On September 24, 2007 a
Order
was filed
involving a dispute between
and
for (Breach of Contract/Warranty)
in the District Court of Sacramento County.
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SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SACRAMENTO
GORDON D SCHABER COURTHOUSE
MINUTE ORDER
Date: 11/20/2009 Time: 02:00:00 PM Dept: 53
Judicial Officer Presiding: Loren McMaster
Clerk: J. Hart
Reporter/ERM: P. Clausen CSR# 3750
Bailiff/Court Attendant: A. Hughey
Case No: 07AS04450 Case Init. Date: 09/24/2007
Case Title: RODNEY ABBOTT. ET AL VS. RONALD PAUL BRITSCHGI. ET AL
Case Category: Civil - Unlimited
EVENT ID/DOCUMENT ID: 1301981
EVENT TYPE: Hearing on Demurrer - Civil Law and Motion - Demurrer/JOP
APPEARANCES
Craig Lundgren, counsel, present for Cross - Defendant(s).
Stephanie Finelli, counsel, present for Plaintiff(s).
Gregory K. Federico, counsel, present for Defendant
Nature of Proceeding: Hearing on Demurrer (CA Construction)
TENTATIVE RULING
Defendant Ruybalid, dba CA Construction's Demurrer to the 1st Amended Complaint is overruled.
Defendant's Request for Judicial Notice re Certificate of Records from the Contractor's State Licensing
Board is granted.
Plaintiffs allege a cause of action for violation of the business and professions code against the
contractor who they hired to construct the foundation of their home. Plaintiffs contend the elevation of
the house and garage did not comply with the plans, and that the fill under the garage slab was not
properly compacted. Plaintiffs allege defendant violated B&P sections 7109 (departing from trade
standards), 7026, 7028, and 7031 (performing work without required license) and 7160 (fraudulent
misrepresentations). Plaintiffs contend Ruybalid did not have the required C-8 contractor's license.
Plaintiffs allege a 4th cause of action for breach of written contract, a 5th cause of action for Negligence,
and a 6th cause of action for violation of the Business & Professions Code. Defendant has demurred
only to the 6th cause of action for Violation of the Business & Professions Code.
6th cause of action Violation of the Business & Professions Code:
Defendant contends there is no private right of action to sue for B&P code sections 7109, 7026, 7028,
7031 and 7160 because the Legislature intended these sections are to regulate administrative
Date: 11/20/2009 MINUTE ORDER Page: 1
Dept: 53 Calendar No.:
Case Title: RODNEY ABBOTT. ET AL VS. RONALD Case No: 07AS04450
PAUL BRITSCHGI. ET AL
disciplinary proceedings before the Contractors State Licensing Board. Defendant also contends this
cause of action is uncertain and that it fails to state a cause of action because the fraudulent conduct is
not specifically pleaded. Defendant seeks judicial notice of the fact that he held a Class B contractor's
license.
Plaintiff relies on B&P code section 7031(b) which provides that a person who utilizes the services of an
unlicensed contractor may bring an action in court to recover all compensation paid to the unlicensed
contractor. Plaintiff contends that the Court must accept as true the allegations that the moving party did
not have the required C-8 license for the type of work that he performed, and even if the Court takes
judicial notice that defendant had a Class B license, there are factual disputes as to whether the work
performed required a C-8 license.
The Court overrules the demurrer on the ground plaintiff sufficiently alleges a private right of action
under B&) 7031(b) based on the dispute as to the correct license required. The allegations of fraud in
the 6th cause of action are sufficient because this is not a claim for common law fraud, but rather one
under the B&P code, which does not require the same specificity.
The motion to strike is denied.
The fact that plaintiff did not oppose the striking of a reference to injuries suffered by "other family
members" does not render this phrase subject to being stricken since this does not necessarily mean
that plaintiffs are seeking damage on behalf of parties not named.
Answer to be filed and served on or before December 4, 2009.
The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further
notice is required.
COURT RULING
The matter was argued and submitted.
The Court takes this matter under submission.
Date: 11/20/2009 MINUTE ORDER Page: 2
Dept: 53 Calendar No.:
Document Filed Date
November 20, 2009
Case Filing Date
September 24, 2007
Category
(Breach of Contract/Warranty)
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO GORDON D SCHABER COURTHOUSE MINUTE ORDER Date: 11/20/2009 Time: 02:00:00 PM Dept: 53 Judicial Officer Presiding: Loren McMaster Clerk: J. Hart Reporter/ERM: P. Clausen CSR# 3750 Bailiff/Court Attendant: A. Hughey Case No: 07AS04450 Case Init. Date: 09/24/2007 Case Title: RODNEY ABBOTT. ET AL VS. RONALD PAUL BRITSCHGI. ET AL Case Category: Civil - Unlimited EVENT ID/DOCUMENT ID: 1301981 EVENT TYPE: Hearing on Demurrer - Civil Law and Motion - Demurrer/JOP APPEARANCES Craig Lundgren, counsel, present for Cross - Defendant(s). Stephanie Finelli, counsel, present for Plaintiff(s). Gregory K. Federico, counsel, present for Defendant Nature of Proceeding: Hearing on Demurrer (CA Construction) TENTATIVE RULING Defendant Ruybalid, dba CA Construction's Demurrer to the 1st Amended Complaint is overruled. Defendant's Request for Judicial Notice re Certificate of Records from the Contractor's State Licensing Board is granted. Plaintiffs allege a cause of action for violation of the business and professions code against the contractor who they hired to construct the foundation of their home. Plaintiffs contend the elevation of the house and garage did not comply with the plans, and that the fill under the garage slab was not properly compacted. Plaintiffs allege defendant violated B&P sections 7109 (departing from trade standards), 7026, 7028, and 7031 (performing work without required license) and 7160 (fraudulent misrepresentations). Plaintiffs contend Ruybalid did not have the required C-8 contractor's license. Plaintiffs allege a 4th cause of action for breach of written contract, a 5th cause of action for Negligence, and a 6th cause of action for violation of the Business & Professions Code. Defendant has demurred only to the 6th cause of action for Violation of the Business & Professions Code. 6th cause of action Violation of the Business & Professions Code: Defendant contends there is no private right of action to sue for B&P code sections 7109, 7026, 7028, 7031 and 7160 because the Legislature intended these sections are to regulate administrative Date: 11/20/2009 MINUTE ORDER Page: 1 Dept: 53 Calendar No.: Case Title: RODNEY ABBOTT. ET AL VS. RONALD Case No: 07AS04450 PAUL BRITSCHGI. ET AL disciplinary proceedings before the Contractors State Licensing Board. Defendant also contends this cause of action is uncertain and that it fails to state a cause of action because the fraudulent conduct is not specifically pleaded. Defendant seeks judicial notice of the fact that he held a Class B contractor's license. Plaintiff relies on B&P code section 7031(b) which provides that a person who utilizes the services of an unlicensed contractor may bring an action in court to recover all compensation paid to the unlicensed contractor. Plaintiff contends that the Court must accept as true the allegations that the moving party did not have the required C-8 license for the type of work that he performed, and even if the Court takes judicial notice that defendant had a Class B license, there are factual disputes as to whether the work performed required a C-8 license. The Court overrules the demurrer on the ground plaintiff sufficiently alleges a private right of action under B&) 7031(b) based on the dispute as to the correct license required. The allegations of fraud in the 6th cause of action are sufficient because this is not a claim for common law fraud, but rather one under the B&P code, which does not require the same specificity. The motion to strike is denied. The fact that plaintiff did not oppose the striking of a reference to injuries suffered by "other family members" does not render this phrase subject to being stricken since this does not necessarily mean that plaintiffs are seeking damage on behalf of parties not named. Answer to be filed and served on or before December 4, 2009. The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required. COURT RULING The matter was argued and submitted. The Court takes this matter under submission. Date: 11/20/2009 MINUTE ORDER Page: 2 Dept: 53 Calendar No.: