SAN FRANCISCO — The California First District Court of Appeal recently decided to uphold the Alameda County Superior Court's decision that it would uphold the defendants' demurrers to the appellant's allegations, get rid of the plaintiff's complaint and give attorneys' fees in Glenda Lovell vs. Stanley Fong et al.

In its April 3 decision, the appeals court said Glenda Lovell argued that the superior court made a mistake in its decision that her first complaint stopped her second complaint and also made a mistake by giving attorneys' fees even though the defendants didn't go through with mediation.

According to the appeals court opinion, Lovell initially "filed a complaint for damages against respondents for violation of statutory construction standards and breach of express warranty on Oct. 26, 2011," in which she accused the defendants of breaking the California Civil Code Section 896 for construction standards. The appeals court said in its decision that Lovell accused the defendants of breaking those standards with a house that she "contracted to purchase from respondents Stanley and Sofia Fong on June 1, 2005 for $900,000 cash." 

The appeals court said Lovell made the accusation based on four sets of observations a "state-licensed engineer" made in an Aug. 29, 2010 report.

The appeals court said Lovell argued "that she sent written notices to respondents advising them of her claims and enclosing the engineer’s report, in accordance with pre-litigation procedures."

The appeals court also explained that the Fongs did not assume responsibility and "refused to comply with statutory pre-litigation procedures or further communicate."

The appeals court said Ben Li Qiu, the contractor in charge of the work on the house, offered to resolve Lovell's accusations with cash, but she did not feel the offer was good enough, and Qiu "failed to comply

with statutory time limits and was unwilling to offer" a strategy to make fixes that would work.

The appeals court said that Lovell claimed in her second complaint that Qiu sent her a letter on June 6, 2005 in which he said he would put a five-year warranty on "the roof, attached fixtures, foundation and walls against structural defects."

The appeals court said in its ruling that the Fongs acknowledged in a letter to Lovell's attorney that the agreement between them and Lovell for her to buy the property had a letter from Qiu addressing warranty.

The appeals court said Lovell had an engineer look at the property on Aug. 14, 2010, and the engineer reported major problems with "the roof, fixtures, foundation and walls." According to the appeals court decision, "Qiu denied the existence of the defects and did not make the warranty repairs despite appellant’s demand."

The appeals court explained that Lovell wanted $203,374 and lawsuit expenses from the defendants in her first complaint and only went after Qiu for those amounts in her second complaint.

The appeals court said that "Qiu and the Fongs filed separate demurrers arguing the case was barred by res

judicata." The appeals court also explained that the Fongs wanted "sanctions against appellant’s attorney on the ground that the complaint was not warranted by existing law and was filed with the primary purpose of harassing the Fongs." 

The appeals court held that "the demurrers were sustained without leave to amend after a hearing on Dec. 18, 2014, and a judgment of dismissal was filed on Jan. 21, 2015," but "the Fongs’ motion for sanctions was denied" two days later.

According to the appeals court decision, "on Feb. 2, 2015, the Fongs filed a motion for attorney fees in the amount of $16,439.50." The appeals court said Lovell "opposed the request on grounds including that the terms of the contract precluded the Fongs from recovering fees due to their refusal to mediate the dispute upon appellant’s request before she filed" her first complaint.

The appeals court said "the Fongs were entitled to fees but the amount requested was overstated." Then, Lovell filed an appeal on March 19, 2015 and the trial court awarded the Fongs $10,360 in attorneys' fees.

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