California Jury Instruction CACI 4570 Right to Repair Act—Construction Defects—Essential Factual Elements (Civ. Code, § 896)

New May 2019

Nakase Wade | California Business Lawyers & Corporate Lawyers

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.

•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.)