Petition for writ of mandate issue directing superior court to vacate an order denying a motion to stay proceedings until real parties in interest-homeowners complied with their obligation to give plaintiff-builder an opportunity to repair the claimed defects is reversed where the burden is not on the plaintiff-builder to establish that it had chosen to opt-in to the statutory scheme by performing its disclosure obligations under Code of Civ. Pro. sec. 912, but instead is on the real party in interest-homeowner to either comply with Code of Civ. Pro. sec. 910 and follow the prelitigation procedure of notice and opportunity to repair before filing suit, or to establish why he or she need not follow the prelitigation procedures in the statute.
Filed August 14, 2009
Opinion by Judge Gaut
For Real Parties in Interest:
Sarita T. Patel, Anderson & Kriger, La Mesa, CA