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Nancy anders et al v. the Superior Court of Stanislaus County

February 7, 2011


ORIGINAL PROCEEDING; petition for writ of mandate. Roger M. Beauchesne, Judge. (Stanislaus Co. Sup. Ct. No. 643452)

The opinion of the court was delivered by: Hill, P.J.



In response to a motion by real party in interest (real party), the trial court issued an order that included a requirement that petitioners comply with the statutory procedures ordinarily imposed on homeowners as a prerequisite to filing an action against a builder to remedy construction defects. Petitioners seek a writ of mandate directing the trial court to vacate its order and instead enter an order denying real party's motion in its entirety. We conclude the trial court misinterpreted the governing statute and grant the petition.


Civil Code sections 895-945.5*fn2 (Sen. Bill No. 800) set out a non-adversarial prelitigation procedure by which the purchaser of a home who believes there are defects in the construction of the home for which the builder is liable must give the builder notice of the alleged defects and an opportunity to investigate and repair them prior to initiating a court action seeking remedies. Under the statutory scheme, the builder has the option of contracting for an alternative non-adversarial prelitigation procedure at the time of the initial sale of the home.

Petitioners are the owners of 54 homes built by real party. They filed a complaint seeking remedies for alleged construction defects in their homes. Real party filed a motion seeking to compel the petitioners whose homes were sold pursuant to sales contracts containing alternative prelitigation procedures to comply with those procedures, and to stay the litigation until the procedures have been followed and real party has been afforded an opportunity to repair any defects. Petitioners opposed the motion. After hearing, the trial court granted real party's motion in part and denied it in part. The court found the alternative procedures set out in the contracts to be unconscionable and unenforceable. It denied real party's request to compel petitioners to comply with the alternative procedures, but, finding real party made only a qualified election to follow its alternative procedures, the trial court required petitioners to comply with the statutory prelitigation procedures. It stayed the litigation pending completion of the process. Petitioners petitioned for a writ of mandate or prohibition to overturn the portion of the court's order requiring them to comply with the statutory procedures. They contend Sen. Bill No. 800 provides that, if the builder's alternative procedures are found to be unenforceable, the builder may not enforce the statutory prelitigation procedures and the petitioner may file suit without compliance with those procedures. We issued an order to show cause and received additional briefing in order to consider this issue of first impression.


I. Writ Review*fn3

Review by writ of mandate is available to compel an inferior court or other public agency to perform an act required by law. (Code Civ. Proc., § 1085; People v. Picklesimer (2010) 48 Cal.4th 330, 339-340.) A writ of mandate "must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law." (Code Civ. Proc., § 1086.) Writ review is deemed extraordinary and appellate courts are normally reluctant to grant it. (Science Applications Internat. Corp. v. Superior Court(1995) 39 Cal.App.4th 1095, 1100; City of Half Moon Bay v. Superior Court (2003) 106 Cal.App.4th 795, 803 (Half Moon Bay).) The Supreme Court has identified general criteria for determining the propriety of writ review. "These criteria include circumstances in which 'the party seeking the writ lacks an adequate means, such as a direct appeal, by which to attain relief' or 'the petitioner will suffer harm or prejudice in a manner that cannot be corrected on appeal.' [Citation.]" (Half Moon Bay, supra, at p. 803.) A writ may also be granted when the petition presents an issue of first impression that is of general interest to the bench and bar. (Valley Bank of Nevada v. Superior Court(1975) 15 Cal.3d 652, 655.)

When the petitioner may immediately appeal, his remedy is considered adequate and writ relief is precluded, unless the petitioner "can show some special reason why it is rendered inadequate by the particular circumstances of his case." (Hogya v. Superior Court(1977) 75 Cal.App.3d 122, 128 (Hogya).)

"Where an order is not appealable, but is reviewable only upon appeal from a later judgment, various factors must be considered in evaluating the adequacy of the appellate remedy [citation]. Such factors include, without being limited to, the expense of proceeding with trial [citation], prejudice resulting from delay [citation], inordinate pretrial expenses [citation], the possibility the asserted error might not infect the trial [citation], and the possibility the asserted error might be corrected in a lower tribunal before or during trial [citation]. A remedy is not inadequate merely because more time would be consumed by pursuing it through the ordinary course of law than would be required in the use of an extraordinary writ. [Citations.]" (Hogya, supra, 75 Cal.App.3d at pp. 128-129.)

The order requiring petitioners to comply with the statutory non-adversarial prelitigation procedures is not immediately appealable. (See Code Civ. Proc., § 904.1.) In the absence of writ review, petitioners will be required to comply with the order in full, and then litigate the matter to a final judgment before they will be able to seek review by appeal. Compliance will result in delays in the litigation, and possibly added inconvenience to petitioners if real party makes unsuccessful attempts to repair their homes. The asserted error is not one that is likely to be cured in further proceedings during or prior to trial. By the time the matter is litigated to judgment, the issue will be moot and petitioners will not be able to effectively challenge the order. Any error in the ruling cannot be corrected on appeal. Consequently, petitioners do not have "a plain, speedy, and adequate remedy, in the ordinary course of law." (Code Civ. Proc., § 1086.)

Petitioners' writ petition presents an issue of first impression, requiring interpretation of a statutory provision that has not previously been interpreted by the courts. It is an issue of general interest to builders, home buyers, and their attorneys; resolution of the issue will provide guidance to builders in drafting their sales contracts and to the bench and bar in future litigation. (See Hogya, supra, 75 Cal.App.3d at p. 129.) The issue may escape review unless it is addressed in a writ proceeding. Under these circumstances, we conclude review by extraordinary writ is appropriate in this case.

II. Statutory Interpretation

A. Statutory provisions

In 2002, the Legislature enacted sections 895 through 945.5, to "specify the rights and requirements of a homeowner to bring an action for construction defects, including applicable standards for home construction, the statute of limitations, the burden of proof, the damages recoverable, a detailed prelitigation procedure, and the obligations of the homeowner." (Legis. Counsel's Dig., Sen. Bill No. 800 (2001-2002 Reg. Sess.).) Chapter 2 of the legislation sets out the building standards for the violation of which a builder may be held liable to the homeowner. (§§ 896, 897.) Chapter 3 of the legislation specifies the obligations of the builder, including an obligation to provide a specified limited warranty. (§§ 900-907.) Chapter 4 of the legislation prescribes prelitigation procedures a home buyer must initiate prior to bringing a civil action against the builder seeking recovery for ...

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