CACI No. 4550. Affirmative Defense - Statute of Limitations - Patent Construction Defect (Code Civ. Proc., § 337.1)

Judicial Council of California Civil Jury Instructions (2023 edition)

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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/nonbinary pronoun] 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; Revised November 2018
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, Owners Damages for Breach of Construction Contract - Liquidated Damages
Under Contract for Delay. See also CACI No. 4524, Contractors Claim for
Compensation Due Under Contract - Substantial Performance.
Code of Civil Procedure section 337.1 does not apply to construction defect claims
within the Right to Repair Act (Civ. Code, § 895 et seq.). (Civ. Code, § 941(d).) The
act applies to all claims for property damage or economic loss except for breach of
contract, fraud, personal injury, or violation of a statute. (Civ. Code, § 943(a); see
McMillin Albany LLC v. Superior Court (2018) 4 Cal.5th 241, 249 [227 Cal.Rptr.3d
191, 408 P.3d 797]; see also Civ. Code, § 941 [statute of limitations under Right to
Repair Act].)
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
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.)
“[T]he [Right to Repair Act] leaves the common law undisturbed in some areas,
expressly preserving actions for breach of contract, fraud, and personal injury. In
other areas, however, the Legislature’s intent to reshape the rules governing
construction defect actions is patent. Where common law principles had
foreclosed recovery for defects in the absence of property damage or personal
injury the Act supplies a new statutory cause of action for purely economic loss.
And, of direct relevance here, even in some areas where the common law had
supplied a remedy for construction defects resulting in property damage but not
personal injury, the text and legislative history reflect a clear and unequivocal
intent to supplant common law negligence and strict product liability actions
with a statutory claim under the Act.” (McMillin Albany LLC, supra, 4 Cal.5th at
p. 249, internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1303
4 Witkin, California Procedure (5th ed. 2008) Actions, § 484
12 California Real Estate Law and Practice, Ch. 441, Consumers 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)

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