News & Insights

Recent Posts

WSHB's Constance Endelicato To Speak at ASHRM 2019 Annual Conference

Supreme Court Allows Suit Over Website Accessibility

Strategies for Defending Legionella and Mold Claims

Residential Revolution

Time Limit Demand Issues Arrive in North Carolina

WSHB Welcomes New Partner Julie A. Weerth to the Firm's New York Office

Temp Agency Absolved of Liability in Hotly Contested Action

Alternative Fee Agreements and Construction Issues: Oil and Water or Perfect Pairing!?

WSHB's Graham Miller Helps Demystify Construction Claims in the Pacific Northwest

WSHB Partner Janice Michaels Named to The Best Lawyers in America© 2020 List

One Bad Apple: Navigating through Sexual Battery and other Intentional Torts

Leading Construction Litigator Cynthia Tari Joins WSHB's Dallas Office

WSHB’s Philadelphia Partner Secures Summary Judgment in Catastrophic Premises Liability Matter

WSHB Welcomes New Partner Andrew Kessler

New Bill In New York Proposed for Signature by Governor Andrew Cuomo is Set To Make Employers "SWEAT"

Renowned Litigator Jason Williams Joins WSHB's Nevada Office

Litigator Richard Young Joins WSHB's Nevada Office

Published Appellate Opinion Upholding Summary Judgment in Favor of Commercial Tenant Against $3.5M Subrogation Suit

17 WSHB Lawyers Honored as 2019's Rising Stars

Arizona Supreme Court Allows Court of Appeals Decision Expanding Defendants' Ability to Enforce Settlements to Stand

WSHB’s Jason Klein Breaks Down the Good, the Sad and the Funny Sides of Claims

Litigating Sexual Battery and Other Intentional Torts: Navigating the One Bad Apple in Medical Negligence

WSHB Partner Michelle Arbitrio to Moderate Panel on Insurance and Risk Management in the Age of Mass Shootings

Girl on Fire: The Price of Pursuing the Truth in the #MeToo World

Pragmatic Issues on Settlement Versus Trial for Legal Malpractice Cases

WSHB Partner Jade Tran Named to Lawyers of Color's "Nation's Best" List

A Withering Assault

The Natural Progression of Natural Disasters

Nevada’s Governor Signs Chapter 40 Reform Bill

WA Condo Law Changes Hope to Curtail Frivolous Defect Lawsuits and Stimulate Production

WSHB Co-Founder Stephen Henning Steps Into the Spotlight at this Year's West Coast Casualty Seminar

Professional Liability Expert Weighs In On Protecting Your Practice From Opioid Doc Arrest Fallout

Penalties, Punitives, and Granny Cams: The Escalating Lure of Elder Abuse Litigation

Are Structured Settlements Still Relevant

Game Changing Trends Affecting Construction

He's Not My Guy: The Joint-Employer Doctrine

WSHB Case Update: DOL Proposes Increase to Minimum Salary Threshold

WSHB and DWF Announce Exclusive Association

WSHB Partner Nancy Quinn Koba Elected Supreme Court Justice for the Ninth District

WSHB Case Update: Statute Meant to Encourage Settlement Inflexible on Time Deadlines; Court of Appeal Makes Reasonableness Standard Secondary

February 28, 2017

Blanchette v. Superior Court  (2017 WL 541939)

Holding

In the continuing development of law in the interpretation of the California Right to Repair Act (California Civil Code sections 895, et seq (“SB 800”), the Fourth District Court of Appeal held on February 10, 2017, that a homebuilder must acknowledge a homeowner’s notice of claim within the 14 day period provided in the statute, even if the Notice of Claim is insufficient under California Civil Code section 910. If the builder fails to provide a written response within this time, the homeowner is released from the requirements of the Act and can proceed directly to litigation.

Practice Pointer

The Appellate Court’s holding in Blanchette is a reminder that the courts will strictly enforce the stringent timeframes set forth in the Right to Repair Act. Upon receipt of a notice of claim, builders must be circumspect and ensure that they properly comply with the procedures and deadlines. Otherwise, they will lose their rights under the Act, including but not limited to, the right to challenge the sufficiency of a deficient notice of claim. Builders should start to plan accordingly: have an action plan in place to review and provide a response to any Notice of Claim under SB 800 within 14 days of its receipt. This may mean that notices to all insurance companies or other parties may not be feasible. It also means that the rest of the aggressive timeline for investigation and offer of repair will begin to run. Therefore, all builders are encouraged to have someone appointed – whether it be a staff person or outside counsel – to ensure that the timelines are met, that objections to insufficient Notices of Claims are timely sent, and that an overall strategy is in place to respond to Notices of Claims that are vague and not detailed enough to provide a description of the nature and extent of the alleged deficiencies.

It also means that the rest of the aggressive timeline for investigation and offer of repair will begin to run. Therefore, all builders are encouraged to have someone appointed – whether it be a staff person or outside counsel – to ensure that the timelines are met, that objections to insufficient Notices of Claims are timely sent, and that an overall strategy is in place to respond to Notices of Claims that are vague and not detailed enough to provide a description of the nature and extent of the alleged deficiencies.

Background

In the underlying action, Claimants served the Builder with a Notice of Claim, which set forth a laundry list of alleged building standards violations; however, the Notice was largely simply a verbatim restatement of the building standards as set forth in Civil Code section 896. Attached to the notice was a list of the names and addresses of each of the owners of the homes in the development. The builder did not respond to the Notice until 21 days later, when it responded and objected to Claimants’ Notice, asserting that the alleged defects were not set forth with reasonable detail as required by section 910. Claimants disagreed, asserted that the Builder’s response was untimely, and thus excused Claimants from any further obligations under the Right to Repair Act. Claimants filed a complaint, to which the builder submitted a motion to stay and enforce the pre-litigation requirements, starting with a reasonably descriptive Notice.

In response, the trial court agreed with the Builder that Claimants’ notice lacked detail sufficient to trigger the Builder’s obligations under the Act. Accordingly, the trial court stayed the action pending completion of the notice and inspection procedures required by the Act and ordered that Claimants serve a new notice of claim. Claimants filed a petition for a writ of mandate challenging the trial court’s order.

While the Appellate Court agreed that the notice was insufficient, as it failed to comply with the requirements set forth in Civil Code section 910, the Builder’s failure to timely acknowledge the Claimants’ notice relieved Claimants of any further obligations under the Act. The Court explained that if a builder believes there is insufficient specificity, it is obliged to respond to that effect within the time prescribed by the Act. The Appellate Court reasoned that the Act’s alleged purpose, to promptly resolve homeowner construction defect claims without resort to litigation, cannot be achieved by permitting homebuilders to submit a tardy response to a notice of claim, despite its deficiencies.

During oral argument, the Appellate Court wrestled extensively with the conflict between the balance of requiring a reasonable notice and the need to encourage resolution of claims.  The justices were clearly bothered that the legislature did not further define the level of detail that should be included in a Notice of Claim.  The decision showed that the Court believes claimants will work with the Builder if there is an objection to the Notice of Claim; however, the Court did not address how enforcement would or could occur.  It seems a builder would have to decide between two equally undesirable options: (1) Either take the risk of simply objecting, waiting for the lawsuit to be filed, and then arguing unreasonableness; or (2) Object but investigate in an hunt-and-peck manner to see if the Builder can determine the issues a homeowner may be trying to assert.  Either option seems less likely to encourage prompt resolution of claims or reduction of litigation – the stated goals of the statute.

 

PRINT

Privacy Policy      |      Site Map

© 2019 Wood Smith Henning & Berman LLP

Subscribe to our mailing list

* indicates required