California Court of Appeals, Fourth District, Third Division
Order Filed Date 9/26/13 (unmodified opn. attached)
Appeal from a judgment of the Superior Court of Orange County, No. 30-2011-00498089 Gregory Munoz, Judge.
Law Offices of Brian J. Ferber, Brian J. Ferber, Jeffrey K. Jayson; Benedon & Serlin, Gerald M. Serlin and Wendy S. Albers for Plaintiff and Appellant.
Susan M. Benson & Associates and Susan M. Benson for National Association of Subrogation Professionals as Amicus Curiae on behalf of Plaintiff and Appellant.
Ulich & Terry, Andrew K. Ulich, Donald W. Fisher, Ivette Kincaid and Jonathan C. Terry for Defendant and Respondent.
Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor, John M. Kennedy and Allen Lohse for Comstock Crosser & Associates as Amicus Curiae on behalf of Defendant and Respondent.
Nick Cammarota for California Building Industry Association as Amicus Curiae on behalf of Defendant and Respondent.
ORDER MODIFYING OPINION
It is ordered that the opinion filed herein on August 28, 2013, be modified as follows:
On page 7, delete the second full paragraph, beginning “Many provisions, ” and replace it with the following two new paragraphs:
Many provisions of the Right to Repair Act support the conclusion the Act covers instances where construction defects were discovered before any actual damage had occurred. Nothing in the Act supports a conclusion it rewrote the law on common law claims arising from actual damages sustained as a result of construction defects. As our Supreme Court has acknowledged: “As a general rule, ‘[u]nless expressly provided, statutes should not be interpreted to alter the common law, and should be construed to avoid conflict with common law rules. [Citation.] “A statute will be construed in light of common law decisions, unless its language ‘“clearly and unequivocally discloses an intention to depart from, alter, or abrogate the common-law rule concerning the particular subject matter....” [Citations.]’ [Citation.]”’ [Citation.] Accordingly, ‘[t]here is a presumption that a statute does not, by implication, repeal the common law. [Citation.] Repeal by implication is recognized only where there is no rational basis for harmonizing two potentially conflicting laws.’ [Citation.]” (California Assn. of Health Facilities v. Department of Health Services (1997) 16 Cal.4th 284, 297.)
We next review code sections of the Act that demonstrate it was not intended to, nor did it, abrogate common law rights and remedies in a situation where the homeowner has suffered actual damage. These code sections would make little sense if actual damage had already occurred in the manner alleged in the complaint.
This modification does not effect a change in the judgment.