Daily Blast November 16, 2012

On Friday, November 16, 2012, the Court of Appeal, First Appellate District, Division Five (SF) issued an opinion in Darling v. Superior Court (November 16, 2012, A135747) ____ Cal.App.4th ____, holding that “a homeowner must serve notice of a construction defect claim under [Civil Code] section 910, subdivision (a) to commence the statutory prelitigation procedure, and until such service the builder has no obligation to respond to a request for documents under section 912, subdivision (a).” (Slip opn., p. 2.)

Plaintiffs, 86 owners of single-family homes in Fairfield, California, served upon defendants Western Pacific Housing Inc. and Schuler Homes of California, Inc. a request for documents under section Civil Code section 912, subdivision (a). (Slip opn., p. 2.) Defendants refused to comply with the document request since plaintiffs did not serve a notice of construction defect claim. (Id. at p. 3.) Plaintiffs then filed a lawsuit seeking damages arising from the alleged defective construction. (Ibid.) In response, defendants moved to stay the action on the ground that plaintiffs had not completed the prelitigation procedures of Civil Code section 910 et seq. (Ibid.) After the trial court granted the motion, plaintiffs petitioned the Court of Appeal arguing that defendants could not obtain the stay because they failed to respond to the document request. (Id. at pp. 1-3.)

The Court of Appeal stated that the question of whether a homeowner must serve notice of a construction defect claim under section 910, subdivision (a) for a builder to be obligated to respond to their request for documents under section 912, subdivision (a), was a question of first impression. (Slip opn., p. 1.) As a result, the court reviewed the legislative history and statutory scheme of Title 7 of the Civil Code, section 895 et seq., commonly referred to as the “Right to Repair Act,” which revealed that the prelitigation procedure does not commence until the service of a notice of claim. (Id. at pp. 8-9.) Therefore, since “the document request is part of the prelitigation procedure, and the prelitigation procedure does not begin until the homeowner has served notice of a claim, it follows that there can be no prelitigation obligation to produce documents under section 912, subdivision (a) unless the homeowner has commenced the prelitigation procedure by serving notice of a claim.” (Id. at p. 10.) Further, there was no evidence in the record that the documents would be of any necessity in determining whether there was a defect or assembling the claim notice. (Id. at p. 13.) As a result, the court concluded that “a builder has no obligation to provide documents to a homeowner under section 912, subdivision (a) unless the homeowner has served notice of a claim under section 910.” (Id. at p. 16.)

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