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The Morrison Law Journal
August 2009
Volume IV, Edition 8

So Who Has the Burden Anyway? Court of Appeal Rules That
Homeowner Plaintiff Has Burden Of Proving That It Has Either Complied
With SB 800 Or Is Excused From Doing So

By: Edward F. Morrison, Jr., Esq.
Brett C. Drouet, Esq.

In a curious decision which will answer a procedural question involving
California's "Fix It Law" -- often known as SB 800 or the Homebuilder's Right to
Repair Act, the Court of Appeal, Fourth Appellate District, ruled that a
homeowner plaintiff which is subject to the Fix it Law has the burden of proving
that he or she has complied with the requirements of the statute which apply to
claimants and that the builder defendant has not complied with the requirements
which apply to builders.

Enacted in 2002, California's Homebuilder's Right to Repair Act found in
California Civil Code sections 895 to 945.5, enacted as part of Assembly Bill 800
(herein, the "Fix It Law") applies to residences where the purchase agreement
was signed after January 1, 2003. The Fix It Law requires that, prior to filing an
action, the homeowner claimant must provide written notice of a claim for
defective construction. See, Civil Code section 910. Thereafter, a builder will
have 30 days to provide a variety of documents or access to same. See, Civil
section 912. If the builder does not comply with the information
requirements under Civil Code section 912, the statute will no longer apply to
the builder. If the builder does comply with the information requirements, the
builder will have the right to make an offer of repairs for which the claimant
shall then respond. See, Civil Code sections 917 and 918.

Needless to say, disputes between homeowners and builders can become
protracted should the builder exercise its rights to offer repair.

One question which has arisen is whether the claimant or the builder has
the burden of proof as to whether Civil Code section 912 has been complied with.
This is a significant question as there are numerous requirements placed on the
builder under Civil Code section 912, some of which are open to interpretation.



In the case of Standard Pacific Corporation v. Superior Court (2009)
Westlaw 2480245 ("Standard Pacific case"), the Court was presented with a case
where the claimant had not complied with Civil Code section 910 and simply
averred that the builder had not complied with its obligations, either. The
builder moved to stay the action based on the claimant's failure to comply with
the statute. The trial court denied the motion and ruled that the action could go
forward unless the builder established that it had not opted out of the right to
repair scheme found in the state's Fix It Law.

In a brief ruling, the Court of Appeal reversed.

While sympathetic to the claimant's circumstances, the Court of Appeal
ruled that the claimant homeowner had the burden of proving that the builder
had failed to comply with the builder's information requirements under Civil
section 912 (in addition to the claimant's notice requirements) and ordered
that the litigation be stayed pending a hearing on whether the homeowner could
carry his burden of proof that the builder had not complied with the statute.

The Standard Pacific case will have an immediate impact as there are
many cases which come within the Fix It Law where the builder's position as to
any right to repair is in substantial question. It is anticipated that the courts will
now require that a hearing take place where some evidence will be required to be
presented by the plaintiffs in order to satisfy their burden of proof on the
builder's "compliance" or lack of "compliance" with the State's Fix it Law.
Of course, time will only tell.

About the Authors: Edward F. Morrison, Jr. is the founding partner and Brett C.
Drouet is a partner of The Morrison Law Group, a professional corporation.
Their biographies can be viewed at

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