California law provides a scheme for pre-lawsuit resolution of construction defect claims from new home buyers (Civil Code section 895+). It requires the builder to provide documentation of the law, and also give the buyer a name and address upon whom to make claims. If the builder follows these rules, the procedure requires the buyer to make a written claim as to construction defects, and provide the builder an opportunity to repair. If the Builder does not provide this information as required, the buyer can go directly to court.
In a recent case the buyer went directly to court, simply claiming in their lawsuit that the builder had not complied, but did not explain in what manner, at what time, or with respect to which of those duties the builder failed to comply. The builder had the suit stayed (stopped) until the buyer gave notice and opportunity to repair. The buyer appealed.
The court of appeals first noted that this was a mandatory procedure for builders and buyers. The provision that allows the buyer to go directly to court if the builder did not comply was an exception. The party seeking to rely on an exception to a general rule (here, the buyer) has the burden of proving the exception. Thus, the buyer must do more then generally state that the builder did not comply. They must go back to the trial court and present evidence to show that the builder did not comply.
Essentially, the buyers now have to prove a negative- that they did not get the documentation. Probably it will be the buyers testimony that they did not receive it. If the builder did it correctly, they may have initialed copies of the documents to prove that they were provided. Curious why the buyers did not present such evidence in the first place, but brought the matter to the court of appeals. Also curious why the buyer was so opposed to giving the builder a chance to repair.
Standard Pacific v. Sup. Court. (2009) 176 CalApp 4th 828.