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Erlich v. Menezes
21 Cal. 4th 543 (Cal. 1999)
Brown
We granted review in this case to determine whether emotional distress
damages are recoverable for the negligent breach of a contract to construct a house. A
jury awarded the homeowners the full cost necessary to repair their home as well as
damages for emotional distress caused by the contractor's negligent performance. Since the
contractor's negligence directly caused only economic injury and property damage, and
breached no duty independent of the contract, we conclude the homeowners may not recover
damages for emotional distress based upon breach of a contract to build a house.
I. FACTUAL AND PROCEDURAL BACKGROUND
Both parties agree with the facts as ascertained by the Court of
Appeal. Barry and Sandra Erlich contracted with John Menezes, a licensed general
contractor, to build a "dreamhouse" on their ocean-view lot. The Erlichs moved
into their house in December 1990. In February 1991, the rains came. "The house
leaked from every conceivable location. Walls were saturated in [an upstairs bedroom], two
bedrooms downstairs, and the pool room. Nearly every window in the house leaked. The
living room filled with three inches of standing water. In several locations water 'poured
in [] streams' from the ceilings and walls. The ceiling in the garage became so saturated
. . . the plaster liquefied and fell in chunks to the floor."
Menezes attempts to stop the leaks proved ineffectual. Caulking placed
around the windows melted, " 'ran down [the] windows and stained them and ran across
the driveway and ran down the house [until it] . . . looked like someone threw balloons
with paint in them at the house.' " Despite several repair efforts, which included
using sledgehammers and jackhammers to cut holes in the exterior walls and ceilings,
application of new waterproofing materials on portions of the roof and exterior walls, and
more caulk, the house continued to leak -- from the windows, from the roofs, and water
seeped between the floors. Fluorescent light fixtures in the garage filled with water and
had to be removed.
"The Erlichs eventually had their home inspected by another
general contractor and a structural engineer. In addition to confirming defects in the
roof, exterior stucco, windows and waterproofing, the inspection revealed serious errors
in the construction of the home's structural components. None of the 20 shear, or
load-bearing walls specified in the plans were properly installed. The three turrets on
the roof were inadequately connected to the roof beams and, as a result, had begun to
collapse. Other connections in the roof framing were also improperly constructed. Three
decks were in danger of 'catastrophic collapse' because they had been finished with mortar
and ceramic tile, rather than with the light-weight roofing material originally specified.
Finally, the foundation of the main beam for the two-story living room was poured by
digging a shallow hole, dumping in 'two sacks of dry concrete mix, putting some water in
the hole and mixing it up with a shovel.' " This foundation, required to carry a load
of 12,000 pounds, could only support about 2,000. The beam is settling and the surrounding
concrete is cracking.
According to the Erlichs' expert, problems were major and pervasive,
concerning everything "related to a window or waterproofing, everywhere that there
was something related to framing," stucco, or the walking deck.
Both of the Erlichs testified that they suffered emotional distress as
a result of the defective condition of the house and Menezes invasive and unsuccessful
repair attempts. Barry Erlich testified he felt "absolutely sick" and had to be
"carted away in an ambulance" when he learned the full extent of the structural
problems. He has a permanent heart condition, known as superventricular tachyarrhythmia,
attributable, in part, to excessive stress. Although the condition can be controlled with
medication, it has forced him to resign his positions as athletic director, department
head and track coach.
Sandra Erlich feared the house would collapse in an earthquake and
feared for her daughter's safety. Stickers were placed on her bedroom windows, and alarms
and emergency lights installed so rescue crews would find her room first in an emergency.
Plaintiffs sought recovery on several theories, including breach of
contract, fraud, negligent misrepresentation, and negligent construction. Both the breach
of contract claim and the negligence claim alleged numerous construction defects.
Menezes prevailed on the fraud and negligent misrepresentation claims.
The jury found he breached his contract with the Erlichs by negligently constructing their
home and awarded $406,700 as the cost of repairs. Each spouse was awarded $50,000 for
emotional distress, and Barry Erlich received an additional $50,000 for physical pain and
suffering and $15,000 for lost earnings.
By a two-to-one majority, the Court of Appeal affirmed the judgment,
including the emotional distress award. The majority noted the breach of a contractual
duty may support an action in tort. The jury found Menezes was negligent. Since his
negligence exposed the Erlichs to "intolerable living conditions and a constant,
justifiable fear about the safety of their home," the majority decided the Erlichs
were properly compensated for their emotional distress.
The dissent pointed out that no reported California case has upheld an
award of emotional distress damages based upon simple breach of a contract to build a
house. Since Menezes negligence directly caused only economic injury and property damage,
the Erlichs were not entitled to recover damages for their emotional distress.
We granted review to resolve the question.
II. DISCUSSION
A.
In an action for breach of contract, the measure of damages is
"the amount which will compensate the party aggrieved for all the detriment
proximately caused thereby, or which, in the ordinary course of things, would be likely to
result therefrom" (Civ. Code, § 3300), provided the damages are "clearly
ascertainable in both their nature and origin" (Civ. Code, § 3301). In an action not
arising from contract, the measure of damages is "the amount which will compensate
for all the detriment proximately caused thereby, whether it could have been anticipated
or not" (Civ. Code, § 3333).
"Contract damages are generally limited to those within the
contemplation of the parties when the contract was entered into or at least reasonably
foreseeable by them at that time; consequential damages beyond the expectation of the
parties are not recoverable. [Citations.] This limitation on available damages serves to
encourage contractual relations and commercial activity by enabling parties to estimate in
advance the financial risks of their enterprise." ( Applied Equipment Corp. v. Litton
Saudi Arabia Ltd. (1994) 7 Cal. 4th 503, 515, 869 P.2d 454 (Applied Equipment).) "In
contrast, tort damages are awarded to [fully] compensate the victim for [all] injury
suffered. [Citation.]" ( Id. at p. 516.)
'The distinction between tort and contract is well grounded in common
law, and divergent objectives underlie the remedies created in the two areas. Whereas
contract actions are created to enforce the intentions of the parties to the agreement,
tort law is primarily designed to vindicate "social policy." [Citation.]' "
( Hunter v. Up-Right, Inc. (1993) 6 Cal. 4th 1174, 1180, 864 P.2d 88, quoting Foley v.
Interactive Data Corp. (1988) 47 Cal. 3d 654, 683, 254 Cal. Rptr. 211, 765 P.2d 373
(Foley).) While the purposes behind contract and tort law are distinct, the boundary line
between them is not ( Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal. 4th 85,
106, 900 P.2d 669 (conc. and dis. opn. of Mosk, J.) (Freeman
& Mills)) and the distinction between the remedies for each are not " 'found
ready made.' " (Ibid., quoting Holmes, The Common Law (1881) p. 13.) These uncertain
boundaries and the apparent breadth of the recovery available for tort actions creates
pressure to obliterate the distinction between contracts and torts -- an expansion of tort
law at the expense of contract principles which Grant Gilmore aptly dubbed
"contorts." In this case we consider whether a negligent breach of a contract
will support an award of damages for emotional distress -- either as tort damages for
negligence or as consequential or special contract damages.
B.
In concluding emotional distress damages were properly awarded, the
Court of Appeal correctly observed that "the same wrongful act may constitute both a
breach of contract and an invasion of an interest protected by the law of
torts." Here, the court permitted plaintiffs to recover both full repair costs
as normal contract damages and emotional distress damages as a tort remedy.
The Court of Appeal also noted that "[a] contractual obligation
may create a legal duty and the breach of that duty may support an action in tort."
This is true; however, conduct amounting to a breach of contract becomes tortious only
when it also violates a duty independent of the contract arising from principles of tort
law. (Applied Equipment, supra, 7 Cal. 4th at p. 515.) " ' "An omission to
perform a contract obligation is never a tort, unless that omission is also an omission of
a legal duty." ' " (Ibid., quoting Jones v. Kelly (1929) 208 Cal. 251, 255, 280
P. 942.)
Tort damages have been permitted in contract cases where a breach of
duty directly causes physical injury (Fuentes v. Perez (1977) 66 Cal. App. 3d 163, 168,
fn. 2, 136 Cal. Rptr. 275); for breach of the covenant of good faith and fair dealing in
insurance contracts ( Crisci v. Security Ins. Co. (1967) 66 Cal. 2d 425, 433-434, 58 Cal.
Rptr. 13, 426 P.2d 173); for wrongful discharge in violation of fundamental public policy
(Tameny v. Atlantic Richfield Co. (1980) 27 Cal. 3d 167, 175-176, 164 Cal. Rptr. 839, 610
P.2d 1330); or where the contract was fraudulently induced. ( Las Palmas Associates v. Las
Palmas Center Associates (1991) 235 Cal. App. 3d 1220, 1238-1239.) In each of these
cases, the duty that gives rise to tort liability is either completely independent of the
contract or arises from conduct which is both intentional and intended to harm. (See,
e.g., Christensen v. Superior Court (1991) 54 Cal. 3d 868, 885-886, 820 P.2d 181.)
Plaintiff's theory of tort recovery is that mental distress is a
foreseeable consequence of negligent breaches of standard commercial contracts. However,
foreseeability alone is not sufficient to create an independent tort duty. " 'Whether
a defendant owes a duty of care is a question of law. Its existence depends upon the
foreseeability of the risk and a weighing of policy considerations for and against
imposition of liability.' [Citation.]" ( Burgess v. Superior Court (1992) 2 Cal. 4th
1064, 1072, 831 P.2d 1197.) Because the consequences of a negligent act must be limited to
avoid an intolerable burden on society ( Elden v. Sheldon (1988) 46 Cal. 3d 267, 274, 250
Cal. Rptr. 254, 758 P.2d 582), the determination of duty "recognizes that policy
considerations may dictate a cause of action should not be sanctioned no matter how
foreseeable the risk." (Ibid., fn. omitted.) "There are clear judicial days on
which a court can foresee forever and thus determine liability but none on which that
foresight alone provides a socially and judicially acceptable limit on recovery of damages
for [an] injury." ( Thing v. La Chusa (1989) 48 Cal. 3d 644, 668, 257 Cal. Rptr. 865,
771 P.2d 814.) In short, foreseeability is not synonymous with duty; nor is it a
substitute.
The question thus remains: is the mere negligent breach of a contract
sufficient? The answer is no. It may admittedly be difficult to categorize the cases, but
to state the rule succinctly: "Courts will generally enforce the breach of a
contractual promise through contract law, except when the actions that constitute the
breach violate a social policy that merits the imposition of tort remedies." (Freeman
& Mills, supra, 11 Cal. 4th at p. 107 (conc. and dis. opn. of Mosk, J.).) The familiar
paradigm of tortious breach of contract in this state is the insurance contract. There we
relied on the covenant of good faith and fair dealing, implied in every contract, to
justify tort liability. (Foley, supra, 47 Cal. 3d at pp. 689-690.) In holding that a tort
action is available for breach of the covenant in an insurance contract, we have
"emphasized the 'special relationship' between insurer and insured, characterized by
elements of public interest, adhesion, and fiduciary responsibility." (Freeman &
Mills, supra, 11 Cal. 4th at p. 91; see Louderback & Jurika, Standards for Limiting
the Tort of Bad Faith Breach of Contract (1982) 16 U.S.F. L.Rev. 187, 227.)
The special relationship test, which has been criticized as illusory
and not sufficiently precise (Putz & Klippen, Commercial Bad Faith: Attorneys
Fees--Not Tort Liability--Is the Remedy for "Stonewalling" (1987) 21 U.S.F.
L.Rev. 419, 478-479), has little relevance to the question before us. Menezes is in the
business of building single-family homes. He is one among thousands of contractors who
provide the same service, and the Erlichs could take their choice among any contractors
willing to accept work in the area where their home would be constructed. Although they
undoubtedly relied on his claimed expertise, they were in a position to view, inspect, and
criticize his work, or to hire someone who could. Most significantly, there is no
indication Menezes sought to frustrate the Erlichs' enjoyment of contracted-for benefits.
He did build a house. His ineptitude led to numerous problems which he attempted to
correct. And he remains ultimately responsible for reimbursing the cost of doing the job
properly.
Moreover, since, as Foley noted, the insurance cases represented
"a major departure from traditional principles of contract law," any claim for
automatic extension of that exceptional approach whenever "certain hallmarks and
similarities can be adduced in another contract setting" should be carefully
considered. (Foley, supra, 47 Cal. 3d at p. 690.)
Our previous decisions detail the reasons for denying
tort recovery in contract breach cases: the different objectives underlying tort and
contract breach; the importance of predictability in assuring commercial stability in
contractual dealings; the potential for converting every contract breach into a tort, with
accompanying punitive damage recovery, and the preference for legislative action in
affording appropriate remedies. (Freeman & Mills, supra, 11 Cal. 4th at p. 98, citing
approvingly Harris v. Atlantic Richfield Co. (1993) 14 Cal. App. 4th 70, 81-82.) The
same concerns support a cautious approach here. Restrictions on contract remedies serve to
protect the " 'freedom to bargain over special risks and [to] promote contract
formation by limiting liability to the value of the promise.' " (11 Cal. 4th at p.
98, quoting Harris, supra, 14 Cal. App. 4th at p. 77.)
Generally, outside the insurance context, "a tortious breach of
contract . . . may be found when (1) the breach is accompanied by a traditional common law
tort, such as fraud or conversion; (2) the means used to breach the contract are tortious,
involving deceit or undue coercion or; (3) one party intentionally breaches the contract
intending or knowing that such a breach will cause severe, unmitigable harm in the form of
mental anguish, personal hardship, or substantial consequential damages." (Freeman
& Mills, supra, 11 Cal. 4th at p. 105 (conc. and dis. opn. of Mosk, J.).) Focusing on
intentional conduct gives substance to the proposition that a breach of contract is
tortious only when some independent duty arising from tort law is violated. (Applied
Equipment, supra, 7 Cal. 4th at p. 515.) If every negligent breach of a contract gives
rise to tort damages the limitation would be meaningless, as would the statutory
distinction between tort and contract remedies.
In this case, the jury concluded Menezes did not act intentionally; nor
was he guilty of fraud or misrepresentation. This is a claim for negligent breach of a
contract, which is not sufficient to support tortious damages for violation of an
independent tort duty.
It may ultimately be more useful, in attempting to develop a common law
of tortious breach, to affirmatively identify specific practices utilized by contracting
parties that merit the imposition of tort remedies (Freeman & Mills, supra, 11 Cal.
4th at p. 107 (conc. and dis. opn. of Mosk, J.)) instead of comparing each new claim to a
template for exceptions. In the interim, however, it is sufficient to note that more than
mere negligence has been involved in each case where tort damages have been permitted. The
benefits of broad compensation must be balanced against the burdens on commercial
stability. "Courts should be careful to apply tort remedies only when the conduct in
question is so clear in its deviation from socially useful business practices that the
effect of enforcing such tort duties will be . . . to aid rather than discourage
commerce." (Freeman & Mills, supra, 11 Cal. 4th at p. 109 (conc. and dis. opn. of
Mosk, J.).)
C.
Even assuming Menezes negligence constituted a sufficient independent
duty to the Erlichs, such a finding would not entitle them to emotional distress damages
on these facts. [Omitted is the balance of the court's discussion concerning
recovery of damages for emotional distress for negligent construction.]
D.
Having concluded tort damages are not available, we finally consider
whether damages for emotional distress should be included as consequential or special
damages in a contract claim. "Contract damages are generally limited to those within
the contemplation of the parties when the contract was entered into or at least reasonably
foreseeable by them at the time; consequential damages beyond the expectations of the
parties are not recoverable. [Citations.] This limitation on available damages serves to
encourage contractual relations and commercial activity by enabling parties to estimate in
advance the financial risks of their enterprise." (Applied Equipment, supra, 7 Cal.
4th at p. 515.)
" 'When two parties make a contract, they agree upon the rules and
regulations which will govern their relationship; the risks inherent in the agreement and
the likelihood of its breach. The parties to the contract in essence create a
mini-universe for themselves, in which each voluntarily chooses his contracting partner,
each trusts the other's willingness to keep his word and honor his commitments, and in
which they define their respective obligations, rewards and risks. Under such a scenario,
it is appropriate to enforce only such obligations as each party voluntarily assumed, and
to give him only such benefits as he expected to receive; this is the function of contract
law.' " (Applied Equipment, supra, 7 Cal. 4th at p. 517.)
Accordingly, damages for mental suffering and emotional distress are
generally not recoverable in an action for breach of an ordinary commercial contract in
California. (Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal. App. 4th 174, 188
(Kwan); Sawyer v. Bank of America (1978) 83 Cal. App. 3d 135, 139, 145 Cal. Rptr. 623.)
"Recovery for emotional disturbance will be excluded unless the breach also caused
bodily harm or the contract or the breach is of such a kind that serious emotional
disturbance was a particularly likely result." (Rest.2d
Contracts, § 353.) The Restatement specifically notes the breach of a contract to
build a home is not "particularly likely" to result in "serious emotional
disturbance." (Ibid.)
Cases permitting recovery for emotional distress typically involve
mental anguish stemming from more personal undertakings the traumatic results of which
were unavoidable. (See, e.g., Burgess v. Superior Court, supra, 2 Cal. 4th 1064 [infant
injured during childbirth]; Molien v. Kaiser Foundation Hospitals (1980) 27 Cal. 3d 916,
167 Cal. Rptr. 831, 616 P.2d 813 [misdiagnosed venereal disease and subsequent failure of
marriage]; Kately v. Wilkinson (1983) 148 Cal. App. 3d 576, 195 Cal. Rptr. 902 [fatal
waterskiing accident]; Chelini v. Nieri (1948) 32 Cal. 2d 480, 196 P.2d 915 [failure to adequately preserve a corpse].) Thus, when the
express object of the contract is the mental and emotional well-being of one of the
contracting parties, the breach of the contract may give rise to damages for mental
suffering or emotional distress. (See Wynn v. Monterey Club (1980) 111 Cal. App. 3d 789,
799-801, 168 Cal. Rptr. 878 [agreement of two gambling clubs to exclude husband's
gambling-addicted wife from clubs and not to cash her checks]; Ross v. Forest Lawn
Memorial Park (1984) 153 Cal. App. 3d 988, 992-996, 203 Cal. Rptr. 468 [cemetery's
agreement to keep burial service private and to protect grave from vandalism]; Windeler v.
Scheers Jewelers (1970) 8 Cal. App. 3d 844, 851-852, 88 Cal. Rptr. 39 [bailment for
heirloom jewelry where jewelry's great sentimental value was made known to bailee].)
Cases from other jurisdictions have formulated a similar rule, barring
recovery of emotional distress damages for breach of contract except in cases involving
contracts in which emotional concerns are the essence of the contract. (See, e.g., Hancock
v. Northcutt (Alaska 1991) 808 P.2d 251, 258 ["contracts pertaining to one's dwelling
are not among those contracts which, if breached, are particularly likely to result in
serious emotional disturbance"; typical damages for breach of house construction
contracts can appropriately be calculated in terms of monetary loss]; McMeakin v. Roofing
& Sheet Metal Supply (Okla.Ct.App. 1990) 807 P.2d 288 [affirming order granting
summary judgment in favor of defendant roofing company after it negligently stacked too
many brick tiles on roof, causing roof to collapse and completely destroy home, leading to
plaintiff's heart attack one month later]; Day v. Montana Power Company (Mont. 1990) 242
Mont. 195, 789 P.2d 1224 [owner of restaurant that was destroyed in gas explosion
allegedly caused by negligence of utility company employee not entitled to recover damages
for emotional distress]; Creger v. Robertson (La.Ct.App. 1989) 542 So. 2d 1090 [reversing
award for emotional distress damages caused by foul odor emanating from a faulty
foundation, preventing plaintiff from entertaining guests in her residence]; Groh v.
Broadland Builders, Inc. (Mich.Ct.App. 1982) 120 Mich. App. 214, 327 N.W.2d 443 [reversing
order denying motion to strike allegations of mental anguish in case involving
malfunctioning septic tank system, and noting adequacy of monetary damages to compensate
for pecuniary loss of "having to do the job over," as distinguished from cases
allowing recovery because situation could never be adequately corrected].)
Plaintiffs argue strenuously that a broader notion of damages is
appropriate when the contract is for the construction of a home. Amicus curiae urge us to
permit emotional distress damages in cases of negligent construction of a personal
residence when the negligent construction causes gross interference with the normal use
and habitability of the residence.
Such a rule would make the financial risks of construction agreements
difficult to predict. Contract damages must be clearly ascertainable in both nature and
origin. (Civ. Code, § 3301.) A contracting party cannot be required to assume limitless
responsibility for all consequences of a breach and must be advised of any special harm
that might result in order to determine whether or not to accept the risk of contracting.
(1 Witkin, Summary of Cal. Law, supra, Contracts, § 815, p. 733.)
Moreover, adding an emotional distress component to recovery for
construction defects could increase the already prohibitively high cost of housing in
California, affect the availability of insurance for builders, and greatly diminish the
supply of affordable housing. The potential for such broad-ranging economic consequences -
costs likely to be paid by the public generally - means the task of fashioning appropriate
limits on the availability of emotional distress claims should be left to the Legislature.
(See Tex. Prop. Code Ann., §27.001 et seq. (1999); Hawaii Rev. Stat., §663-8.9 (1998).)
Permitting damages for emotional distress on the theory that certain
contracts carry a lot of emotional freight provides no useful guidance. Courts have carved
out a narrow range of exceptions to the general rule of exclusion where emotional
tranquillity is the contract's essence. Refusal to broaden the bases for recovery reflects
a fundamental policy choice. A rule which focuses not on the risks contracting parties
voluntarily assume but on one party's reaction to inadequate performance, cannot provide
any principled limit on liability.
The discussion in Kwan, a case dealing with the breach of a sales
contract for the purchase of a car, is instructive. "[A] contract for [the] sale of
an automobile is not essentially tied to the buyer's mental or emotional well-being.
Personal as the choice of a car may be, the central reason for buying one is usually
transportation. . . . [P] In spite of America's much-discussed 'love affair with the
automobile,' disruption of an owner's relationship with his or her car is not, in the
normal case, comparable to the loss or mistreatment of a family member's remains
[citation], an invasion of one's privacy [citation], or the loss of one's spouse to a
gambling addiction [citation]. In the latter situations, the contract exists primarily to
further or protect emotional interests; the direct and foreseeable injuries resulting from
a breach are also primarily emotional. In contrast, the undeniable aggravation, irritation
and anxiety that may result from [the] breach of an automobile warranty are secondary
effects deriving from the decreased usefulness of the car and the frequently frustrating
process of having an automobile repaired. While [the] purchase of an automobile may
sometimes lead to severe emotional distress, such a result is not ordinarily foreseeable
from the nature of the contract." (Kwan, supra, 23 Cal. App. 4th at p. 190.)
Most other jurisdictions have reached the same conclusion. (See Sanders
v. Zeagler (La. 1997) 686 So. 2d 819, 822-823 [principal object of a contract for the
construction of a house was to obtain a place to live and emotional distress damages were
not recoverable]; Hancock v. Northcutt, supra, 808 P.2d at pp. 258-259 [no recovery for
emotional distress as a result of defective construction; typical damages for breach of
house construction contracts can appropriately be calculated in terms of monetary loss];
City of Tyler v. Likes (Tex. 1997) 962 S.W.2d 489, 497 [mental anguish based solely on
property damage is not compensable as a matter of law].)
We agree. The available damages for defective construction are limited
to the cost of repairing the home, including lost use or relocation expenses, or the
diminution in value. ( Orndorff v. Christiana Community Builders (1990) 217 Cal. App. 3d
683, 266 Cal. Rptr. 193.) The Erlichs received more than $400,000 in traditional contract
damages to correct the defects in their home. While their distress was undoubtedly real
and serious, we conclude the balance of policy considerations -- the potential for
significant increases in liability in amounts disproportionate to culpability, the court's
inability to formulate appropriate limits on the availability of claims, and the magnitude
of the impact on stability and predictability in commercial affairs -- counsel against
expanding contract damages to include mental claims in negligent construction cases.
DISPOSITION
The judgment of the Court of Appeal is reversed and the matter is
remanded for further proceedings consistent with this opinion.
We concur: George, C.J., Kennard, J., Baxter, J., Chin, J.
Werdegar, J. concurring and dissenting
I concur in the majority opinion insofar as it holds that a plaintiff
may not recover damages for emotional distress based on a defendant's negligent breach of
a contract to build a house when the defendant has breached no duty independent of the
contract. Although I read the record differently as to whether these plaintiffs did, in
fact, present an independent claim for negligence, in view of the majority's conclusion
that plaintiffs did not present such a claim, the discussion in part C of the majority
opinion is unnecessary. I therefore express no opinion on the circumstances under which a
tort plaintiff may recover damages for emotional distress.
I Concur: Mosk, J.
[Editorial note: Following is a list of counsel in the case.
Notice the large number and sources of amicus curiae ("friend of the
court") briefs received by the Court. Why did so many take an interest?]
Attorneys for Appellant: Edward J. Horowitz, Claudia
Ribet; Knapp, Petersen & Clarke, Daniels, Baratta & Fine, Alan J. Carnegie, James
L. Hsu and Stephen M. Harris for Defendant, Cross-complainant and Appellant.
Sonnenschein Nath & Rosenthal, Paul E. B. Glad, Paula M. Yost and
Cheryl Dyer Berg for American Insurance Association and Crum & Forster Insurance
Company as Amici Curiae on behalf of Defendant, Cross-complainant and Appellant.
Alister McAlister for National Association of Independent Insurers as
Amicus Curiae on behalf of Defendant, Cross-complainant and Appellant.
Crosby, Heafy, Roach & May, Kathy M. Banke and Kay Long-Marin for
Continental Metroplex as Amicus Curiae on behalf of Defendant, Cross-complainant and
Appellant.
Fred J. Hiestand for the Association for California Tort Reform as
Amicus Curiae on behalf of Defendant, Cross-complainant and Appellant.
Cox, Castle & Nicholson, Sandra C. Stewart and Debbie L. Freedman
for the Building Industry Legal Defense Foundation and the California Building Industry
Association as Amici Curiae on behalf of Defendant, Cross-complainant and Appellant.
Morgenstein & Jubelirer, James L. McGinnis and Laura E. Gasser for
Centex Homes as Amicus Curiae on behalf of Defendant, Cross-complainant and Appellant.
Songstad, Randall & Ulich, Andrew K. Ulich and Thomas D. Deardorff
II for Taylor Woodrow Homes, Inc., as Amicus Curiae on behalf of Defendant,
Cross-complainant and Appellant.
Chapin Fleming McNitt Shea & Carter, Craig H. Bell and Keith A.
Turner for Truck Insurance Exchange as Amicus Curiae on behalf of Defendant,
Cross-complainant and Appellant.
Attorneys for Respondent: John R. DeLoreto; Law Offices of Victor G.
Zilinskas, Zilinskas & Jacobs, Victor G. Zilinskas and Michael L. Smith for Plaintiffs
and Respondents.
Williams, Wester & Hall and Scott A. Williams as Amici Curiae on
behalf of Plaintiffs and Respondents.
Kasdan, Simonds, McIntyre, Epstein & Martin and David G. Epstein
for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiffs and
Respondents.
Keppleman & Associates and Richard D. Keppleman for Cross-defendant
and Respondent Ron Rebaldo.
Borton, Petrini & Conron, Craig R. McCollum and Gary A. Bixler for
Cross-defendant and Respondent John Cravens Plastering, Inc.