Legal Question in Construction Law in California

Re: Builder is Suing for Warranty Work

I have a slightly different approach to this problem.

This failed plumbing line appears to be a construction defect falling squarely within Title 7. Builders are strictly liable for enumerated defects in new construction. No agreement may reduce the warranty protections of Title 7.

I'd like to know the theories that the attorney for the builder has used in the Complaint. If there isn't something that turns the case on it's head, it should not require $20k to defend. A cross-complaint is probably in order.

I'm in the bay area and would be happy to discuss the matter briefly without charge.

Re: Builder is Suing for Warranty Work

Regardless of who is right, if you get sued and have to defend, yes it will cost substantial money for lawyers. However, there is a one year warranty on new construction. If this was a valid warranty claim, they shouldn't be able to win a lawsuit. Good luck.

Re: Builder is Suing for Warranty Work

If the builder sent you bills soon after the work was done,and you failed to protest them within a reasonable time, this may legally be an acknowledgment that the bills are correct under the principle of "account stated." An uncontested bill becomes a contract in itself, with some limitations and defenses.

Also, you state that the builder's position is that you verbally agreed to pay. Is this true? This you do not tell us.

Here is a partial list of legal issues that are likely to arise here:

(1) Was the work covered by an express or implied warranty in your initial contract with the builder?

(2) Was an oral modification or addendum to your initial contract permissible under its terms, or under the provisions of statutes governing such contracts? Civil Code section 1698(b) says "A contract in writing may be modified by an oral agreement to the extent that the oral agreement is executed by the parties." I take this to mean that if you orally ask your contractor to do additional work, and he does it, you are contractually obligated to pay. However, your contract may have a provision requiring modifications to be in writing.

(3) Was an oral modification made?

(4) Under your contract, must the parties submit disputes to arbitration or mediation first?

(5) Does your contract contain an attorney-fee clause under which the winner in a dispute must pay the legal fees of the loser? If it does, your legal fees are less of an issue as is whether you will win or lose.

(6) Is the contractor solvent?

(7) Did an "account stated" arise?

(8) Were you contributorily negligent in failing to discover and correct the leakage before major damage occurred?

(9) Even if there were no contract, is the builder entitled to recover from you on some kind of an implied contract or quasi-contract theory?

(10) What is revealed by any written or oral communications between you while you were trying to get the builder to respond to the damage? Surely some part of this is in writing?

Based on your facts alone, I am inclined to think you should win this case (on a warranty theory), but due to the many issues one can't be too sure, and the presence or absence of mediation, arbitration and attorney-fee clauses in the underlying contract, plus any express warranties, may be controlling. I would look for an attorney with experience in suing builders on a warranty theory.