CACI No. 4572. Right to Repair Act - Affirmative Defense - Act of Nature (Civ. Code, § 945.5(a))

Judicial Council of California Civil Jury Instructions (2020 edition)

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4572.Right to Repair Act - Affirmative Defense - Act of Nature
(Civ. Code, § 945.5(a))
[Name of defendant] claims that [he/she/nonbinary pronoun/it] is not
responsible for [name of plaintiff]’s harm because it was caused by an
unforeseen event. To establish this defense, [name of defendant] must
prove that the [specify defect, e.g., door that allowed unintended water to
pass through it] was caused by [specify, e.g., a landslide], which was an
unforeseen [act of nature/manmade event] that caused the home not to
meet the otherwise required standard.
New May 2019
Directions for Use
This instruction sets forth a builder’s affirmative defense to a homeowner’s
construction defect claim under the Right to Repair Act, asserting the construction
defect was caused by an unforeseen act of nature. An “unforeseen act of nature”
includes unforeseen manmade events such as war, terrorism, or vandalism, in
addition to weather conditions and earthquakes. (See Civ. Code, § 945.5(a).)
The unforeseen event must be “in excess of the design criteria expressed by the
applicable building codes, regulations, and ordinances in effect at the time of
original construction.” (Civ. Code, § 945.5(a).) If there is a question of fact with
regard to such a situation, modify the instruction accordingly.
Sources and Authority
• Right to Repair Act Affirmative Defense of Unforeseen Act of Nature. Civil
Code section 945.5(a).
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1312
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.43
(Matthew Bender)
12 California Real Estate Law and Practice, Ch. 441, Consumers’ Remedies,
§ 441.70 (Matthew Bender)
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