Category - SB800

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FLASH BULLETIN – McMillin Albany LLC et al. v. Superior Court (2018) S229762
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UPDATE – McMillin Albany LLC v. Superior Court & Gillotti v. Stewart
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Gillotti v. Stewart (2017) 2017 WL 1488711 Rejects Liberty Mutual, Holding Once Again That The Right To Repair Act Is The Exclusive Remedy For Construction Defect Claims
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Builder Must Respond To Homeowner’s Notice Of Claim Within 14 Days Even If Construction Defect Claim Is Not Alleged With The “Reasonable Detail” Required By California’s Civil Code – Blanchette v. Superior Court (2017) 8 Cal.App.5th 521
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UPDATE – McMillin Albany LLC v. Superior Court
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$24 Million Verdict Against Material Supplier Overturned Where Plaintiff Failed To Prove Supplier’s Negligence Or Breach Of Contract Caused A SB800 Violation
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Significant Victory for the Building Industry: Liberty Mutual is Rejected Once Again, This Time by the Third Appellate District in Holding SB800 is the Exclusive Remedy
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UPDATE – McMillin Albany LLC v. Superior Court
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Extra Extra
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California Supreme Court Denies Petition for Review and Request for Depublication of Recent Appellate Decision that Limited Application of SB 800

FLASH BULLETIN – McMillin Albany LLC et al. v. Superior Court (2018) S229762

By: Richard H. Glucksman, Glenn T. Barger, Jon A. Turigliatto, David A. Napper
February 15, 2018

HOT OFF THE PRESS:

THE CALIFORNIA SUPREME COURT HAS RULED THAT THE RIGHT TO REPAIR ACT (SB800) IS THE EXCLUSIVE REMEDY FOR CONSTRUCTION DEFECT CLAIMS NOT INVOLVING PERSONAL INJURIES WHETHER OR NOT THE UNDERLYING DEFECTS GAVE RISE TO ANY PROPERTY DAMAGE in McMillin Albany LLC et al. v. Superior Court (2018) S229762.

The Construction Industry finally has its answer.  The California Supreme Court ruled that the Right to Repair Act (SB800) is the exclusive remedy for construction defect claims alleged to have resulted from economic loss, property damage, or both.  Our office has closely tracked the matter since its infancy.  The California Supreme Court’s holding resolves the split of authority presented by the Fifth Appellate District’s holding in McMillin Albany LLC v. Superior Court (2015) 239 Cal.App.4th 1132, which outright rejected the Fourth Appellate District’s holding in Liberty Mutual Insurance Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98.

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UPDATE – McMillin Albany LLC v. Superior Court & Gillotti v. Stewart

By: Richard H. Glucksman, Glenn T. Barger, David A. Napper, and Chelsea L. Zwart
October 25, 2017

The matter has been fully briefed since 2016 and the construction industry has been anxiously awaiting the California Supreme Court’s highly anticipated decision regarding McMillin Albany LLC v. Superior Court (2015) 239 Cal.App.4th 1132. At long last, oral argument has finally been set for Tuesday, November 7, 2017 at 1:30 p.m. in Sacramento. Numerous amicus briefs were filed including one by the Association of Southern California Defense Counsel, with the immediate past president of the organization, CGDRB’s Glenn T. Barger, Esq., listed as the attorney of record, Mr. Barger will personally appear and represent the ASCDC at oral argument.

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Gillotti v. Stewart (2017) 2017 WL 1488711 Rejects Liberty Mutual, Holding Once Again That The Right To Repair Act Is The Exclusive Remedy For Construction Defect Claims

By: Richard H. Glucksman, Esq. and Chelsea L. Zwart, Esq.
June 5, 2017

Background

In Gillotti v. Stewart (April 26, 2017) 2017 WL 1488711, which was ordered to be published on May 18, 2017,  the defendant grading subcontractor added soil over tree roots to level the driveway on the plaintiff homeowner’s sloped lot.  The homeowner sued the grading subcontractor under the California Right to Repair Act (Civil Code §§ 895, et seq.) claiming that the subcontractor’s work damaged the trees.

After the jury found the subcontractor was not negligent, the trial court entered judgment in favor of the subcontractor.  The homeowner appealed, arguing that the trial court improperly construed the Right to Repair Act as barring a common law negligence theory against the subcontractor and erred in failing to follow Liberty Mutual Insurance Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98. The Third District Court of Appeal disagreed and affirmed the trial court’s judgment in favor of the subcontractor.

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Builder Must Respond To Homeowner’s Notice Of Claim Within 14 Days Even If Construction Defect Claim Is Not Alleged With The “Reasonable Detail” Required By California’s Civil Code – Blanchette v. Superior Court (2017) 8 Cal.App.5th 521

By: Richard H. Glucksman and David A. Napper
May 25, 2017

On February 10, 2017, California’s Fourth District Court of Appeal held that if a builder fails to acknowledge receipt of a homeowner’s Notice of Claim within 14 days, as required by the Right to Repair Act (“SB800”), specifically California Civil Code §913, the homeowner is released from the requirements of SB800 and may proceed with the filing of a lawsuit.

In Blanchette v. Superior Court, Blanchette owned 1 of 28 homes constructed by GHA Enterprises, Inc. (“GHA”). On February 2, 2016, Blanchette served GHA with notice of a claim, setting forth the alleged defects in all 28 homes. On February 23, 2016, GHA responded that the construction defects were not alleged with sufficient “reasonable detail” as required by Civil Code §910. In response, Blanchette asserted that GHA’s response was untimely and thus excused him and the other homeowners from any obligations under SB800.  The trial court found for the builder, GHA, holding that Blanchette’s Notice of Claim lacked detail sufficient to trigger GHA’s obligations under SB800.  Blanchette appealed the ruling.

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UPDATE – McMillin Albany LLC v. Superior Court

By: Richard H Glucksman, Glenn T. Barger, and David A. Napper
May 25, 2017

The matter has been fully briefed since last year and the construction industry anxiously awaits the California Supreme Court’s highly anticipated decision regarding McMillin Albany LLC v. Superior Court (2015) 239 Cal.App.4th 1132.  Numerous amicus briefs have also been filed including one by the Association of Southern California Defense Counsel, with the immediate past president of the organization, CGDRB’s Glenn T. Barger, Esq., listed as the attorney of record.  The Supreme Court will consider the issue of whether the Right to Repair Act (SB800) is the exclusive remedy for all defect claims arising out of new residential construction sold on or after January 1, 2003, thereby resolving the split of authority presented by the Fifth Appellate District’s holding in McMillin Albany, which outright rejected the Fourth Appellate District’s holding in Liberty Mutual Insurance Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98, on this particular issue.  Oral argument is still pending and CGDRB will continue to closely monitor the progress of this case.  Stay tuned.

$24 Million Verdict Against Material Supplier Overturned Where Plaintiff Failed To Prove Supplier’s Negligence Or Breach Of Contract Caused A SB800 Violation

By: Jon A. Turigliatto and Chelsea L. Zwart
May 25, 2017

The Fourth District California Court of Appeal published its decision, Acqua Vista Homeowners Assoc. v. MWI, Inc. (2017) 7 Cal.App.5th 1129, holding that claims against a material supplier under SB800 (Civil Code §895, et. seq.) require proof that the SB800 violation was caused by the supplier’s negligence or breach of contract.

In this case, Acqua Vista Homeowners Association (“the HOA”) sued MWI, a supplier of Chinese pipe used in the construction of the Acqua Vista condominium development.  The HOA’s complaint asserted a single cause of action for violation of SB800 standards, and alleged that defective cast iron pipe was used throughout the building.  At trial, the HOA presented evidence that the pipes supplied by MWI contained manufacturing defects, that they leaked, and that the leaks had caused damage to various parts of the condominium development.  The jury returned a special verdict against MWI, and the trial court entered a judgment against MWI in the amount of $23,955,796.28, reflecting the jury’s finding that MWI was 92% responsible for the HOA’s damages.

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Significant Victory for the Building Industry: Liberty Mutual is Rejected Once Again, This Time by the Third Appellate District in Holding SB800 is the Exclusive Remedy

By: Richard H. Glucksman and Ravi R. Mehta
December 8, 2016

I. Elliott Homes, Inc. v. Superior Court (Certified for Publication, Cal. Ct. App. Dec. 2, 2016

The California Court of Appeal for the Third Appellate District recently elaborated on the scope of the Right to Repair Act, commonly known as SB-800 (“Act”).  In Elliott Homes, Inc. v. Superior Court of Sacramento County (Kevin Hicks, et al.) (certified for publication, Cal. Ct. App. Dec. 2, 2016), the Court considered whether the Act (and specifically the Act’s pre-litigation procedure) applies, when homeowners  plead construction defect claims based only on common law causes of action, as opposed to violations of the building standards set forth in the Act (Civil Code §896).  The Court answered this question affirmatively.

The homeowners of seventeen (17) single-family homes filed a Complaint against the builder of their homes, Elliott Homes, Inc. (“Elliott”), alleging common law causes of action for construction defects.  Elliott filed a motion to stay the litigation on the ground that the homeowners failed to comply with the pre-litigation procedure set forth in the Act.  The trial court denied the motion, agreeing with the homeowners that this pre-litigation procedure did not apply because the homeowners had not alleged a statutory violation of the Act.  Elliott appealed.  The Court of Appeal purely considered the question of whether the Act, including its pre-litigation procedure, applies when a homeowner pleads construction defect claims based on common law causes of action, and not on statutory violations of the Act’s building standards.

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UPDATE – McMillin Albany LLC v. Superior Court

By: Richard H Glucksman and David A. Napper                                     September 30, 2016

The matter has been fully briefed and the construction industry is one step closer to receiving the California Supreme Court’s highly anticipated decision regarding McMillin Albany LLC v. Superior Court (2015) 239 Cal.App.4th 1132.  The Supreme Court will address the split of authority presented by the Fifth Appellate District Court’s holding in McMillin Albany, which outright rejected the Fourth Appellate District Court’s holding in Liberty Mutual Insurance Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98.  The issue is whether the Right to Repair Act (SB800) is the exclusive remedy for all defect claims arising out of new residential construction sold on or after January 1, 2013.  Oral argument is still pending, and CGDRB will continue to closely monitor the progress of this case.  Stay tuned.

Extra Extra

All Claims for Construction Defects in Residential Construction Sold on or after January 1, 2003 are Subject to Requirements and Procedures of the Right to Repair Act (SB 800)

McMillin Albany LLC v. Super Ct. 2015 F069370 (Cal.App. 5 Dist.)

By: Richard H. Glucksman, Jon A. Turigliatto, and David A. Napper
September 8, 2015
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In a particularly dramatic and noteworthy fashion and breaking with the Fourth Appellate District and rejecting the holding in Liberty Mut. Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98, the Fifth District Court of Appeal held that the California Legislature intended that all claims arising out of defects in new residential construction sold on or after January 1, 2003 are subject to the standards and requirements of the Right to Repair Act, commonly referred to as SB800, including specifically the requirement that notice be provided to the builder prior to filing a lawsuit.  Thus, SB 800 is the exclusive remedy for all defect claims arising out of new residential construction sold on or after January 1, 2003.

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California Supreme Court Denies Petition for Review and Request for Depublication of Recent Appellate Decision that Limited Application of SB 800

Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC 2013 WL 4538693 (Cal.App. 4 Dist.)

By: Richard H. Glucksman, Jon A. Turigliatto, and David A. Napper

On December 11, 2013, the California Supreme Court denied Respondent, Brookfield Crystal Cove, LLC’s Petition for Review and Request for Depublication of the recent decision by the Fourth District Court of Appeal in Liberty Mutual Ins. Co.  v. Brookfield Crystal Cove LLC, 2013 WL 4538693 (Cal.App. 4 Dist.) in which the Court of Appeal held that California’s Right to Repair Act (SB 800) is not a homeowner’s exclusive remedy for residential construction defects.

Liberty Mutual is now citable decisional authority in California and holds that homeowners may assert common law causes of action for construction defects that have resulted in actual property damage.  For construction defect that have caused actual property damage, homeowners are no longer required to comply with SB 800’s statutory pre-litigation procedures which provide builders with the opportunity to make repairs prior to the homeowner’s initiation of litigation.  Additionally, the decision permits homeowners to circumvent the shortened limitations periods for certain types of construction defects under the Right to Repair Act.

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