Builders, when confronted with insufficient notices of claim under the California Right to Repair Act (S.B. 800 or Civil Code Section 895, et 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."

In 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. 4^th 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.