The Building Industry Legal Defense Foundation (BILD), along with its coalition partners, the California Building Industry Association and Leading Builders of America, garnered a win in the case of Gillotti v. Stewart (No. C075611, Cal. Ct. of App. 3d Dist. Filed 4/26/17, publication order 5/18/17). The case arose from a dispute over alleged damage from removal of trees and their connections to soil placement and driveway leveling.
First, as amicus curie before the Third District Court of Appeal, BILD supported the builder/seller, general contractor, and grading subcontractor of the property in their arguments that SB 800 and its “right to repair” was the exclusive avenue for resolution of an alleged defects at the property—not an action for common law negligence. BILD continues to argue that the Liberty Mutual decision (Liberty Mutual Insurance Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98) was wrongly decided as it allowed for common law claims in construction defect actions despite SB 800’s “right to repair.” The Court of Appeal agreed with BILD and the building industry, rejected Liberty Mutual, and upheld the “right to repair” finding that SB 800 “clearly and unequivocally expresses the legislative intent that the [SB 800] apply to all actions seeking relief of recovery of damages arising out of, or related to deficiencies in, residential construction, except as specifically set forth in [SB 800],” and that SB 800 “does not specifically except actions arising from actual damages.” (Gillotti at *10). After achieving a victory in the opinion in Gillotti¸ BILD had to step in again and fight to have the Court’s opinion published, as it was initially unpublished, which would have made it uncitable as precedent. Upon hearing BILD’s arguments in favor of publication, the Court released its opinion in Gillotti for publication on May 18, 2017.
The Third District Court of Appeal’s opinion in Gillotti is the second time that it has disagreed with Liberty Mutual having also upheld the “right to repair” in the case of Elliott Homes v. Superior Court (Hicks) (2016) 6 Cal.App.5th 333, a case which is currently pending review before the California Supreme Court along with the Fifth Appellate District’s rejection of Liberty Mutual in McMillin Albany LLC v. Superior Court (2015) 192 Cal. Rptr. 3d 53. (BILD is also an amicus curiae in the McMillin case, and our brief can be found here.) Thus, the split between California courts continues to grow regarding how to manage construction defect claims and whether or not to abide by the “right to repair” as the sole remedy.
BILD will continue to defend SB 800 and the “right to repair” and thanks its outside counsel in the Gillotti case, Kathleen Carpenter at Donahue Fitzgerald and Alan Packer at Newmeyer & Dillion for their outstanding work in this matter. A copy of BILD’s amicus brief in the Gillotti case can be found here, and a copy of the request for publication can be found here.