K. Hovnanian Communities v. Super. Ct.
Filed 2/4/10 K. Hovnanian Communities v. Super. Ct. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
K. HOVNANIAN COMMUNITIES, INC., et al., Petitioners, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; EDDIE McDOWELL et al. Real Parties in Interest. | E049304 (Super.Ct.Nos. RIC 507131) OPINION |
ORIGINAL PROCEEDINGS; petition for writ of mandate. Michael B. Donner, Judge. Petition granted in part; denied in part.
Wood, Smith, Henning, & Berman, Sam L. McDermott and Matthew P. Dickson for Petitioners.
No appearance for Respondent.
Anderson & Kriger, Clayton M. Anderson, William A. Sickinger, Gordon C. Mears; Milstein, Adelman & Kreger, Mark A. Milstein, Fred M. Adelman, Lee Jackson; Law Office of Mayo L. Makarczyk and Mayo L. Makarczyk for Real Parties in Interest.
INTRODUCTION
In this matter, we have reviewed the petition, the response filed by real parties in interest, and petitioners reply. We have determined that resolution of the matter involves the application of settled principles of law and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
DISCUSSION
With respect to real parties in interest Eddie and Ratisha McDowell, the trial court erred in finding that petitioners failed to establish the contents of the warranty, including the provisions with respect to prelitigation procedures. Petitioners evidence established that the McDowells acknowledged receipt of a sample copy of the warranty and agreed to its terms by signing the warranty registration form. Even if the evidence was not sufficient to show that they received their personal copy, it was sufficient to show the terms to which they agreed. (Cf. Adajar v. RWR Homes, Inc. (2008) 160 Cal.App.4th 563 [the builder showed only what the buyers received after escrow closed, not what they received before the purchase was consummated].) In these circumstances, it was incumbent upon the McDowells to refute this showing by demonstrating that an inconsistency existed between the copies of the warranty provided. Accordingly, the trial court erred in failing to enforce the prelitigation procedures with respect to the McDowells. We note that real parties in interests arguments concerning the enforceability of the provisions were not raised in the trial court and may become moot.
DISPOSITION
Let a peremptory writ of mandate issue, directing the Superior Court of Riverside County to vacate its order denying petitioners motion to enforce the prelitigation procedures as to real parties in interest Eddie and Ratisha McDowell, and to enter a new order granting said motion. In all other respects, the petition is denied.
Petitioners are to recover their costs as to real parties in interest Eddie and Ratisha McDowell.
Petitioners are directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
McKINSTER
J.
KING
J.
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