Pre-Litigation Claims – Litigation – Lawsuits – Construction Defects

These are all complicated and often unsettling issues.  Often you have questions and I have the answers.  If you have a question that is not answered below or an answer below causes you to have additional questions, please call me.  I would be happy to talk to you and help you make an informed decision about what to do next.


Why should your Association choose my firm to handle your Construction Defect Claim?

Nobody has more knowledge and experience when it comes to the navigation of SB800 than me.  Being one of the 2 primary attorney negotiators of the statute, I understand how the statute is written and what the different parts mean.  I understand how to use the statute to your advantage so that you achieve your goal.  I don’t handle a numerous amount of cases at the same time.  This allows me to give you the time and attention that your case deserves.  This means that you get to the conclusion of your case quicker.


What Does SB800 Cover?

The statute is divided into chapters but it is primarily divided up into 3 parts.  The first part covers “standards” or what is and is not a defect.  The second part covers the “pre-litigation” process.  The third part covers procedural items; damages that are recoverable; and the burden of proof.

The statute applies to all residential (including homeowner associations) construction that was first sold on or after January 1, 2003.  This means that all residential construction that is less than 10 years old is covered by the statute.

Prior to the statute, we used the common law or judge made law.  The causes of action included strict liability and negligence.  Today, the statute takes the place of these causes of action in most situations.


How do I make a Claim under the Statute?

Calling customer service is not a claim under the statute.  In order to make a claim under the statute, the Notice must specifically state that it is a “Claim under Civil Code Section 910.”  In addition, the Claim must state with reasonable particularity, a description and location of the problem/defect or standard violation.


How does the repair process work?

If a builder wants to make repairs under the statute, there are specific and short timelines that they must follow.  An Association or homeowner must also follow specific rules and respond to certain requests in a timely manner.

The Right to Repair is not an option.  If a builder wants to make repairs, you must let them make the repairs.  You can file a lawsuit or arbitration demand if the repairs made are done wrong or do not work.

If a Repair is offered, you have a right to mediation.  If following the mediation you are still not satisfied, you must let the builder move forward with the repairs.  The builder however, must begin and complete repairs in a timely manner.  The time allowed depends upon the complexity of the repair(s).

NOTE:  The timelines in the statute are complex.  If a builder fails to comply with the timelines set forth in the statute, the statute of limitations may not be tolled or stopped any longer.  For this reason it is important to use stipulations or written agreements for all timelines that are agreed to outside the statute’s specific timelines.  In addition, when repairs are being made an agreement should be used to outline the timeline for the repairs, including a tolling agreement.  Failure to do so could leave you or the association outside the statute of limitations.  This is a complicated area of the law that requires specialized knowledge and understanding to properly advise you.


Can the Builder require a release?

In the pre-litigation repair process, a builder cannot obtain a release.  Be careful though – if a builder makes repairs and offers money, it can request a release.  A case has been published that provides that in certain situations a builder’s release can be effective to bar all future claims.  Before you sign a release, consult with an attorney who is familiar with this statute.


Should we file a lawsuit?

You cannot file a lawsuit until after you complete the pre-litigation process.  For an Association, that may include the Calderon Process too.  To the extent that Calderon and SB800 overlap, you don’t need to repeat items.  However, before a lawsuit is filed, you must complete the pre-litigation process that applies to your specific property.

In many instances, Association CC&Rs have Arbitration clauses.  Sometimes Arbitration/Judicial Reference Clauses apply to homes too.  It is important to note that some Arbitration/Judicial Reference clauses are enforceable and some are not.  In order to make that determination, a review of your CC&Rs and/or purchase agreements is necessary.


How do we communicate about the progress in your case?

For associations, we attend periodic meetings of the Board of Directors, in Executive Session.  We also provide updates to the membership in Open Sessions as needed.  On a monthly basis, we provide written updates to the Board of Directors.  On a quarterly basis, we provide written updates to the members of the Association.

For single family homes, we provide periodic written updates about the progress of your case.  We conduct meetings too as they are necessary.  Generally, we conduct meetings on issues that generate a lot of questions.  We like to answer everyone’s questions together to help everyone understand the decisions that are being made.


If we (Board Member or Manager) have a question, how do we get an answer?

Generally, a board will appoint a committee or a single board member to communicate with us directly.  In addition, we communicate with the Association’s management or General Manager.  We welcome questions and want to make sure that your questions are answered in a timely manner.


How do you help us communicate to our members?

We provide quarterly updates to the membership.  We also provide management with an Escrow Letter that serves as a disclosure for refinancing and sales.  If a letter is necessary on other than a quarterly basis, we provide that too.  We provide a copy of the membership letters to the board of directors to review and comment upon before it is mailed or emailed to the membership by management.


In litigation or the pre-litigation process can homeowners/members refinance and/or sell their homes?

Yes.  Sometimes it is a little more difficult to refinance or sell a home that is in litigation.  However, there are a lot of lenders that will provide financing.  Often it is a matter of finding the right lenders to help you complete your transaction.


How do you Investigate our project/home?

We work with experts that specialize in construction defect litigation.  They help us identify problems and solutions for fixing the problems.  We generally work with an architect; a mechanical engineer and/or plumbing expert; and a general contractor.  In some cases we work with other specialists like soils engineers, structural engineers and materials experts.


How long do these cases take?

Generally, our cases are completed in 18-24 months.  This includes the pre-litigation process.  Some cases are completed in less time and sometimes it takes longer.  During the process you will be updated so that you understand why your case is moving faster or slower.


Does it matter how much is spent on the investigation?

Yes.  The cost of the investigation comes out of the ultimate recovery, regardless of who pays these costs up front.  Therefore, it is very important to maintain a close control over the costs that are incurred.  We require budgets and contracts with all of the experts that we work with so that we can tell you how much it will cost to get your case to certain milestones.