Motion to petition for Supreme Court of California review planned in Lovell v. Fong

By Zachary Lewis | May 15, 2017


SAN FRANCISCO — A petition for review with the Supreme Court of California that seeks to overturn a decision made by the California First District Court of Appeal in Glenda Lovell vs. Stanley Fong et al. could be in the works, according to Glenda Lovell’s attorney.

“The next stage basically is whether we’ll be filing a petition before the Supreme Court for review and we’re still working on that," Patrick Sullivan, Lovell’s attorney, told the Northern California Record. "There may be a petition for review. It will have to be filed by Friday.” 

In a case involving California’s Right to Repair Act and the doctrine of res judicata, the appeals court affirmed the Alameda County Superior Court’s judgment. The court rejected Lovell’s argument that the superior court had erred by not granting the motion to dismiss demurrers filed by the defendants Stanley and Sofia Fong, and Lovell is currently required to pay $16,439 of the defendants' attorney fees.

Originally, Lovell had filed a complaint against contractor Ben Li Qiu and the Fongs on Oct. 26, 2011 for violating a provision of the Right to Repair Act after a state-licensed engineer found various defects in the foundation of a $900,000 home she purchased from the Fongs on June 1, 2005.

After an extensive legal battle that led to an April 3 judgment, the appeals court dismissed Lovell’s argument of a court error by stating res judicata, a common-law term that means that a matter that has undergone final judgment cannot be appealed by the same parties due to the similarities in the cases and complaints. According to the court, the doctrine “precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief." Res judicata also bars from future proceedings any issues that were litigated or could have been litigated in a previous case.

Sullivan is awaiting the review and looking toward other cases to build precedent against the court's judgement. In particular, McMillin Albany LLC vs. Superior Court has similarities to Lovell’s case, Sullivan said.

“There’s a case currently before the Supreme Court, McMillin Albany LLC v. Superior Court, [which] addresses what we regard as a closely aligned issue that is whether the Right to Repair Act would preclude a common-law complaint for negligence tort," Sullivan said. "That case is pending currently before the Supreme Court. There’s been basically three divergent cases from three different districts in Southern California on that point, so that’s one of the reasons why we’re looking at the possibility of a petition for review to the Supreme Court or alternatively an issuance of a grant and hold order until this McMillin case is decided.”

Sullivan also openly shared his concerns of use and interpretation of res judicata by courts and how it relates to the Right to Repair Act.  

“I do believe there’s real confusion in the courts concerning the basis and application of the doctrine of res judicata," Sullivan said. "This has some particular importance in cases involving construction defects because there’s been a good deal of controversy as to how the Right to Repair Act affects common-law claims.”

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