINTIFFS' residence. R4C0RP, INC. played no 11 role whatsoever in the constmction activities givingriseto the lawsuit at issue herein. 12 Dated: June J ^ 2010 ARCHER NORRIS 13 14 AA Gregory K. Federico 15 Attomeys for Defendant R4C0RP, INC., a Califomia Corporation 17 18 19 20 21 22 23 24 25 26 27 28 NICS49/973522-1 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER