CASE MANAGEMENT ORDERS

Step 6: Require a Complete and Final List of Defects

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.