910. Prior to filing an action against any party alleged to have
contributed to a violation of the standards set forth in Chapter 2
(commencing with Section 896), the claimant shall initiate the
following prelitigation procedures:
(a) The claimant or his or her legal representative shall provide
written notice via certified mail, overnight mail, or personal
delivery to the builder, in the manner prescribed in this section, of
the claimant's claim that the construction of his or her residence
violates any of the standards set forth in Chapter 2 (commencing with
Section 896). That notice shall provide the claimant's name,
address, and preferred method of contact, and shall state that the
claimant alleges a violation pursuant to this part against the
builder, and shall describe the claim in reasonable detail sufficient
to determine the nature and location, to the extent known, of the
claimed violation. In the case of a group of homeowners or an
association, the notice may identify the claimants solely by address
or other description sufficient to apprise the builder of the
locations of the subject residences. That document shall have the
same force and effect as a notice of commencement of a legal
proceeding.
(b) The notice requirements of this section do not preclude a
homeowner from seeking redress through any applicable normal customer
service procedure as set forth in any contractual, warranty, or
other builder-generated document; and, if a homeowner seeks to do so,
that request shall not satisfy the notice requirements of this
section.
911. (a) For purposes of this title, except as provided in
subdivision (b), "builder" means any entity or individual, including,
but not limited to a builder, developer, general contractor,
contractor, or original seller, who, at the time of sale, was also in
the business of selling residential units to the public for the
property that is the subject of the homeowner's claim or was in the
business of building, developing, or constructing residential units
for public purchase for the property that is the subject of the
homeowner's claim.
(b) For the purposes of this title, "builder" does not include any
entity or individual whose involvement with a residential unit that
is the subject of the homeowner's claim is limited to his or her
capacity as general contractor or contractor and who is not a
partner, member of, subsidiary of, or otherwise similarly affiliated
with the builder. For purposes of this title, these nonaffiliated
general contractors and nonaffiliated contractors shall be treated
the same as subcontractors, material suppliers, individual product
manufacturers, and design professionals.
912. A builder shall do all of the following:
(a) Within 30 days of a written request by a homeowner or his or
her legal representative, the builder shall provide copies of all
relevant plans, specifications, mass or rough grading plans, final
soils reports, Department of Real Estate public reports, and
available engineering calculations, that pertain to a homeowner's
residence specifically or as part of a larger development tract. The
request shall be honored if it states that it is made relative to
structural, fire safety, or soils provisions of this title. However,
a builder is not obligated to provide a copying service, and
reasonable copying costs shall be borne by the requesting party. A
builder may require that the documents be copied onsite by the
requesting party, except that the homeowner may, at his or her
option, use his or her own copying service, which may include an
offsite copy facility that is bonded and insured. If a builder can
show that the builder maintained the documents, but that they later
became unavailable due to loss or destruction that was not the fault
of the builder, the builder may be excused from the requirements of
this subdivision, in which case the builder shall act with reasonable
diligence to assist the homeowner in obtaining those documents from
any applicable government authority or from the source that generated
the document. However, in that case, the time limits specified by
this section do not apply.
(b) At the expense of the homeowner, who may opt to use an offsite
copy facility that is bonded and insured, the builder shall provide
to the homeowner or his or her legal representative copies of all
maintenance and preventative maintenance recommendations that pertain
to his or her residence within 30 days of service of a written
request for those documents. Those documents shall also be provided
to the homeowner in conjunction with the initial sale of the
residence.
(c) At the expense of the homeowner, who may opt to use an offsite
copy facility that is bonded and insured, a builder shall provide to
the homeowner or his or her legal representative copies of all
manufactured products maintenance, preventive maintenance, and
limited warranty information within 30 days of a written request for
those documents. These documents shall also be provided to the
homeowner in conjunction with the initial sale of the residence.
(d) At the expense of the homeowner, who may opt to use an offsite
copy facility that is bonded and insured, a builder shall provide to
the homeowner or his or her legal representative copies of all of
the builder's limited contractual warranties in accordance with this
part in effect at the time of the original sale of the residence
within 30 days of a written request for those documents. Those
documents shall also be provided to the homeowner in conjunction with
the initial sale of the residence.
(e) A builder shall maintain the name and address of an agent for
notice pursuant to this chapter with the Secretary of State or,
alternatively, elect to use a third party for that notice if the
builder has notified the homeowner in writing of the third party's
name and address, to whom claims and requests for information under
this section may be mailed. The name and address of the agent for
notice or third party shall be included with the original sales
documentation and shall be initialed and acknowledged by the
purchaser and the builder's sales representative.
This subdivision applies to instances in which a builder contracts
with a third party to accept claims and act on the builder's behalf.
A builder shall give actual notice to the homeowner that the builder
has made such an election, and shall include the name and address of
the third party.
(f) A builder shall record on title a notice of the existence of
these procedures and a notice that these procedures impact the legal
rights of the homeowner. This information shall also be included with
the original sales documentation and shall be initialed and
acknowledged by the purchaser and the builder's sales representative.
(g) A builder shall provide, with the original sales
documentation, a written copy of this title, which shall be initialed
and acknowledged by the purchaser and the builder's sales
representative.
(h) As to any documents provided in conjunction with the original
sale, the builder shall instruct the original purchaser to provide
those documents to any subsequent purchaser.
(i) Any builder who fails to comply with any of these requirements
within the time specified is not entitled to the protection of this
chapter, and the homeowner is released from the requirements of this
chapter and may proceed with the filing of an action, in which case
the remaining chapters of this part shall continue to apply to the
action.
913. A builder or his or her representative shall acknowledge, in
writing, receipt of the notice of the claim within 14 days after
receipt of the notice of the claim. If the notice of the claim is
served by the claimant's legal representative, or if the builder
receives a written representation letter from a homeowner's attorney,
the builder shall include the attorney in all subsequent substantive
communications, including, without limitation, all written
communications occurring pursuant to this chapter, and all
substantive and procedural communications, including all written
communications, following the commencement of any subsequent
complaint or other legal action, except that if the builder has
retained or involved legal counsel to assist the builder in this
process, all communications by the builder's counsel shall only be
with the claimant's legal representative, if any.
914. (a) This chapter establishes a nonadversarial procedure,
including the remedies available under this chapter which, if the
procedure does not resolve the dispute between the parties, may
result in a subsequent action to enforce the other chapters of this
title. A builder may attempt to commence nonadversarial contractual
provisions other than the nonadversarial procedures and remedies set
forth in this chapter, but may not, in addition to its own
nonadversarial contractual provisions, require adherence to the
nonadversarial procedures and remedies set forth in this chapter,
regardless of whether the builder's own alternative nonadversarial
contractual provisions are successful in resolving the dispute or
ultimately deemed enforceable.
At the time the sales agreement is executed, the builder shall
notify the homeowner whether the builder intends to engage in the
nonadversarial procedure of this section or attempt to enforce
alternative nonadversarial contractual provisions. If the builder
elects to use alternative nonadversarial contractual provisions in
lieu of this chapter, the election is binding, regardless of whether
the builder's alternative nonadversarial contractual provisions are
successful in resolving the ultimate dispute or are ultimately deemed
enforceable.
(b) Nothing in this title is intended to affect existing statutory
or decisional law pertaining to the applicability, viability, or
enforceability of alternative dispute resolution methods, alternative
remedies, or contractual arbitration, judicial reference, or similar
procedures requiring a binding resolution to enforce the other
chapters of this title or any other disputes between homeowners and
builders. Nothing in this title is intended to affect the
applicability, viability, or enforceability, if any, of contractual
arbitration or judicial reference after a nonadversarial procedure or
provision has been completed.
915. If a builder fails to acknowledge receipt of the notice of a
claim within the time specified, elects not to go through the process
set forth in this chapter, or fails to request an inspection within
the time specified, or at the conclusion or cessation of an
alternative nonadversarial proceeding, this chapter does not apply
and the homeowner is released from the requirements of this chapter
and may proceed with the filing of an action. However, the standards
set forth in the other chapters of this title shall continue to apply
to the action.
916. (a) If a builder elects to inspect the claimed unmet
standards, the builder shall complete the initial inspection and
testing within 14 days after acknowledgment of receipt of the notice
of the claim, at a mutually convenient date and time. If the
homeowner has retained legal representation, the inspection shall be
scheduled with the legal representative's office at a mutually
convenient date and time, unless the legal representative is
unavailable during the relevant time periods. All costs of builder
inspection and testing, including any damage caused by the builder
inspection, shall be borne by the builder. The builder shall also
provide written proof that the builder has liability insurance to
cover any damages or injuries occurring during inspection and
testing. The builder shall restore the property to its pretesting
condition within 48 hours of the testing. The builder shall, upon
request, allow the inspections to be observed and electronically
recorded, video recorded, or photographed by the claimant or his or
her legal representative.
(b) Nothing that occurs during a builder's or claimant's
inspection or testing may be used or introduced as evidence to
support a spoliation defense by any potential party in any subsequent
litigation.
(c) If a builder deems a second inspection or testing reasonably
necessary, and specifies the reasons therefor in writing within three
days following the initial inspection, the builder may conduct a
second inspection or testing. A second inspection or testing shall be
completed within 40 days of the initial inspection or testing. All
requirements concerning the initial inspection or testing shall also
apply to the second inspection or testing.
(d) If the builder fails to inspect or test the property within
the time specified, the claimant is released from the requirements of
this section and may proceed with the filing of an action. However,
the standards set forth in the other chapters of this title shall
continue to apply to the action.
(e) If a builder intends to hold a subcontractor, design
professional, individual product manufacturer, or material supplier,
including an insurance carrier, warranty company, or service company,
responsible for its contribution to the unmet standard, the builder
shall provide notice to that person or entity sufficiently in advance
to allow them to attend the initial, or if requested, second
inspection of any alleged unmet standard and to participate in the
repair process. The claimant and his or her legal representative, if
any, shall be advised in a reasonable time prior to the inspection as
to the identity of all persons or entities invited to attend. This
subdivision does not apply to the builder's insurance company. Except
with respect to any claims involving a repair actually conducted
under this chapter, nothing in this subdivision shall be construed to
relieve a subcontractor, design professional, individual product
manufacturer, or material supplier of any liability under an action
brought by a claimant.
917. Within 30 days of the initial or, if requested, second
inspection or testing, the builder may offer in writing to repair the
violation. The offer to repair shall also compensate the homeowner
for all applicable damages recoverable under Section 944, within the
timeframe for the repair set forth in this chapter. Any such offer
shall be accompanied by a detailed, specific, step-by-step statement
identifying the particular violation that is being repaired,
explaining the nature, scope, and location of the repair, and setting
a reasonable completion date for the repair. The offer shall also
include the names, addresses, telephone numbers, and license numbers
of the contractors whom the builder intends to have perform the
repair. Those contractors shall be fully insured for, and shall be
responsible for, all damages or injuries that they may cause to occur
during the repair, and evidence of that insurance shall be provided
to the homeowner upon request. Upon written request by the homeowner
or his or her legal representative, and within the timeframes set
forth in this chapter, the builder shall also provide any available
technical documentation, including, without limitation, plans and
specifications, pertaining to the claimed violation within the
particular home or development tract. The offer shall also advise the
homeowner in writing of his or her right to request up to three
additional contractors from which to select to do the repair pursuant
to this chapter.
918. Upon receipt of the offer to repair, the homeowner shall have
30 days to authorize the builder to proceed with the repair. The
homeowner may alternatively request, at the homeowner's sole option
and discretion, that the builder provide the names, addresses,
telephone numbers, and license numbers for up to three alternative
contractors who are not owned or financially controlled by the
builder and who regularly conduct business in the county where the
structure is located. If the homeowner so elects, the builder is
entitled to an additional noninvasive inspection, to occur at a
mutually convenient date and time within 20 days of the election, so
as to permit the other proposed contractors to review the proposed
site of the repair. Within 35 days after the request of the homeowner
for alternative contractors, the builder shall present the homeowner
with a choice of contractors. Within 20 days after that
presentation, the homeowner shall authorize the builder or one of the
alternative contractors to perform the repair.
919. The offer to repair shall also be accompanied by an offer to
mediate the dispute if the homeowner so chooses. The mediation shall
be limited to a four-hour mediation, except as otherwise mutually
agreed before a nonaffiliated mediator selected and paid for by the
builder. At the homeowner's sole option, the homeowner may agree to
split the cost of the mediator, and if he or she does so, the
mediator shall be selected jointly. The mediator shall have
sufficient availability such that the mediation occurs within 15 days
after the request to mediate is received and occurs at a mutually
convenient location within the county where the action is pending. If
a builder has made an offer to repair a violation, and the mediation
has failed to resolve the dispute, the homeowner shall allow the
repair to be performed either by the builder, its contractor, or the
selected contractor.
920. If the builder fails to make an offer to repair or otherwise
strictly comply with this chapter within the times specified, the
claimant is released from the requirements of this chapter and may
proceed with the filing of an action. If the contractor performing
the repair does not complete the repair in the time or manner
specified, the claimant may file an action. If this occurs, the
standards set forth in the other chapters of this part shall continue
to apply to the action.
921. (a) In the event that a resolution under this chapter involves
a repair by the builder, the builder shall make an appointment with
the claimant, make all appropriate arrangements to effectuate a
repair of the claimed unmet standards, and compensate the homeowner
for all damages resulting therefrom free of charge to the claimant.
The repair shall be scheduled through the claimant's legal
representative, if any, unless he or she is unavailable during the
relevant time periods. The repair shall be commenced on a mutually
convenient date within 14 days of acceptance or, if an alternative
contractor is selected by the homeowner, within 14 days of the
selection, or, if a mediation occurs, within seven days of the
mediation, or within five days after a permit is obtained if one is
required. The builder shall act with reasonable diligence in
obtaining any such permit.
(b) The builder shall ensure that work done on the repairs is done
with the utmost diligence, and that the repairs are completed as
soon as reasonably possible, subject to the nature of the repair or
some unforeseen event not caused by the builder or the contractor
performing the repair. Every effort shall be made to complete the
repair within 120 days.
922. The builder shall, upon request, allow the repair to be
observed and electronically recorded, video recorded, or photographed
by the claimant or his or her legal representative. Nothing that
occurs during the repair process may be used or introduced as
evidence to support a spoliation defense by any potential party in
any subsequent litigation.
923. The builder shall provide the homeowner or his or her legal
representative, upon request, with copies of all correspondence,
photographs, and other materials pertaining or relating in any manner
to the repairs.
924. If the builder elects to repair some, but not all of, the
claimed unmet standards, the builder shall, at the same time it makes
its offer, set forth with particularity in writing the reasons, and
the support for those reasons, for not repairing all claimed unmet
standards.
925. If the builder fails to complete the repair within the time
specified in the repair plan, the claimant is released from the
requirements of this chapter and may proceed with the filing of an
action. If this occurs, the standards set forth in the other chapters
of this title shall continue to apply to the action.
926. The builder may not obtain a release or waiver of any kind in
exchange for the repair work mandated by this chapter. At the
conclusion of the repair, the claimant may proceed with filing an
action for violation of the applicable standard or for a claim of
inadequate repair, or both, including all applicable damages
available under Section 944.
927. If the applicable statute of limitations has otherwise run
during this process, the time period for filing a complaint or other
legal remedies for violation of any provision of this title, or for a
claim of inadequate repair, is extended from the time of the
original claim by the claimant to 100 days after the repair is
completed, whether or not the particular violation is the one being
repaired. If the builder fails to acknowledge the claim within the
time specified, elects not to go through this statutory process, or
fails to request an inspection within the time specified, the time
period for filing a complaint or other legal remedies for violation
of any provision of this title is extended from the time of the
original claim by the claimant to 45 days after the time for
responding to the notice of claim has expired. If the builder elects
to attempt to enforce its own nonadversarial procedure in lieu of the
procedure set forth in this chapter, the time period for filing a
complaint or other legal remedies for violation of any provision of
this part is extended from the time of the original claim by the
claimant to 100 days after either the completion of the builder's
alternative nonadversarial procedure, or 100 days after the builder's
alternative nonadversarial procedure is deemed unenforceable,
whichever is later.
928. If the builder has invoked this chapter and completed a
repair, prior to filing an action, if there has been no previous
mediation between the parties, the homeowner or his or her legal
representative shall request mediation in writing. The mediation
shall be limited to four hours, except as otherwise mutually agreed
before a nonaffiliated mediator selected and paid for by the builder.
At the homeowner's sole option, the homeowner may agree to split the
cost of the mediator and if he or she does so, the mediator shall be
selected jointly. The mediator shall have sufficient availability
such that the mediation will occur within 15 days after the request
for mediation is received and shall occur at a mutually convenient
location within the county where the action is pending. In the event
that a mediation is used at this point, any applicable statutes of
limitations shall be tolled from the date of the request to mediate
until the next court day after the mediation is completed, or the
100-day period, whichever is later.
929. (a) Nothing in this chapter prohibits the builder from making
only a cash offer and no repair. In this situation, the homeowner is
free to accept the offer, or he or she may reject the offer and
proceed with the filing of an action. If the latter occurs, the
standards of the other chapters of this title shall continue to apply
to the action.
(b) The builder may obtain a reasonable release in exchange for
the cash payment. The builder may negotiate the terms and conditions
of any reasonable release in terms of scope and consideration in
conjunction with a cash payment under this chapter.
930. (a) The time periods and all other requirements in this
chapter are to be strictly construed, and, unless extended by the
mutual agreement of the parties in accordance with this chapter,
shall govern the rights and obligations under this title. If a
builder fails to act in accordance with this section within the
timeframes mandated, unless extended by the mutual agreement of the
parties as evidenced by a postclaim written confirmation by the
affected homeowner demonstrating that he or she has knowingly and
voluntarily extended the statutory timeframe, the claimant may
proceed with filing an action. If this occurs, the standards of the
other chapters of this title shall continue to apply to the action.
(b) If the claimant does not conform with the requirements of this
chapter, the builder may bring a motion to stay any subsequent court
action or other proceeding until the requirements of this chapter
have been satisfied. The court, in its discretion, may award the
prevailing party on such a motion, his or her attorney's fees and
costs in bringing or opposing the motion.
931. If a claim combines causes of action or damages not covered by
this part, including, without limitation, personal injuries, class
actions, other statutory remedies, or fraud-based claims, the claimed
unmet standards shall be administered according to this part,
although evidence of the property in its unrepaired condition may be
introduced to support the respective elements of any such cause of
action. As to any fraud-based claim, if the fact that the property
has been repaired under this chapter is deemed admissible, the trier
of fact shall be informed that the repair was not voluntarily
accepted by the homeowner. As to any class action claims that address
solely the incorporation of a defective component into a residence,
the named and unnamed class members need not comply with this
chapter.
932. Subsequently discovered claims of unmet standards shall be
administered separately under this chapter, unless otherwise agreed
to by the parties. However, in the case of a detached single family
residence, in the same home, if the subsequently discovered claim is
for a violation of the same standard as that which has already been
initiated by the same claimant and the subject of a currently pending
action, the claimant need not reinitiate the process as to the same
standard. In the case of an attached project, if the subsequently
discovered claim is for a violation of the same standard for a
connected component system in the same building as has already been
initiated by the same claimant, and the subject of a currently
pending action, the claimant need not reinitiate this process as to
that standard.
933. If any enforcement of these standards is commenced, the fact
that a repair effort was made may be introduced to the trier of fact.
However, the claimant may use the condition of the property prior to
the repair as the basis for contending that the repair work was
inappropriate, inadequate, or incomplete, or that the violation still
exists. The claimant need not show that the repair work resulted in
further damage nor that damage has continued to occur as a result of
the violation.
934. Evidence of both parties' conduct during this process may be
introduced during a subsequent enforcement action, if any, with the
exception of any mediation. Any repair efforts undertaken by the
builder, shall not be considered settlement communications or offers
of settlement and are not inadmissible in evidence on such a basis.
935. To the extent that provisions of this chapter are enforced and
those provisions are substantially similar to provisions in Section
1375 of the Civil Code, but an action is subsequently commenced under
Section 1375 of the Civil Code, the parties are excused from
performing the substantially similar requirements under Section 1375
of the Civil Code.
936. Each and every provision of the other chapters of this title
apply to general contractors, subcontractors, material suppliers,
individual product manufacturers, and design professionals to the
extent that the general contractors, subcontractors, material
suppliers, individual product manufacturers, and design professionals
caused, in whole or in part, a violation of a particular standard as
the result of a negligent act or omission or a breach of contract.
In addition to the affirmative defenses set forth in Section 945.5, a
general contractor, subcontractor, material supplier, design
professional, individual product manufacturer, or other entity may
also offer common law and contractual defenses as applicable to any
claimed violation of a standard. All actions by a claimant or builder
to enforce an express contract, or any provision thereof, against a
general contractor, subcontractor, material supplier, individual
product manufacturer, or design professional is preserved. Nothing in
this title modifies the law pertaining to joint and several
liability for builders, general contractors, subcontractors, material
suppliers, individual product manufacturer, and design professionals
that contribute to any specific violation of this title. However,
the negligence standard in this section does not apply to any general
contractor, subcontractor, material supplier, individual product
manufacturer, or design professional with respect to claims for which
strict liability would apply.
937. Nothing in this title shall be interpreted to eliminate or
abrogate the requirement to comply with Section 411.35 of the Code of
Civil Procedure or to affect the liability of design professionals,
including architects and architectural firms, for claims and damages
not covered by this title.
938. This title applies only to new residential units where the
purchase agreement with the buyer was signed by the seller on or
after January 1, 2003.
910. Prior to filing an action against any party alleged to have
contributed to a violation of the standards set forth in Chapter 2
(commencing with Section 896), the claimant shall initiate the
following prelitigation procedures:
(a) The claimant or his or her legal representative shall provide
written notice via certified mail, overnight mail, or personal
delivery to the builder, in the manner prescribed in this section, of
the claimant's claim that the construction of his or her residence
violates any of the standards set forth in Chapter 2 (commencing with
Section 896). That notice shall provide the claimant's name,
address, and preferred method of contact, and shall state that the
claimant alleges a violation pursuant to this part against the
builder, and shall describe the claim in reasonable detail sufficient
to determine the nature and location, to the extent known, of the
claimed violation. In the case of a group of homeowners or an
association, the notice may identify the claimants solely by address
or other description sufficient to apprise the builder of the
locations of the subject residences. That document shall have the
same force and effect as a notice of commencement of a legal
proceeding.
(b) The notice requirements of this section do not preclude a
homeowner from seeking redress through any applicable normal customer
service procedure as set forth in any contractual, warranty, or
other builder-generated document; and, if a homeowner seeks to do so,
that request shall not satisfy the notice requirements of this
section.
911. (a) For purposes of this title, except as provided in
subdivision (b), "builder" means any entity or individual, including,
but not limited to a builder, developer, general contractor,
contractor, or original seller, who, at the time of sale, was also in
the business of selling residential units to the public for the
property that is the subject of the homeowner's claim or was in the
business of building, developing, or constructing residential units
for public purchase for the property that is the subject of the
homeowner's claim.
(b) For the purposes of this title, "builder" does not include any
entity or individual whose involvement with a residential unit that
is the subject of the homeowner's claim is limited to his or her
capacity as general contractor or contractor and who is not a
partner, member of, subsidiary of, or otherwise similarly affiliated
with the builder. For purposes of this title, these nonaffiliated
general contractors and nonaffiliated contractors shall be treated
the same as subcontractors, material suppliers, individual product
manufacturers, and design professionals.
912. A builder shall do all of the following:
(a) Within 30 days of a written request by a homeowner or his or
her legal representative, the builder shall provide copies of all
relevant plans, specifications, mass or rough grading plans, final
soils reports, Department of Real Estate public reports, and
available engineering calculations, that pertain to a homeowner's
residence specifically or as part of a larger development tract. The
request shall be honored if it states that it is made relative to
structural, fire safety, or soils provisions of this title. However,
a builder is not obligated to provide a copying service, and
reasonable copying costs shall be borne by the requesting party. A
builder may require that the documents be copied onsite by the
requesting party, except that the homeowner may, at his or her
option, use his or her own copying service, which may include an
offsite copy facility that is bonded and insured. If a builder can
show that the builder maintained the documents, but that they later
became unavailable due to loss or destruction that was not the fault
of the builder, the builder may be excused from the requirements of
this subdivision, in which case the builder shall act with reasonable
diligence to assist the homeowner in obtaining those documents from
any applicable government authority or from the source that generated
the document. However, in that case, the time limits specified by
this section do not apply.
(b) At the expense of the homeowner, who may opt to use an offsite
copy facility that is bonded and insured, the builder shall provide
to the homeowner or his or her legal representative copies of all
maintenance and preventative maintenance recommendations that pertain
to his or her residence within 30 days of service of a written
request for those documents. Those documents shall also be provided
to the homeowner in conjunction with the initial sale of the
residence.
(c) At the expense of the homeowner, who may opt to use an offsite
copy facility that is bonded and insured, a builder shall provide to
the homeowner or his or her legal representative copies of all
manufactured products maintenance, preventive maintenance, and
limited warranty information within 30 days of a written request for
those documents. These documents shall also be provided to the
homeowner in conjunction with the initial sale of the residence.
(d) At the expense of the homeowner, who may opt to use an offsite
copy facility that is bonded and insured, a builder shall provide to
the homeowner or his or her legal representative copies of all of
the builder's limited contractual warranties in accordance with this
part in effect at the time of the original sale of the residence
within 30 days of a written request for those documents. Those
documents shall also be provided to the homeowner in conjunction with
the initial sale of the residence.
(e) A builder shall maintain the name and address of an agent for
notice pursuant to this chapter with the Secretary of State or,
alternatively, elect to use a third party for that notice if the
builder has notified the homeowner in writing of the third party's
name and address, to whom claims and requests for information under
this section may be mailed. The name and address of the agent for
notice or third party shall be included with the original sales
documentation and shall be initialed and acknowledged by the
purchaser and the builder's sales representative.
This subdivision applies to instances in which a builder contracts
with a third party to accept claims and act on the builder's behalf.
A builder shall give actual notice to the homeowner that the builder
has made such an election, and shall include the name and address of
the third party.
(f) A builder shall record on title a notice of the existence of
these procedures and a notice that these procedures impact the legal
rights of the homeowner. This information shall also be included with
the original sales documentation and shall be initialed and
acknowledged by the purchaser and the builder's sales representative.
(g) A builder shall provide, with the original sales
documentation, a written copy of this title, which shall be initialed
and acknowledged by the purchaser and the builder's sales
representative.
(h) As to any documents provided in conjunction with the original
sale, the builder shall instruct the original purchaser to provide
those documents to any subsequent purchaser.
(i) Any builder who fails to comply with any of these requirements
within the time specified is not entitled to the protection of this
chapter, and the homeowner is released from the requirements of this
chapter and may proceed with the filing of an action, in which case
the remaining chapters of this part shall continue to apply to the
action.
913. A builder or his or her representative shall acknowledge, in
writing, receipt of the notice of the claim within 14 days after
receipt of the notice of the claim. If the notice of the claim is
served by the claimant's legal representative, or if the builder
receives a written representation letter from a homeowner's attorney,
the builder shall include the attorney in all subsequent substantive
communications, including, without limitation, all written
communications occurring pursuant to this chapter, and all
substantive and procedural communications, including all written
communications, following the commencement of any subsequent
complaint or other legal action, except that if the builder has
retained or involved legal counsel to assist the builder in this
process, all communications by the builder's counsel shall only be
with the claimant's legal representative, if any.
914. (a) This chapter establishes a nonadversarial procedure,
including the remedies available under this chapter which, if the
procedure does not resolve the dispute between the parties, may
result in a subsequent action to enforce the other chapters of this
title. A builder may attempt to commence nonadversarial contractual
provisions other than the nonadversarial procedures and remedies set
forth in this chapter, but may not, in addition to its own
nonadversarial contractual provisions, require adherence to the
nonadversarial procedures and remedies set forth in this chapter,
regardless of whether the builder's own alternative nonadversarial
contractual provisions are successful in resolving the dispute or
ultimately deemed enforceable.
At the time the sales agreement is executed, the builder shall
notify the homeowner whether the builder intends to engage in the
nonadversarial procedure of this section or attempt to enforce
alternative nonadversarial contractual provisions. If the builder
elects to use alternative nonadversarial contractual provisions in
lieu of this chapter, the election is binding, regardless of whether
the builder's alternative nonadversarial contractual provisions are
successful in resolving the ultimate dispute or are ultimately deemed
enforceable.
(b) Nothing in this title is intended to affect existing statutory
or decisional law pertaining to the applicability, viability, or
enforceability of alternative dispute resolution methods, alternative
remedies, or contractual arbitration, judicial reference, or similar
procedures requiring a binding resolution to enforce the other
chapters of this title or any other disputes between homeowners and
builders. Nothing in this title is intended to affect the
applicability, viability, or enforceability, if any, of contractual
arbitration or judicial reference after a nonadversarial procedure or
provision has been completed.
915. If a builder fails to acknowledge receipt of the notice of a
claim within the time specified, elects not to go through the process
set forth in this chapter, or fails to request an inspection within
the time specified, or at the conclusion or cessation of an
alternative nonadversarial proceeding, this chapter does not apply
and the homeowner is released from the requirements of this chapter
and may proceed with the filing of an action. However, the standards
set forth in the other chapters of this title shall continue to apply
to the action.
916. (a) If a builder elects to inspect the claimed unmet
standards, the builder shall complete the initial inspection and
testing within 14 days after acknowledgment of receipt of the notice
of the claim, at a mutually convenient date and time. If the
homeowner has retained legal representation, the inspection shall be
scheduled with the legal representative's office at a mutually
convenient date and time, unless the legal representative is
unavailable during the relevant time periods. All costs of builder
inspection and testing, including any damage caused by the builder
inspection, shall be borne by the builder. The builder shall also
provide written proof that the builder has liability insurance to
cover any damages or injuries occurring during inspection and
testing. The builder shall restore the property to its pretesting
condition within 48 hours of the testing. The builder shall, upon
request, allow the inspections to be observed and electronically
recorded, video recorded, or photographed by the claimant or his or
her legal representative.
(b) Nothing that occurs during a builder's or claimant's
inspection or testing may be used or introduced as evidence to
support a spoliation defense by any potential party in any subsequent
litigation.
(c) If a builder deems a second inspection or testing reasonably
necessary, and specifies the reasons therefor in writing within three
days following the initial inspection, the builder may conduct a
second inspection or testing. A second inspection or testing shall be
completed within 40 days of the initial inspection or testing. All
requirements concerning the initial inspection or testing shall also
apply to the second inspection or testing.
(d) If the builder fails to inspect or test the property within
the time specified, the claimant is released from the requirements of
this section and may proceed with the filing of an action. However,
the standards set forth in the other chapters of this title shall
continue to apply to the action.
(e) If a builder intends to hold a subcontractor, design
professional, individual product manufacturer, or material supplier,
including an insurance carrier, warranty company, or service company,
responsible for its contribution to the unmet standard, the builder
shall provide notice to that person or entity sufficiently in advance
to allow them to attend the initial, or if requested, second
inspection of any alleged unmet standard and to participate in the
repair process. The claimant and his or her legal representative, if
any, shall be advised in a reasonable time prior to the inspection as
to the identity of all persons or entities invited to attend. This
subdivision does not apply to the builder's insurance company. Except
with respect to any claims involving a repair actually conducted
under this chapter, nothing in this subdivision shall be construed to
relieve a subcontractor, design professional, individual product
manufacturer, or material supplier of any liability under an action
brought by a claimant.
917. Within 30 days of the initial or, if requested, second
inspection or testing, the builder may offer in writing to repair the
violation. The offer to repair shall also compensate the homeowner
for all applicable damages recoverable under Section 944, within the
timeframe for the repair set forth in this chapter. Any such offer
shall be accompanied by a detailed, specific, step-by-step statement
identifying the particular violation that is being repaired,
explaining the nature, scope, and location of the repair, and setting
a reasonable completion date for the repair. The offer shall also
include the names, addresses, telephone numbers, and license numbers
of the contractors whom the builder intends to have perform the
repair. Those contractors shall be fully insured for, and shall be
responsible for, all damages or injuries that they may cause to occur
during the repair, and evidence of that insurance shall be provided
to the homeowner upon request. Upon written request by the homeowner
or his or her legal representative, and within the timeframes set
forth in this chapter, the builder shall also provide any available
technical documentation, including, without limitation, plans and
specifications, pertaining to the claimed violation within the
particular home or development tract. The offer shall also advise the
homeowner in writing of his or her right to request up to three
additional contractors from which to select to do the repair pursuant
to this chapter.
918. Upon receipt of the offer to repair, the homeowner shall have
30 days to authorize the builder to proceed with the repair. The
homeowner may alternatively request, at the homeowner's sole option
and discretion, that the builder provide the names, addresses,
telephone numbers, and license numbers for up to three alternative
contractors who are not owned or financially controlled by the
builder and who regularly conduct business in the county where the
structure is located. If the homeowner so elects, the builder is
entitled to an additional noninvasive inspection, to occur at a
mutually convenient date and time within 20 days of the election, so
as to permit the other proposed contractors to review the proposed
site of the repair. Within 35 days after the request of the homeowner
for alternative contractors, the builder shall present the homeowner
with a choice of contractors. Within 20 days after that
presentation, the homeowner shall authorize the builder or one of the
alternative contractors to perform the repair.
919. The offer to repair shall also be accompanied by an offer to
mediate the dispute if the homeowner so chooses. The mediation shall
be limited to a four-hour mediation, except as otherwise mutually
agreed before a nonaffiliated mediator selected and paid for by the
builder. At the homeowner's sole option, the homeowner may agree to
split the cost of the mediator, and if he or she does so, the
mediator shall be selected jointly. The mediator shall have
sufficient availability such that the mediation occurs within 15 days
after the request to mediate is received and occurs at a mutually
convenient location within the county where the action is pending. If
a builder has made an offer to repair a violation, and the mediation
has failed to resolve the dispute, the homeowner shall allow the
repair to be performed either by the builder, its contractor, or the
selected contractor.
920. If the builder fails to make an offer to repair or otherwise
strictly comply with this chapter within the times specified, the
claimant is released from the requirements of this chapter and may
proceed with the filing of an action. If the contractor performing
the repair does not complete the repair in the time or manner
specified, the claimant may file an action. If this occurs, the
standards set forth in the other chapters of this part shall continue
to apply to the action.
921. (a) In the event that a resolution under this chapter involves
a repair by the builder, the builder shall make an appointment with
the claimant, make all appropriate arrangements to effectuate a
repair of the claimed unmet standards, and compensate the homeowner
for all damages resulting therefrom free of charge to the claimant.
The repair shall be scheduled through the claimant's legal
representative, if any, unless he or she is unavailable during the
relevant time periods. The repair shall be commenced on a mutually
convenient date within 14 days of acceptance or, if an alternative
contractor is selected by the homeowner, within 14 days of the
selection, or, if a mediation occurs, within seven days of the
mediation, or within five days after a permit is obtained if one is
required. The builder shall act with reasonable diligence in
obtaining any such permit.
(b) The builder shall ensure that work done on the repairs is done
with the utmost diligence, and that the repairs are completed as
soon as reasonably possible, subject to the nature of the repair or
some unforeseen event not caused by the builder or the contractor
performing the repair. Every effort shall be made to complete the
repair within 120 days.
922. The builder shall, upon request, allow the repair to be
observed and electronically recorded, video recorded, or photographed
by the claimant or his or her legal representative. Nothing that
occurs during the repair process may be used or introduced as
evidence to support a spoliation defense by any potential party in
any subsequent litigation.
923. The builder shall provide the homeowner or his or her legal
representative, upon request, with copies of all correspondence,
photographs, and other materials pertaining or relating in any manner
to the repairs.
924. If the builder elects to repair some, but not all of, the
claimed unmet standards, the builder shall, at the same time it makes
its offer, set forth with particularity in writing the reasons, and
the support for those reasons, for not repairing all claimed unmet
standards.
925. If the builder fails to complete the repair within the time
specified in the repair plan, the claimant is released from the
requirements of this chapter and may proceed with the filing of an
action. If this occurs, the standards set forth in the other chapters
of this title shall continue to apply to the action.
926. The builder may not obtain a release or waiver of any kind in
exchange for the repair work mandated by this chapter. At the
conclusion of the repair, the claimant may proceed with filing an
action for violation of the applicable standard or for a claim of
inadequate repair, or both, including all applicable damages
available under Section 944.
927. If the applicable statute of limitations has otherwise run
during this process, the time period for filing a complaint or other
legal remedies for violation of any provision of this title, or for a
claim of inadequate repair, is extended from the time of the
original claim by the claimant to 100 days after the repair is
completed, whether or not the particular violation is the one being
repaired. If the builder fails to acknowledge the claim within the
time specified, elects not to go through this statutory process, or
fails to request an inspection within the time specified, the time
period for filing a complaint or other legal remedies for violation
of any provision of this title is extended from the time of the
original claim by the claimant to 45 days after the time for
responding to the notice of claim has expired. If the builder elects
to attempt to enforce its own nonadversarial procedure in lieu of the
procedure set forth in this chapter, the time period for filing a
complaint or other legal remedies for violation of any provision of
this part is extended from the time of the original claim by the
claimant to 100 days after either the completion of the builder's
alternative nonadversarial procedure, or 100 days after the builder's
alternative nonadversarial procedure is deemed unenforceable,
whichever is later.
928. If the builder has invoked this chapter and completed a
repair, prior to filing an action, if there has been no previous
mediation between the parties, the homeowner or his or her legal
representative shall request mediation in writing. The mediation
shall be limited to four hours, except as otherwise mutually agreed
before a nonaffiliated mediator selected and paid for by the builder.
At the homeowner's sole option, the homeowner may agree to split the
cost of the mediator and if he or she does so, the mediator shall be
selected jointly. The mediator shall have sufficient availability
such that the mediation will occur within 15 days after the request
for mediation is received and shall occur at a mutually convenient
location within the county where the action is pending. In the event
that a mediation is used at this point, any applicable statutes of
limitations shall be tolled from the date of the request to mediate
until the next court day after the mediation is completed, or the
100-day period, whichever is later.
929. (a) Nothing in this chapter prohibits the builder from making
only a cash offer and no repair. In this situation, the homeowner is
free to accept the offer, or he or she may reject the offer and
proceed with the filing of an action. If the latter occurs, the
standards of the other chapters of this title shall continue to apply
to the action.
(b) The builder may obtain a reasonable release in exchange for
the cash payment. The builder may negotiate the terms and conditions
of any reasonable release in terms of scope and consideration in
conjunction with a cash payment under this chapter.
930. (a) The time periods and all other requirements in this
chapter are to be strictly construed, and, unless extended by the
mutual agreement of the parties in accordance with this chapter,
shall govern the rights and obligations under this title. If a
builder fails to act in accordance with this section within the
timeframes mandated, unless extended by the mutual agreement of the
parties as evidenced by a postclaim written confirmation by the
affected homeowner demonstrating that he or she has knowingly and
voluntarily extended the statutory timeframe, the claimant may
proceed with filing an action. If this occurs, the standards of the
other chapters of this title shall continue to apply to the action.
(b) If the claimant does not conform with the requirements of this
chapter, the builder may bring a motion to stay any subsequent court
action or other proceeding until the requirements of this chapter
have been satisfied. The court, in its discretion, may award the
prevailing party on such a motion, his or her attorney's fees and
costs in bringing or opposing the motion.
931. If a claim combines causes of action or damages not covered by
this part, including, without limitation, personal injuries, class
actions, other statutory remedies, or fraud-based claims, the claimed
unmet standards shall be administered according to this part,
although evidence of the property in its unrepaired condition may be
introduced to support the respective elements of any such cause of
action. As to any fraud-based claim, if the fact that the property
has been repaired under this chapter is deemed admissible, the trier
of fact shall be informed that the repair was not voluntarily
accepted by the homeowner. As to any class action claims that address
solely the incorporation of a defective component into a residence,
the named and unnamed class members need not comply with this
chapter.
932. Subsequently discovered claims of unmet standards shall be
administered separately under this chapter, unless otherwise agreed
to by the parties. However, in the case of a detached single family
residence, in the same home, if the subsequently discovered claim is
for a violation of the same standard as that which has already been
initiated by the same claimant and the subject of a currently pending
action, the claimant need not reinitiate the process as to the same
standard. In the case of an attached project, if the subsequently
discovered claim is for a violation of the same standard for a
connected component system in the same building as has already been
initiated by the same claimant, and the subject of a currently
pending action, the claimant need not reinitiate this process as to
that standard.
933. If any enforcement of these standards is commenced, the fact
that a repair effort was made may be introduced to the trier of fact.
However, the claimant may use the condition of the property prior to
the repair as the basis for contending that the repair work was
inappropriate, inadequate, or incomplete, or that the violation still
exists. The claimant need not show that the repair work resulted in
further damage nor that damage has continued to occur as a result of
the violation.
934. Evidence of both parties' conduct during this process may be
introduced during a subsequent enforcement action, if any, with the
exception of any mediation. Any repair efforts undertaken by the
builder, shall not be considered settlement communications or offers
of settlement and are not inadmissible in evidence on such a basis.
935. To the extent that provisions of this chapter are enforced and
those provisions are substantially similar to provisions in Section
1375 of the Civil Code, but an action is subsequently commenced under
Section 1375 of the Civil Code, the parties are excused from
performing the substantially similar requirements under Section 1375
of the Civil Code.
936. Each and every provision of the other chapters of this title
apply to general contractors, subcontractors, material suppliers,
individual product manufacturers, and design professionals to the
extent that the general contractors, subcontractors, material
suppliers, individual product manufacturers, and design professionals
caused, in whole or in part, a violation of a particular standard as
the result of a negligent act or omission or a breach of contract.
In addition to the affirmative defenses set forth in Section 945.5, a
general contractor, subcontractor, material supplier, design
professional, individual product manufacturer, or other entity may
also offer common law and contractual defenses as applicable to any
claimed violation of a standard. All actions by a claimant or builder
to enforce an express contract, or any provision thereof, against a
general contractor, subcontractor, material supplier, individual
product manufacturer, or design professional is preserved. Nothing in
this title modifies the law pertaining to joint and several
liability for builders, general contractors, subcontractors, material
suppliers, individual product manufacturer, and design professionals
that contribute to any specific violation of this title. However,
the negligence standard in this section does not apply to any general
contractor, subcontractor, material supplier, individual product
manufacturer, or design professional with respect to claims for which
strict liability would apply.
937. Nothing in this title shall be interpreted to eliminate or
abrogate the requirement to comply with Section 411.35 of the Code of
Civil Procedure or to affect the liability of design professionals,
including architects and architectural firms, for claims and damages
not covered by this title.
938. This title applies only to new residential units where the
purchase agreement with the buyer was signed by the seller on or
after January 1, 2003.
910. Prior to filing an action against any party alleged to have
contributed to a violation of the standards set forth in Chapter 2
(commencing with Section 896), the claimant shall initiate the
following prelitigation procedures:
(a) The claimant or his or her legal representative shall provide
written notice via certified mail, overnight mail, or personal
delivery to the builder, in the manner prescribed in this section, of
the claimant's claim that the construction of his or her residence
violates any of the standards set forth in Chapter 2 (commencing with
Section 896). That notice shall provide the claimant's name,
address, and preferred method of contact, and shall state that the
claimant alleges a violation pursuant to this part against the
builder, and shall describe the claim in reasonable detail sufficient
to determine the nature and location, to the extent known, of the
claimed violation. In the case of a group of homeowners or an
association, the notice may identify the claimants solely by address
or other description sufficient to apprise the builder of the
locations of the subject residences. That document shall have the
same force and effect as a notice of commencement of a legal
proceeding.
(b) The notice requirements of this section do not preclude a
homeowner from seeking redress through any applicable normal customer
service procedure as set forth in any contractual, warranty, or
other builder-generated document; and, if a homeowner seeks to do so,
that request shall not satisfy the notice requirements of this
section.
911. (a) For purposes of this title, except as provided in
subdivision (b), "builder" means any entity or individual, including,
but not limited to a builder, developer, general contractor,
contractor, or original seller, who, at the time of sale, was also in
the business of selling residential units to the public for the
property that is the subject of the homeowner's claim or was in the
business of building, developing, or constructing residential units
for public purchase for the property that is the subject of the
homeowner's claim.
(b) For the purposes of this title, "builder" does not include any
entity or individual whose involvement with a residential unit that
is the subject of the homeowner's claim is limited to his or her
capacity as general contractor or contractor and who is not a
partner, member of, subsidiary of, or otherwise similarly affiliated
with the builder. For purposes of this title, these nonaffiliated
general contractors and nonaffiliated contractors shall be treated
the same as subcontractors, material suppliers, individual product
manufacturers, and design professionals.
912. A builder shall do all of the following:
(a) Within 30 days of a written request by a homeowner or his or
her legal representative, the builder shall provide copies of all
relevant plans, specifications, mass or rough grading plans, final
soils reports, Department of Real Estate public reports, and
available engineering calculations, that pertain to a homeowner's
residence specifically or as part of a larger development tract. The
request shall be honored if it states that it is made relative to
structural, fire safety, or soils provisions of this title. However,
a builder is not obligated to provide a copying service, and
reasonable copying costs shall be borne by the requesting party. A
builder may require that the documents be copied onsite by the
requesting party, except that the homeowner may, at his or her
option, use his or her own copying service, which may include an
offsite copy facility that is bonded and insured. If a builder can
show that the builder maintained the documents, but that they later
became unavailable due to loss or destruction that was not the fault
of the builder, the builder may be excused from the requirements of
this subdivision, in which case the builder shall act with reasonable
diligence to assist the homeowner in obtaining those documents from
any applicable government authority or from the source that generated
the document. However, in that case, the time limits specified by
this section do not apply.
(b) At the expense of the homeowner, who may opt to use an offsite
copy facility that is bonded and insured, the builder shall provide
to the homeowner or his or her legal representative copies of all
maintenance and preventative maintenance recommendations that pertain
to his or her residence within 30 days of service of a written
request for those documents. Those documents shall also be provided
to the homeowner in conjunction with the initial sale of the
residence.
(c) At the expense of the homeowner, who may opt to use an offsite
copy facility that is bonded and insured, a builder shall provide to
the homeowner or his or her legal representative copies of all
manufactured products maintenance, preventive maintenance, and
limited warranty information within 30 days of a written request for
those documents. These documents shall also be provided to the
homeowner in conjunction with the initial sale of the residence.
(d) At the expense of the homeowner, who may opt to use an offsite
copy facility that is bonded and insured, a builder shall provide to
the homeowner or his or her legal representative copies of all of
the builder's limited contractual warranties in accordance with this
part in effect at the time of the original sale of the residence
within 30 days of a written request for those documents. Those
documents shall also be provided to the homeowner in conjunction with
the initial sale of the residence.
(e) A builder shall maintain the name and address of an agent for
notice pursuant to this chapter with the Secretary of State or,
alternatively, elect to use a third party for that notice if the
builder has notified the homeowner in writing of the third party's
name and address, to whom claims and requests for information under
this section may be mailed. The name and address of the agent for
notice or third party shall be included with the original sales
documentation and shall be initialed and acknowledged by the
purchaser and the builder's sales representative.
This subdivision applies to instances in which a builder contracts
with a third party to accept claims and act on the builder's behalf.
A builder shall give actual notice to the homeowner that the builder
has made such an election, and shall include the name and address of
the third party.
(f) A builder shall record on title a notice of the existence of
these procedures and a notice that these procedures impact the legal
rights of the homeowner. This information shall also be included with
the original sales documentation and shall be initialed and
acknowledged by the purchaser and the builder's sales representative.
(g) A builder shall provide, with the original sales
documentation, a written copy of this title, which shall be initialed
and acknowledged by the purchaser and the builder's sales
representative.
(h) As to any documents provided in conjunction with the original
sale, the builder shall instruct the original purchaser to provide
those documents to any subsequent purchaser.
(i) Any builder who fails to comply with any of these requirements
within the time specified is not entitled to the protection of this
chapter, and the homeowner is released from the requirements of this
chapter and may proceed with the filing of an action, in which case
the remaining chapters of this part shall continue to apply to the
action.
913. A builder or his or her representative shall acknowledge, in
writing, receipt of the notice of the claim within 14 days after
receipt of the notice of the claim. If the notice of the claim is
served by the claimant's legal representative, or if the builder
receives a written representation letter from a homeowner's attorney,
the builder shall include the attorney in all subsequent substantive
communications, including, without limitation, all written
communications occurring pursuant to this chapter, and all
substantive and procedural communications, including all written
communications, following the commencement of any subsequent
complaint or other legal action, except that if the builder has
retained or involved legal counsel to assist the builder in this
process, all communications by the builder's counsel shall only be
with the claimant's legal representative, if any.
914. (a) This chapter establishes a nonadversarial procedure,
including the remedies available under this chapter which, if the
procedure does not resolve the dispute between the parties, may
result in a subsequent action to enforce the other chapters of this
title. A builder may attempt to commence nonadversarial contractual
provisions other than the nonadversarial procedures and remedies set
forth in this chapter, but may not, in addition to its own
nonadversarial contractual provisions, require adherence to the
nonadversarial procedures and remedies set forth in this chapter,
regardless of whether the builder's own alternative nonadversarial
contractual provisions are successful in resolving the dispute or
ultimately deemed enforceable.
At the time the sales agreement is executed, the builder shall
notify the homeowner whether the builder intends to engage in the
nonadversarial procedure of this section or attempt to enforce
alternative nonadversarial contractual provisions. If the builder
elects to use alternative nonadversarial contractual provisions in
lieu of this chapter, the election is binding, regardless of whether
the builder's alternative nonadversarial contractual provisions are
successful in resolving the ultimate dispute or are ultimately deemed
enforceable.
(b) Nothing in this title is intended to affect existing statutory
or decisional law pertaining to the applicability, viability, or
enforceability of alternative dispute resolution methods, alternative
remedies, or contractual arbitration, judicial reference, or similar
procedures requiring a binding resolution to enforce the other
chapters of this title or any other disputes between homeowners and
builders. Nothing in this title is intended to affect the
applicability, viability, or enforceability, if any, of contractual
arbitration or judicial reference after a nonadversarial procedure or
provision has been completed.
915. If a builder fails to acknowledge receipt of the notice of a
claim within the time specified, elects not to go through the process
set forth in this chapter, or fails to request an inspection within
the time specified, or at the conclusion or cessation of an
alternative nonadversarial proceeding, this chapter does not apply
and the homeowner is released from the requirements of this chapter
and may proceed with the filing of an action. However, the standards
set forth in the other chapters of this title shall continue to apply
to the action.
916. (a) If a builder elects to inspect the claimed unmet
standards, the builder shall complete the initial inspection and
testing within 14 days after acknowledgment of receipt of the notice
of the claim, at a mutually convenient date and time. If the
homeowner has retained legal representation, the inspection shall be
scheduled with the legal representative's office at a mutually
convenient date and time, unless the legal representative is
unavailable during the relevant time periods. All costs of builder
inspection and testing, including any damage caused by the builder
inspection, shall be borne by the builder. The builder shall also
provide written proof that the builder has liability insurance to
cover any damages or injuries occurring during inspection and
testing. The builder shall restore the property to its pretesting
condition within 48 hours of the testing. The builder shall, upon
request, allow the inspections to be observed and electronically
recorded, video recorded, or photographed by the claimant or his or
her legal representative.
(b) Nothing that occurs during a builder's or claimant's
inspection or testing may be used or introduced as evidence to
support a spoliation defense by any potential party in any subsequent
litigation.
(c) If a builder deems a second inspection or testing reasonably
necessary, and specifies the reasons therefor in writing within three
days following the initial inspection, the builder may conduct a
second inspection or testing. A second inspection or testing shall be
completed within 40 days of the initial inspection or testing. All
requirements concerning the initial inspection or testing shall also
apply to the second inspection or testing.
(d) If the builder fails to inspect or test the property within
the time specified, the claimant is released from the requirements of
this section and may proceed with the filing of an action. However,
the standards set forth in the other chapters of this title shall
continue to apply to the action.
(e) If a builder intends to hold a subcontractor, design
professional, individual product manufacturer, or material supplier,
including an insurance carrier, warranty company, or service company,
responsible for its contribution to the unmet standard, the builder
shall provide notice to that person or entity sufficiently in advance
to allow them to attend the initial, or if requested, second
inspection of any alleged unmet standard and to participate in the
repair process. The claimant and his or her legal representative, if
any, shall be advised in a reasonable time prior to the inspection as
to the identity of all persons or entities invited to attend. This
subdivision does not apply to the builder's insurance company. Except
with respect to any claims involving a repair actually conducted
under this chapter, nothing in this subdivision shall be construed to
relieve a subcontractor, design professional, individual product
manufacturer, or material supplier of any liability under an action
brought by a claimant.
917. Within 30 days of the initial or, if requested, second
inspection or testing, the builder may offer in writing to repair the
violation. The offer to repair shall also compensate the homeowner
for all applicable damages recoverable under Section 944, within the
timeframe for the repair set forth in this chapter. Any such offer
shall be accompanied by a detailed, specific, step-by-step statement
identifying the particular violation that is being repaired,
explaining the nature, scope, and location of the repair, and setting
a reasonable completion date for the repair. The offer shall also
include the names, addresses, telephone numbers, and license numbers
of the contractors whom the builder intends to have perform the
repair. Those contractors shall be fully insured for, and shall be
responsible for, all damages or injuries that they may cause to occur
during the repair, and evidence of that insurance shall be provided
to the homeowner upon request. Upon written request by the homeowner
or his or her legal representative, and within the timeframes set
forth in this chapter, the builder shall also provide any available
technical documentation, including, without limitation, plans and
specifications, pertaining to the claimed violation within the
particular home or development tract. The offer shall also advise the
homeowner in writing of his or her right to request up to three
additional contractors from which to select to do the repair pursuant
to this chapter.
918. Upon receipt of the offer to repair, the homeowner shall have
30 days to authorize the builder to proceed with the repair. The
homeowner may alternatively request, at the homeowner's sole option
and discretion, that the builder provide the names, addresses,
telephone numbers, and license numbers for up to three alternative
contractors who are not owned or financially controlled by the
builder and who regularly conduct business in the county where the
structure is located. If the homeowner so elects, the builder is
entitled to an additional noninvasive inspection, to occur at a
mutually convenient date and time within 20 days of the election, so
as to permit the other proposed contractors to review the proposed
site of the repair. Within 35 days after the request of the homeowner
for alternative contractors, the builder shall present the homeowner
with a choice of contractors. Within 20 days after that
presentation, the homeowner shall authorize the builder or one of the
alternative contractors to perform the repair.
919. The offer to repair shall also be accompanied by an offer to
mediate the dispute if the homeowner so chooses. The mediation shall
be limited to a four-hour mediation, except as otherwise mutually
agreed before a nonaffiliated mediator selected and paid for by the
builder. At the homeowner's sole option, the homeowner may agree to
split the cost of the mediator, and if he or she does so, the
mediator shall be selected jointly. The mediator shall have
sufficient availability such that the mediation occurs within 15 days
after the request to mediate is received and occurs at a mutually
convenient location within the county where the action is pending. If
a builder has made an offer to repair a violation, and the mediation
has failed to resolve the dispute, the homeowner shall allow the
repair to be performed either by the builder, its contractor, or the
selected contractor.
920. If the builder fails to make an offer to repair or otherwise
strictly comply with this chapter within the times specified, the
claimant is released from the requirements of this chapter and may
proceed with the filing of an action. If the contractor performing
the repair does not complete the repair in the time or manner
specified, the claimant may file an action. If this occurs, the
standards set forth in the other chapters of this part shall continue
to apply to the action.
921. (a) In the event that a resolution under this chapter involves
a repair by the builder, the builder shall make an appointment with
the claimant, make all appropriate arrangements to effectuate a
repair of the claimed unmet standards, and compensate the homeowner
for all damages resulting therefrom free of charge to the claimant.
The repair shall be scheduled through the claimant's legal
representative, if any, unless he or she is unavailable during the
relevant time periods. The repair shall be commenced on a mutually
convenient date within 14 days of acceptance or, if an alternative
contractor is selected by the homeowner, within 14 days of the
selection, or, if a mediation occurs, within seven days of the
mediation, or within five days after a permit is obtained if one is
required. The builder shall act with reasonable diligence in
obtaining any such permit.
(b) The builder shall ensure that work done on the repairs is done
with the utmost diligence, and that the repairs are completed as
soon as reasonably possible, subject to the nature of the repair or
some unforeseen event not caused by the builder or the contractor
performing the repair. Every effort shall be made to complete the
repair within 120 days.
922. The builder shall, upon request, allow the repair to be
observed and electronically recorded, video recorded, or photographed
by the claimant or his or her legal representative. Nothing that
occurs during the repair process may be used or introduced as
evidence to support a spoliation defense by any potential party in
any subsequent litigation.
923. The builder shall provide the homeowner or his or her legal
representative, upon request, with copies of all correspondence,
photographs, and other materials pertaining or relating in any manner
to the repairs.
924. If the builder elects to repair some, but not all of, the
claimed unmet standards, the builder shall, at the same time it makes
its offer, set forth with particularity in writing the reasons, and
the support for those reasons, for not repairing all claimed unmet
standards.
925. If the builder fails to complete the repair within the time
specified in the repair plan, the claimant is released from the
requirements of this chapter and may proceed with the filing of an
action. If this occurs, the standards set forth in the other chapters
of this title shall continue to apply to the action.
926. The builder may not obtain a release or waiver of any kind in
exchange for the repair work mandated by this chapter. At the
conclusion of the repair, the claimant may proceed with filing an
action for violation of the applicable standard or for a claim of
inadequate repair, or both, including all applicable damages
available under Section 944.
927. If the applicable statute of limitations has otherwise run
during this process, the time period for filing a complaint or other
legal remedies for violation of any provision of this title, or for a
claim of inadequate repair, is extended from the time of the
original claim by the claimant to 100 days after the repair is
completed, whether or not the particular violation is the one being
repaired. If the builder fails to acknowledge the claim within the
time specified, elects not to go through this statutory process, or
fails to request an inspection within the time specified, the time
period for filing a complaint or other legal remedies for violation
of any provision of this title is extended from the time of the
original claim by the claimant to 45 days after the time for
responding to the notice of claim has expired. If the builder elects
to attempt to enforce its own nonadversarial procedure in lieu of the
procedure set forth in this chapter, the time period for filing a
complaint or other legal remedies for violation of any provision of
this part is extended from the time of the original claim by the
claimant to 100 days after either the completion of the builder's
alternative nonadversarial procedure, or 100 days after the builder's
alternative nonadversarial procedure is deemed unenforceable,
whichever is later.
928. If the builder has invoked this chapter and completed a
repair, prior to filing an action, if there has been no previous
mediation between the parties, the homeowner or his or her legal
representative shall request mediation in writing. The mediation
shall be limited to four hours, except as otherwise mutually agreed
before a nonaffiliated mediator selected and paid for by the builder.
At the homeowner's sole option, the homeowner may agree to split the
cost of the mediator and if he or she does so, the mediator shall be
selected jointly. The mediator shall have sufficient availability
such that the mediation will occur within 15 days after the request
for mediation is received and shall occur at a mutually convenient
location within the county where the action is pending. In the event
that a mediation is used at this point, any applicable statutes of
limitations shall be tolled from the date of the request to mediate
until the next court day after the mediation is completed, or the
100-day period, whichever is later.
929. (a) Nothing in this chapter prohibits the builder from making
only a cash offer and no repair. In this situation, the homeowner is
free to accept the offer, or he or she may reject the offer and
proceed with the filing of an action. If the latter occurs, the
standards of the other chapters of this title shall continue to apply
to the action.
(b) The builder may obtain a reasonable release in exchange for
the cash payment. The builder may negotiate the terms and conditions
of any reasonable release in terms of scope and consideration in
conjunction with a cash payment under this chapter.
930. (a) The time periods and all other requirements in this
chapter are to be strictly construed, and, unless extended by the
mutual agreement of the parties in accordance with this chapter,
shall govern the rights and obligations under this title. If a
builder fails to act in accordance with this section within the
timeframes mandated, unless extended by the mutual agreement of the
parties as evidenced by a postclaim written confirmation by the
affected homeowner demonstrating that he or she has knowingly and
voluntarily extended the statutory timeframe, the claimant may
proceed with filing an action. If this occurs, the standards of the
other chapters of this title shall continue to apply to the action.
(b) If the claimant does not conform with the requirements of this
chapter, the builder may bring a motion to stay any subsequent court
action or other proceeding until the requirements of this chapter
have been satisfied. The court, in its discretion, may award the
prevailing party on such a motion, his or her attorney's fees and
costs in bringing or opposing the motion.
931. If a claim combines causes of action or damages not covered by
this part, including, without limitation, personal injuries, class
actions, other statutory remedies, or fraud-based claims, the claimed
unmet standards shall be administered according to this part,
although evidence of the property in its unrepaired condition may be
introduced to support the respective elements of any such cause of
action. As to any fraud-based claim, if the fact that the property
has been repaired under this chapter is deemed admissible, the trier
of fact shall be informed that the repair was not voluntarily
accepted by the homeowner. As to any class action claims that address
solely the incorporation of a defective component into a residence,
the named and unnamed class members need not comply with this
chapter.
932. Subsequently discovered claims of unmet standards shall be
administered separately under this chapter, unless otherwise agreed
to by the parties. However, in the case of a detached single family
residence, in the same home, if the subsequently discovered claim is
for a violation of the same standard as that which has already been
initiated by the same claimant and the subject of a currently pending
action, the claimant need not reinitiate the process as to the same
standard. In the case of an attached project, if the subsequently
discovered claim is for a violation of the same standard for a
connected component system in the same building as has already been
initiated by the same claimant, and the subject of a currently
pending action, the claimant need not reinitiate this process as to
that standard.
933. If any enforcement of these standards is commenced, the fact
that a repair effort was made may be introduced to the trier of fact.
However, the claimant may use the condition of the property prior to
the repair as the basis for contending that the repair work was
inappropriate, inadequate, or incomplete, or that the violation still
exists. The claimant need not show that the repair work resulted in
further damage nor that damage has continued to occur as a result of
the violation.
934. Evidence of both parties' conduct during this process may be
introduced during a subsequent enforcement action, if any, with the
exception of any mediation. Any repair efforts undertaken by the
builder, shall not be considered settlement communications or offers
of settlement and are not inadmissible in evidence on such a basis.
935. To the extent that provisions of this chapter are enforced and
those provisions are substantially similar to provisions in Section
1375 of the Civil Code, but an action is subsequently commenced under
Section 1375 of the Civil Code, the parties are excused from
performing the substantially similar requirements under Section 1375
of the Civil Code.
936. Each and every provision of the other chapters of this title
apply to general contractors, subcontractors, material suppliers,
individual product manufacturers, and design professionals to the
extent that the general contractors, subcontractors, material
suppliers, individual product manufacturers, and design professionals
caused, in whole or in part, a violation of a particular standard as
the result of a negligent act or omission or a breach of contract.
In addition to the affirmative defenses set forth in Section 945.5, a
general contractor, subcontractor, material supplier, design
professional, individual product manufacturer, or other entity may
also offer common law and contractual defenses as applicable to any
claimed violation of a standard. All actions by a claimant or builder
to enforce an express contract, or any provision thereof, against a
general contractor, subcontractor, material supplier, individual
product manufacturer, or design professional is preserved. Nothing in
this title modifies the law pertaining to joint and several
liability for builders, general contractors, subcontractors, material
suppliers, individual product manufacturer, and design professionals
that contribute to any specific violation of this title. However,
the negligence standard in this section does not apply to any general
contractor, subcontractor, material supplier, individual product
manufacturer, or design professional with respect to claims for which
strict liability would apply.
937. Nothing in this title shall be interpreted to eliminate or
abrogate the requirement to comply with Section 411.35 of the Code of
Civil Procedure or to affect the liability of design professionals,
including architects and architectural firms, for claims and damages
not covered by this title.
938. This title applies only to new residential units where the
purchase agreement with the buyer was signed by the seller on or
after January 1, 2003.
