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California Court of Appeal Opens the Door for Construction Defect Claims Outside of SB800

On August 28, the California Court of Appeal ruled that SB800 (Civil Code sections 895 through 945.5, the "Right to Repair Act") is not the only remedy for construction defect claims even when those claims fall within the scope of the Act; therefore, the requirements of the Right to Repair Act do not apply to claims brought under common law. In Liberty Mutual Insurance Company v. Brookfield Crystal Cove, LLC, the defect claim was brought after the expiration of the applicable statute of limitations under the Right to Repair Act. The court did not deny that the claim fell within the auspices of the Right to Repair Act, but it concluded that the Act does not "establish exclusive remedies for claims for actual damages for construction defects". Although time-barred by SB800, the plaintiff's claim inLiberty Mutual is still valid under common law.


In 2004, homeowner Eric Hart purchased a single-family home from home developer Brookfield Crystal Cove LLC ("Brookfield"). In 2008, a fire sprinkler pipe burst and flooded Hart’s home. Brookfield agreed to pay for repairs and remediation while Liberty Mutual, Hart’s homeowners insurance carrier, paid for Hart’s relocation expenses and interim housing. In 2011, Liberty Mutual filed a complaint against Brookfield seeking reimbursement. Standing in the shoes of its insured, Liberty Mutual brought a subrogation claim after the applicable statute of limitations under the Right to Repair Act had expired.

By its terms, the Right to Repair Act applies to any action, which seeks to recover damages arising out of, or related to construction deficiencies in new residential units that are sold after January 1, 2003. The Act sets forth 45 different standards of construction in seven categories and specifies different statutes of limitations ranging from one year to ten years. The statute of limitations for plumbing systems is four years from the close of escrow date of the property.

The Court’s Reasoning in Liberty Mutual

In Liberty Mutual, Hart's new residential unit closed escrow in late 2004, and the insurer's action was filed seven years after the close of escrow in 2011. Attached to the insured's purchase and sale agreement was an addendum, which informed him of the applicability of SB800 provisions to his new property. In opposing Brookfield’s demurrer, Liberty Mutual argued that the violation of SB800 standards is just one of many construction defect causes of action available to homeowners, and common law construction defect claims are not subject to the requirements of SB800.

In rendering its decision, the court focused on the legislative intent of SB800, which it concluded was to permit homeowners to bring a claim under SB800 when no resulting damage or injury had yet occurred. The court specifically addressed Aas v. Superior Court, a 2000 decision from the California Supreme Court, where the court found that construction defects that had not resulted in actual property damage were not actionable in tort. The court in Liberty Mutual concluded that the legislature intended to abrogate the holding in Aas by passing the Right to Repair Act. The court reasoned that by providing homeowners with a remedy for defects that have not yet caused damage, the legislature did not intend to supplant existing common law remedies for those defects that had already resulted in actual damage.

According to the Legislative Counsel's Digest, SB800 was enacted to "specify the rights and requirements of a homeowner to bring an action for construction defects" (Legis. Counsel's Dig., Sen. Bill No 800 (2001-2002 Reg. Sess.). Brookfield and amicus supporters also pointed to the plain text of the statute in arguing that, for homes that fall within SB800, the claimant's causes of action are to be limited to violations of the standards set forth in SB800. The court was not persuaded, citing the continued existence of sections 337.1 and 337.15 (governing statutes of limitations for construction defect claims at common law) as evidence that the legislature did not intend to make SB800 the exclusive remedy for construction defects.

Implications for the Development Industry

The Liberty Mutual decision has the potential to make a substantial impact on the residential construction industry. California is already a hotbed for construction defect litigation. Many of the construction projects completed during the last real estate boom have already been through or are currently facing the SB800 process. If developers, general contractors, subcontractors and design professionals cannot rely on the statutes of limitation set forth in SB800, uncertainty in the development community regarding what statutes of limitations apply to which construction defect claims may affect future development and may leave those parties vulnerable to litigation for past projects.

© 2010-2018 Allen Matkins Leck Gamble Mallory & Natsis LLP


About this Author

Valentine Hoy, Private investor, Construction Attorney, Allen Matkins, Law Firm

Valentine S. Hoy is a partner in the firm's San Diego office, who represents businesses, private investors, real estate developers, licensed professionals and builders before courts, juries and arbitrators throughout California in a broad range of cases, many of them involving business-to-business contract and business tort litigation, co-investor disputes, nondisclosure claims, commercial landlord-tenant and construction disputes, and real estate consumer mass tort, class action and homeowner association lawsuits.

Timothy Hutter, Construction Attorney, real estate disputes, Allen Matkins

Timothy M. Hutter is an associate in our San Diego office, where he practices in the firm's Litigation group. Tim's practice focuses primarily on business and real estate disputes, including contract, construction, joint venture, land use and landlord/tenant litigation. He is well-versed in electronic discovery and frequently works with clients to develop comprehensive strategies to review and analyze their information systems for litigation. Tim also handles cases on appeal, and has successfully represented clients in the California Court of Appeal and the California Supreme Court.

In 2012, Tim went to trial in the pro bono representation of a client seeking damages for violation of his civil rights pursuant to 42 U.S.C. 1983 and was recognized for his efforts by the Chief Judge of the United States District Court, Southern District of California.