By: Richard H. Glucksman, Glenn T. Barger, David A. Napper, and Chelsea L. Zwart
October 25, 2017
The matter has been fully briefed since 2016 and the construction industry has been anxiously awaiting the California Supreme Court’s highly anticipated decision regarding McMillin Albany LLC v. Superior Court (2015) 239 Cal.App.4th 1132. At long last, oral argument has finally been set for Tuesday, November 7, 2017 at 1:30 p.m. in Sacramento. Numerous amicus briefs were filed including one by the Association of Southern California Defense Counsel, with the immediate past president of the organization, CGDRB’s Glenn T. Barger, Esq., listed as the attorney of record, Mr. Barger will personally appear and represent the ASCDC at oral argument.
The Supreme Court will consider the issue of whether the Right to Repair Act (SB800) is the exclusive remedy for all defect claims arising out of new residential construction sold on or after January 1, 2013, thereby resolving the split of authority presented by the Fifth Appellate District’s holding in McMillin Albany, which outright rejected the Fourth Appellate District’s holding in Liberty Mutual Insurance Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98, on this particular issue. The outcome will undoubtedly significantly shape construction defect litigation for years to come.
In fact, in late August 2017, the Supreme Court issued a “grant and hold” order in Gillotti v. Stewart (2017) 11 Cal.App.5th 875, pending the outcome of McMillin Albany. The Third Appellate District in Gillotti, like the Fifth District in McMillin Albany, expressly rejected the holding in Liberty Mutual. As a result, while Gillotti can still be cited as good authority, it is no longer binding, and its fate hinges on the Supreme Court’s momentous decision in McMillin Albany.