CACI No. 4575. Right to Repair Act - Affirmative Defense - Failure to Follow Recommendations or to Maintain (Civ. Code, § 945.5(c))

Judicial Council of California Civil Jury Instructions (2020 edition)

Download PDF
4575.Right to Repair Act - Affirmative Defense - Failure to Follow
Recommendations or to Maintain (Civ. Code, § 945.5(c))
[Name of defendant] claims that [he/she/nonbinary pronoun/it] is not
responsible for [name of plaintiff]’s harm because [name of plaintiff] failed
to properly maintain the home. To establish this defense, [name of
defendant] must prove [all/both] of the following:
1. That [name of plaintiff] failed to follow [[name of defendant]’s/ [or]
a manufacturer’s] recommendations/ [or] commonly accepted
homeowner maintenance obligations];
[2. That [name of plaintiff] had written notice of [name of defendant]’s
recommended maintenance schedules;
3. That the recommendations and schedules were reasonable at the
time they were issued;]
4. That [name of plaintiff]’s harm was caused by [his/her/nonbinary
pronoun] failure to follow [[name of defendant]’s/ [or] a
manufacturer’s] recommendations/ [or] commonly accepted
homeowner maintenance obligations].
New November 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
homeowner failed to follow the builder’s or manufacturer’s recommendations, or
properly maintain the property. The homeowner is responsible for any maintenance
failures by any of the homeowner’s agents, employees, general contractors,
subcontractors, independent contractors, or consultants. (Civ. Code, § 945.5(c).)
Include elements 2 and 3 if the defendant contractor is relying on its own
recommended maintenance schedule.
Sources and Authority
• Right to Repair Act Affirmative Defense of Homeowner’s Failure to Maintain.
Civil Code section 945.5(c).
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1310 et seq.
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts,
§§ 104.263-104.265 (Matthew Bender)
9 California Legal Forms Transaction Guide, Ch. 23, Real Property Sales
Agreements, § 23.20A (Matthew Bender)
1285
Copyright Judicial Council of California
12 California Real Estate Law and Practice, Ch. 441, Consumers’ Remedies,
§ 441.70 (Matthew Bender)
Miller & Starr California Real Estate 4th, § 33:4 (Thomson Reuters)
4576-4599. Reserved for Future Use
CACI No. 4575 CONSTRUCTION LAW
1286
Copyright Judicial Council of California

© Judicial Council of California.