V. Winnie Tungpagasit – November 26, 2012
In the recent case of Darling et al. v. Superior Court (Western Pacific Housing, Inc.) 2012 Cal. App. Lexis 1189 (filed November 16, 2012), the First District of the California Court of Appeal confirmed the trial court’s order staying a construction defect case because the homeowners in the suit failed to serve a Notice of Claim on the builders. SB 800 sets out a pre-litigation procedure under which the homeowner must serve the builder with a Notice of Claim (Civil Code § 910(a)) identifying the alleged defects in the home so that the builder can decide whether to investigate and offer a repair prior to a lawsuit.
In Darling, the homeowners requested documents from Western Pacific Housing and Schuler Homes (the “builders”) without proper service of a Notice of Claim. When the builders did not produce the documents, the homeowners claimed they were relieved from complying with SB 800’s pre-litigation obligations and filed a construction defect lawsuit. The builders filed a motion with the trial court to stay the litigation, and the motion was granted. The homeowners filed a writ challenging the trial court’s ruling. The Court of Appeal held that the obligation of a builder to produce documents does not arise until after it is served with a Notice of Claim. Thus, a builder may stay a construction defect action, and have no obligation to respond to a request for documents pursuant to Civil Code § 912(a), until after it is served with a Notice of Claim.
Darling clarifies when builders have an obligation to produce documents in SB 800 cases. Some homeowner attorneys have historically taken the position that a Notice of Claim is not required to obtain documents. Thanks to the Darling case, the Court of Appeal has clarified the issue by stating unequivocally that homeowners must serve a Notice of Claim before builders are required to produce documents.