California Civil Jury Instructions (CACI) (2017)

4550. Affirmative Defense—Statute of Limitations—Patent Construction Defect (Code Civ. Proc., § 337.1)

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4550.Affirmative Defense—Statute of Limitations—Patent
Construction Defect (Code Civ. Proc., § 337.1)
[Name of plaintiff] claims that [his/her] harm was caused by a defect in
the [design/specifications/surveying/planning/supervision/ [or]
observation] of [a construction project/a survey of real property/[specify
project, e.g., the roof replacement]]. [Name of defendant] contends that
[name of plaintiff]’s lawsuit was not filed within the time set by law. To
succeed on this defense, [name of defendant] must prove both of the
following:
1. That an average person during the course of a reasonable
inspection would have discovered the defect; and
2. That the date on which the [construction project/survey of real
property/[specify project, e.g., roof replacement]] was substantially
complete was more than four years before [insert date], the date
on which this action was filed.
New December 2011
Directions for Use
Give this instruction if the defendant asserts the running of the statute of limitations
in Code of Civil Procedure section 337.1 as a defense. This section provides a
four-year limitation period from the date of substantial completion for harm caused
by a patent construction defect.Do not give this instruction if the claim is for
injuries to persons or property based on tort principles occurring in the fourth year
after substantial completion. (See Code Civ. Proc., § 337.1(b).)
For discussion of substantial completion, see the Directions for Use to CACI No.
4532, Owner’s Damages for Breach of Construction Contract—Liquidated
Damages Under Contract for Delay. See also CACI No. 4524, Contractor’s Claim
for Compensation Due Under Contract—Substantial Performance.
Sources and Authority
• Statute of Limitations for Patent Defects. Code of Civil Procedure section
337.1.
“The statute of limitations in section 337.1 exists to ‘provide a final point of
termination, to protect some groups from extended liability.’ ” (Delon Hampton
& Associates, Chartered v. Superior Court (2014) 227 Cal.App.4th 250, 254
[173 Cal.Rptr.3d 407].)
• “[A] patent defect is one that can be discovered by the kind of inspection made
in the exercise of ordinary care and prudence. In contrast, a latent defect is
hidden, and would not be discovered by a reasonably careful inspection.” (The
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Luckman Partnership, Inc. v. Superior Court (2010) 184 Cal.App.4th 30, 35
[108 Cal.Rptr.3d 606].)
• “The test to determine whether a construction defect is patent is an objective
test that asks ‘whether the average consumer, during the course of a reasonable
inspection, would discover the defect. The test assumes that an inspection takes
place.’ This test generally presents a question of fact, unless the defect is
obvious in the context of common experience; then a determination of patent
defect may be made as a matter of law (including on summary judgment).”
(Creekridge Townhome Owners Assn., Inc. v. C. Scott Whitten, Inc. (2009) 177
Cal.App.4th 251, 256 [99 Cal.Rptr.3d 258], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1159
3Witkin, California Procedure (5th ed. 2008) Actions, § 484
12 California Real Estate Law and Practice, Ch. 441, Consumer’s Remedies,
§ 441.08 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts,
§§ 104.54, 104.267 (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.248
(Matthew Bender)
CONSTRUCTION LAW CACI No. 4550
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