CACI No. 4570. Right to Repair Act - Construction Defects - Essential Factual Elements (Civ. Code, § 896)

Judicial Council of California Civil Jury Instructions (2023 edition)

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4570.Right to Repair Act - Construction Defects - Essential
Factual Elements (Civ. Code, § 896)
[Name of plaintiff] claims that [he/she/nonbinary pronoun] has been
harmed because of defects in [name of defendant]’s original construction
of [name of plaintiff]’s home. To establish this claim, [name of plaintiff]
must prove [one or more of the following:]
[Specify all defects from Civil Code section 896, e.g., that a defectively
constructed door allowed unintended water to pass beyond, around, or
through it.]
New May 2019
Directions for Use
Give this instruction for a claim under the Right to Repair Act (the Act). (Civ. Code,
§ 895 et seq.) The Act applies to original construction intended to be sold as an
individual dwelling unit. (Civ. Code, § 896.) Section 896 lists all of the construction
standards covered by the Act. List all defects within the coverage of section 896.
In order to make a claim for violation of the Act, a homeowner need only show that
the home’s original construction does not meet the applicable standard. No further
showing of causation or damages is required to meet the burden of proof regarding
a violation of the Act. (Civ. Code, § 942; see also Civ. Code, § 936 [negligence or
breach of contract required in claim against general contractors, subcontractors,
material suppliers, individual product manufacturers, and design professionals].)
For an instruction on the limited damages recoverable under Civil Code, section
944, see CACI No. 4571, Right to Repair Act - Damages. For instructions on
various affirmative defenses available to the contractor under Civil Code section
945.5, see CACI Nos. 4572-4574.
Sources and Authority
Definitions. Civil Code section 895.
Construction Standards Under the Right to Repair Act. Civil Code section 896.
Intent of Standards. Civil Code section 897.
Applicability of Act to Other Entities Involved in Construction. Civil Code
section 936.
Damages and Causation Not Required. Civil Code section 942.
Exclusive Remedy for Certain Damages. Civil Code section 943.
Damages Recoverable. Civil Code section 944.
Affirmative Defenses. Civil Code section 945.5.
“[T]he Right to Repair Act (the Act) was enacted in 2002. As recently explained
by the Supreme Court, ‘[t]he Act sets forth detailed statewide standards that the
components of a dwelling must satisfy. It also establishes a prelitigation dispute
resolution process that affords builders notice of alleged construction defects and
the opportunity to cure such defects, while granting homeowners the right to sue
for deficiencies even in the absence of property damage or personal injury.’
(Kohler Co. v. Superior Court (2018) 29 Cal.App.5th 55, 59 [240 Cal.Rptr.3d
426], internal citation omitted.)
“To sum up this portion of the statutory scheme: For economic losses, the
Legislature intended to supersede Aas [Aas v. Superior Court (2000) 24 Cal.4th
627, 632] and provide a statutory basis for recovery. For personal injuries, the
Legislature preserved the status quo, retaining the common law as an avenue for
recovery. And for property damage, the Legislature replaced the common law
methods of recovery with the new statutory scheme. The Act, in effect, provides
that construction defect claims not involving personal injury will be treated the
same procedurally going forward whether or not the underlying defects gave rise
to any property damage.” (McMillin Albany LLC v. Superior Court (2018) 4
Cal.5th 241, 253 [227 Cal.Rptr.3d 191, 408 P.3d 797].)
“[A] homeowner alleging that a manufactured product - such as a plumbing
fixture - installed in her home is defective may bring a claim under the Act only
if the allegedly defective product caused a violation of one of the standards set
forth in section 896; otherwise she must bring a common law claim outside of
the Act against the manufacturer, and would be limited to the damages allowed
under the common law.” (Kohler Co., supra, 29 Cal.App.5th at p. 63.)
“Insofar as section 944 allows recovery only for damages resulting from failure
‘of the home,’ it is clear that ‘home’ is not limited to the structure where people
reside, because section 942 states that, ‘[i]n order to make a claim for violation
of the standards set forth in Chapter 2 (commencing with Section 896), a
homeowner need only demonstrate . . . that the home does not meet the
applicable standard . . . .’ As we have seen section 896 covers a multitude of
defects not only in the residence but also in improvements such as driveways,
landscaping, and damage to the lot, etc.” (Gillotti v. Stewart (2017) 11
Cal.App.5th 875, 897 [217 Cal.Rptr.3d 860], original italics.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1307
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.43
(Matthew Bender)
19 California Points and Authorities, Ch. 66, Products Liability, § 190.224 (Matthew
12 California Real Estate Law and Practice, Ch. 441, Consumers’ Remedies,
§ 441.60 et seq. (Matthew Bender)

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