How to Deal with This and How to Deal with That

A Defense Perspective on When SB800 and Common Law Claims Are Asserted In The Same Case

The Fourth District Court of Appeals recently held in Liberty Mutual Insurance Co. v. Brookfield Crystal Cove, LLC (2013) 219 Cal.App.4th 98) that SB800 (Civil Code § 896 et seq.) does not eliminate a homeowner’s right to assert common law claims and seek common law remedies where actual damage has occurred. Originally, SB800 was enacted to provide remedies to homeowners where construction defects had a negative effect on the economic value of their home. The premise being that although no actual property damage occurred or personal injuries resulted, the presence of defects was nonetheless detrimental to the Homeowner’s property value. Common Law claims, such as Negligence, required a showing of actual damage. Prior to the Liberty Mutual ruling, it was unclear whether SB800 was the only remedy available when pled, thereby barring Common Law claims.

If and until further litigation is brought on this issue, the current state of the law is that homeowners may plead both types of claims. In essence, pleading both claims results in alternative theories of liability. In this regard, there must be alternative means of defending against and attacking both of these types of claims. Although it may appear plaintiffs’ are “having their cake and eating it too,” there are various manners to defend these claims when asserted in the same case.

Although Civil Code section 896 et seq. does not require a showing of actual physical damage, it does contain various guidelines and procedures in which SB800 must be investigated, how notice must be given and it provides various statute of limitations on certain types of claims. Each of these are areas which should be addressed in defending these claims. With regard to statute of limitation issues, likely the most readily available defense, most claims under SB800 contain a 10 years statute of limitations. The following building standards contain shorter limitation periods:

896(e) – Plumbing/Sewer systems – 4 years

896(f) – Electrical and Mechanical – 4 years

896(g)(1) – Paths, hardscape, sidewalls – no significant vertical displacement or excessive cracks – 4 years

896(g)(3)(A-E) – Manufactured Products (not otherwise covered) – 1 year

896(g)(6) – Noise Transmission: Attached structures – 1 year

896(g)(7) – Irrigation systems/drainage – 1 year

896(g)(8) – Wood Fences: untreated wood with unreasonable decay – 2 years

896(g)(9) – Steel Fences: untreated wood with unreasonable corrosion – 4 years

896(g)(10) – Paint – 5 years

896(g)(12) – Landscape – to last at least one year (claim runs in 2) – 1 and 2 years

896(g)(14) – Dryer Duct Installation and Termination – 2 years

900 – Fit and Finish items – 1 year

In an SB800/Common Law combined case, it is not enough to attempt to eliminate a defect on SB800 grounds alone. In the alternative, whether in pre-trial dispositive motions or in Motions in Limine, it is necessary to attempt to dispose of the same alleged defect via the Common Law statute of limitations and by an absence of actual damage pursuant to Aas v. Superior Court (2000) 24 Cal.4th 627 decision.

The identification of whether both SB800 and Common Law claims are being asserted in the same case is important to identify early on in litigation. Doing so will allow for the timely filing of dispositive motions and for developing the various defense during the discovery process.

 

ABOUT THE AUTHOR: Mrs. Ramirez is a graduate of Southwestern University School of Law. She specializes in the defense of contractors and materials suppliers in the areas of construction defect and construction related claims. Contact her at PRamirez@tysonmendes.com.

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