Filed 4/3/18 McMillin Albany LLC v. Superior Court CA5
Opinion on remand from Supreme Court




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

MCMILLIN ALBANY LLC et al.,

Petitioners,

v.

THE SUPERIOR COURT OF KERN COUNTY,

Respondent;

CARL VAN TASSEL et al.,


Real Parties in Interest.

F069370

(Super. Ct. No. S-1500-CV-279141)


OPINION


ORIGINAL PROCEEDING; petition for writ of mandate. David R. Lampe, Judge.
Borton Petrini, Calvin R. Stead and Andrew M. Morgan for Petitioners.
Donahue Fitzgerald, Kathleen F. Carpenter; Ware Law, Amy R. Gowan and Dee A. Ware for California Building Industry Association as Amicus Curiae on behalf of Petitioners.
Newmeyer & Dillon, Alan H. Packer, J. Nathan Owens, Paul L. Tetzloff and Jeffrey R. Brower for Leading Builders of America as Amicus Curiae on behalf of Petitioners.
No appearance for Respondent.
Milstein Adelman, Fred M. Adelman and Mayo L. Makarcyzk for Real Parties in Interest.
-ooOoo-

The Right to Repair Act (Civ. Code, §§ 895–945.5; the Act), which sets out statewide standards residential construction must meet, establishes a prelitigation dispute resolution process pursuant to which a homeowner must give the builder notice of any alleged construction defects, after which the builder has a right to attempt to cure the defects. (§§ 896, 910–938.) If the builder fails to comply with the prelitigation procedures or fails to remedy the defects, the homeowner may file an action for damages. (§§ 920, 925.) If the homeowner files suit without giving the builder the required notice, the builder may obtain a stay of the litigation, pending completion of the prelitigation process. (§ 930, subd. (b).)
Homeowners and real parties in interest (Carl and Sandra Van Tassel et al.; the homeowners) filed an action against the builders of their homes for recovery of damages allegedly resulting from defects in the construction of their homes. They alleged there were defects in many aspects of the construction, which caused property damage to the homes and economic loss due to the cost of repairs and reduction in property values. The builders, petitioners McMillin Albany LLC, et al. (McMillin), moved to stay the litigation until the homeowners complied with the prelitigation procedures prescribed by the Act. The trial court denied the motion, concluding the prelitigation procedures did not apply to the homeowners’ action, once they dismissed their cause of action for violation of the Act and alleged only common law causes of action. McMillin filed a petition for writ of mandate with this court, seeking a writ directing the trial court to vacate its order denying McMillin’s motion for a stay and to enter a new order granting a stay pending completion of the prelitigation process. We granted the petition and ordered issuance of the writ, concluding the Act provided the sole remedy for certain construction defect claims, including the negligence and strict liability causes of action asserted by the homeowners in their complaint. The homeowners were therefore required to comply with the prelitigation procedures prior to pursuing their claims in court.
The homeowners sought and obtained review in the Supreme Court. The Supreme Court affirmed, determining the Act left “the common law undisturbed in some areas, expressly preserving actions for breach of contract, fraud, and personal injury.” (McMillin Albany v. Superior Court (2018) 4 Cal.5th 241, 249.) However, the Act supplanted other common law causes of action, including negligence and strict liability causes of action “seeking recovery of damages arising out of, or related to deficiencies in, the residential construction.” (§ 896.) The court concluded the homeowners’ claims, which alleged deficiencies in components of residential construction that fell within the Act, although stated as causes of action for negligence and strict liability, required compliance with the prelitigation process prescribed by the Act. Accordingly, the court held McMillin was entitled to a stay of the action until the homeowners complied with the prelitigation procedures. It remanded the matter to this court for further proceedings.
DISPOSITION
Let a peremptory writ of mandate issue directing the respondent court to vacate its order of February 27, 2014, denying McMillin’s motion to stay the litigation, and to enter a new order granting the motion and staying the litigation until the parties have satisfied the requirements of the statutory prelitigation procedures found in Civil Code sections 910 through 938. Petitioners are entitled to their costs on appeal.



HILL, P.J.
WE CONCUR:



LEVY, J.



PEÑA, J.