In a construction defect action, respondent, the Los Angeles County Superior Court, California, granted summary adjudication in favor of real party in interest defendants on a count for negligence and a count for breach of implied warranty, among other counts. Petitioner homebuyer filed a petition for a writ of mandate challenging only the summary adjudication of the negligence and breach of implied warranty counts.
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The appellate court held that the Right to Repair Act does not provide the exclusive remedy for a homeowner seeking damages for construction defects that have resulted in property damage. The Act did not preclude the counts for negligence and breach of implied warranty. Defendants failed to establish the absence of a duty of care. Instead, the evidence in the record supported the existence of a duty of care. The summary adjudication of the negligence count could not be upheld based on the absence of a duty of care. Defendants also failed to negate a breach of implied warranty. The trial court did not conclude that the homebuyer was not an intended beneficiary of the construction contract and summarily adjudicate the third count for breach of implied warranty on that basis. Instead, it concluded that there was a triable issue of fact as to whether the homebuyer was an intended beneficiary of the construction contract, and therefore denied summary adjudication of the count for breach of contract/third party beneficiary. Defendants did not show any error in that determination, and therefore were not entitled to summary adjudication of the count for breach of implied warranty.
The homebuyer’s petition for writ of mandate was granted, and the trial court was directed to vacate its order granting the motion for summary adjudication as to the count for negligence and the count for breach of implied warranty and enter a new order denying the motion on those counts.