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Calderon Process Beginning 7-1-2002
Provided Courtesy of
Hyde Mulvihill APC
California Civil Code §
1375.
(Second of two; Operative July 1, 2002; Operative until July
1, 2010; Repealed January 1, 2011)
Claim against builder for defects in design or construction
(a) Before an association files a complaint for damages against a
builder, developer, or general contractor ("respondent") of a common interest
development based upon a claim for defects in the design or construction of the
common interest development, all of the requirements of this section shall be
satisfied with respect to the builder, developer, or general contractor.
(b) The association shall serve upon the respondent a "Notice of
Commencement of Legal Proceeding." The notice shall be served by certified mail
to the registered agent of the respondent, or if there is no registered agent,
then to any officer of the respondent. If there are no current officers of the
respondent, service shall be upon the person or entity otherwise authorized by
law to receive service of process. Service upon the general contractor shall be
sufficient to initiate the process set forth in this section with regard to any
builder or developer, if the builder or developer is not amenable to service of
process by the foregoing methods. This notice shall toll all applicable statutes
of limitation and repose, whether contractual or statutory, by and against all
potentially responsible parties, regardless of whether they were named in the
notice, including claims for indemnity applicable to the claim for the period
set forth in subdivision (c). The notice shall include all of the following:
(1) The name and location of the project.
(2) An initial list of defects sufficient to apprise the respondent of
the general nature of the defects at issue.
(3) A description of the results of the defects, if known.
(4) A summary of the results of a survey or questionnaire distributed to
homeowners to determine the nature and extent of defects, if a survey has been
conducted or a questionnaire has been distributed.
(5) Either a summary of the results of testing conducted to determine
the nature and extent of defects or the actual test results, if that testing has
been conducted.
(c) Service of the notice shall commence a period, not to exceed 180
days, during which the association, the respondent, and all other participating
parties shall try to resolve the dispute through the processes set forth in this
section. This 180-day period may be extended for one additional period, not to
exceed 180 days, only upon the mutual agreement of the association, the
respondent, and any parties not deemed peripheral pursuant to paragraph (3) of
subdivision (e). Any extensions beyond the first extension shall require the
agreement of all participating parties. Unless extended, the dispute resolution
process prescribed by this section shall be deemed completed. All extensions
shall continue the tolling period described in subdivision (b).
(d) Within 25 days of the date the association serves the Notice of
Commencement of Legal Proceedings, the respondent may request in writing to meet
and confer with the board of directors of the association. Unless the respondent
and the association otherwise agree, there shall be not more than one meeting,
which shall take place no later than 10 days from the date of the respondent's
written request, at a mutually agreeable time and place. The meeting shall be
subject to subdivision (b) of Section 1363.05. The discussions at the meeting
are privileged communications and are not admissible in evidence in any civil
action, unless the association and the respondent consent in writing to their
admission.
(e) Upon receipt of the notice, the respondent shall, within 60 days,
comply with the following:
(1) The respondent shall provide the association with access to, for
inspection and copying of, all plans and specifications, subcontracts, and other
construction files for the project that are reasonably calculated to lead to the
discovery of admissible evidence regarding the defects claimed. The association
shall provide the respondent with access to, for inspection and copying of, all
files reasonably calculated to lead to the discovery of admissible evidence
regarding the defects claimed, including all reserve studies, maintenance
records and any survey questionnaires, or results of testing to determine the
nature and extent of defects. To the extent any of the above documents are
withheld based on privilege, a privilege log shall be prepared and submitted to
all other parties. All other potentially responsible parties shall have the same
rights as the respondent regarding the production of documents upon receipt of
written notice of the claim, and shall produce all relevant documents within 60
days of receipt of the notice of the claim.
(2) The respondent shall provide written notice by certified mail to all
subcontractors, design professionals, their insurers, and the insurers of any
additional insured whose identities are known to the respondent or readily
ascertainable by review of the project files or other similar sources and whose
potential responsibility appears on the face of the notice. This notice to
subcontractors, design professionals, and insurers shall include a copy of the
Notice of Commencement of Legal Proceeding, and shall specify the date and
manner by which the parties shall meet and confer to select a dispute resolution
facilitator pursuant to paragraph (1) of subdivision (f), advise the recipient
of its obligation to participate in the meet and confer or serve a written
acknowledgment of receipt regarding this notice, advise the recipient that it
will waive any challenge to selection of the dispute resolution facilitator if
it elects not to participate in the meet and confer, advise the recipient that
it may be bound by any settlement reached pursuant to subdivision (d) of Section
1375.05, advise the recipient that it may be deemed to have waived rights to
conduct inspection and testing pursuant to subdivision (c) of Section 1375.05,
advise the recipient that it may seek the assistance of an attorney, and advise
the recipient that it should contact its insurer, if any. Any subcontractor or
design professional, or insurer for that subcontractor, design professional, or
additional insured, who receives written notice from the respondent regarding
the meet and confer shall, prior to the meet and confer, serve on the respondent
a written acknowledgment of receipt. That subcontractor or design professional
shall, within 10 days of service of the written acknowledgment of receipt,
provide to the association and the respondent a Statement of Insurance that
includes both of the following:
(A) The names, addresses, and contact persons, if known, of all
insurance carriers, whether primary or excess and regardless of whether a
deductible or self-insured retention applies, whose policies were in effect from
the commencement of construction of the subject project to the present and which
potentially cover the subject claims.
(B) The applicable policy numbers for each such policy of insurance.
(3) Any subcontractor or design professional, or insurer for that
subcontractor, design professional, or additional insured, who so chooses, may,
at any time, make a written request to the dispute resolution facility for
designation as a peripheral party. That request shall be served
contemporaneously on the association and the respondent. If no objection to that
designation is received within 15 days, or upon rejection of that objection, the
dispute resolution facilitator shall designate that subcontractor or design
professional as a peripheral party, and shall thereafter seek to limit the
attendance of that subcontractor or design professional only to those dispute
resolution sessions deemed peripheral party sessions or to those sessions during
which the dispute resolution facilitator believes settlement as to peripheral
parties may be finalized. Nothing in this subdivision shall preclude a party who
has been designated a peripheral party from being reclassified as a
nonperipheral party, nor shall this subdivision preclude a party designated as a
nonperipheral party from being reclassified as a peripheral party after notice
to all parties and an opportunity to object. For purposes of this subdivision, a
peripheral party is a party having total claimed exposure of less than
twenty-five thousand dollars ($ 25,000).
(f)(1) Within 20 days of sending the notice set forth in paragraph (2)
of subdivision (e), the association, respondent, subcontractors, design
professionals, and their insurers who have been sent a notice as described in
paragraph (2) of subdivision (e) shall meet and confer in an effort to select a
dispute resolution facilitator to preside over the mandatory dispute resolution
process prescribed by this section. Any subcontractor or design professional who
has been given timely notice of this meeting but who does not participate,
waives any challenge he or she may have as to the selection of the dispute
resolution facilitator. The role of the dispute resolution facilitator is to
attempt to resolve the conflict in a fair manner. The dispute resolution
facilitator shall be sufficiently knowledgeable in the subject matter and be
able to devote sufficient time to the case. The dispute resolution facilitator
shall not be required to reside in or have an office in the county in which the
project is located. The dispute resolution facilitator and the participating
parties shall agree to a date, time, and location to hold a case management
meeting of all parties and the dispute resolution facilitator, to discuss the
claims being asserted and the scheduling of events under this section. The case
management meeting with the dispute resolution facilitator shall be held within
100 days of service of the Notice of Commencement of Legal Proceedings at a
location in the county where the project is located. Written notice of the case
management meeting with the dispute resolution facilitator shall be sent by the
respondent to the association, subcontractors and design professionals, and
their insurers who are known to the respondent to be on notice of the claim, no
later than 10 days prior to the case management meeting, and shall specify its
date, time, and location. The dispute resolution facilitator in consultation
with the respondent, shall maintain a contact list of the participating parties.
(2) No later than 10 days prior to the case management meeting, the
dispute resolution facilitator shall disclose to the parties all matters that
could cause a person aware of the facts to reasonably entertain a doubt that the
proposed dispute resolution facilitator would be able to resolve the conflict in
a fair manner. The facilitator's disclosure shall include the existence of any
ground specified in Section 170.1 of the Code of Civil Procedure for
disqualification of a judge, any attorney-client relationship the facilitator
has or had with any party or lawyer for a party to the dispute resolution
process, and any professional or significant personal relationship the
facilitator or his or her spouse or minor child living in the household has or
had with any party to the dispute resolution process. The disclosure shall also
be provided to any subsequently noticed subcontractor or design professional
within 10 days of the notice.
(3) A dispute resolution facilitator shall be disqualified by the court
if he or she fails to comply with this paragraph and any party to the dispute
resolution process serves a notice of disqualification prior to the case
management meeting. If the dispute resolution facilitator complies with this
paragraph, he or she shall be disqualified by the court on the basis of the
disclosure if any party to the dispute resolution process serves a notice of
disqualification prior to the case management meeting.
(4) If the parties cannot mutually agree to a dispute resolution
facilitator, then each party shall submit a list of three dispute resolution
facilitators. Each party may then strike one nominee from the other parties'
list, and petition the court, pursuant to the procedure described in
subdivisions (n) and (o), for final selection of the dispute resolution
facilitator. The court may issue an order for final selection of the dispute
resolution facilitator pursuant to this paragraph.
(5) Any subcontractor or design professional who receives notice of the
association's claim without having previously received timely notice of the meet
and confer to select the dispute resolution facilitator shall be notified by the
respondent regarding the name, address, and telephone number of the dispute
resolution facilitator. Any such subcontractor or design professional may serve
upon the parties and the dispute resolution facilitator a written objection to
the dispute resolution facilitator within 15 days of receiving notice of the
claim. Within seven days after service of this objection, the subcontractor or
design professional may petition the superior court to replace the dispute
resolution facilitator. The court may replace the dispute resolution facilitator
only upon a showing of good cause, liberally construed. Failure to satisfy the
deadlines set forth in this subdivision shall constitute a waiver of the right
to challenge the dispute resolution facilitator.
(6) The costs of the dispute resolution facilitator shall be apportioned
in the following manner: one-third to be paid by the association; one-third to
be paid by the respondent; and one-third to be paid by the subcontractors and
design professionals, as allocated among them by the dispute resolution
facilitator. The costs of the dispute resolution facilitator shall be
recoverable by the prevailing party in any subsequent litigation pursuant to
Section 1032 of the Code of Civil Procedure, provided however that any
nonsettling party may, prior to the filing of the complaint, petition the
facilitator to reallocate the costs of the dispute resolution facilitator as
they apply to any nonsettling party. The determination of the dispute resolution
facilitator with respect to the allocation of these costs shall be binding in
any subsequent litigation. The dispute resolution facilitator shall take into
account all relevant factors and equities between all parties in the dispute
resolution process when reallocating costs.
(7) In the event the dispute resolution facilitator is replaced at any
time, the case management statement created pursuant to subdivision (h) shall
remain in full force and effect.
(8) The dispute resolution facilitator shall be empowered to enforce all
provisions of this section.
(g)(1) No later than the case management meeting, the parties shall
begin to generate a data compilation showing the following information regarding
the alleged defects at issue:
(A) The scope of the work performed by each potentially responsible
subcontractor.
(B) The tract or phase number in which each subcontractor provided goods
or services, or both.
(C) The units, either by address, unit number, or lot number, at which
each subcontractor provided goods or services, or both.
(2) This data compilation shall be updated as needed to reflect
additional information. Each party attending the case management meeting, and
any subsequent meeting pursuant to this section, shall provide all information
available to that party relevant to this data compilation.
(h) At the case management meeting, the parties shall, with the
assistance of the dispute resolution facilitator, reach agreement on a case
management statement, which shall set forth all of the elements set forth in
paragraphs (1) to (8), inclusive, except that the parties may dispense with one
or more of these elements if they agree that it is appropriate to do so. The
case management statement shall provide that the following elements shall take
place in the following order:
(1) Establishment of a document depository, located in the county where
the project is located, for deposit of documents, defect lists, demands, and
other information provided for under this section. All documents exchanged by
the parties and all documents created pursuant to this subdivision shall be
deposited in the document depository, which shall be available to all parties
throughout the prefiling dispute resolution process and in any subsequent
litigation. When any document is deposited in the document depository, the party
depositing the document shall provide written notice identifying the document to
all other parties. The costs of maintaining the document depository shall be
apportioned among the parties in the same manner as the costs of the dispute
resolution facilitator.
(2) Provision of a more detailed list of defects by the association to
the respondent after the association completes a visual inspection of the
project. This list of defects shall provide sufficient detail for the respondent
to ensure that all potentially responsible subcontractors and design
professionals are provided with notice of the dispute resolution process. If not
already completed prior to the case management meeting, the Notice of
Commencement of Legal Proceeding shall be served by the respondent on all
additional subcontractors and design professionals whose potential
responsibility appears on the face of the more detailed list of defects within
seven days of receipt of the more detailed list. The respondent shall serve a
copy of the case management statement, including the name, address, and
telephone number of the dispute resolution facilitator, to all the potentially
responsible subcontractors and design professionals at the same time.
(3) Nonintrusive visual inspection of the project by the respondent,
subcontractors, and design professionals.
(4) Invasive testing conducted by the association, if the association
deems appropriate. All parties may observe and photograph any testing conducted
by the association pursuant to this paragraph, but may not take samples or
direct testing unless, by mutual agreement, costs of testing are shared by the
parties.
(5) Provision by the association of a comprehensive demand which
provides sufficient detail for the parties to engage in meaningful dispute
resolution as contemplated under this section.
(6) Invasive testing conducted by the respondent, subcontractors, and
design professionals, if they deem appropriate.
(7) Allowance for modification of the demand by the association if new
issues arise during the testing conducted by the respondent, subcontractor, or
design professionals.
(8) Facilitated dispute resolution of the claim, with all parties,
including peripheral parties, as appropriate, and insurers, if any, present and
having settlement authority. The dispute resolution facilitators shall endeavor
to set specific times for the attendance of specific parties at dispute
resolution sessions. If the dispute resolution facilitator does not set specific
times for the attendance of parties at dispute resolution sessions, the dispute
resolution facilitator shall permit those parties to participate in dispute
resolution sessions by telephone.
(i) In addition to the foregoing elements of the case management
statement described in subdivision (h), upon mutual agreement of the parties,
the dispute resolution facilitator may include any or all of the following
elements in a case management statement: the exchange of consultant or expert
photographs; expert presentations; expert meetings; or any other mechanism
deemed appropriate by the parties in the interest of resolving the dispute.
(j) The dispute resolution facilitator, with the guidance of the
parties, shall at the time the case management statement is established, set
deadlines for the occurrence of each event set forth in the case management
statement, taking into account such factors as the size and complexity of the
case, and the requirement of this section that this dispute resolution process
not exceed 180 days absent agreement of the parties to an extension of time.
(k)(1) (A) At a time to be determined by the dispute resolution
facilitator, the respondent may submit to the association all of the following:
(i) A request to meet with the board to discuss a written settlement
offer.
(ii) A written settlement offer, and a concise explanation of the
reasons for the terms of the offer.
(iii) A statement that the respondent has access to sufficient funds to
satisfy the conditions of the settlement offer.
(iv) A summary of the results of testing conducted for the purposes of
determining the nature and extent of defects, if this testing has been
conducted, unless the association provided the respondent with actual test
results.
(B) If the respondent does not timely submit the items required by this
subdivision, the association shall be relieved of any further obligation to
satisfy the requirements of this subdivision only.
(C) No less than 10 days after the respondent submits the items required
by this paragraph, the respondent and the board of directors of the association
shall meet and confer about the respondent's settlement offer.
(D) If the association's board of directors rejects a settlement offer
presented at the meeting held pursuant to this subdivision, the board shall hold
a meeting open to each member of the association. The meeting shall be held no
less than 15 days before the association commences an action for damages against
the respondent.
(E) No less than 15 days before this meeting is held, a written notice
shall be sent to each member of the association specifying all of the following:
(i) That a meeting will take place to discuss problems that may lead to
the filing of a civil action, and the time and place of this meeting.
(ii) The options that are available to address the problems, including
the filing of a civil action and a statement of the various alternatives that
are reasonably foreseeable by the association to pay for those options and
whether these payments are expected to be made from the use of reserve account
funds or the imposition of regular or special assessments, or emergency
assessment increases.
(iii) The complete text of any written settlement offer, and a concise
explanation of the specific reasons for the terms of the offer submitted to the
board at the meeting held pursuant to subdivision (d) that was received from the
respondent.
(F) The respondent shall pay all expenses attributable to sending the
settlement offer to all members of the association. The respondent shall also
pay the expense of holding the meeting, not to exceed three dollars ($ 3) per
association member.
(G) The discussions at the meeting and the contents of the notice and
the items required to be specified in the notice pursuant to paragraph (E) are
privileged communications and are not admissible in evidence in any civil
action, unless the association consents to their admission.
(H) No more than one request to meet and discuss a written settlement
offer may be made by the respondent pursuant to this subdivision.
(l) Except for the purpose of in camera review as provided in
subdivision (c) of Section 1375.05, all defect lists and demands,
communications, negotiations, and settlement offers made in the course of the
prelitigation dispute resolution process provided by this section shall be
inadmissible pursuant to Sections 1119 to 1124, inclusive, of the Evidence Code
and all applicable decisional law. This inadmissibility shall not be extended to
any other documents or communications which would not otherwise be deemed
inadmissible.
(m) Any subcontractor or design professional may, at any time, petition
the dispute resolution facilitator to release that party from the dispute
resolution process upon a showing that the subcontractor or design professional
is not potentially responsible for the defect claims at issue. The petition
shall be served contemporaneously on all other parties, who shall have 15 days
from the date of service to object. If a subcontractor or design professional is
released, and it later appears to the dispute resolution facilitator that it may
be a responsible party in light of the current defect list or demand, the
respondent shall renotice the party as provided by paragraph (2) of subdivision
(e), provide a copy of the current defect list or demand, and direct the party
to attend a dispute resolution session at a stated time and location. A party
who subsequently appears after having been released by the dispute resolution
facilitator shall not be prejudiced by its absence from the dispute resolution
process as the result of having been previously released by the dispute
resolution facilitator.
(n) Any party may, at any time, petition the superior court in the
county where the project is located, upon a showing of good cause, and the court
may issue an order, for any of the following, or for appointment of a referee to
resolve a dispute regarding any of the following:
(1) To take a deposition of any party to the process, or subpoena a
third party for deposition or production of documents, which is necessary to
further prelitigation resolution of the dispute.
(2) To resolve any disputes concerning inspection, testing, production
of documents, or exchange of information provided for under this section.
(3) To resolve any disagreements relative to the timing or contents of
the case management statement.
(4) To authorize internal extensions of timeframes set forth in the case
management statement.
(5) To seek a determination that a settlement is a good faith settlement
pursuant to Section 877.6 of the Code of Civil Procedure and all related
authorities. The page limitations and meet and confer requirements specified in
this section shall not apply to these motions, which may be made on shortened
notice. Instead, these motions shall be subject to other applicable state law,
rules of court, and local rules. A determination made by the court pursuant to
this motion shall have the same force and effect as the determination of a
postfiling application or motion for good faith settlement.
(6) To ensure compliance, on shortened notice, with the obligation to
provide a Statement of Insurance pursuant to paragraph (2) of subdivision (e).
(7) For any other relief appropriate to the enforcement of the
provisions of this section, including the ordering of parties, and insurers, if
any, to the dispute resolution process with settlement authority.
(o)(1) A petition filed pursuant to subdivision (n) shall be filed in
the superior court in the county in which the project is located. The court
shall hear and decide the petition within 10 days after filing. The petitioning
party shall serve the petition on all parties, including the date, time, and
location of the hearing no later than five business days prior to the hearing.
Any responsive papers shall be filed and served no later than three business
days prior to the hearing. Any petition or response filed under this section
shall be no more than three pages in length.
(2) All parties shall meet with the dispute resolution facilitator, if
one has been appointed and confer in person or by the telephone prior to the
filing of that petition to attempt to resolve the matter without requiring court
intervention.
(p) As used in this section:
(1) "Association" shall have the same meaning as defined in subdivision
(a) of Section 1351.
(2) "Builder" means the declarant, as defined in subdivision (g) of
Section 1351.
(3) "Common interest development" shall have the same meaning as in
subdivision (c) of Section 1351, except that it shall not include developments
or projects with less than 20 units.
(q) The alternative dispute resolution process and procedures described
in this section shall have no application or legal effect other than as
described in this section.
(r) This section shall become operative on July 1, 2002, however it
shall not apply to any pending suit or claim for which notice has previously
been given.
(s) This section shall become inoperative on July 1, 2010, and as of
January 1, 2011, is repealed, unless a later enacted statute, that is enacted
before January 1, 2011, deletes or extends the dates on which it becomes
inoperative and is repealed.
California Civil Code
§ 1375.05. (Operative date July 1, 2002; Operative until July
1, 2010; Repealed January 1, 2011) Claim against builder for defects in design
or construction; Trial procedure
(a) Upon the completion of the mandatory prefiling dispute resolution
process described in Section
1375, if the parties have not settled the matter, the association or its
assignee may file a complaint in the superior court in the county in which the
project is located. Those matters shall be given trial priority.
(b) In assigning trial priority, the court shall assign the earliest
possible trial date, taking into consideration the pretrial preparation
completed pursuant to Section
1375, and shall deem the complaint to have been filed on the date of
service of the Notice of Commencement of Legal Proceeding described under
Section
1375.
(c) Any respondent, subcontractor, or design professional who received
timely prior notice of the inspections and testing conducted under Section
1375 shall be prohibited from engaging in additional inspection or
testing, except if all of the following specific conditions are met, upon motion
to the court:
(1) There is an insurer for a subcontractor or design professional, that
did not have timely notice that legal proceedings were commenced under Section
1375 at least 30 days prior to the commencement of inspections or testing
pursuant to paragraph (6) of subdivision (h) of Section
1375.
(2) The insurer's insured did not participate in any inspections or
testing conducted under the provisions of paragraph (6) of subdivision (h) of
Section
1375.
(3) The insurer has, after receiving notice of a complaint filed in
superior court under subdivision (a), retained separate counsel, who did not
participate in the Section
1375 dispute resolution process, to defend its insured as to the
allegations in the complaint.
(4) It is reasonably likely that the insured would suffer prejudice if
additional inspections or testing are not permitted.
(5) The information obtainable through the proposed additional
inspections or testing is not available through any reasonable alternative
sources.
If the court permits additional inspections or testing upon finding that
these requirements are met, any additional inspections or testing shall be
limited to the extent reasonably necessary to avoid the likelihood of prejudice
and shall be coordinated among all similarly situated parties to ensure that
they occur without unnecessary duplication. For purposes of providing notice to
an insurer prior to inspections or testing under paragraph (6) of subdivision
(h) of Section
1375, if notice of the proceedings was not provided by the insurer's
insured, notice may be made via certified mail either by the subcontractor,
design professional, association, or respondent to the address specified in the
Statement of Insurance provided under paragraph (2) of subdivision (e) of
Section
1375. Nothing herein shall affect the rights of an intervenor who files a
complaint in intervention. If the association alleges defects that were not
specified in the prefiling dispute resolution process under Section
1375, the respondent, subcontractor, and design professionals shall be
permitted to engage in testing or inspection necessary to respond to the
additional claims. A party who seeks additional inspections or testing based
upon the amendment of claims shall apply to the court for leave to conduct those
inspections or that testing. If the court determines that it must review the
defect claims alleged by the association in the prefiling dispute resolution
process in order to determine whether the association alleges new or additional
defects, this review shall be conducted in camera. Upon objection of any party,
the court shall refer the matter to a judge other than the assigned trial judge
to determine if the claim has been amended in such a way as to require
additional testing or inspection.
(d) Any subcontractor or design professional who had notice of the
facilitated dispute resolution conducted under Section
1375 but failed to attend, or attended without settlement authority,
shall be bound by the amount of any settlement reached in the facilitated
dispute resolution in any subsequent trial, although the affected party may
introduce evidence as to the allocation of the settlement. Any party who failed
to participate in the facilitated dispute resolution because the party did not
receive timely notice of the mediation shall be relieved of any obligation to
participate in the settlement. Notwithstanding any privilege applicable to the
prefiling dispute resolution process provided by Section
1375, evidence may be introduced by any party to show whether a
subcontractor or design professional failed to attend or attended without
settlement authority. The binding effect of this subdivision shall in no way
diminish or reduce a nonsettling subcontractor or design professional's right to
defend itself or assert all available defenses relevant to its liability in any
subsequent trial. For purposes of this subdivision, a subcontractor or design
professional shall not be deemed to have attended without settlement authority
because it asserted defenses to its potential liability.
(e) Notice of the facilitated dispute resolution conducted under Section
1375 must be mailed by the respondent no later than 20 days prior to the
date of the first facilitated dispute resolution session to all parties. Notice
shall also be mailed to each of these parties' known insurance carriers. Mailing
of this notice shall be by certified mail. Any subsequent facilitated dispute
resolution notices shall be served by any means reasonably calculated to provide
those parties actual notice.
(f) As to the complaint, the order of discovery shall, at the request of
any defendant, except upon a showing of good cause, permit the association's
expert witnesses to be deposed prior to any percipient party depositions. The
depositions shall, at the request of the association be followed immediately by
the defendant's experts and then by the subcontractors' and design
professionals' experts, except on a showing of good cause. For purposes of this
section, in determining what constitutes "good cause," the court shall consider,
among other things, the goal of early disclosure of defects and whether the
expert is prepared to render a final opinion, except that the court may modify
the scope of any expert's deposition to address those concerns.
(g)(1) The only method of seeking judicial relief for the failure of the
association or the respondent to complete the dispute resolution process under
Section
1375 shall be the assertion, as provided for in this subdivision, of a
procedural deficiency to an action for damages by the association against the
respondent after that action has been filed. A verified application asserting a
procedural deficiency shall be filed with the court no later than 90 days after
the answer to the plaintiff's complaint has been served, unless the court finds
that extraordinary conditions exist.
(2) Upon the verified application of the association or the respondent
alleging substantial noncompliance with Section
1375, the court shall schedule a hearing within 21 days of the
application to determine whether the association or respondent has substantially
complied with this section. The issue may be determined upon affidavits or upon
oral testimony, in the discretion of the court.
(3)(A) If the court finds that the association or the respondent did not
substantially comply with this paragraph, the court shall stay the action for up
to 90 days to allow the noncomplying party to establish substantial compliance.
The court shall set a hearing within 90 days to determine substantial
compliance. At any time, the court may, for good cause shown, extend the period
of the stay upon application of the noncomplying party.
(B) If, within the time set by the court pursuant to this paragraph, the
association or the respondent has not established that it has substantially
complied with this section, the court shall determine if, in the interest of
justice, the action should be dismissed without prejudice, or if another remedy
should be fashioned. Under no circumstances shall the court dismiss the action
with prejudice as a result of the association's failure to substantially comply
with this section. In determining the appropriate remedy, the court shall
consider the extent to which the respondent has complied with this section.
(h) This section shall become operative on July 1, 2002, however it
shall not apply to any pending action or proceeding.
(i) This section shall become inoperative on July 1, 2010, and, as of
January 1, 2011, is repealed, unless a later enacted statute that is enacted
before January 1, 2011, deletes or extends the dates on which it becomes
inoperative and is repealed.
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