ORIGINAL PROCEEDINGS; petition for writ of mandate. Martin A. Hildreth, Judge. (Retired judge of the former San Bernardino Mun. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Petition granted with directions. (Super.Ct.No. CIVRS804241).
The opinion of the court was delivered by: Gaut J.
CERTIFIED FOR PUBLICATION
Civil Code section 895 et seq. establishes procedures and requirements with respect to construction defect cases involving homes and homeowners.*fn1 (For convenience, we will sometimes follow the lead of petitioner Standard Pacific Corporation and refer to the statutes as the "Fix-it" law.) Section 910 sets out "prelitigation procedures" to be followed by plaintiffs before suit can be filed, procedures that can be summarized as "notice and opportunity to repair."*fn2 Section 912 in turn sets out certain requirements for builders with respect to documentation and information to be provided to homeowners. As a sanction, or incentive to comply, section 912 also provides, in subdivision (i), that a "builder who fails to comply with any of these requirements... is not entitled to the protection of this chapter, and the homeowner is released from the requirements of this chapter and may proceed with the filing of an action...." The simple question presented by this petition is whether a plaintiff who does not follow the procedures set out in section 910 must first establish the builder's noncompliance with section 912, or whether a plaintiff is free to file suit and need not step back to perform the "notice and opportunity to repair" position until the builder affirmatively establishes that it has complied with its own obligations.
In this case, the trial court concluded that it was up to petitioner-the builder-to establish that it had "chosen" to "opt-in" to the statutory scheme by performing its disclosure obligations under section 912. We conclude that this interpretation of the statutes was incorrect, and that the burden is on the plaintiff (here real parties in interest) to either comply with section 910 or to establish why he or she need not do so. Accordingly, we grant the petition with directions.
Real parties in interest-several homeowners-filed this action on May 5, 2008, stating causes of action for strict liability, strict products liability, negligence, and negligence per se. All causes of action were based on problems relating to the construction of homes located within a development undertaken by petitioners. The complaint did not allege that real parties in interest had complied with the Fix-it law by giving petitioner an opportunity to repair the claimed defects.
As authorized by section 930, subdivision (b),*fn3 petitioner brought a motion to stay proceedings until real parties in interest complied with their obligations. Real parties in interest responded with the argument that because petitioner had not complied with section 912, they did not have to follow the "prelitigation procedures." This assertion was not supported by any factual showing that petitioner had, in fact, breached any of its obligations; implicitly it was the position of real parties in interest that petitioner had to affirmatively establish its compliance.*fn4
This position was adopted by the trial court,*fn5 which denied petitioner's motion and also awarded sanctions in the amount of $1,000.*fn6
In construing a statute, our general goal must always be to effectuate the legislative intent. (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 977.) We begin by considering the genesis and purpose of the Fix-it law and the legislative materials surrounding its enactment.*fn7 The Senate Committee on the Judiciary on Senate Bill No. 800 (2001-2002 Reg. Sess.)-which became the Fix-it law-comments that it was the result of "extended negotiations between various interested parties" and was intended to address both builders' concerns about the costs of construction defect litigation, and homeowners' concerns over recent legal decisions prohibiting suit until actual damage was incurred. (See Aas v. Superior Court (2000) 24 Cal.4th 627.) As adopted, the bill's provisions included detailed construction standards for residential structures (§ 896), a requirement that builders provide a one-year "fit and finish" warranty (§ 900), and established a new 10-year statute of limitations (§ 941). These provisions clearly benefit homeowners. On the other hand, the bill also required homeowners to follow all recommended maintenance schedules and practices at the risk of justifying an affirmative defense in any litigation by the homeowner (§ 907), and it also established the "prelitigation procedure" at issue here (§ 910 et seq.). These portions of the bill would benefit builders by reducing or eliminating some claims and reducing litigation costs.
Real parties in interest characterize Civil Code section 912 as an "opt-in" statute- that is, that the builder, by complying with the notice and documentation provisions, may "elect" to be covered by the prelitigation procedure. If this were so, we would agree that the builder would be obligated to establish compliance in order to show that it was entitled to enforce the prelitigation procedure. (See Evid. Code, § 500.)*fn8 However, we reject the argument of real parties in interest. Nothing in Civil Code section 912 suggests that it is optional with the builder. The introductory clause of the statute provides that "A builder shall do all of the following...."*fn9 (Italics added.) This is clearly mandatory in accordance with the usual rule that "shall" expresses a mandatory requirement, while the use of "may" would confer discretion or choice. (Woodbury v. Brown-Dempsey (2003) 108 Cal.App.4th 421, 433.) The Legislature was concerned to afford certain information and ...