Carriage Lane OA vs. D R Horton Inc

Nature of Proceeding: Motion to Stay Action Due to Plaintiff’s Failure to Comply with SB 800

Filed By: Zinovyev, Eugene

Defendant D.R. Horton, Inc.’s motion to stay all proceedings pursuant to Civil Code
§930 is GRANTED as follows.

Moving counsel is admonished because the notice of motion does not provide the
correct address for Dept. 54.

Opposing counsel is admonished for failing to comply with CRC Rule 3.1110(b)(3)-(4).

Although the notice of motion provided notice of the Court’s tentative ruling system as
required by Local Rule 1.06(D), the notice does not comply with that rule. Moving
counsel is directed to review the Local Rules, effective 1/1/2013.

In this construction defect litigation, defendant contends plaintiff homeowner
association has not complied with the pre-litigation requirements set forth at Civil Code
§895 et seq., also referred to as SB 800, and therefore, a stay pursuant to Civil Code
§930(b) is mandatory. Specifically, defendant maintains that plaintiff failed not only to
(timely) respond to the former’s offer to repair but also to permit the former to perform
the offered repairs pursuant to the provisions of SB 800. Defendant also requests the
Court exercise its discretion and award attorney fees and costs in the amount of $3326
for having to bring the present motion.

In opposition, plaintiff argues that it has been released from the obligation to comply
with SB 800’s requirements as a result of defendant’s own failure not only to provide a
meaningful, code-compliant repair offer but also to schedule a time to make the
minimal repairs which were offered. More specifically, plaintiffs insist that defendant
has offered only very limited repairs on only seven (7) of the 156 residential units at
issue and has not offered any repairs even on some defects which were observed
during the inspection of those seven units. The opposition further asserts that plaintiff
stood ready to permit the limited repairs which were offered but defendant made no
attempt to schedule those repairs. The opposition concludes with a request for an
award of $2,460 in attorney fees incurred in connection with this motion.

Defendant’s reply addresses each of the points raised by the opposition. First,
defendant contends its repair offer was sufficient and appropriate since it was
permitted by plaintiff to inspect only seven of the 156 units at issue despite defendant’s
repeated requests to view all claimed defects in all of the units. According to Exhibit D
to the Zinovyev Declaration, defendant received no response to correspondence on
this issue and thus, it prepared an offer to repair relative to those few units which were
inspected. Additionally, the Foscalina Declaration reveals that plaintiff did not promptly
respond to defendant’s (limited) repair offer (dated 11/27/2013) and although it
appears the parties went to mediation on 1/30/2014, plaintiff subsequently indicated it
would ‘just file” its complaint and proceed with litigation. The reply also notes that at
no time prior to its opposition to the present motion did plaintiff object to the sufficiency
of defendant’s the repair offer. Finally, defendant maintains that it never “failed to
schedule” the repairs it did offer because plaintiff never agreed to the proposed
repairs, as evidenced by its statement it would ‘just file’ suit. Based on the present record, this Court cannot conclude that plaintiff was released
from the obligations of SB 800 by virtue of defendant’s failure either to provide an
appropriate repair offer or to schedule the limited repairs which were offered. Since it
appears defendant was permitted to inspect only a handful of residential units, it was
not unreasonable for the subsequent repair offer to be so limited. This is particularly
true in light of defendant’s repeated requests to inspect all defects and plaintiff’s own
failure to respond, leaving defendant with little option but to provide a limited repair
offer.

While it is true that defendant’s offer could have and should have provided more detail
as to the repairs which were offered and the reasons why no repairs were offered on
certain observed defects, this Court does not find that the repair offer was so deficient
that plaintiff was relieved of all obligations under SB 800. Moreover, if plaintiff truly
believed that the repair offer was so lacking in detail, a request for further information
certainly would have been appropriate and reasonable, not to mention consistent with
the spirit if not the terms of SB 800’s pre-litigation procedures. Instead, it appears
plaintiff never raised this “objection” until faced with the present motion. Regardless,
the fact that plaintiff requested mediation pursuant to Civil Code §919 following receipt
of the repair offer tends to contradict the opposition’s suggestion that plaintiff was
released from SB 800’s obligations.

Finally, plaintiff’s second argument that defendant never proceeded to schedule the
limited repairs it did offer is without merit. Since plaintiff never “accepted” defendant’s
repair offer and authorized those repairs to be performed, defendant had no obligation
to proceed with scheduling the repairs. As noted above, the Foscalina Declaration
(along with exhibits thereto) submitted in support of the reply persuades this Court that
following the 1/30/2014 mediation plaintiff expressed no interest in defendant
proceeding with any of the repairs which it had offered or otherwise permitting
defendant to inspect the other 149 units but rather, plaintiff simply intended to
commence this litigation.

Based on the foregoing, defendant’s motion is granted and the present action is stayed
pending the parties’ satisfaction of their respective requirements under SB 800.

The Court exercises its discretion and awards defendant fees and costs in the amount
of $1185, representing 5 hours of attorney time at $225/hour and the $60 filing fee.

Having received no objection thereto, the Court will modify the proposed order
submitted with the moving papers relative to the attorney fees awarded and sign the
order.

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)