Builders, when confronted with insufficient notices of claim under the
California Right to Repair Act (S.B. 800 or Civil Code Section 895,
seq.), have been faced with a dilemma of either respond to the notice and
start the timing considerations of the Act or ignore the notice and challenge
its specificity should the homeowner file a lawsuit based upon the claims
raised in the notice. The Fourth Appellate District has now held that
the Builder "who unilaterally concludes the level of specificity
in a notice is insufficient, and therefore concludes it need not respond
within the 14-day period prescribed by statute, acts at its peril later,
if it wishes to employ an inspection and settlement process otherwise
mandated by the statute."
Blanchette v. Superior Court, California Court of Appeal, Fourth Appellate District, Case No. D070545
(February 10, 2017), petitioner was a homeowner who had served a notice
of claim under Civil Code Section 910 for claims concerning his home and
the other 27 homes constructed by builder in the subject development.
Petitioner's notice asserted a variety of construction defects by
directly borrowing language from certain performance standards set forth
in Civil Code Section 896.
The builder received the notice but believed the notice did not provide
the detail required by Civil Code Section 910(a). Section 910(a) requires
that the notice "describe the claim in reasonable detail sufficient
to determine the nature and location, to the extent known, of the claimed
violation." Accordingly, the builder responded to the homeowner's
notice 21 days after the homeowner's service of the notice. Section
913 requires that the builder respond to a notice within 14 days of service.
The homeowner responded to the builder's response, noting that it was
untimely. Thereafter, the homeowner filed a class action lawsuit on behalf
of himself and the 27 other homeowners identified in his notice.
The builder filed a motion to stay the litigation, under Civil Code Section
930(b), based upon the homeowner's failure to comply with the requirements
of Section 910(a) concerning the lack of specificity regarding the claims
identified in the notice. The trial court agreed with the builder's
contentions and granted the motion, staying the litigation. The homeowner
challenged the trial court's ruling on a petition for writ of mandate.
The Fourth Appellate District agreed with the builder's position that
the homeowner's notice did not comply with Section 910. It noted that
the notice was insufficient on its face because it merely repeats the
language of Section 896, failing to provide the detail required by Section
910(a). However, relying upon the decision in
Darling v. Superior Court (2012) 211 Cal. App. 4th 1266, the court found that there is an express difference between the
sufficiency of a homeowner's notice and the strict response time limits
of the Act. The court noted that Section 930(a) clearly provides that
the time periods of the Act are to be strictly construed unless extended
by mutual agreement of the parties. The court found that Section 913 clearly
provides that a builder must respond to a notice of claim within 14 days
of service. The court further noted that Section 915 is equally explicit
as to the consequences of a late or no response from a builder; i.e.,
"the homeowner is released from the requirements of this chapter
and may proceed with the filing of an action." The court held that
"if a builder believes that the notice is not sufficient to determine
the nature and location of the claimed violation, the builder may, within
that 14-day period, bring the lack of specificity to the claimant's
attention. However, the requirement for specificity is not a ground upon
which the developer may choose to ignore the notice of a defect and the
14-day period within which it must respond."
Accordingly, the Fourth Appellate District issued a writ, directing the
trial court to enter a new order denying the builder's motion to stay.
After the ruling in
Blanchette, builders must be certain to serve a timely response to any Section 910
notice of claim within the 14-day response window prescribed by Section
913. Failure to do so leaves the builder open to the prosecution of a
lawsuit without first having investigated and provided an opportunity
to repair the claimed defect(s) pursuant to the terms of the Act. A builder
who wishes to challenge the sufficiency of the notice can do so either
with the service of the Section 913 response or prior to the response
in a separate communication with the claimant or claimant's counsel.