Monthly Archives: February 2014

Johnson v. Prasad- Premises Liability For Swimming Pools

Johnson v. Prasad – Google Scholar

This case involves the tragic drowning of a four-year old.  The issue is who is responsible.

The owners of the home with the pool rented it.  The pool did not have a perimeter fence or a self-closing mechanism on the sliding glass door that led from the house to the backyard.

The tenants had people over, including the victim and the victim’s father and grandmother.  Everyone went swimming.  Everyone left the pool, but no one secured the sliding glass door.  The young boy left the house and was discovered at the bottom of the pool.

The victim’s mother sued for wrongful death, naming the owners, the property manager, the grandmother, and the father.

In the trial court, the owners and property manager prevailed on their summary judgment motions.

The court of appeals reversed with respect to the owners, holding that summary judgment was improper in light of factual issues related to the absence of both a perimeter fence and to the absence of a self-closing door; and whether those absences caused the death of the little boy.

A reversal of summary judgment does not mean that the owners have lost, just that the case should be heard by a jury.  The decision, however, should persuade all swimming pool owners, whether landlords, tenants, or residents, to take all reasonable steps to insure that the pools are secure.   Winning or losing a lawsuit is nothing compared to the loss of a child.



Right To Repair Redux And How To Churn A Case

Click here for KB Home v. Superior Court

I recently commented on Burch v. Superior Court (Premier Homes, LLC), which weakened the Right To Repair statute by allowing residential construction defect cases to proceed without compliance with the Right To Repair statutes if the defect causes consequential damage.  This case had the potential to be the exception that swallows the rule since plaintiffs generally allege claims to encourage carriers to pick up defenses.  I use the past tense, however, because the Second District Court of Appeal in KB Home v. Superior Court restored some teeth to the statute.

KB Home involved a homeowner who had a leak in his home.  The owner called Allstate, his insurance carrier, which immediately started mitigation efforts.  Allstate then commenced a subrogation action against KB Home to recover just over $80,000.00 to repair the leak and to take care of the damaged dry wall and carpet.

KB Home demurred to the complaint, claiming lack of notice and an opportunity to repair.   The trial court sustained with leave to amend.  Allstate filed an amended complaint that only sought subrogation for property damage.  KB Home demurred, again claiming lack of notice.  The trial court, instead of ruling on the new demurrer, revived the old one, changed its mind, and overruled the demurrer to the initial complaint, concluding that Right To Repair did not apply to subrogation.

KB Home sought a writ, which the Court of Appeals granted, ordering the trial court to consider the demurrer to the first amended complaint.  It did so, sustaining the demurrer with leave to amend.

Allstate filed a second amended complaint, which combined the allegations from the first two.  KB Home demurred and the court overruled the demurrer, again concluding that  Right To Repair did not apply to subrogation.

KB Home sought another writ, which the Court of Appeals again granted, ordering the trial court to sustain the demurrer on negligence and strict liability and to overrule on the cause of action for violation of the Right To Repair Act.

After much law and motion work, probably involving attorney’s fees for both sides well in excess of the $80,000.00 at issue, KB Home filed for summary judgment based on lack of notice.  Allstate filed its own motion for summary judgment.  The trial court denied the KB Home motion and granted the Allstate motion.

KB Home sought a third writ, which the Court of Appeal granted, ordering the trial court to grant summary judgment to KB Home and to deny it to Allstate.  The trial court declined to comply and the appeal ensued.

Unsurprisingly, the Court of Appeal sided with KB Home.  It held that notifying a builder of a defect after it was repaired does not comply with the statute.  This failure excuses any liability of KB Home.

It is difficult to see how this case can coexist with Burch, since the leak did cause consequential property damage to the drywall and flooring.  A carrier taking immediate action in the event of a covered loss is a noble thing that should be rewarded.  Instead…

Three writs, three demurrers, two summary judgment motions, and an appeal.  The purpose of the Right To Repair Act is to reduce the amount of construction litigation clogging our courts.  KB Home provided enough clogging of its own.

Schmidt v. Bank of America– Easements!

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I love easement cases.  Schmidt involves two neighboring parcels that were commonly owned until 1941, at which time the owner sold one of the parcels, reserving an easement for “the right of ingress and egress for public road purposes.”

Flash forward to 2004.  The owner of the parcel that owned the easement started building a three phase condominium project.  He built improvements on, under, and around the reserved easement area, including a locked gate and subsurface sewer and storm lines, oil and sand separators, and slope stabilization measures.

The Schmidts owned the parcel that contained the easement. They sued for trespass, nuisance, and an injunction.  By this time the HOA and Bank of America owned the neighboring property, since the developer defaulted 2/3 of the way through.

Somehow, the HOA and the bank obtained summary judgment that their use of the easement was proper.  The court of appeals reversed, holding that there are factual issues over whether a public access easement includes all of the uses constructed by the developer.

The court also rejected the arguments from the Bank that they should not be liable because it was a mere foreclosing lender.  The opinion recognized that foreclosing lenders who obtain a Trustee’s Deed become owners, with all of the attendant rights and obligations.

The condominium developer showed great chutzpah in developing the roadway far beyond the terms of the original grant of easement.  The key to any easement case is to read the easement to confirm what was granted.


Burch — Weakening the Contractor’s Right to Repair

Click here for opinion

Burch v. Superior Court (Premier Homes, LLC) reversed summary judgment in favor of a contractor when the owner did not comply with the right to repair statutes (California Civil Code Section 895 et seq.).

The court held that the Right to Repair Act does not provide the exclusive remedy for a homeowner seeking damages for construction defects that have resulted in property damage even though it may be the only remedy for the defects themselves.

The California legislature recognized that there is a need for a procedure to encourage prelitigation discussions and resolutions while recognizing that defects without damage need addressing.  By alleging consequential property damage, no matter how minor, a homeowner could proceed directly to litigation.  This is not unusual, as property owners often allege such consequential damage to trigger a duty on the part of the contractor’s insurance carrier to defend and to provide coverage.

This case exposes a weakness in the statutory scheme.  The legislature should take this on as a challenge to encourage prelitigation efforts to repair defects and consequential damage before the parties proceed to a long and expensive journey through the California court system.


The Best Lawyers Demonstrate the Best Ways to Attack Adverse Authority

The Best Lawyers Demonstrate the Best Ways to Attack Adverse Authority.

When faced with an adverse case, this article from Eric Voigt on recognizes that we all panic first.  What we do next, however, is the key.

Unintended Consequences of ADR : Contra Costa Lawyer Online

Unintended Consequences of ADR : Contra Costa Lawyer Online.

This is an outstanding article from Justice James Marchiano (Ret.) on the history and consequences of the evolution of ADR in the civil justice system.

As an aside, I miss case management conferences with (then) Judge Marchiano.  If both sides arrived early, then you could have a cup of coffee with the clerk and bailiff and rise to first on the calendar.