Facts

On March 11, 2010, owners of 62 homes in the Lakeview Estates development in Spring Valley in San Diego brought a construction defect action against the developer Centex Homes, alleging causes of action for strict products liability, breach of implied warranty, breach of contract, negligence and breach of express warranty.

On Oct. 20, 2011, Centex and plaintiffs stipulated to a stay of the action as to only 17 of the homes, which were subject to Civil Code section 895 et seq., the Right to Repair Act, or SB800, while they complied with its prelitigation procedures. Once the SB800 Homes completed their prelitigation requirements under the Right to Repair Act, the partial stay of the action as to those 17 homes were lifted and rejoined the action with the other homes.

PLAINTIFF'S CONTENTIONS:
Plaintiffs' believed that the Oct. 20, 2011 stipulation was to stay the entire action instead of only the SB800 Homes and that Centex's approval of the timeline contemplated on a draft copy of an unfiled proposed revision to the CMO Timeline, which noted a tentative trial date of June 2016. Plaintiffs contended that Centex's agreement to the amended timeline constituted a stipulation to extend the five-year deadline under Code of Civil Procedure section 583.330(a), and the court agreed. Plaintiffs also contended that Centex had waived the right to enforce the five-year statute, and that it was estopped from doing so.

DEFENDANT'S CONTENTIONS:
Defendants contended that plaintiffs filed their complaint more than five years ago and failed to prosecute this case with reasonable diligence, failing to revise the CMO Timeline or to produce their homes for inspection despite numerous requests, to which plaintiffs did not respond.

Centex filed a motion to dismiss 36 of the Non-SB800 Homes in the Action due to their failure to prosecute under both the mandatory dismissal statute, Code of Civil Procedure section 583.310 et seq., and the discretionary dismissal statute, Code of Civil Procedure section 583.410 et seq.

Result

The court denied Centex's motion to dismiss pursuant to the mandatory dismissal statute, finding that Centex's approval of an unfiled proposed revision to the CMO Timeline with a trial date of June 2016 effectively extended the five-year deadline from March 2015 to June 2016. The court granted defendant's motion to dismiss 36 homes for delay in prosecution under the discretionary dismissal statute in CCP section 583.410 et seq., finding that the complaint was filed more than five years ago, and there was no evidence that the court congestion created any of the delay in this matter, plaintiffs never made their homes available for visual inspections, a formal mediation was not scheduled, and did not respond to numerous requests to move the case along.

Other Information

Plaintiffs' sought reconsideration based upon the fact that, several times at the hearing on Centex's motion to dismiss, plaintiffs' stated that if the court were to find that Centex had stipulated to a June 2016 trial date and had thereby agreed to extend the five year, then it must also find that Centex had waived the right to seek dismissal under the discretionary statute. In their motion for reconsideration, the plaintiffs asked the court to consider two cases in support of this contention, which had not been cited in plaintiffs' briefing or at the hearing on Centex's motion to dismiss. According to plaintiffs, although plaintiffs' counsel had initially failed to realize that Centex sought relief under both the mandatory and discretionary dismissal statutes, it was not the grounds or the basis for plaintiffs' request for reconsideration. The court held that it no longer had jurisdiction to rule on plaintiffs' motion to reconsideration following its order dismissing the 36 Non-SB800 Homes as set forth in APRI Insurance Co. v. Superior Court (1999) 76 Cal.App.4th 176, 181. Both the court's order granting Centex's motion to dismiss and the court's subsequent denial of reconsideration are presently on appeal. FILING DATE: March 11, 2010