1

Filed 12/2/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

ELLIOTT HOMES, INC.,

Petitioner,

v.

THE SUPERIOR COURT OF SACRAMENTO 

COUNTY,

Respondent;

KEVIN HICKS et al.,

Real Parties in Interest.

C078122

(Super. Ct. No. 34-2014-

00164692-CU-CD-GDS)

ORIGINAL PROCEEDING in mandate. Petition granted. Kevin Culhane, Judge.

Evans, Wieckowski, Ward & Scoffield, Lindy H. Scoffield, Elizabeth A. 

McGinty, and Heather M. Puentes for Petitioner.

Donahue Fitzgerald, Kathleen F. Carpenter, and Amy R. Gowan for California 

Building Industry Association and Leading Builders of America as Amici Curiae on 

behalf of Petitioner.

No appearance for Respondent.

Lattie Malanga Libertino, Teresa A. Libertino, and Gerald B. Malanga for Real 

Party in Interest.
2

Real parties in interest, Kevin Hicks et al., filed an action against petitioner Elliott 

Homes, Inc. (Elliott), the builder of their homes, seeking damages for construction 

defects. Elliott moved to stay the litigation until real parties in interest complied with the 

prelitigation procedure set forth in what is commonly referred to as “SB 800” or “Right 

to Repair Act” (Act), Civil Code sections 895 through 945.5.

1

 (§ 930, subd. (b).) Real 

parties in interest opposed the motion, arguing that the prelitigation procedure did not 

apply because they had not alleged a statutory violation of the Act. The trial court denied 

Elliott’s motion for a stay, and Elliott petitioned this court for a writ of mandate 

compelling the trial court to vacate its order, and enter a new order granting the motion 

for a stay. We issued an alternative writ of mandate and stayed the proceedings in the 

trial court. Elliott contends the trial court erred in concluding that real parties in interest 

need not comply with the prelitigation procedure set forth in the Act prior to filing the 

underlying action and in denying the motion to stay.

We shall grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND2

Real parties in interest, the owners of 17 single-family homes built by Elliott, filed

a first amended complaint for strict products liability, strict components product liability,

and negligence. Real parties in interest alleged that their homes were in a defective 

condition at the time they took possession, and that the defects resulted in physical 

damage.

 

1 Further undesignated statutory references are to the Civil Code.

2 On March 17, 2015, we granted the California Building Industry Association and 

Leading Builders of America’s application to file an amicus curiae brief in support of 

Elliott. We now grant the California Building Industry Association and Leading Builders 

of America’s unopposed request for judicial notice, filed March 17, 2015.
3

The Act “applies only to new residential units where the purchase agreement with 

the buyer was signed by the seller on or after January 1, 2003.” (§ 938.) The purchase 

agreements for the homes at issue here were signed by Elliott after January 1, 2003.

The Act establishes a nonadversarial inspection and repair procedure that allows 

builders to attempt to resolve homeowners’ construction defect claims in advance of 

litigation. (§§ 910-938.) Pursuant to that procedure, a homeowner must serve the builder 

with notice of a construction defect claim, and the builder has the opportunity to repair 

the purported defect within a given time period. (§§ 910, 914, 917.) If the homeowner 

files a lawsuit before this prelitigation procedure is completed, the builder may obtain a 

stay of the lawsuit. (§ 930, subd. (b).) 

It is undisputed that real parties in interest did not give Elliott notice of the alleged 

defects or otherwise comply with the Act’s prelitigation procedure before filing suit. 

Elliott moved to stay the litigation, which real parties in interest opposed. The trial court 

denied the motion, concluding that real parties in interest were not required to comply 

with the Act’s prelitigation procedure because they had not pleaded a statutory cause of 

action under the Act. The court explained that “[a]lthough the pre-litigation procedures 

are mandatory where homeowners plead statutory SB 800 causes of action [citation], 

there is no similar mandate where they plead only common law causes of action 

encompassing actual damage. (See Liberty Mut. Ins. Co. v. Brookfield Crystal Cove LLC

[“Brookfield”] (2013) 219 Cal.App.4th 98, 104-108; accord Burch v. Superior Court 

(2014) 223 Cal.App.4th 1411, 1414-1415, 1418.)”

DISCUSSION

I

Writ Relief

“A writ of mandate ‘must be issued in all cases where there is not a plain, speedy, 

and adequate remedy, in the ordinary course of law.’ (Code of Civ. Proc., § 1086.) Writ

review is deemed extraordinary and appellate courts are normally reluctant to grant it.
4

[Citations.] The Supreme Court has identified general criteria for determining the 

propriety of writ review. ‘These criteria include circumstances in which “the party 

seeking the writ lacks an adequate means, such as a direct appeal, by which to attain 

relief” or “the petitioner will suffer harm or prejudice in a manner that cannot be 

corrected on appeal.” [Citation.]’ [Citation.]” (Baeza v. Superior Court (2011) 201 

Cal.App.4th 1214, 1220-1221.) 

Elliott claims it is entitled to the benefits of the prelitigation procedure that permits 

it to attempt to repair the claimed defects before real parties in interest may bring an 

action against it in court, but the trial court’s order denies them that opportunity. If 

Elliott may not appeal that ruling until after judgment, the benefits of the prelitigation

procedure will be lost, even if it does prevail on appeal. We conclude Elliott does not 

have “a plain, speedy, and adequate remedy, in the ordinary course of law.” (Code Civ. 

Proc., § 1086.)

II

Overview of the Act

The Act is comprised of five Chapters. Chapter 1 defines several terms not 

relevant here. (§ 895.) Chapter 2 sets forth standards for residential construction, the 

violation of which constitutes an actionable defect. (§§ 896, 897.) Chapter 3 imposes 

obligations on the builder, including the obligation to furnish a minimum one-year 

express limited warranty. (§§ 900-906.) Chapter 3 also imposes obligations on the 

homeowner, including the obligation to follow all reasonable maintenance obligations 

and schedules. (§ 907.) Chapter 4 prescribes a nonadversarial prelitigation procedure 

that allows builders to attempt to resolve homeowners’ construction defect claims in 

advance of litigation. (§§ 910-938.) It requires a homeowner to serve the builder with 

notice of a construction defect claim, and gives the builder an opportunity to repair the 

purported defect within a given time period. (§ 912.) If the homeowner files a lawsuit 

before the prelitigation procedure is completed, the builder may obtain a stay of the 
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lawsuit. (§ 930, subd. (b).) Chapter 5 sets out the procedure for claims brought under the 

Act, including the applicable statute of limitations (§ 941), the burden of proof (§ 942), 

the exclusiveness of the Act (§ 943), the damages that may be recovered (§ 944), and the 

affirmative defenses that may be asserted (§ 945.5). It also provides that the Act’s 

“provisions, standards, rights, and obligations . . . are binding upon all original purchasers 

and their successors-in-interest.” (§ 945.) 

III

The Scope of the Act

The question before us is whether the trial court properly denied Elliott’s request 

for a stay of the litigation until real parties in interest comply with the prelitigation 

procedure set forth in chapter 4. To answer this question, we must determine whether 

real parties in interest are required to comply the Act’s requirements, including its 

prelitigation procedure, when they have not alleged a statutory violation under the Act.

As we shall explain, the answer lies in the statutory language, which is clear and 

unambiguous. 

“When construing a statute, a court seeks to determine and give effect to the intent 

of the enacting legislative body.” (People v. Braxton (2004) 34 Cal.4th 798, 810.) “ ‘We 

first examine the words themselves because the statutory language is generally the most 

reliable indicator of legislative intent. [Citation.] The words of the statute should be 

given their ordinary and usual meaning and should be construed in their statutory 

context.’ [Citation.] If the plain, commonsense meaning of a statute’s words is 

unambiguous, the plain meaning controls.” (Fitch v. Select Products Co. (2005) 36 

Cal.4th 812, 818.) If, however, the statute is susceptible to more than one interpretation, 

we “may consider various extrinsic aids, including the purpose of the statute, the evils to 

be remedied, the legislative history, public policy, and the statutory scheme 

encompassing the statute. [Citation.]” (Torres v. Parkhouse Tire Service, Inc. (2001) 26 

Cal.4th 995, 1003.)
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Real parties in interest contend that we need look no further than section 910 to 

determine whether they were required to comply with the statutory prelitigation 

procedure before filing the underlying action. Section 910 provides in relevant part: 

“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: . . .” Real parties in interest assert that 

“[t]he plain and ordinary meaning of the phrase ‘an action against any party alleged to 

have contributed to a violation of the standards set forth in Chapter 2’ is that an action is 

for violation of the SB800 building standards,” and thus, it was “the Legislature’s intent 

that the Pre-Litigation Procedures are only to be applied where a party alleges violation 

of the SB800 standards enumerated in Civil Code [section] 896 et seq.”

As detailed above, section 910 is part of a statutory scheme, and must be construed 

with reference to the entire statutory scheme of which it is a part. (Smith v. Superior 

Court (2006) 39 Cal.4th 77, 83.) Of particular significance here is section 896, which 

sets forth the basic scope of the claims to which the Act applies. It provides in pertinent 

part: “In any action seeking recovery of damages arising out of, or related to deficiencies 

in, the residential construction, . . . a builder . . . 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.” Thus, 

the Act applies broadly to “any action seeking recovery of damages arising out of, or 

related to deficiencies in, the residential construction,” and in such an action, a 

homeowner’s “claims or causes of action shall be limited to violation of” the standards 

set forth in section 896, except as otherwise specified in the Act. (§ 896, italics added.) 

Section 896 makes an exception for condominium conversions, “As to condominium 

conversions, this title does not apply to or does not supersede any other statutory or 

common law.” Section 943 also contains an exception, “[T]his title does not apply to any 

action by a claimant to enforce a contract or express contractual provision, or any action 
7

for fraud, personal injury, or violation of a statute.” (§ 943, subd. (a).) Section 931 

provides, “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 . . . .” Common law causes of action related to single-family homes, like those 

asserted by real parties in interest, are not among the claims excepted from the Act.

Section 897 confirms that the Legislature intended to create a comprehensive set 

of standards, and for those standards to be actionable under the Act. It provides, “The 

standards set forth in this chapter are intended to address every function or component of 

a structure. To the extent that a function or component of a structure is not addressed by 

these standards, it shall be actionable if it causes damage.” (§ 897.)

Section 943 confirms that the Legislature intended to strictly limit causes of action 

and claims seeking to recover damages arising out of, or related to deficiencies in, 

residential construction. It provides in pertinent part: “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.” (§ 943, subd. (a).) Section 944 authorizes recovery of 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, [and] the 

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

home to meet the standards . . . .” Thus, the Act encompasses actions seeking to recover 

for repair of a defect itself or for repair of any damage caused by the defect.

Having considered the entire statutory scheme, we conclude that the Legislature 

intended that all claims arising out of deficiencies in residential construction, involving 

new residential units where the purchase agreement was signed on or after January 1, 

2003 (§ 938), with limited exceptions not relevant here, be subject to the standards and 

requirements of the Act; homeowners bringing such claims must give notice to the 

builder and engage in the prelitigation procedure set forth in chapter 4 of the Act prior to 
8

filing suit in court; and where the complaint alleges deficiencies in construction that 

constitute violations of the standards set out in chapter 2 of the Act, the claims are subject 

to the Act, and the homeowner must comply with the prelitigation procedure, regardless 

of the theory of liability asserted in the complaint.

The legislative history is consistent with our interpretation of the Act’s scope. The 

analysis by the Senate Judiciary Committee states: “This bill would make major changes 

to the 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].” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 800 (2001-2002 

Reg. Sess.) as amended Aug. 28, 2002, p. 1.) “This bill would provide that any action 

against a builder . . . seeking recovery of damages arising out of, or related to deficiencies 

in, residential construction, . . . shall be governed by detailed standards set forth in the 

bill relating to the various functions and components of the building.” (Id. at p. 2.) “This 

bill would establish a mandatory procedure prior to the filing of a construction defect 

lawsuit. This procedure would provide the builder with the right to attempt a repair of 

the defect prior to litigation . . . .” (Id. at pp. 2-3.) “This bill would set detailed standards 

. . . . Except in certain specified circumstances, the bill would provide that these 

standards govern any action seeking recovery of damages arising out of or related to 

construction defects. The bill would provide that any function or component not 

specifically addressed by the standards shall be actionable if it causes damage. As a 

result, the bill would preserve homeowners’ ability to recover for defects that cause 

damage that are not otherwise covered by the standards. [¶] In addition, except where 

explicitly specified otherwise, liability would accrue under the standards regardless of 
9

whether the violation of the standard had resulted in actual damage or injury.” (Id. at p. 

4.) Describing the prelitigation procedure and the builder’s right to repair, the analysis 

provides: “The bill establishes a mandatory process prior to the filing of a construction 

defect action. The major component of this process is the builder’s absolute right to 

attempt a repair prior to a homeowner filing an action in court.” (Id. at p. 5.)

In Aas v. Superior Court, supra, 24 Cal.4th 627, referenced in the legislative 

history quoted above, our Supreme Court held that construction defects in residential 

properties that did not result in actual property damage were not actionable in tort. (Id. at 

p. 632.) Thus, after Aas, homeowners could not recover in tort for costs of repair or the 

diminution in value of the homes arising from construction defects that had not caused 

property damage. (Id. at pp. 632-633.) Needless to say, Aas represented a substantial 

victory for the building industry. Under the construction urged by real parties in interest, 

the Act created new statutory causes of action for defects that have not yet caused 

damage, while leaving intact the common law causes of action available once property 

damage has occurred. Under such a construction, the building industry gained nothing

under the Act. To the contrary, it lost. It defies common sense to think that building 

groups would have negotiated such a result. Moreover, the construction urged by real 

parties in interest fails to respond to concerns expressed by builders and insurers over the 

costs associated with construction defect litigation, which the legislative history indicates 

the bill sought to address. 

Consistent with the statutory language itself, the legislative history establishes that 

the Legislature intended that any action against a builder seeking to recover damages 

arising out of, or related to deficiencies in, residential construction is subject to the Act’s 

prelitigation procedure.

The trial court relied on Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC, 

supra, 219 Cal.App.4th at pages 104-108 (Liberty Mutual) as the basis for its conclusion 

that real parties in interest were not required to engage in the Act’s prelitigation 
10

procedure because “they plead only common law causes of action encompassing actual 

damage.”3 In that case, Eric Hart purchased a new home built by Brookfield. (Liberty 

Mutual, at pp. 100-101.) A few years later, a pipe in the home’s sprinkler system burst, 

causing extensive damage. (Id. at p. 101.) Brookfield acknowledged its liability for, and 

repaired, the damage to Hart’s home. (Ibid.) Hart moved into a hotel for a few months 

while the repairs were made, and its insurer Liberty Mutual paid for the hotel and other 

relocation expenses. (Ibid.) Liberty Mutual then filed a subrogation action against 

Brookfield to recover the expenses it paid. (Ibid.) The operative complaint alleged 

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

equitable estoppel, and declaratory relief. (Id. at pp. 101-102.) Brookfield demurred to 

the complaint, arguing it was time-barred under the Act. (Liberty Mutual, at p. 100.) The 

trial court sustained the demurrer and dismissed the complaint. (Ibid.) The Court of 

Appeal reversed, holding that “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,” and thus, “Liberty Mutual’s complaint in subrogation, based on Hart’s right to 

recover actual damages, states causes of action.” (Id. at p. 101.)

In their return to the petition for writ of mandate, real parties in interest assert that 

Liberty Mutual is “immaterial,” and we need not consider whether it was correctly 

decided because unlike Liberty Mutual, whether real parties are precluded under the Act

from pursuing their common law causes of action is not before us. According to real 

parties in interest, “It could have been, but Elliott did not demur to these causes of action. 

Instead, it brought forth a Motion to Stay. [¶] Accordingly, the question before the trial 

 

3 The trial court also cited Burch v. Superior Court, supra, 223 Cal.App.4th at pages 

1414-1415, 1418. The court in Burch agreed with Liberty Mutual’s holding without any 

independent analysis of the issue. (Burch, at p. 1418.) Accordingly, we shall limit our 

discussion to Liberty Mutual.
11

court was, as follows: given that [real parties in interest] only pled common law causes 

of action and not an SB800 cause of action, were [they] required to complete the SB800 

statutory pre-litigation procedures before litigating the common law causes of action?” 

We agree that we need not determine whether real parties in interest can pursue their

common law causes of action in the first instance; rather, the issue before us is: assuming 

that real parties in interest can pursue their common law causes of action, were they 

required to comply with the Act’s prelitigation procedure before initiating the underlying 

lawsuit. We disagree, however, with real parties in interest claim that Liberty Mutual is

immaterial to our analysis of that issue.4 In concluding that “the Act does not provide the 

exclusive remedy in cases where actual damage has occurred,” (Liberty Mutual, supra, 

219 Cal.App.4th at p. 109) the Liberty Mutual court found that “the statutory language 

shows Liberty Mutual’s subrogation claims [(common law causes of action arising from 

actual damages)] are not covered by the Right to Repair Act,” and thus, Hart was not 

subject to the time limitations set forth therein. (Id. at pp. 104-105.) Here, real parties in 

interest assert and the trial court found that common law claims arising from actual 

damages are not covered by the Act, and thus, they were not subject to the prelitigation 

procedure set forth therein. Moreover, the trial court cited Liberty Mutual as the basis for 

its decision. Thus, we shall consider Liberty Mutual’s finding that common law claims 

arising from actual damages are not covered by the Act and explain why we respectfully 

disagree with it. 

In interpreting the scope of the Act, the Liberty Mutual court relied on the 

“ ‘general rule’ ” that statutes should not be interpreted to alter or abrogate the common 

 

4 Whether the Act precludes a homeowner from bringing common law causes of 

action for defective conditions that resulted in physical damage to the home is currently 

pending before our Supreme Court in McMillin Albany, LLC v. Superior Court (2015) 

239 Cal.App.4th 1132, review granted November 24, 2015, S229762.
12

law unless its language clearly and unambiguously evidences an intention to do so. 

(Liberty Mutual, supra, 219 Cal.App.4th at p. 105.) As previously discussed, section 896

states that the Act broadly applies to “any action seeking recovery of damages arising out 

of, or related to deficiencies in, . . . residential construction,” and in such an action, a 

homeowner’s “claims or causes of action shall be limited to violation of” the standards 

set forth in section 896, except as otherwise specified in the Act. (Italics added.) In 

determining that Brookfield’s claims were not covered by the Act, the Liberty Mutual 

court failed to analyze the language of section 896. (Liberty Mutual, at p. 108.) Instead, 

it analyzed Brookfield’s argument, which it rejected as “circular.” (Ibid.) “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.” (Ibid.) 

Section 896 does not provide that “any action arising out of the Act is an action under the 

Act.” To the contrary, it provides that “[i]n any action seeking recovery of damages 

arising out of, or related to deficiencies in, the residential construction, . . . a builder . . . 

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.” (§ 896.)

The statutory language contained in section 896 as well as the code sections 

previously discussed, i.e. sections 897, 931, 943, 944, clearly and unequivocally 

expresses the legislative intent that the Act apply to all actions “seeking recovery of 

damages arising out of, or related to deficiencies in, . . . residential construction,” (§ 896) 

except as specifically set forth in the Act. The Act does not specifically except actions 

arising from actual damages. To the contrary, it authorizes recovery of damages for, 

among other things, “the reasonable cost of repairing and rectifying any damages 

resulting from the failure of the home to meet the standards . . . .” (§ 944.)
13

IV

Real Parties in Interests’ Claims Fall Within the Scope of the Act

Here, the operative first amended complaint alleged residential construction 

defects in components or functions for which standards have been established in section 

896.5 Thus, real parties in interests’ claims fall within the scope of the Act. Section 910 

provides that before a homeowner files “an action against any party alleged to have 

contributed to a violation of the standards set forth in Chapter 2,” the homeowner must 

give written notice to the builder of the claim that the construction of the residence 

violates any of the standards in that chapter. If a homeowner fails to provide such notice 

or otherwise comply with the prelitigation procedure, the builder may bring a motion to 

stay any subsequent court action until the homeowner complies with that procedure. 

(§ 930, subd. (b).) Because real parties in interest did not notify Elliot of their claims or 

otherwise comply with the statutory prelitigation procedure, Elliott is entitled to a stay of 

the action until the statutory prelitigation process has been completed. Accordingly, we 

will grant Elliott the relief sought in the petition.

DISPOSITION

Let a peremptory writ of mandate issue directing the respondent court to vacate its 

order of November 6, 2014, denying Elliott’s motion to stay the litigation, and enter a 

new order granting the motion and staying the litigation until the parties have satisfied the 

requirements of the statutory prelitigation procedure set forth in chapter 4 of the Act 

(§§ 910-938). The stay previously issued by this court shall be dissolved as of the date 

 

5 According to real parties in interest, the “deficiencies manifested as, but are not 

limited to, the following items: [¶] waterproofing defects; window and door defects; 

framing defects; tub and shower door defects; roofing and sheet metal defects; stucco 

defects; general deviation from building plans and specifications; general deviation and 

non compliance with applicable building codes and standards and building practices.” 

Section 896 sets forth standards for such functions and components. (§ 896, subds. 

(a)-(g).)
14

this opinion is filed. The parties shall bear their own costs on appeal. (Cal. Rules of 

Court, rule 8.493(a)(1)(B).)

 /s/

Blease, Acting P. J.

We concur:

 /s/

Nicholson, J.

 /s/

Murray, J.