March 17, 2017

Summary of March 15, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, March 15, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Elliott Homes, Inc. v. Superior Court, S239804 – Review Granted and Held – March 15, 2017

Plaintiffs and real parties in interest filed an action against the builder of their homes, seeking damages for construction defects.  The builder moved to stay proceedings until real parties in interest complied with the prelitigation procedure set forth in what is commonly referred to as “SB 800” or the “Right to Repair Act,” Civil Code sections 895 through 945.5. Real parties in interest opposed the motion, arguing the prelitigation procedure did not apply because they had not alleged a statutory violation of the Act.  The trial court denied the stay. In a published opinion, Elliott Homes, Inc. v. Superior Court (2016)  6 Cal.App.5th 333, the Third District Court of Appeal granted the builder’s petition for writ of mandate, ordering the trial court to vacate its order and enter a new order granting the stay.

Following a depublication request, the Supreme Court ordered review on its own motion and deferred briefing pending its decision in McMillin Albany LLC v. Superior Court, S229762, which presents the following issue: Does the Right to Repair Act (Civ. Code, § 895 et seq.) preclude a homeowner from bringing common law causes of action for defective conditions that resulted in physical damage to the home?  (Full disclosure: Horvitz & Levy LLP has filed an amicus curiae brief in McMillin Albany.)

Review Denied (with dissenting justices)





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