Filed 8/28/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

LIBERTY MUTUAL INSURANCE 

COMPANY,

 Plaintiff and Appellant,

v.

BROOKFIELD CRYSTAL COVE LLC, 

 Defendant and Respondent.

 G046731

 (Super. Ct. No. 30-2011-00498089)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, 

Gregory Munoz, Judge. Reversed.

Law Offices of Brian J. Ferber, Brian J. Ferber, Jeffrey K. Jayson; Benedon 

& Serlin, Gerald M. Serlin and Wendy S. Albers for Plaintiff and Appellant.

Susan M. Benson & Associates and Susan M. Benson for National 

Association of Subrogation Professionals as Amicus Curiae on behalf of Plaintiff and 

Appellant.

Ulich & Terry, Andrew K. Ulich, Donald W. Fisher, Ivette Kincaid and 

Jonathan C. Terry for Defendant and Respondent.
2

Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor, 

John M. Kennedy and Allen Lohse for Comstock Crosser & Associates as Amicus Curiae 

on behalf of Defendant and Respondent.

Nick Cammarota for California Building Industry Association as Amicus 

Curiae on behalf of Defendant and Respondent.

* * *

INTRODUCTION

Eric Hart bought a newly constructed home from Brookfield Crystal Cove

LLC (Brookfield). A pipe in the home‟s sprinkler system burst, causing significant 

damage. Brookfield repaired the damage. Hart‟s homeowners insurer, Liberty Mutual 

Insurance Company (Liberty Mutual), paid Hart‟s relocation expenses, incurred while 

Hart was out of his home during the repair period. Liberty Mutual sued Brookfield in 

subrogation to recover those expenses. The trial court found Liberty Mutual‟s complaint 

was time-barred under the Right to Repair Act, Civil Code section 895 et seq. (the Right 

to Repair Act or the Act), and, sustaining a demurrer, dismissed it. We reverse.

The Right to Repair Act was enacted to provide remedies where

construction defects have negatively affected the economic value of a home, although no 

actual property damage or personal injuries have occurred as a result of the defects. We 

hold the Act does not eliminate a property owner‟s common law rights and remedies, 

otherwise recognized by law, where, as here, actual damage has occurred. Accordingly, 

Liberty Mutual‟s complaint in subrogation, based on Hart‟s right to recover actual 

damages, states causes of action. As our conclusion requires a reversal of the judgment, 

we need not address additional arguments raised by Liberty Mutual.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

In 2004, Hart purchased a single-family home developed and built by 

Brookfield. The grant deed transferring the property was executed in November 2004, 

and recorded a month later. According to the complaint in subrogation, in January 2008, 
3

“a fire sprinkler and/or pipe suddenly burst and failed,” flooding Hart‟s home. 

Brookfield acknowledged its liability for, and repaired, the damage to Hart‟s home.

Hart moved into a hotel for several months while Brookfield repaired the 

damage to the house. Liberty Mutual paid for Hart‟s hotel and other relocation expenses 

during that time.

In August 2011, Liberty Mutual filed a complaint in subrogation against 

Brookfield to recover the relocation expenses it incurred on Hart‟s behalf. Liberty 

Mutual later filed a first amended complaint, to which Brookfield demurred. Following 

briefing and a hearing, the trial court sustained the demurrer with leave to amend. 

Liberty Mutual did not amend its complaint within the time specified by the court; 

Brookfield therefore filed an ex parte application for an order of dismissal and entry of 

judgment. The court granted the application and entered judgment in favor of 

Brookfield. Liberty Mutual timely appealed.

DISCUSSION

I.

STANDARD OF REVIEW AND CONTROLLING LEGAL PRINCIPLES

We review an order sustaining a demurrer de novo. (Santa Teresa Citizen 

Action Group v. State Energy Resources Conservation & Development Com. (2003) 105 

Cal.App.4th 1441, 1445.) We are not bound by the trial court‟s construction of the 

complaint (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958); rather, we 

independently evaluate the complaint, construing it liberally, giving it a reasonable 

interpretation, reading it as a whole, and viewing its parts in context (Blank v. Kirwan

(1985) 39 Cal.3d 311, 318). 

We also review de novo issues of statutory construction. (People ex rel. 

Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) “The goal of statutory 

construction is to ascertain and effectuate the intent of the Legislature. [Citation.] 

Ordinarily, the words of the statute provide the most reliable indication of legislative 
4

intent. [Citation.] When the statutory language is ambiguous, the court may examine the 

context in which the language appears, adopting the construction that best harmonizes the 

statute internally and with related statutes. [Citations.] „“Both the legislative history of 

the statute and the wider historical circumstances of its enactment may be considered in 

ascertaining the legislative intent.”‟ [Citation.]” (Pacific Gas & Electric Co. v. County 

of Stanislaus (1997) 16 Cal.4th 1143, 1152.)

Liberty Mutual filed this action as a subrogee of Hart. The complaint 

alleges causes of action for strict liability, negligence, breach of contract, breach of 

warranty, equitable estoppel, and declaratory relief. Under the doctrine of subrogation, 

when an insurer pays money to its insured for a loss caused by a third party, the insurer 

succeeds to its insured‟s rights against the third party in the amount the insurer paid. 

(Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 633-634.) Upon 

subrogation, the insurer steps into the shoes of its insured. (Allstate Ins. Co. v. Mel 

Rapton, Inc. (2000) 77 Cal.App.4th 901, 908.) “„Subrogation is the insurer‟s right to be 

put in the position of the insured, in order to recover from third parties who are legally 

responsible to the insured for a loss paid by the insurer.‟” (Plut v. Fireman’s Fund Ins. 

Co. (2000) 85 Cal.App.4th 98, 104.) Liberty Mutual paid money to Hart for relocation

expenses incurred due to Brookfield‟s alleged acts or omissions. Liberty Mutual 

therefore succeeded to Hart‟s rights against Brookfield for damages. Liberty Mutual‟s 

right to recover from Brookfield is dependent on whether Hart would have been able to 

recover the relocation expenses from Brookfield.

II.

THE HISTORY OF THE RIGHT TO REPAIR ACT

The issue before us is whether Liberty Mutual‟s complaint in subrogation 

falls exclusively within the Right to Repair Act, and therefore is time-barred.1 We start 

 

1

 In sustaining the demurrer, the trial court concluded Civil Code section 896, 

subdivision (e) applied; that section makes the Right to Repair Act applicable as follows: 
5

with a brief history of the Act and identification of the problem it was intended to 

address. Normally, we would begin by analyzing the language of the statute. In this 

case, however, the language of the statute can be best considered with an understanding 

of the Act‟s impetus and purpose.

In Aas v. Superior Court (2000) 24 Cal.4th 627, 632, the California 

Supreme Court held that construction defects in residential properties, in the absence of 

actual property damage, were not actionable in tort. The plaintiffs in Aas v. Superior 

Court contended that their homes suffered a variety of construction defects, and sought as 

damages from the homebuilders the costs of repair and/or the diminution in the value of 

their homes. (Id. at p. 633.) The trial court excluded evidence of any defects that had not 

caused property damage; both the Court of Appeal and the Supreme Court upheld that 

evidentiary ruling. (Id. at pp. 633-634.)

In 2002, the California Legislature enacted the Right to Repair Act. A key 

specified goal of the Act was to abrogate the holding of Aas v. Superior Court. “In 

response to the holding in Aas, the Legislature enacted Civil Code section 895 et seq.” 

(Greystone Homes, Inc. v. Midtec, Inc. (2008) 168 Cal.App.4th 1194, 1202, fn. omitted.) 

The legislative history of the Act explained: “This bill would make major changes to the 

 

“(e) With respect to plumbing and sewer issues: [¶] Plumbing and sewer systems shall be 

installed to operate properly and shall not materially impair the use of the structure by its 

inhabitants. However, no action may be brought for a violation of this subdivision more 

than four years after close of escrow.” (Civ. Code, § 896, subd. (e).) Another 

subdivision of section 896, on which neither the trial court nor Brookfield relied, applies 

as follows: “(a) With respect to water issues: [¶] . . . [¶] (14) The lines and components 

of the plumbing system, sewer system, and utility systems shall not leak. [¶] 

(15) Plumbing lines, sewer lines, and utility lines shall not corrode so as to impede the 

useful life of the systems.” (Civ. Code, § 896, subd. (a)(14), (15).) We treat a fire 

sprinkler system, which is nowhere specifically mentioned in the Right to Repair Act, as 

falling within the definition of either a plumbing system or a utility system; it would 

therefore, in a proper case, be covered by the Right to Repair Act. We do so in view of 

the complaint‟s broad allegation that “a fire sprinkler and/or pipe suddenly burst and 

failed.” Consequently, as alleged, those components are covered by the Act. (Civ. Code, 

§ 897.)
6

substance and process of the law governing construction defects. It is the product of 

extended negotiations between various interested parties. Among other things, the bill 

seeks to respond to concerns expressed by builders and insurers over the costs associated 

with construction defect litigation, as well as concerns expressed by homeowners and 

their advocates over the effects of a recent Supreme Court decision that held that defects 

must cause actual damage prior to being actionable in tort [Aas v. Superior Court, (2000) 

24 Cal.4th 627]. [¶] . . . [¶] . . . [E]xcept where explicitly specified otherwise, liability 

would accrue under the standards regardless of whether the violation of the standard had 

resulted in actual damage or injury. As a result, the standards would essentially overrule 

the Aas decision and, for most defects, eliminate that decision‟s holding that construction 

defects must cause actual damage or injury prior to being actionable.” (Sen. Com. on 

Judiciary, Analysis of Sen. Bill No. 800 (2001-2002 Reg. Sess.) as amended Aug. 28, 

2002, pp. 1, 4, italics added; see Assem. Com. on Judiciary, Rep. on Sen. Bill No. 800 

(2001-2002 Reg. Sess.) as amended Aug. 26, 2002, p. 3 [“these standards effectively end 

the debate over the controversial decision in the Aas case to the effect that homeowners 

may not recover for construction defects unless and until those defects have caused death, 

bodily injury, or property damage, no mat[t]er how imminent those threats may be”

(italics added)]; State and Consumer Services Agency, Enrolled Bill Rep. on Sen. Bill 

No. 800 (2001-2002 Reg. Sess.) Sept. 16, 2002, p. 2 [“This bill is intended to address the 

perceived inequity of the Aas decision and give homeowners the ability to have specified 

defects in the construction of their homes corrected before the defects cause actual harm 

or damage”].) 2 

Nowhere in the legislative history is there anything supporting a contention 

that the Right to Repair Act barred common law claims for actual property damage. 

 

2

 Liberty Mutual asked this court to take judicial notice of the legislative history 

of the Right to Repair Act. Brookfield did not oppose Liberty Mutual‟s request. We 

have taken judicial notice of the Act‟s legislative history. 
7

Instead, the legislative history shows that the legislation was intended to grant statutory 

rights in cases where construction defects caused economic damage; the Act did nothing 

to limit claims for actual property damage. Simply put, a homeowner who suffers actual 

damages as a result of a construction defect in his or her house has a choice of remedies; 

nothing in the Act takes away those rights.

III.

THE STATUTORY LANGUAGE SHOWS LIBERTY MUTUAL’S SUBROGATION 

CLAIMS ARE NOT COVERED BY THE RIGHT TO REPAIR ACT.

The Act is organized in the following manner: “Chapter 2 of the Act . . .

sets out building standards, the violation of which constitutes a deficiency in construction 

for which the builder may be held liable to the homeowner. ([Civ. Code, ]§§ 896, 897.) 

Chapter 3 of the Act imposes obligations on the builder, including an obligation to 

furnish an express limited warranty. ([Civ. Code, ]§§ 900-907.) Chapter 4 of the Act . . .

prescribes nonadversarial prelitigation procedures a homeowner must initiate prior to 

bringing a civil action against the builder seeking recovery for alleged construction 

deficiencies. ([Civ. Code, ]§§ 910-938.) Chapter 5 of the Act sets out the applicable 

statute of limitations, the burden of proof, the damages that may be recovered, and the 

affirmative defenses that may be asserted; it also makes the Act binding on 

successors-in-interest of the original home purchaser. ([Civ. Code, ]§§ 941-945.5.)” 

(Baeza v. Superior Court (2011) 201 Cal.App.4th 1214, 1222-1223.) 

Many provisions of the Right to Repair Act support the conclusion the Act

covers instances where construction defects were discovered before any actual damage 

had occurred. Nothing in the Act supports a conclusion it rewrote the law on common 

law claims arising from actual damages sustained as a result of construction defects. We 

next review code sections of the Act that so demonstrate. These code sections would 

make little sense if actual damage had already occurred in the manner alleged in the 

complaint.
8

(1) Civil Code section 916, subdivision (a) gives the builder the right 

“to inspect the claimed unmet standards,” and specifies how that 

inspection and testing are to take place. This code section requires 

the builder to assume costs of damage occurring as a result of the 

testing, and further requires the builder to “restore the property to 

its pretesting condition within 48 hours of the testing.” (Civ. Code, 

§ 916, subd. (a).)

(2) Civil Code section 917 provides detailed information on how, 

when, and by whom inspection and testing of the structure may 

occur.

3

 The specific language quoted in footnote 3, ante, 

dramatically illustrates that the legislative intent in enacting the Act 

was to provide for identification and repair of construction defects 

before they cause actual damage to the structure or its contents, not 

 

3

 “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.” 

(Civ. Code, § 917.)
9

to provide the sole remedy to recover actual damages that have 

occurred as a result of construction defects.

(3) Many code sections in the Act provide timeframes for the 

homeowner to notify the builder (Civ. Code, § 910, subd. (a)) and

the builder to acknowledge receipt of the notice of the claim (id., 

§ 913), as well as the inspection of the property by the builder (id., 

§ 916), the builder‟s offer to repair (id., § 917), the homeowner‟s 

response to the offer to repair (id., § 918), and the completion of the 

repairs of the construction defects by the builder (id., § 921). In the 

case of an actual catastrophic loss, the detailed timeframes would be 

unnecessary and nonsensical. If, as Brookfield argues, the Right to 

Repair Act applies to all claims involving construction defects

regardless of actual damage, a homeowner whose property was 

severely damaged or destroyed would be required to await a 

solution during a lengthy process. As noted by the amicus curiae on 

behalf of Liberty Mutual, enforcement of a requirement of 

exclusive compliance with the notice provisions of the Act under 

those circumstances would effectively extinguish the subrogation 

rights of all homeowners‟ insurers who promptly cover their 

insureds‟ catastrophic losses. There is nothing in the Act or in its 

legislative history that shows the Legislature intended to eliminate 

those subrogation rights.

(4) Civil Code section 942 eliminates the need to prove causation and 

damages in connection with claims brought for violation of the 

Right to Repair Act: “In order to make a claim for violation of the 

standards set forth in Chapter 2 (commencing with Section 896), a 
10

homeowner need only demonstrate, in accordance with the 

applicable evidentiary standard, that the home does not meet the 

applicable standard, subject to the affirmative defenses set forth in 

Section 945.5. No further showing of causation or damages is 

required to meet the burden of proof regarding a violation of a 

standard set forth in Chapter 2 (commencing with Section 896), 

provided that the violation arises out of, pertains to, or is related to, 

the original construction.” (Civ. Code, § 942.) We find nothing in 

the language of the Act or its legislative history supporting a 

conclusion that the Legislature intended to eliminate the need to 

prove causation or damages on all claims arising out of construction 

defects where property damage occurs. The elimination of such 

basic elements of proof, however, makes perfect sense when the 

claim is for construction defects that have not yet caused any actual 

damage.

(5) Civil Code sections 931 and 943 disprove Brookfield‟s contention 

that the Right to Repair Act was intended to provide the sole means 

for seeking redress for damages incurred due to any and all

construction defects identified in the Act. Section 931 provides, in 

relevant part: “If a claim combines causes of action or damages not 

covered by this part . . . , the claimed unmet standards shall be 

administered according to this part . . . .” Section 943, 

subdivision (a) provides: “Except as provided in this title, no other 

cause of action for a claim covered by this title or for damages 

recoverable under Section 944 is allowed. In addition to the rights 

under this title, this title does not apply to any action by a claimant 
11

to enforce a contract or express contractual provision, or any action 

for fraud, personal injury, or violation of a statute. Damages 

awarded for the items set forth in Section 944 in such other cause of 

action shall be reduced by the amounts recovered pursuant to 

Section 944 for violation of the standards set forth in this title.”

4

 

These code sections establish the Act itself acknowledges that other 

laws may apply to, and other remedies may be available for,

construction defect claims, and, therefore, that the Act is not the 

exclusive means for seeking redress when construction defects 

cause actual property damage.

In support of Brookfield, amici curiae, California Building Industry 

Association and Comstock Crosser & Associates (amici curiae), argue Civil Code 

section 944‟s wide range of damages available for claims under the Right to Repair Act 

proves Liberty Mutual‟s claims are covered by the Act and are therefore time-barred. 

Section 944 provides: “If a claim for damages is made under this title, the homeowner is 

only entitled to damages for the reasonable value of repairing any violation of the 

standards set forth in this title, the reasonable cost of repairing any damages caused by 

the repair efforts, the reasonable cost of repairing and rectifying any damages resulting 

from the failure of the home to meet the standards, the reasonable cost of removing and 

replacing any improper repair by the builder, reasonable relocation and storage expenses, 

lost business income if the home was used as a principal place of a business licensed to 

be operated from the home, reasonable investigative costs for each established violation, 

and all other costs or fees recoverable by contract or statute.” The statute‟s inclusion of 

“the reasonable cost of repairing and rectifying any damages resulting from the failure of 

the home to meet the standards” as part of the damages available for a violation of the 

 

4

 Liberty Mutual describes this code section as “limit[ing] the causes of action 

allowable under” the Act. We agree.
12

Right to Repair Act does not mean that such actual damages may only be recovered by a 

claim under the Act, given our discussion of the other language of the Act. 

Amici curiae also argue the Right to Repair Act abrogated the existing

statutes of limitations for construction defect cases, which distinguished between patent 

defects (four years) and latent defects (10 years). (Code Civ. Proc., §§ 337.1, 337.15.) 

They further argue this means all construction defect cases must be governed by the 

Right to Repair Act. We disagree. While one of the purposes of the Act was 

unquestionably to do away with different statutes of limitations applying to latent versus 

patent defects when those defects do not result in actual property damage, the Legislature

did not repeal Code of Civil Procedure sections 337.1 and 337.15. Those statutes remain 

and evidence a legislative intent and understanding that the limitations periods they 

contain could and would be used in litigation other than cases under the Act. 

Notably, the legislative history for the Right to Repair Act provides, in part: 

“This bill would provide for a ten-year statute of limitations for construction defect 

actions, with certain limited exceptions . . . .” (Sen. Com. on Judiciary, Analysis of Sen. 

Bill No. 800, supra, as amended Aug. 28, 2002, p. 2, underscoring omitted.) The 

legislative history also shows the purpose of the statutes of limitations included in the Act 

reflected how long various systems within a home can be expected to last. This history, 

again, is consistent with our reading of the Act: “[Senate Bill No.] 800 shortens the 

statute of limitations for several components of a home shorter than 10 years realistically 

reflecting how long those components can be expected to meet the standards.” (Home 

Ownership Advancement Foundation, Floor Alert re Sen. Bill No. 800 (2001-2002 Reg. 

Sess.) Aug. 30, 2002.)

Finally, Civil Code section 896 provides, in relevant part: “In any action 

seeking recovery of damages arising out of, or related to deficiencies in, the residential 

construction, design, specifications, surveying, planning, supervision, testing, or 

observation of construction, a builder, and to the extent set forth in Chapter 4 
13

(commencing with Section 910), a general contractor, subcontractor, material supplier, 

individual product manufacturer, or design professional, shall, except as specifically set 

forth in this title, be liable for, and the claimant‟s claims or causes of action shall be 

limited to violation of, the following standards, except as specifically set forth in this 

title.” Brookfield argues the language “any action” means that the present case must fall 

within the Right to Repair Act. Brookfield‟s argument, however, is circular; Brookfield‟s 

argument is essentially that any action arising out of the Act is an action under the Act. 

Section 896 refers to any action that is covered by the Right to Repair Act; as explained

ante, we conclude the Act was never intended to, and does not, establish exclusive 

remedies for claims for actual damages for construction defects such as those suffered by 

Hart.

For all these reasons, Civil Code section 896 does not provide an exclusive 

remedy, as Brookfield argues. By creating a remedy for a particular cause of action, the 

Right to Repair Act does not expressly or impliedly support an argument that it mandates 

an exclusive remedy, and certainly does not derogate common law claims otherwise 

recognized by law. (See, e.g., Century Surety Co. v. Crosby Ins., Inc. (2004) 124 

Cal.App.4th 116, 126 [by analogy, in the insurance context, statute establishing rescission 

as remedy for concealment does not make rescission the exclusive remedy for such a 

claim].) 

Based on the foregoing analysis of the language of the Right to Repair Act

and its legislative history, we hold the Act does not provide the exclusive remedy in cases

where actual damage has occurred because of construction defects. Therefore, Liberty 

Mutual‟s subrogation claims were not time-barred for failing to comply with the Act. We 

reject Brookfield‟s arguments that the Legislature sub silentio eliminated common law 

actions for actual damages for construction defects, eliminated subrogation rights, and 

repealed Code of Civil Procedure sections 337.1 and 337.15. The demurrer should have 

been overruled.
14

DISPOSITION

The judgment is reversed. Appellant to recover costs on appeal.

FYBEL, J.

WE CONCUR:

MOORE, ACTING P. J.

THOMPSON, J.