Gillotti v. Stewart
217 Cal. Rptr. 3d 860
Cal. Ct. App.2017Background
- Homeowner Gillotti sued contractors for construction defects under California's Right to Repair Act; jury found Davidson negligent; Gerbo not negligent; Knotty Bear liable via trial court; tree damage alleged due to soil added over roots to level driveway; court addressed whether common law negligence claims survive the Act and whether tree damage is within Act's scope; post-trial rulings included 998 expert fees and attorney fees against Knotty Bear.
- Jury verdict allocated 20% liability to Davidson, 0% to Gerbo, 80% to Knotty Bear as others; court later awarded Knotty Bear damages against; Gillotti sought reversal citing Liberty Mutual’s view on common law claims.
- Gillotti argued common law negligence could recover for tree damage not covered by the Act; court held Act precludes such common law claims for damages within Act's scope.
- Act precludes common law claims for damages arising from construction defects within its scope, with exceptions; the tree damage was within scope via section 897 and related provisions.
- The court affirmed the judgment and post-trial orders, and affirmed expert fees under 998 and attorney fees against Knotty Bear.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the Act preclude common law claims for actual damage? | Gillotti argues Act does not bar common law negligence where damages occurred. | Defendants contend Act precludes common law remedies for damages within its scope. | Act precludes common law damages claims within its scope. |
| Is the tree damage covered by the Act, negating a common law claim? | Tree damage not expressly within Section 896; may be recoverable under common law. | Tree damage falls within Act via Section 897 catch-all and Section 896, so common law not allowed. | Tree damage is within Act's scope; common law claims barred. |
| Were the drainage-related damages against Gerbo supported by substantial evidence? | Walters’ testimony shows lack of proper drainage and negligence by Gerbo. | Evidence supported that drainage issues were compliant with plans and not Gerbo’s negligent act. | Substantial evidence supports the jury’s finding that Gerbo was not negligent on drainage. |
| Was the post-trial award of expert fees under CCP 998 proper? | Disputed the clarity of the initial offer and sought reversal. | Terms were sufficient to value the offer; 998 fees proper. | 998 expert fees affirmed. |
| Were the attorney fees against Knotty Bear properly awarded to Gillotti? | Quade’s fees improper due to personal interest (husband of trustee). | No error; some fees allowed for others in firm; Quade’s fees appropriately reduced. | Attorney fees against Knotty Bear affirmed; Quade’s fees limited. |
Key Cases Cited
- Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC, 219 Cal.App.4th 98 (2013) (Act does not bar common law remedies where actual damage occurs)
- Elliott Homes, Inc. v. Superior Court ( Hicks ), 6 Cal.App.5th 333 (2016) (pendency of McMillin; prelitigation procedures discussed; persuasive in interpreting Act)
- McMillin Albany LLC v. Superior Court, 192 Cal.Rptr.3d 53 (2015) (review granted; progeny of Liberty Mutual in context of Act interpretations)
- Aas v. Superior Court, 24 Cal.4th 627 (2000) (economic loss rule; pre-Act limitations on tort for non-damaging defects)
- Greystone Homes, Inc. v. Midtec, Inc., 168 Cal.App.4th 1194 (2008) (Act abrogation of economic-loss rule; construction defect remedies)