McMILLIN ALBANY v. S.C.

Amicus Curiae Brief of Kasdan Lippsmith Weber Turner LLP

Cal.August 22, 2016

SUPREME COURT COPY SUPREME COURT FILED S229762 AUG2 2 2016 IN THE Frank A. McGuire Clerk SUPREME COURT OF CALIFORNIA Deputy MeMILLIN ALBANYLLCETAL., Petitioner, V. SUPERIOR COURT OF KERN COUNTY, Respondent, CARL VAN TASSELET AL., Real Parties in Interest. From a decision by the Court ofAppeal, Fifth Appellate District Case No. F069370 AMICUS CURIAE APPLICATION AND PROPOSED AMICUS CURIAE BRIEF (In Support of Petitioners/Real Parties in Interest) KASDAN LIPPSMITH WEBER TURNER LLP Kenneth S. Kasdan (SBN #71427) *Michael D. Turner (SBN #126455) Bryan M.Zuetel (SBN #258836) Derek J. Scott (SBN #276878) 19900 MacArthur Blvd., Ste. 850 Irvine, CA 92612 (949) 851-9000 - fax: (949) 833-9455 mturner@kasdancdlaw.com ATTORNEYS FOR AMICUS CURIAE KASDAN LIPPSMITH WEBER TURNER LLP TABLE OF CONTENTS TABLE OF CONTENTSQu...eee ecsssseseseesesevseeseesceeeeceesesseesesesesessessessesseseeecssesecsessssssessssscneeens i TABLE OF AUTHORITIESuo.cecseseeseeeeeeeeeeecessseaesseeeecsesacssesseessesseesessesessessssaseaenees il APPLICATION TO FILE BRIEF OF AMICUS CURIAE........ccccccccessesessessssscsssssesesssssneees 1 AMICUS CURITAEBRIEF oo...ccc eccsessssscsesesesseceseesecseeseeseeseseseeessesesseesseeasesssecseseseussasseesoes2 T. INTRODUCTIONoccccesesceeeesseesecesecseeseeeesesssessessesseeseseecessssessesstscsesessseeseens 2 Il. SB800 WAS ENACTED TO SOLVE THE PROBLEM OF A GAP INCOMMON LAW UNIQUE TO NEW RESIDENTIAL HOUSING......cccccccescessesseessecsevecssssssenssseees 3 A. SB800 provided a solution to the problem created by the economiclossrule through legislative COMPLOMISE..........scceseeessessessesseecessssesesessecsessecssesscsscsscsssseesesescencenes4 B. SB800 andtheinterest-balancing solution did not implicate the existing common DAW. occcccsccecscssesssccscsscceccccceeccecccesesevsessseceedssscsesteasacscescesesesuucensensssscesecsscecececessesecesseseseesece 5 Ill. SB&800 HARMONIZES WITH EXISTING COMMONLAW.........ccccccccoccceceseeeeeee 8 A. Repealing all common law rights of California homeowners by implication would create unfair and inefficient consequences similar to those SB800 was designed to PICVENL. 0... eeesccescetsesseeccessseeesseesssecnsseseeesessecesseeecessseeecseeeseseseaeseneeseasesesseeesssesseeersnesens 11 B. Requiring commonlaw claims to go through the SB800 prelitigation process would result in additional inefficiency and uncertainty............c.ccccccccesscessescssssssescseesees 13 TV. CONCLUSIONoooecceesseseeseesseesecesecsaeeessessssssesseatsessseeecsssecssescssssssseseseseaeees 15 CERTIFICATE OF COMPLIANCE......ccccceeccccsesessssesceessescesessesecascseeessceseecsesssssscsecssseaseaees 16 TABLE OF AUTHORITIES Cases Aas v. Superior Court (2000) 24 Cal.4th 627 .....cccccccccccscecscssesssseesessccsescessesescensace 3,4,5, 12 Burch v. Superior Court (2014) 223 Cal.App.4th 1411 woeccsceccesssesscescssesesasens 7 Jimenez v. Superior Court (2002) 29 Cal.4th 473 ......ccccccscssscssssssccssscssscssesssssesssesssessscensenaes4 Liberty Mutual Insurance Company v. Brookfield Crystal Cove LLC (2013) 219 CalApp.4th 98oo.csessseeseessensescsseseseseesecsessesesesensesesseessesssesssssssssvscsccaseavaceavecers 6, 12 McCaffrey Group, Inc. v. Superior Court (2014) 224 Cal.App.4th 1330...10 Verdugo v. Target Corp. (2014) 59 Cal4th 312.0... cccccssesecsssscsscssesssscsssscsvsccsssevscseneeeeraeens 9 Statutes Civ. Code § 933 oo. csccsccecsssessssseesensesssesscssesesssseseesessessesessscsesseseseessessscessscsesscastacseterencatese 13 Civ. Code § 9455oieecsesesseescessssseseseseesesessssescesseseesessesesssssscsssssesssecsussesessuavsasateesaceresseacass 15 Civ. Code §§ 910-938 oeec cssecessssessssessesessseesssaesecessesssssscsesessesccsecscsscsuecscsessetacsceaseacanens 14 CONSUMER PROTECTION-HOMEOWNERS-CONSTRUCTION,2002 Cal. Legis. Serv. Ch. 722 (S.B. 800)... cecsesssscssssscsessessesseeseeseesssscsessessssesesesecsessscessscsecasesevacseeaceasenss 5 ii APPLICATION TO FILE BRIEF OF AMICUS CURIAE BY KASDAN LIPPSMITH WEBER TURNER LLP IN SUPPORT OF PETITIONERS/REAL PARTIES IN INTEREST The law firm ofKasdan LippSmith Weber Turner LLP (“Kasdan LippSmith”) respectfully moves the Court for leave to file the accompanying brief as amicus curiae pursuant to California Rule of Court 8.520. The proposed Amicus Curiae Briefwas prepared by the undersigned. Counsel for the parties have not participated in the drafting of the brief. No party or counsel for a party has made a monetary contribution intended to fund the preparation of submission ofthe proposed brief. Kasdan LippSmith hasnointerest in or connection with any ofthe parties in this case. Kasdan LippSmith primarily represents consumer homeowners and community associations in construction defect actions against builders and subcontractors throughout the State of California. Kasdan LippSmith desires to submit the accompanying amicus curiae brief to provide the Court with the perspective of consumer homeowners and community associations facing construction defects in their homes and communities. DATED: August 12, 2016 TiACWEBER TURNER LLP } [fo By: Ly Michael D. Turner Attorneys for Amicus Curiae Kasdan LippSmith Weber Turner LLP AMICUS CURIAEBRIEF I. INTRODUCTION Residential construction defect law presents a distinct set of challenges requiring tailored rules developed through experience to ensure the fair treatment of consumer homeowners. Although construction defect matters are inherently large and complex, economicandjudicial efficiency, along with the protection of consumers, are key. As with any large enterprise, there is always a temptation to seek procedural oversimplification as a sop to unavoidable structural complexities. SB800 achieved a great deal in solving a problem unique to construction defect litigation by filling the gap that existed in the commonlawresulting from the dualnature ofthe homeas both a product and a set of large, separable elements ofthe physical environment. However, oversimplifying the limited cause ofaction in SB800to carry the full weight for actual and ongoing damage to new homescausedby builder negligence would be a great disservice to homeowners. SB800 was enacted to solve the problem of the lack of a remedy for defective construction that has not yet manifested the type of physical damage necessary to overcome the economicloss rule. The economic loss rule may make sense when applied to balance the interests of the consumers and manufacturers of individual products. But a mass- market homeis better conceived as both a single product and an agglomeration of hundreds of interrelated products purchased simultaneously, making application of the economic loss rule unfair and uneconomical without an additional solution to the problem it creates. Thus, SB800 provides a remedy despite the lack of “damage”ofthe sort the economic loss rule requires. A limited cause of action that was universally understood to be necessary at the time of its enactment, and the exclusive remedy for violation of the functionality standards it delineates, which balances interests by also providing builders with the prelitigation option to conduct repairs to avert litigation. When the boundary between low quality construction that breaches a functionality standard is crossed, however, and actual damage to a new homeis already manifest through builder negligence—the boundary defined by the economic loss rule—then the existing common law causes already provide appropriate remedies. Those common law remedies were the context within which SB800 was enacted and,critically, they are a necessary backstop to prevent the creation of new inefficiencies in California construction and construction defectlitigation. Il. SB800 WAS ENACTED TO SOLVE THE PROBLEM OF A GAP IN COMMON LAW UNIQUE TO NEW RESIDENTIAL HOUSING. There is no dispute that SB800 was enacted in response to this Court’s suggestion, in the last analytical sentence ofAas v. Superior Court (2000) 24 Cal.4th 627 (‘Aas’), that “the Legislature may add whatever additional protections it deems appropriate” to impose “liability for construction defects that have not caused harm of the sort traditionally compensable in tort” (id. at 652-53). This Court subsequently confirmed that the Legislature had answeredthe call: “In the wake of our decision in Aas... , the Legislature established a limited new cause ofaction for certain specified housing defects.” Jimenez v. Superior Court (2002) 29 Cal.4th 473, 483, fin. 2. That “limited new cause of action” was SB800; a swift legislative response to Aas’s holding that the economic loss rule applied to preclude tort recovery for construction defects that had not yet caused damage to the home, which Chief Justice George characterized as “a ruling that offends both established common law and basic common sense.” Aas, 24 Cal.4th 627, 653 (George, C.J., concurring and dissenting). In his dissenting opinion, the Chief Justice described the problem as follows: “Why should a homeownerhave to wait for a personal tragedy to occur in order to recover damagesto repair knownserious building code safety defects caused by negligent construction?” Jd. A. SB800 provided a solution to the problem created by the economic loss rule throughlegislative compromise. While Chief Justice George believed the common law permitted homeowners to recover for construction defects before they caused physical damage, the Majority opinion in Aas firmly established that the economic loss rule “reflects the line of demarcation between tort theory and contract theory.” Jd. at 640 (citing Sacramento Regional Transit Dist. v. Grumman Flxible (1984) 158 Cal.App.3d 289, 294). Thus, under California common law, homeowners do not find a remedyin causes of action for negligenceorstrict liability until “a defective component damages other parts of the same product” or other components ofthe home. Jd. at 641. Petitioners herein admit that SB800 was enacted because, as the Aas Majority had asserted, only the Legislature could appropriately solve the problem articulated by Chief Justice George—i.e., the nonsensical consequencesof the application of the economic loss rule to construction defects in the newly constructed residences of California consumers. (Answer, § III.B.) As the Majority explained, “Legislatures, in making such policy decisions, have the ability to gather empirical evidence, solicit the advice of experts, and hold hearings at which all interested parties may present evidence and express their views.” Id. at 652 (citations and internal quotation marks omitted). The result of the legislative process was SB800, with the goal of “prompt and fair resolution of construction defect claims” in the interests of all parties and California’s growth and vitality. CONSUMER PROTECTION-HOMEOWNERS-CONSTRUCTION, 2002 Cal. Legis. Serv. Ch. 722 (S.B. 800). B. SB800 and the interest-balancing solution did not implicate the existing commonlaw. Despite the consumer protection motivation behind the legislative activity that resulted in SB800, Petitioners and their supporters emphasize the profit interests of the building industry as the critical voice in the legislative ferment that culminated in SB800. For example, the amicus brief of Leading Builders of America (“Leading Builders”), under the heading “The Legislature’s stated goal of the Right to Repair Act was to amend the common law and reducelitigation,” states that SB800’s purpose “was to change, not supplement, the common law — a goal not secured if homeownersretained all common law construction defect claims.” (Amicus Brief of Leading Builders, § IV.) The Leading Builders then go on to quote parts of the legislative history which, in fact, emphasize fairness to all interested parties more than the need to reducelitigation, and which fail to confirm a legislative intent to repeal all common law causes of action. And given the contrary conclusion of the Fourth District in Liberty Mutual Insurance Company v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98, 103-04 (“Liberty Mutual’) after its own careful consideration of the legislative history, it is apparent that there is no tangible evidence ofa legislative intention to repeal all common law causes, and certainly nothing capable of overcoming the presumption, discussed below, that a statute does not, by implication, repeal the common law. Nowhere in the legislative history is there anything supporting a contention that the Right to Repair Act barred commonlaw claimsfor actual property damage. Instead, the legislative history showsthat the legislation was intended to grant statutory rights in cases where construction defects caused economic damage; the Act did nothing to limit claims for actual property damage. Id. at 604. The notion that SB800 had impliedly “abrogated common law claims for damages for construction defects” was again rejected, this time by the Second District in the context of a direct homeowner action against a builder, in Burch v. Superior Court (2014) 223 Cal.App.4th 1411, 1415, review denied (June 11, 2014). The Second District vacated summary adjudication as to the homeowner’scausesofaction for common law negligence and breach of implied warranty (id. at 1423), holding that SB800 “does not provide the exclusive remedy for a homeowner seeking damages for construction defects that have resulted in property damage”(id. at 1414). Again finding no support in the language ofthe statute for any abrogation of all common law causes, the court confirmed that SB800 provides “a remedy for particular residential construction defects,” and specifically agreed with the Fourth District’s finding in Liberty Mutual that SB800 “does not limit or preclude common Jaw claims for damages for construction defects that have caused property damage.” Jd. at 1418. Analysis of the court’s reasoning reveals what is perhaps the source of the misapprehension that common law causes themselves were somehow abrogated by SB800. The Burch decision makes clear that creation of a cause of action for failure to meet the particular functionality standards delineated in Civil Code section 896 mean that SB800 “abrogates the holding in Aas.” Id. Since both Aas and Burch stand for the proposition that homeowners may pursue commonlaw negligence causes against builders (where, given the economic loss rule, actual damagehasalready occurred), the holding in Aasis “abrogated” only in the sense that its finding that no cause was available absent actual damage was superseded by SB800creating such a cause—which the Aas Majority had indicated was the Legislature’s privilege, and the Aas dissenters had considered legally and practically critical to rationalize construction defect law. Thus, following the clear suggestions of this Court in Aas, the Legislature fixed an unfair gap in California law by providing a statutory mechanism for consumers encountering low quality construction to enforce delineated functionality standards.' Those functionality standards complement the existing commonlaw causesin tort, meeting at the line of demarcation defined by the economic loss rule. In short, the finding in Aas that a ' This statutory consumer right is balanced against the statutory right of builders to choose to investigate their functionality standard violations and perform repairs. homeowner had no remedy absent actual damage was abrogated, because statutorily superseded, but the correlate finding that tort law requires actual damage was not. This reasoning is consistent across the holdings in Aas, Liberty Mutual, and Burch, and harmonious with SB800. Ill. SB800 HARMONIZES WITH EXISTING COMMON LAW. The briefing of the Parties and other Amici Curiae have delved extensively into the interpretation of the many statements oflegislators and conflicting interpretations of SB800 clauses, and further briefing on those topics would likely not be helpful to the Court. This brief focuses on the purpose and consequences of SB800 and the rational basis for harmonizing SB800’s construction deficiency standards with the existing right of homeowners under common law to seek a remedy for damage occurring to their new homes as a result of negligence. Critically, when SB800 is considered in the context of California construction defect law at the time ofits enactment, and the logic of its purpose and consequences for all interested parties, it is compelling to conclude that fairness, judicial economy, and economic efficiency are consistent with maintenance of common law causes. To mirror Chief Justice George’s rhetorical formulation in posing the original problem: Why should a homeowner have to wait for a lengthy building standards investigation that ultimately requires a builder to repair nothing in order to begin litigation to recover for known, existing and ongoing damagecaused by negligent construction? Petitioners and the building industry combine their inverted policy argument forthe genesis of SB800 with an expansive notion of the relationship of statutory enactment to commonlaw,to conjure the conclusion that the Legislature intended not only to correct the problem with the application of the economic loss rule, but more grandiosely, to entirely repeal all existing commonlawrelating to residential construction defects—by implication alone, without ever simply saying so. This is too much weight of implication for the imperfect language of SB800 to carry. Fortunately, the careful development of California law is safeguarded by the “presumption that a statute does not, by implication, repeal the common law. Repeal by implication is recognized only where there is no rational basis for harmonizing two potentially conflicting laws.” Verdugo v. Target Corp. (2014) 59 Cal.4th 312, 326 (citations and internal quotation marks omitted). When SB800 is read in light of the appeal to commonsense urged by Chief Justice George and Justice Mosk when arguing for an exception to the economiclossrule (in their separate concurring and dissenting opinions in Aas), and in light of the common sense decision of the Majority opinion in Aas to require a legislative solution to fix the problem, the policy tradeoffs embodied by SB800 make sense, without any need to impliedly repeal all common law rights held by California homeowners. The ability of a homeowner to pursue commonlaw causes wasalready circumscribed by the economic loss rule and the requirement to prove strict liability or negligence by the builder. And SB800 offers a mechanism by which a builder might foreclose its liability, even where it had been negligent, through early repair to the home. These changes brought by SB800 represent a Significant revision to California’s construction defect law—simultaneously solving the problem of the economic loss rule while providing builders with a mechanism to avoid litigation through repairing their newly sold product, if they so choose. Specifically, in return for the actionable functionality standards in Civil Code section 896, homeowners must allow builders the prerequisite option to inspect and repair all conditions failing those functionality standards, at the sole discretion of the builder, during the potentially lengthy procedures defined in Civil Code sections 910 through 938. Indeed, builders mayalso, at their sole discretion, opt out of the statutory time-limits of this repair procedure and adopt their own procedures, potentially even more lengthy than the statutory scheme, bounded only by the time limits of reasonableness. McCaffrey Group, Inc. v. Superior Court (2014) 224 Cal.App.4th 1330, 1352, review denied (June 25, 20]4). Thus, SB800 represents a significant and balanced response by the Legislature to solve the problem. The specific functionality standards in Civil Code section 896 set the bar for construction quality and makeactionable anyfailure of a builder to meet those basic standards, before such failure compounds into actual damage—whichis fair, and respects judicial and economic efficiency because it places the burden for defective construction on the builder rather than the homeowner, encouragesbetter construction practices, and allows the builder widelatitude to fix its product before litigation is permitted. But where actual damage hasalready occurred to a consumer’s new homedueto provable negligence on the part of the builder, the common law already provides remedies consistent with the 10 economic loss rule and it would be inefficient and unnecessarily burdensome on homeownersto havetheir basictort rights forestalled. A. Repealing all common law rights of California homeowners by implication would create unfair and inefficient consequences similar to those SB800 was designed to prevent. Despite the balanced solution offered by SB800 to the economic lossrule problem, Petitioners and the building industry want more. Dissatisfied with the legislative tradeoffs wonbyits lobbyists when fixing the problem of a remedy for construction defects that have not yet caused damage, they seek to create new problems by introducing delay and burdening homeowners where damage has already occurred and common law causes already exist to remedy that damage. Commonlaw causesofaction address actual damage already occurring early in the life of the new home, before the four and ten yearstatutes of limitation for patent and latent defects contained in California Code of Civil Procedure sections 337.1 and 337.15. (See Liberty Mutual, supra, 219 Cal.App.4th at 108.) And such damage is not merely the result of a failure to comply with a building standard, but the result of actual negligence on the part of the builder. Justice Mosk’s dissent in Aas was premised on the lack of economic efficiency in waiting for knownconstruction defects to cause damage before addressing them, informed by his understanding that “cutting corners is a prevailing problem in the development industry”andhis skepticism about whether builders would “pass along the savings realized by poor construction to their customers.” Aas, supra, 24 Cal.4th at 673-74 (Mosk, J., concurring and dissenting). Given these practical realities, Justice Mosk concluded that 11 application of the economic loss rule would “create an invitation for developers, general contractors and subcontractors to ignore [construction] Code requirements when building and developing homes.” Jd. at 674 (internal quotation marks omitted). With that invitation to cut corners revoked by SB800, as wasthe intention of SB800, it would be odd to concludethat the Legislature intended to issue a new invitation to profit- driven misconduct by builders, and cynical to concludethat the Legislature sought to do so through ambiguous inference in the same piece of legislation. Nevertheless, this is the conclusion resulting from Petitioner’s position that homeowners no longer possess their basic legal rights to seek immediate redress for negligently inflicted damage to their new homes. Where the economicloss rule is not implicated because homeownersare already suffering actual damage—to likely the most expensive product they will purchase, and most valuable and meaningful asset they will own and bequeath—it makes no sense to suspend a homeowner’s legal rights for almost a year while the builder engages in a prelitigation process that need not result in anything more than an ineffectual repair attempt. Cf. Civ. Code, § 933. Viewing California’s construction defect law as a whole, SB800’s “right to repair” may also be viewed as an invitation to builders to cut corners, knowing that they have the right to consider a fix if anyone complains. But with existing common law causesofaction as the backstop against moreserious, indeed tortious, corner cutting that manifests early damage, anycost-benefit analysis by a builder contemplating a new developmentis pushed in the direction of improved construction quality. This goes a long way toward resolving 12 the irrational and unfair economicinefficiencies identified by both the dissenters in Aas and the building industry before Aas, by attempting to maximize economicefficiency. Without the backstop of the common law, however, the incentive to cut corners in construction is restored. Under SB800, builders already have the opportunity to fix negligent construction provided no actual and actionable damage has yet occurred. But if builders know they will always be afforded the opportunity to try to fix everything, even negligently constructed homes manifesting early damage, the benefits of SB800 for both economic and judicial efficiency will be lost. B. Requiring common law claims to go through the SB800 prelitigation process would result in additional inefficiency and uncertainty. These inefficiencies would be compounded without the common law backstop, given the realities of the SB800 prelitigation process (Civ. Code, §§ 910-938). SB800 allows builders multiple opportunities to reenter homes before a legal remedy can be pursued, which is a burden on homeowners balanced by their enforcement rights as to SB800’s functionality standards. A negative correlate of this process is that builders with no motivation to pursue meaningful repairs are nevertheless incentivized to play-out the prelitigation process by failing to adequately repair negligent construction, based on the realistic expectation that circumstances mayintervene that discourage or preclude certain portion of homeownerclaimants from pursuing post “repair” legal action. Time and delay favor defendants and inform cost-benefit analyses. 13 This inefficiency would be magnified exponentially if the value of a builder’s liability was disproportionately larger, relative to the cost of tinkering through the prelitigation process, because of the inclusion of already occurring actual and negligently caused damage in the SB800 process. Meanwhile, the homeowner would beleft to endure the damage for an extended period of time because ofthe prelitigation procedures. The subrogation issues in catastrophic cases have been addressed by other Amici Curiae and in detail by the Fourth District in Liberty Mutual. Butthereis also a mitigation risk issue created by including all actual damage claims in SB800. Subsection (b) of Civil Code section 945.5 potentially makes the builder responsible for the cost of worsening damage in a homeafter the homeowner’sinitial section 910 notice by exempting “damages due to the untimely or inadequate responseofa builder to the homeowner's claim” from the homeowner’s duty to mitigate damage. Civ. Code, § 945.5(b). As described above, some builders will nevertheless be disinclined to address worsening damagein the hopeoflater avoiding liability in any future legal action. The homeownerandtheir insurer would then be faced with the choiceof attempting mitigation or risking later recovery from the builder. This situation will result in either the uneconomical outcome of unmitigated damage, or a mitigation burden on the homeowner, whois already bearing the additional burden of SB800 prelitigation procedures prior to being permitted to pursue a legal remedy. While a homeownerfiling a common law suit based on actual damage from negligent construction wouldalso bear the burden of mitigation, they would not be required to endure a lengthy prelitigation procedure that does not require effective repairs by the builder. 14 without the backstop of common law causes of action, SB800 would create significant economic and legal inefficiencies and new problems beyond those identified at the time of its enactment, while also placing an additional and unfair burden on consumer homeowners, directly contrary to the intentionsofthe legislation. IV. CONCLUSION Asthe Fourth District correctly held in Liberty Mutual, SB800 does not abrogate all common law causes of action for construction defects causing actual damage to the new homesof California consumers. Rather, SB800 provides a necessary and limited remedy to fill the gap created by the economicloss rule, where low quality construction breaches basic functionality standards. SB800 was enacted within the context of existing common law and only makessense in that context. Like any piece of legislation, SB800 is imperfect and contains ambiguities and conflicts, But those ambiguities support the conclusion that SB800 should not be interpreted as impliedly abrogating all common law causes. Andcritically, not only is there a rational basis for harmonizing SB800 with existing commonlaw,there is a compelling justification for maintaining common law causes to ensure the fairness and efficiency of construction defect litigation. DATED: August 12, 2016 »/MWCHWEBER TURNER LLP Michael D. Turner _ Attorneys for Amicus Curiae Kasdan LippSmith Weber Turner LLP 15 CERTIFICATE OF COMPLIANCE Pursuantto California Rules of Court, Rule 8.204(c)(1), I certify that the total word count ofthe Amicus Curiae Brief ofKasdan LippSmith Weber Turner LLP, excluding the Application to File Amicus Curiae Brief, Table ofContents, Table of Authorities, and Certificate of Compliance is 3,655 words. DATED: August12, 2016 KASDANLIPPSMITH WEBERTURNER LLP By: Michael D. Turner Attorneys for Amicus Curiae Kasdan LippSmith Weber Turner LLP 16 PROOF OF SERVICE Case No. 8229762 McMillin Albany LLC v. Superior Court of Kern County I, the undersigned, declare that at the time of service, I wasat least 18 years of age and not a party to this legal action. My business address is Kasdan LippSmith Weber Turner LLP, 19900 MacArthur Blvd., Suite 850, Irvine, CA 92612. On August 12, 2016, I mailed a copy of the following documentby placing the envelopes for collection and mailing on the date and at the place shown below,following our ordinary business practices. I am readily familiar with this business’s practice of collecting and processing correspondence for mailing. On the samedaythat correspondenceis placed for collection and mailing, it is deposited in the ordinary course of business with the U.S. Postal Service in sealed envelopes with postage fully prepaid. I am employed in Irvine, Orange County, State of California where the mailing occurred. The following documents were mailed: AMICUS CURIAE APPLICATION AND PROPOSED AMICUS CURIAE BRIEF BY KASDAN LIPPSMITH WEBER TURNERLLP IN SUPPORT OF PETITIONERS The envelopes were addressed to the addressees on the attachedservicelist. On August 12, 2016, I caused a true and correct copy of the above documentto be electronically submitted on behalf of Kasdan LippSmith Weber Turner LLP to the Supreme Court of California using the e-submission portal of the Court websiteat www.courts.ca.gov/supremecourt.htm. I declare under penalty ofperjury under the laws ofthe State of California that the foregoing is true and correct. DATED: August 12, 2016 Service List Individual / Counsel Served Party Represented Calvin R. Stead, Esq. Andrew M.Morgan,Esq. BORTONPETRINI, LLP 5060 California Avenue, Suite 700 Bakersfield, California 93309 (661) 322-3051 * FAX: (661) 322-4628 E-mail: cstead@bortonpetrini.com amorgan@bortonpetrini.com Petitioners McMillin Albany, LLC and McMillin Park Avenue, LLC Mark A. Milstein, Esq. Fred M. Adelman, Esq. Mayo L. Makaczyk,Esq. MILSTEIN, ADELMAN, JACKSON, FAIRCHILD & WADE, LLP 10250 Constellation Boulevard, 14th Floor Los Angeles, California 90067 (310) 396-9600 * FAX: (310) 396-9635 E-mail: mmilstein@milsteinadelman.com fadelman@milsteinadelman.com mmakaczyk@milsteinadelman.com Plaintiffs and Real Parties in Interest, Carl Van Tassel and Sandra Van Tassell Robert V. Closson, Esq. HIRSCH CLOSSON, APLC 591 Camino de la Reina, Suite 909 San Diego, California 92108 (619) 233-7006 * FAX: (619) 233-7009 E-mail: bclosson@hirschclosson.com Objectors to Request for Depublication California Professional Association of Specialty Contractors Alan H.Packer, Esq.Jon Nathan Owens,Esq.NEWMEYER & DILLION LLP1333 N California Boulevard, Suite 600Walnut Creek, California 94596(925) 988-3200 * FAX: (925) 988-3290E-mail: alan._packer@ndlf.com Objectors to Request for DepublicationLeading Builders of America;California Building IndustryAssociation; Building Industry LegalDefense Foundation Individual / Counsel Served Party Represented Amy Rae Gowan,Esq. Amicuscuriae, California Building Kathleen F. Carpenter, Esq. Industry Association; DONAHUEFITZGERALD LLP 1646 North California Boulevard Suite 250 Walnut Creek, CA (925) 746-7770* FAX: (925) 746-7776 E-mail: agowan@donahue.com kcarpenter@donahue.com Pub/Depublication Requestor, Building Industry Legal Defense Foundation; Amicuscuriae, California Infill Federation Donald W.Fisher, Esq. ULICH GANION BALMUTH FISHER & FELD LLP 4041 MacArthur Boulevard, Suite 300 Newport Beach, California 92660 (949) 250-9797 * FAX: (949) 250-9777 E-mail: dfisher@ulichlaw.com Amicus Curiae, Ulich Ganion Balmuth Fisher and Field, LLP H. Thomas Watson Daniel J. Gonzalez HORVITZ & LEVY LLP 15760 Ventura Boulevard, 18th Floor Encino, California 91436-3000 (818) 995-0800 * FAX:(818) 995-3157 E-mail: htwatson@horvitzlevy.com dgonzalez@horvitzlevy.com Amicus curiae , MWI, INC. Anne Lorentzen Rauch EPSTEN GRINNELL AND HOWELL APC 10200 Willow Creek Road, Suite 100 San Diego, California 92131 (858) 527-0111 « FAX: (858) 527-1531 E-mail: arauch@epsten.com Tyler P. Berding BERDING AND WEIL 2175 North California Boulevard Suite 500 Walnut Creek, California 94596 (925) 838-2090 * FAX: (925) 820-5592 E-mail: tberding@berding-weil.com Amicuscuriae, Consumer Attorneys of California Individual / Counsel Served Party Represented Susan Mary Benson BENSON LEGAL APC 6345 Balboa Boulevard, Suite 365 Encino, California 91316 (818) 708-1250 * FAX: (818) 708-1444 E-mail: sbenson@bensonlegal.net Jason P. Williams WILLIAMS PALECEK LAW GROUP LLP 3170 Fourth Avenue, Suite 400 San Diego, California 92103 (619) 346-4263 * FAX:(619) 346-4291 E-mail: jwilliams@wplgattorneys.com Amicuscuriae, National Association of Subrogation Professionals WendyS. Albers BENEDON AND SERLIN LLP 22708 Mariano Street Woodland Hills, California 90272 (818) 340-1950 * FAX: (818)340-1990 E-mail: Wendy@BenedonSerlin.com Brian J. Ferber LAW OFFICESOF BRIANJ. FERBER,INC. 5611 Fallbrook Avenue Woodland Hills, California 91367 (818) 888-0820 « FAX: (818) 888-6107 E-mail: bferberesq@aol.com Amicus curiae, Law Offices of Brian J. Ferber, Inc.; Amicus curiae, Benedon and Serlin LLP Jill J. LifterRYAN AND LIFTER2000 Crow Canyon Place, Suite 400San Ramon, California 94583(925) 884-2080 * FAX:(925) 884-2090E-mail: jlifter@rallaw.com Amicuscuriae, Association of DefenseCounsel ofNorthern California andNevada Individual / Counsel Served Party Represented Glen T. Barger CHAPMAN GLUCKSMAN AND DEAN ROEB AND BARGER 11900 West Olympic Boulevard, Suite 800 Los Angeles, California 90064 (310) 207-7722 * FAX: (310) 207-6550 E-mail: gbarger@cgdrblaw.com Amicus curiae, Association of Southern California Defense Counsel Hon. David R. Lampe KERN COUNTY SUPERIOR COURT Superior Courts Building, Dept. 11 1415 Truxtun Avenue Bakersfield, California 93301-4172 Case No. S-1500-CV-279141 California Court ofAppeal Fifth Appellate District 2424 Ventura Street Fresno, California 93721 (559) 445-5491 Case No. F069370 “ R U L E R