CASE MANAGEMENT ORDERS

Step 1: Identify the Case as a Complex Construction Defect Case

There is no existing statute or court rule that requires multi-party construction defect litigation to be identified as such. This is unfortunate, because it is indispensable, in order to effectively handle such a case, that the judge actively manage all aspects of it from the earliest possible moment. The earlier the judge recognizes the case for what it is, the earlier effective management measures can be implemented. The typical multi-party construction defect case will have the following characteristics.

The plaintiffs will be the owners of various property interests that may be affected by the alleged defects. In the case of multi-unit residential development, such interests are fragmented, and the plaintiffs may therefore include a large number of unit owners and a homeowners' association.

The defendants commonly include the primary builder or developer of the project, many or all of the subcontractors who performed work on the project, design professionals such as architects and engineers, and the real estate agents or brokers who marketed the project.

The property may be a singly-owned commercial, industrial or residential building, but is often some type of "common interest development," in which there are both common areas and many unit owners. See Civil Code section 1350 seq., and Code of Civil Procedure section 383.

The complaint often pleads breach of contract, strict liability in tort, and negligence, in general terms without specifically identifying the defects complained of. Frequently there will be numerous cross-complaints in which the defendants seek indemnity from others.

One or more of the parties to such a case should recognize the need for early management and bring the case to the court's attention by means of a request for status conference or a motion for a case management order or a protective order. When that is done, the judge should seize the opportunity to take control of the case, by setting an early status conference.

Counsel are strongly encouraged to bring such litigation to the attention of the court as soon as possible. In Central Civil, the request or motion should be addressed to the judge to whom the case is assigned for all purposes; in the districts is should be addressed to the judge who presides over the master calendar.

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