CACI No. 4574. Right to Repair Act - Affirmative Defense - Plaintiff’s Subsequent Acts or Omissions (Civ. Code, § 945.5(d))

Judicial Council of California Civil Jury Instructions (2020 edition)

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4574.Right to Repair Act - Affirmative Defense - Plaintiff’s
Subsequent Acts or Omissions (Civ. Code, § 945.5(d))
[Name of defendant] claims that [he/she/nonbinary pronoun/it] is not
responsible for [name of plaintiff]’s harm because it was caused by [name
of plaintiff]’s later [acts/ [or] omissions]. To establish this defense [name of
defendant] must prove that the harm was caused by [[name of plaintiff]’s
later [alterations/ordinary wear and tear/misuse/abuse/[or] neglect]/ [or]
the structure’s use for something other than its intended purpose].
New May 2019; Revised May 2020
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 that the harm was
caused by the homeowner’s alterations, ordinary wear and tear, misuse, abuse, or
neglect, or by the structure’s use for something other than its intended purpose. (Civ.
Code, § 945.5(d).)
The homeowner is responsible for any acts or omissions by any of the homeowner’s
agents or independent third parties. (Civ. Code, § 945.5(d).) Modify the instruction
as needed if the harm is alleged to have been caused by the subsequent acts of an
agent or third party.
Sources and Authority
• Right to Repair Act Affirmative Defense of Alterations, Ordinary Wear and Tear,
Misuse, Abuse, Neglect, or Use for Something Other Than Intended. Civil Code
section 945.5(d).
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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