ORIGINAL PROCEEDING: petition for writ of mandate. Sidney P. Chapin, Judge. (Super. Ct. No. S-1500-CV-269830)
The opinion of the court was delivered by: Hill, P. J.
CERTIFIED FOR PUBLICATION
Petitioners seek a writ of mandate directing respondent trial court to vacate its order requiring them to comply with certain contractual non-adversarial prelitigation procedures prior to continuing to prosecute their construction defect action against real party in interest, Castle & Cooke California, Inc. (Castle & Cooke). We deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioners are the owners of 32 homes purchased from Castle &
Cooke, the developer. Petitioners and other plaintiffs*fn1
filed an action against Castle & Cooke and other
defendants, alleging there are defects in the construction of their
homes. Castle & Cooke moved for an order compelling petitioners and
the owners of five other homes*fn2 to comply with certain
statutory or contractual procedures applicable to claims of
construction defects. It sought to compel the owners of homes in the
Brighton Place, Brighton Parks, and Brighton Village developments to
comply with contractual provisions for non-adversarial prelitigation
procedures, including mediation, and judicial reference; it sought to
compel the owners in the Villages of Brimhall and Brighton Estates to
comply with statutory non-adversarial prelitigation procedures and
contractual provisions for mediation and arbitration.
The statutory non-adversarial prelitigation procedures require that the homeowner give the builder notice of any alleged defects and an opportunity to repair them before the homeowner may file a construction defect action against the builder; they also provide for mediation of any dispute before the homeowner resorts to litigation. (See Civil Code, §§ 910-938.)*fn3 The contractual procedures required the homeowners to give Castle & Cooke notice of any alleged construction defects and an opportunity to correct them; any problems remaining unresolved were to be addressed through mediation and judicial reference.
Petitioners opposed the motion, arguing the prelitigation procedures were not enforceable because Castle & Cooke failed to comply with certain statutory requirements. They argued the court should exercise its discretion to deny enforcement of the provisions for judicial reference and arbitration to avoid a multiplicity of proceedings and a possibility of conflicting rulings, and because the arbitration and judicial reference provisions were unconscionable.
After hearing, the trial court granted the motion in part. It ordered the 20 original purchasers in the Brighton Place, Brighton Parks, and Brighton Village developments to comply with the "contractual prelitigation alternative dispute resolution and judicial reference of disputes alleged, as needed." It ordered the 12 original purchasers in the Villages of Brimhall and Brighton Estates developments to comply with the "contractual pre-litigation mediation and binding arbitration of disputes alleged, as needed." It stayed the action as to both groups of original owners to permit compliance. It denied the motion as to the five subsequent purchasers and did not stay the action as to them.
Petitioners filed their writ petition, contending they were released from the requirement of complying with the statutory or contractual prelitigation procedures by Castle & Cooke's failure to comply with certain statutory disclosure requirements. They also contend the prelitigation non-adversarial procedures are not enforceable because some of their contracts contain provisions limiting damages that violate related statutes. *fn4
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 International 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 contractual 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 will not be able to seek review of it until after a judgment has been entered. By the time the matter reaches judgment, the issue will be moot; appellate review will not afford relief from an erroneous ruling. Petitioners will not be able to effectively challenge the order by appeal. Consequently, petitioners do not have "a plain, speedy, and adequate remedy, in the ordinary course of law." (Code Civ. Proc., § 1086.) Additionally, petitioners' writ petition presents issues of first impression, requiring interpretation of statutory provisions that have not previously been interpreted by the courts. These are issues of general interest to builders and home buyers; resolution of the issues will provide guidance to both parties regarding the scope of their rights and obligations under the statutes, and the interplay between the statutory requirements and the ...