Failure To Provide Notice Under The Right To Repair Act Allows Contractor To Freeze Litigation

The case of Armundo Darling v. The Superior Court of Solano County (Western Pacific Housing, Inc., et al., Real Parties in Interest), demonstrates that the Homebuilder's Right to Repair Act that was enacted by SB800 protects homebuilders in defect litigation when the owners fail to comply with the pre-litigation rules in the statutes.

SB800 was enacted to provide remedies for homeowners purchasing newly constructed homes, but also protection for developers and contractors (called "builders" in the Act) from costly litigation as it established procedures that must be complied with before litigation against the Builders. Some of these procedures are outlined in Civil Code Section 912(a). In this case, the owners of 86 single family residences ("Darling") sued the builder, Western Pacific Housing, Inc. ("Western"), for construction defects. The homes at issue were first sold after January 1, 2003, so they fell under the "Right to Repair Act" or "SB 800" which provides, as one remedy to the Builder, a "non adversarial inspection" and an opportunity for the Builder to adequately remedy all defects claimed by the homeowner, prior to litigation. The rules governing these "non adversarial inspections" are provided for in Civil Code Section 910, which establishes the right of the builder to require notice of construction defects prior to the filing of litigation and the opportunity to repair such defects in reasonable time. To protect the homeowners, if after adequate notice is provided the Builder fails to comply with the pre-litigation requirements then the homeowner is entitled to proceed with litigation without the remaining pre-litigation procedures.

At issue in the case was a provision in Civil Code Section 912 which allows the homeowners to make a demand on the Builder for documentation within a reasonable period, and the failure to comply with that request may result in litigation. But, in this case, the homeowner asked for documents but did not first serve a notice of defects and allow the Builder the opportunity to correct such errors; the owners then sued the Builder for defects after the Builder would not produce the documents. The Builder argued it did not have to produce documents and could not be sued for the failure to produce the documents when the homeowners failed to provide the notice of defects.

In the court, the Builder, Western, asked the court to suspend or Stay the court proceedings because the owners did not follow the pre-litigation procedures. The court agreed with the Builder and issued the order until the owners complied with the pre-litigation procedures (including notice and an opportunity to fix the problems). The Court of Appeal affirmed (approved) the court's handling of the matter.

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Kenneth Grossbart is recognized as one of the foremost authorities in California construction law. Over the past 30 years, Ken has become a respected speaker on Mechanic's Liens and other construction related issues. Abdulaziz, Grossbart & Rudman provides this information as a service to its friends & clients and it does not establish an attorney-client relationship with the reader. This document is of a general nature and is not a substitute for legal advice. Since laws change frequently, contact an attorney before using this information. Ken Grossbart can be reached at Abdulaziz, Grossbart & Rudman: (818) 760-2000 or by E-Mail at ksg@agrlaw.com, or at www.agrlaw.com