Construction defect case demonstrates a “two-fer” on grounds for obtaining review by petition for writ of mandamus

I frequently get calls from prospective clients who are “rarin’ to go” on a writ petition to challenge a trial court ruling that has them outraged but is not immediately appealable. That “rarin’ to go” attitude usually does not last beyond the point where I tell them that more than 90% of writ petitions are summarily dismissed without the petitioner ever being heard on the merits. That news usually significantly diminishes the will to petition the Court of Appeal, even as it intensifies the prospect’s outrage, as the prospect feels aggrieved not just by the trial court ruling but also by the fact that the odds of any recourse are so slim.

That’s because writ review in the Court of Appeal is discretionary. Even before convincing the appellate court the trial court erred, the petitioner must convince the appellate court that its petition should be heard on the merits. One can do this by demonstrating that an appeal after final judgment would afford inadequate relief (Code Civ. Proc., § 1086), that the ruling threatens disclosure of privileged documents (or otherwise rings a bell that cannot be unrung), or that the issue presented is one of first impression on which the trial courts require guidance or which is important to a state industry.

In McMillin Albany LLC v. Superior Court, case no. F069370 (5th Dist., Aug. 27, 2015), the Court of Appeal spells out plainly two reasons it granted review in a construction defect case in which homeowners sued their contractor. The contractor sought a stay of the action until the plaintiffs complied with the prelitigation procedures of the Right to Repair Act (the “Act,” Civ. Code, §§ 895 et seq.), which requires the plaintiffs to “give notice of the claimed defects to the builder and engage in a nonadversarial prelitigation procedure, which affords the builder an opportunity to attempt to repair the defects.” Plaintiffs broke off negotiations regarding a stay, dismissed their statutory cause of action under the Act, and asserted that they were not obligated to comply with the prelitigation procedures of the Act to pursue their remaining common law causes of action. The contractor moved for a stay of proceedings pending compliance with the prelitigation procedures and, when the trial court denied it, petitioned the Court of Appeal for a writ of mandate directing the trial court to vacate its ruling and grant the motion for a stay.

Before holding that the plaintiffs were still required to comply with the Act’s prelitigation procedures despite dismissing their only cause of action asserted under the Act, the court gave a very clear statement of why it granted review on the merits. First, the contractor had “no plain, speedy, and adequate remedy, in the ordinary course of law.” (Code Civ. Proc., § 1086.) The court points out that if the contractor were forced to wait for a final judgment to challenge the ruling, it would lose the benefits of any stay it was entitled to pending compliance with prelitigation procedures, even if it prevailed on appeal. Second, the issue presented could escape review entirely if not heard in a writ proceeding, despite being “an issue of first impression, which is of interest to builders, home buyers, their attorneys, and others.” Though the court did not mention the fact, two building trade associations submitted Amicus briefs on behalf of the contractor, demonstrating the importance of the issue to a major industry.

Kudos to the court for being so straightforward in explaining why it reviewed the petition on the merits. Too often, writ opinions are ambiguous on the point.