Construction defect litigation is instituted on behalf of disaffected and
angry buyers, and it is understandable that they tend to find more things to complain
about as they continue to reside upon or use the property. The litigation cannot be
resolved, however, as long as the list of complaints remains fluid and subject to change.
Each new alleged defect requires additional discovery and testing, creates the potential
necessity to add new parties and retain additional experts, and makes serious settlement
negotiations impossible. There comes a time, therefore, when the judge must freeze the
list of defects and prohibit any further expansion of the scope of the lawsuit. One way to
do this is to issue a case management order to the effect that by a date certain the
plaintiffs must file and serve upon all parties a complete and final list of defects,
which list will not the subject to expansion except by a noticed motion supported by a
strong showing that some new latent defect has appeared which could not have been
discovered previously by the exercise of reasonable diligence. Such an order, once made,
will have to be strictly enforced in order for the court to effectively manage the case.
Civil Code section 1375 now requires the plaintiffs to formulate a
preliminary list of defects before the suit is filed. In most cases, it will not be
unreasonable to require the plaintiffs to finalize that list within 90 days after suit is
filed.
It is important that he plaintiffs not be permitted to finesse the
requirement of a final and definitive list of defects by describing the defects in such
vague or general terms that the list does not serve the purposes for which it was
required. The list must be specific enough, so that the general contractor can determine
which of his subcontractors is potentially responsible for each defect and so the
parties who are potentially responsible can inspect each portion of the premises in which
the defects is alleged to exist. It is usually fruitless to require the plaintiffs to
attempt to attribute each defect to some particular trade or cause. A home or apartment
owner will seldom know whether the water that drips from his kithcen ceiling is caused by
a roofing problem or a plumbing problem, or whether the paint peeiling off a was is due
to a defect in the painting or the infiltration of moisture behind the paint. The
plaintiffs can and should be required, however, to particularize the description of each
defect so that the defending parties can assess their potential responsibility for each
defect.
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