In 2002, the California Legislature enacted SB 800 to cover residential construction defect claims…or so most thought. Its intent was to give developers, builders and contractors the right to repair alleged defects before homeowners filed suit. It required the homeowners to give notice and an opportunity to repair.
In 2013, the California intermediate appellate court in Orange County upset the apple cart in Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC(2013) 219 Cal.App. 4th 98, an insurance subrogation case. A Los Angeles County District Court of Appeal (Burch v. Superior Court (2014) 223 Cal.App. 4th 1411) agreed with the Liberty Mutual court that the Right to Repair Act (as SB 800 is known) is not the exclusive remedy available to homeowners, i.e., they could sue without giving notice of defects and an opportunity to repair.
In 2015, California’s Fifth District Court of Appeal went the other way, citing the language in Civil Code sections 896, 897, 931, 943 and 944, as well as the Legislative History in concluding that homeowners must give notice and allow repairs to be attempted before suing.
Now that there is a conflict among the intermediate appellate panels, will the California Supreme Court right the wrong of Liberty Mutual/Burch and enshrine McMillan as the law of the state?
Stay tuned. One may assume that if the Supreme Court takes up McMillan, there would be a plethora of amici curiae briefs. Should be fun to watch!
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