Filed 8/26/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

MCMILLIN ALBANY LLC et al.,

Petitioners,

v.

THE SUPERIOR COURT OF KERN COUNTY,

Respondent;

CARL VAN TASSELL et al.,

Real Parties in Interest.

F069370

(Super. Ct. No. S-1500-CV-279141)

OPINION

ORIGINAL PROCEEDING; petition for writ of mandate. David R. Lampe, 

Judge.

Borton Petrini, Calvin R. Stead and Andrew M. Morgan for Petitioners.

Donahue Fitzgerald, Kathleen F. Carpenter; Ware Law, Amy R. Gowan and Dee 

A. Ware for California Building Industry Association as Amicus Curiae on behalf of 

Petitioners.

Newmeyer & Dillon, Alan H. Packer, J. Nathan Owens, Paul L. Tetzloff and 

Jeffrey R. Brower for Leading Builders of America as Amicus Curiae on behalf of 

Petitioners.

No appearance for Respondent.
2.

Milstein Adelman, Fred M. Adelman and Mayo L. Makarcyzk for Real Parties in 

Interest.

-ooOooReal Parties in Interest, Carl Van Tassell et al. (real parties), filed an action against 

the builders of their homes for recovery of damages allegedly resulting from defects in 

the construction of the homes. Petitioners, McMillin Albany LLC et al. (McMillin), 

moved to stay the litigation until real parties complied with the statutory nonadversarial 

prelitigation procedures of the “Right to Repair Act”, which applies to construction 

defect litigation involving certain residential construction. Real parties opposed the 

motion, contending the statutory prelitigation procedures did not apply because they had

dismissed the only cause of action in their complaint that alleged a violation of the Right 

to Repair Act. The trial court denied the stay, and McMillin petitioned this court for a 

writ of mandate compelling the trial court to vacate its order denying the motion and 

enter a new order granting the stay as requested. We grant the writ.1

FACTUAL AND PROCEDURAL BACKGROUND

Real parties, the owners of 37 homes constructed by McMillin, filed a first 

amended complaint alleging eight causes of action, including strict products liability, 

negligence, and breach of express and implied warranty. They alleged the homes were in 

a defective condition at the time they purchased them, and the defects had resulted in 

damage to their homes and their component parts. The third cause of action of the first 

amended complaint alleged violation of the building standards set forth in Civil Code 

section 896.2 Section 896 is part of a statutory scheme commonly referred to as the Right 

 

1 We grant real parties’ unopposed requests for judicial notice, filed November 10 and 12, 

2014.

2 All further statutory references are to the Civil Code unless otherwise indicated.
3.

to Repair Act (§§ 895 et seq.; the Act).

3

 Under the Act, before a homeowner who claims 

defective residential construction can file an action against the builder in court, the 

homeowner must give notice of the claimed defects to the builder and engage in a 

nonadversarial prelitigation procedure, which affords the builder an opportunity to 

attempt to repair the defects. (§ 910.) If the homeowner files suit without giving the 

required notice, the builder may obtain a stay of the litigation, pending completion of the 

prelitigation process. (§ 930, subd. (b).)

Real parties did not give McMillin notice of the alleged defects before filing suit. 

The parties attempted to negotiate a stay of the judicial proceedings to complete the 

prelitigation process, but real parties’ attorney withdrew from the negotiations, dismissed 

the third cause of action of the first amended complaint, and contended real parties were 

no longer required to comply with the statutory prelitigation process because they had 

dismissed the cause of action alleging violation of the Act. McMillin filed a motion for a 

stay, which real parties opposed. The trial court denied the motion, concluding real 

parties were entitled to plead common law causes of action in lieu of a cause of action for 

violation of the building standards set out in section 896, and they were not required to 

submit to the prelitigation process of the Act when their complaint did not allege any 

cause of action for violation of the Act. McMillin filed this petition for a writ of 

mandate, seeking a writ directing the trial court to vacate its order denying McMillin’s 

motion for a stay and to enter a new order granting a stay pending completion of the 

prelitigation process.

 

3 See, e.g., Belasco v. Wells (2015) 234 Cal.App.4th 409, 413; The McCaffrey Group, Inc. 

v. Superior Court (2014) 224 Cal.App.4th 1330, 1334; Baeza v. Superior Court (2011) 201 

Cal.App.4th 1214, 1222, fn. 5. The Act is also referred to as SB 800 (Sen. Bill No. 800 (2001–

2002 Reg. Sess.)). 
4.

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 Civ. Proc., § 1086.) Writ 

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

(Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, 

1100; City of Half Moon Bay v. Superior Court (2003) 106 Cal.App.4th 795, 803.) 

Where an order is not appealable, but is reviewable only upon appeal from a later 

judgment, writ relief may be appropriate if appeal after judgment would be an ineffective 

remedy. (Baeza v. Superior Court, supra, 201 Cal.App.4th at p. 1221.) McMillin claims

they are entitled to the benefits of the nonadversarial prelitigation procedure that permits 

them to attempt to repair the claimed defects in the homes before real parties may bring 

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

they may not appeal that ruling until after judgment, the benefits of the statutory 

prelitigation procedure will be lost, even if they prevail on appeal. We conclude 

McMillin does not have “a plain, speedy, and adequate remedy, in the ordinary course of 

law.” (Code Civ. Proc., § 1086.) 

Additionally, a writ may be granted when the petition presents an issue of first 

impression that is of general interest to the bench and bar. (Valley Bank of Nevada v. 

Superior Court (1975) 15 Cal.3d 652, 655.) McMillin’s writ petition presents an issue of 

first impression, which is of interest to builders, home buyers, their attorneys, and others. 

The issue may escape review unless it is addressed in a writ proceeding. Accordingly, 

we conclude review by extraordinary writ is appropriate in this case.

II. Mootness

Real parties assert the issue presented by the writ petition is moot because they 

have offered to stipulate to a stay of the action pending completion of the statutory 

prelitigation procedure, if McMillin will dismiss its petition. They contend that, in light 
5.

of this offer, there is no actual controversy for this court to adjudicate and McMillin will 

not be subject to irreparable injury. “However, when a pending case involves a question 

of public interest that is likely to recur between the parties or others, ‘the court may 

exercise an inherent discretion to resolve that issue even though an event occurring 

during its pendency would normally render the matter moot.’” (Shapell Industries, Inc. v. 

Superior Court (2005) 132 Cal.App.4th 1101, 1106–1107, fn. 4.) In light of McMillin’s 

showing that at least one court in this district reached the opposite result in a situation 

similar to that before the trial court here, and the presentations of amici curiae4indicating 

the issues are of widespread interest in the building industry, we conclude this is an 

appropriate case in which to consider the issues presented despite real parties’ assertion 

that they are moot.

III. The Act

In 2002, the Legislature enacted the Act “to ‘specify the rights and requirements of 

a homeowner to bring an action for construction defects, including applicable standards 

for home construction, the statute of limitations, the burden of proof, the damages 

recoverable, a detailed prelitigation procedure, and the obligations of the homeowner.’” 

(Anders v. Superior Court (2011) 192 Cal.App.4th 579, 585.) Chapter 2 of the Act 

(Chapter 2) sets out building standards, a violation of which constitutes a deficiency in 

construction for which the builder may be held liable to the homeowner. (§§ 896, 897.) 

Chapter 3 imposes obligations on the builder. (§§ 900–907.) Chapter 5 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. (§§ 941–945.5.) 

 

4 On June 11, 2015, we granted the applications of Leading Builders of America and 

California Building Industry Association to appear as amici curiae.
6.

Chapter 4 of the Act (Chapter 4) prescribes nonadversarial prelitigation procedures 

a homeowner must initiate prior to bringing a civil action against the builder seeking 

recovery for alleged construction deficiencies. (§§ 910–938.) These are the procedures 

McMillin contends real parties were required to follow prior to filing suit against them. 

The procedures require the homeowner to give the builder written notice of the claim that 

the builder violated any of the standards of Chapter 2; they set time limits for the builder 

to inspect the alleged defects and make an offer to repair them or compensate the 

homeowner in lieu of repair. (§§ 910, 916, 917, 929.) If the builder declines to attempt 

repairs or fails to meet any of the deadlines, the homeowner is released from the 

requirements of Chapter 4 and may file an action against the builder in court. (§§ 915, 

916, subd. (d), 920, 925, 930, subd. (a).) The homeowner may also file an action against 

the builder if he is dissatisfied with the repairs. (§ 926.)

IV. Liberty Mutual Insurance Co. v. Brookfield Crystal Cove LLC

In Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 

Cal.App.4th 98 (Liberty Mutual), Hart purchased a new home built by Brookfield. (Id. at 

p. 101.) A few years later, a pipe in the sprinkler system burst, flooding the home and 

causing damage. Brookfield acknowledged its liability and repaired the damage. (Ibid.) 

Hart lived in a hotel during the repairs; his homeowner’s insurer, Liberty Mutual, paid for 

Hart’s hotel and relocation expenses. Liberty Mutual then filed a subrogation action 

against Brookfield to recover the expenses it paid; the first amended 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’s demurrer to

the first amended complaint was sustained on the ground Liberty Mutual’s complaint was 

time-barred under the Act. The appellate court reversed.

The court defined the issue before it as: “whether Liberty Mutual’s complaint in 

subrogation falls exclusively within the Right to Repair Act, and therefore is timebarred.” (Liberty Mutual, supra, 219 Cal.App.4th at p. 102, fn. omitted.) The court 
7.

stated a key goal of the Act was to abrogate the holding in Aas v. Superior Court (2000) 

24 Cal.4th 627, 632 (Aas). In Aas, “the California Supreme Court held that construction 

defects in residential properties, in the absence of actual property damage, were not 

actionable in tort.” (Liberty Mutual, supra, 219 Cal.App.4th at p. 103.) Thus, 

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. (Ibid.) 

The Liberty Mutual court cited the legislative history of the Act, which stated: “‘[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.’” (Liberty Mutual, at pp. 103–104.)

After considering a number of the provisions of the Act, the Liberty Mutual court 

concluded “the Act covers instances where construction defects were discovered before 

any actual damage had occurred,” but does not provide the exclusive remedy when the 

defects have caused damage. (Liberty Mutual, supra, 219 Cal.App.4th at pp. 105, 108–

109.) Therefore, the time limitations of the Act did not bar Liberty Mutual’s subrogation 

claims. (Id. at p. 109.)5

V. Scope of the Act

In the trial court, real parties’ opposition to the motion for a stay relied on Liberty 

Mutual. Real parties asserted: “This is a matter of law, cemented in the recent decision 

of Liberty Mutual ..., which McMillin incorrectly claims is inapplicable to this case.... 

 

5 Real parties relied on both Liberty Mutual and Burch v. Superior Court (2014) 223 

Cal.App.4th 1411, as establishing that the Act does not provide the exclusive remedy for 

damages for construction defects that have resulted in property damage. Because the Burch

court based its decision on that issue on the holding in Liberty Mutual and a cursory description 

of some of the provisions of the Act, without detailed analysis, we do not separately address the 

Burch decision.
8.

In fact, Liberty Mutual applies squarely and inescapably to the dispute before this 

Court.... It holds unequivocally that a plaintiff can bring non-SB800 causes of action for 

damages that result from violation of the SB800 building standards.” Real parties argued 

that they were permitted to pursue common law causes of action for construction 

deficiencies that caused damage, and, once they dismissed their third cause of action for 

violation of the Act, they were pursuing only common law causes of action and were 

therefore not required to comply with the requirements of the Act, including the 

prelitigation procedure. 

The trial court denied McMillin’s motion for a stay, stating: “Pursuant to Liberty 

Mutual ..., the Plaintiffs are entitled to plead common law causes of action in lieu of a 

cause of action for violation of building standards set forth in Civil Code § 896 et seq. 

(‘SB 800’). Plaintiffs need not submit to the SB 800 prelitigation process when their 

Complaint does not assert claims for violations of SB 800 standards. [¶] The Court also 

acknowledges that its ruling here involves a controlling question of law as to which there 

are substantial grounds for difference of opinion, appellate resolution of which may 

materially advance the conclusion of this litigation. (See Code Civ. Proc., § 166.1.)” 

We agree with real parties that the only issue before this court is whether 

McMillin’s motion for a stay pending completion of the prelitigation procedures of 

Chapter 4 of the Act was properly denied. In order to make that determination, however, 

we must consider the scope of the Act and to what claims the requirements of the Act, in 

particular the prelitigation procedures of Chapter 4, apply. Liberty Mutual held the 

requirements of the Act apply only when a plaintiff expressly alleges a cause of action for 

violation of the Act; it held that, if the plaintiff alleges a common law cause of action to 

recover for damages caused by a construction defect in residential housing, the Act does 

not apply and the builder is not entitled to the benefits of the Act. Because it is relevant 

to the issue before us, we have considered the Liberty Mutual decision. We ultimately 
9.

reject its reasoning and outcome, however, which we conclude are not consistent with the 

express language of the Act.

The basic scope of the claims to which the Act applies is set out in section 896. It 

provides: 

“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.” 

Section 896 then goes on to set out various construction standards. Thus, the Act 

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

deficiencies in, the residential construction.” (§ 896, italics added.) In such an action, 

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

set out in section 896. (§ 896.) Section 896 does not limit application of the Act to 

actions seeking recovery for deficiencies that have not yet caused property damage. The 

language limiting a claimant’s claims or causes of action does not make an exception for 

common law tort causes of action where the defect has caused property damage. By its 

plain language, the Act applies to any action for damages related to construction 

deficiencies, and limits a claimant’s claims or causes of action to claims of violation of 

the statutory standards.

Section 897 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.” Thus, the Legislature intended to create a comprehensive set of 

construction standards and to make the violation of any of those standards actionable 

under the Act. To the extent it omitted some function or component, however, a 

deficiency in that function or component would not be actionable in itself, but would be 

actionable if it caused property damage. 
10.

Consistent with section 896, section 943 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.” (§ 943, subd. (a).) A claim covered by the Act is a claim 

as defined in sections 896 and 897. Thus, the first portion of section 943 precludes any 

cause of action for damages related to or arising out of a deficiency in residential 

construction, other than one brought pursuant to section 896 for violation of any of the 

standards set out in Chapter 2, or one brought pursuant to section 897, where the alleged 

deficiency involves a function or component not covered in the standards set out in 

section 896. 

The second portion of section 943 precludes a cause of action, other than one 

under sections 896 and 897, for “damages recoverable under section 944.” 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, 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.” 

Accordingly, the second portion of section 943 also precludes any cause of action, 

other than a cause of action under sections 896 and 897, for “the reasonable value of 

repairing any violation of the standards” or “the reasonable cost of repairing and 

rectifying any damages resulting from the failure of the home to meet the standards” set 

out in the Act. In other words, no other cause of action is allowed to recover for repair of 

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

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

condominium conversions, this title does not apply to or does not supersede any other 
11.

statutory or common law.” Section 943 also contains an exception: “In addition to the 

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

contract or express contractual provision, or any action for fraud, personal injury, or 

violation of a statute.” (§ 943, subd. (a).) Section 931 clarifies: “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.” 

Liberty Mutual interpreted the scope of the Act much differently, by focusing on 

other provisions and not fully analyzing the language of sections 896, 897, and 943. It 

invoked the general principle that statutes should not be construed to alter or abrogate the 

common law, unless a legislative purpose to do so clearly and unequivocally appears 

from the language or evident purpose of the statute. (Liberty Mutual, supra, 219 

Cal.App.4th at p. 105; Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 

669; California Assn. of Health Facilities v. Department of Health Services (1997) 16 

Cal.4th 284, 297.) It discussed various sections of the Act and concluded the Act did not 

establish an exclusive remedy for claims of residential construction defects where the 

defect allegedly resulted in actual property damage. (Liberty Mutual, supra, 219 

Cal.App.4th at pp. 105, 108–109.)

The court in Liberty Mutual first considered sections within Chapter 4. These 

sections, however, set out the prelitigation procedures for inspection and attempted repair 

of construction defects; they do not define the scope of the Act. (Liberty Mutual, supra, 

219 Cal.App.4th at pp. 105–106, discussing §§ 910, 913, 916, 917 & 921.) The court 

then discussed section 942, which provides:

“In order to make a claim for violation of the standards set forth in 

Chapter 2 (commencing with Section 896), a 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 
12.

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.” (§ 942.)

The court concluded the Legislature did not intend to eliminate the need to prove 

causation and damages where construction defects resulted in actual property damage, 

but “[t]he elimination of such basic elements of proof ... makes perfect sense when the 

claim is for construction defects that have not yet caused any actual damage.” (Liberty 

Mutual, supra, 219 Cal.App.4th at pp. 106–107.) 

Section 942, however, pertains only to proof of “violation of a standard set forth in 

Chapter 2.” Section 896, which is part of Chapter 2, sets out standards residential 

construction is required to meet. A violation of any of those standards equates to a 

residential construction deficiency or defect. A homeowner may recover for the 

existence of the defect itself (the violation of the standard) or for damage it caused, or 

both. (§ 944.) Section 942 merely provides that the violation of the standard may be 

proved by evidence that the applicable standard has not been met; no further proof of 

causation or damages is needed to recover for the violation of the standard itself. Section 

942 does not eliminate the need to prove causation and damages where the homeowner 

alleges, and seeks recovery for, other damage or costs allegedly caused by the violation 

of the standard. 

Liberty Mutual addressed sections 943, subdivision (a), and 931, which provide:

“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 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.” (§ 943, subd. (a).)

“If a claim combines causes of action or damages not covered by 

this part, including, without limitation, personal injuries, class actions, other 
13.

statutory remedies, or fraud-based claims, the claimed unmet standards 

shall be administered according to this part ....” (§ 931.)6

The court’s entire analysis of these provisions consisted of one sentence: “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.” (Liberty Mutual, supra, 219 Cal.App.4th at p. 107.) The court did not 

discuss the effect of the first sentence of section 943, that “no other cause of action for a 

claim covered by this title or for damages recoverable under Section 944 is allowed.” 

(§ 943, subd. (a).) It also did not discuss the specific list of exceptions set out 

immediately following that provision. Neither list of exceptions, in section 943 or in 

section 931, includes common law causes of action, such as negligence or strict liability. 

If the Legislature had intended to make such a wide-ranging exception to the restrictive 

language of the first sentence of section 943, we would have expected it to do so 

expressly. It did so in the exception of condominium conversions from the scope of the 

Act: “As to condominium conversions, this title does not apply to or does not supersede 

any other statutory or common law.” (§ 896.)

The court noted that the Act contains its own statute of limitations, but the 

Legislature did not repeal the preexisting statutes of limitations, Code of Civil Procedure 

sections 337.1 and 337.15. (Liberty Mutual, supra, 219 Cal.App.4th at p. 108.) It 

concluded: “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.” (Ibid.) We do not interpret the failure to repeal Code of Civil 

Procedure sections 337.1 and 337.15 as evidence the Legislature retained them because it 

intended residential construction defect actions where the defects resulted in actual 

 

6 The quotation of section 931 in Liberty Mutual, supra, 219 Cal.App.4th at page 107, 

omitted the language “including, without limitation, personal injuries, class actions, other 

statutory remedies, or fraud-based claims.” (§ 931.)
14.

property damage to be actionable outside the Act. Those statutes of limitation continue 

to govern actions expressly excluded from the Act, such as actions for personal injuries 

arising out of construction defects and actions involving nonresidential construction. 

Finally, the court discussed section 896. (Liberty Mutual, supra, 219 Cal.App.4th 

at p. 108.) Instead of analyzing the language of the section itself, however, the court 

analyzed the builder’s argument, which it dubbed “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. 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.” (Ibid.)

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

under the Act.” (Liberty Mutual, supra, 219 Cal.App.4th at p. 108.) As previously 

discussed, it provides that “[i]n any action seeking recovery of damages arising out of, or 

related to deficiencies in, the residential construction ... , the claimant’s claims or causes 

of action shall be limited to violation of” the standards set out in Chapter 2. (§ 896.) The 

language of the statute clearly and unequivocally expresses the legislative intent to limit 

the causes of action available to a homeowner claiming damages arising out of, or related 

to deficiencies in, the construction of the homeowner’s residence. 

In Verdugo v. Target Corp. (2014) 59 Cal.4th 312, 326–327, the California 

Supreme Court listed the following as examples of statutes in which the Legislature 

clearly expressed its intent to abrogate liability under common law principles for acting 

or failing to act in a particular manner: 

“[N]o social host who furnishes alcoholic beverages to any person 

may be held legally accountable for damages suffered by that person, or for 

injury to the person or property of, or death of, any third person, resulting 

from the consumption of those beverages.” (§ 1714, subd. (c).)
15.

“No person who in good faith, and not for compensation, renders 

emergency medical or nonmedical care at the scene of an emergency shall 

be liable for any civil damages resulting from any act or omission.” (Health 

& Saf. Code, § 1799.102, subd. (a).) 

“An owner of any estate or other interest in real property ... owes no 

duty of care to keep the premises safe for entry or use by others for any 

recreational purpose or to give any warning of hazardous conditions, uses 

of, structures, or activities on those premises to persons entering for a 

recreational purpose, except as provided in this section.” (§ 846.) 

The language of the Act is equally clear in barring any cause of action for 

damages related to residential construction defects other than a cause of action brought in 

compliance with the Act: 

“In any action seeking recovery of damages arising out of, or related 

to deficiencies in, the residential construction ..., 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.)

“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).) 

Consequently, we conclude the Legislature intended that all claims arising out of 

defects in residential construction, involving new residences sold on or after January 1, 

2003 (§ 938), be subject to the standards and the requirements of the Act; the homeowner 

bringing such a claim must give notice to the builder and engage in the prelitigation 

procedures in accordance with the provisions of Chapter 4 of the Act prior to filing suit in 

court. 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 procedures, regardless of whether the 

complaint expressly alleges a cause of action under the Act. 
16.

The legislative history of the Act supports our interpretation of the scope of the 

Act.7 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, supra, 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, italics added.) 

Additionally,

“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.” (Sen. 

Com. on Judiciary, Analysis of Sen. Bill No. 800 (2001–2002 Reg. Sess.) 

as amended Aug. 28, 2002, p. 2, italics added.) 

The Assembly Committee on Judiciary described the bill as follows:

“This bill, the consensus product resulting from nearly a year of intense 

negotiations among the interested parties, proposes two significant reforms

in the area of construction defect litigation. First, the bill would establish 

definitions of construction defects for the first time, in order to provide a 

measure of certainty and protection for homeowners, builders, 

subcontractors, design professionals and insurers. Secondly, the bill 

requires that claimants alleging a defect give builders notice of the claim, 

following which the builder would have an absolute right to repair before 

the homeowner could sue for violation of these standards.” (Assem. Com. 

on Judiciary, Analysis of Sen. Bill No. 800 (2001–2002 Reg. Sess.) as 

amended Aug. 26, 2002, p. 1.) 

 

7 On September 9, 2014, we granted McMillin’s motion for judicial notice of the 

legislative history of the Act.
17.

Additionally,

“According to the author, this bill represents groundbreaking reform

for construction defect litigation. As many prior bill analyses on this 

subject have noted, the problem[s] of construction defects and associated 

litigation have vexed the Legislature for a number of years, with substantial 

consequences for the development of safe and affordable housing. This bill 

reflects extensive and serious negotiations between builder groups, insurers 

and the Consumer Attorneys of California, with the substantial assistance 

of key legislative leaders over the past year, leading to consensus on ways 

to resolve these issues.

“... A principal feature of the bill is the codification of construction 

defects. For the first time, California law would provide a uniform set of 

standards for the performance of residential building components and 

systems. Rather than requiring resort to contentions about the significance 

of technical deviations from building codes, the bill specifies the standards 

that building systems and components must meet. Significantly, 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 matter how imminent those threats may be.” (Assem. 

Com. on Judiciary, Analysis of Sen. Bill No. 800 (2001–2002 Reg. Sess.) 

as amended Aug. 26, 2002, p. 2, italics added.) 

Describing the prelitigation procedure and the builder’s right to repair, the Senate 

Judiciary Committee stated:

“The bill establishes a mandatory process prior to 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. Builders, insurers, and other business groups are hopeful that this 

right to repair will reduce litigation.” (Sen. Com. on Judiciary, Analysis of 

Sen. Bill No. 800 (2001–2002 Reg. Sess.) as amended Aug. 28, 2002, p. 4.) 

The Act is referred to as “groundbreaking reform for construction defect 

litigation” (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 800 (2001–2002 Reg. 

Sess.) as amended Aug. 26, 2002, p. 2) that “would make major changes to the substance 

and process of the law governing construction defects.” (Sen. Com. on Judiciary, 

Analysis of Sen. Bill No. 800 (2001–2002 Reg. Sess.) as amended Aug. 28, 2002, p. 1.) 
18.

One of the primary purposes of its enactment was to codify a uniform set of construction 

standards by which to determine whether actionable construction defects exist in a 

particular residence. (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 800 (2001–

2002 Reg. Sess.) as amended Aug. 26, 2002, p. 2.) Another purpose was the imposition 

of a “mandatory” prelitigation procedure giving the builder an “absolute right” to attempt 

to repair the claimed construction defects before the homeowner could sue in court. (Sen. 

Com. on Judiciary, Analysis of Sen. Bill No. 800 (2001–2002 Reg. Sess.) as amended 

Aug. 28, 2002, p. 4; Assem. Com. on Judiciary, Analysis of Sen. Bill No. 800 (2001–

2002 Reg. Sess.) as amended Aug. 26, 2002, p. 1.) A recurring theme throughout the 

legislative history is the hope and expectation that the Act would reduce construction 

defect litigation, thereby decreasing the cost of insurance and litigation to entities 

involved in the construction industry, reducing the cost of construction, encouraging 

insurers and builders to return to the market, and making housing more affordable. (See, 

e.g., Assem. Com. on Judiciary, Analysis of Sen. Bill No. 800 (2001–2002 Reg. Sess.) as 

amended Aug. 26, 2002, p. 2; Enrolled Bill Memo. on Sen. Bill No. 800 (2001–2002 

Reg. Sess.) prepared for Gov. Gray Davis (Sept. 19, 2002); Cal. Housing Finance 

Agency, Enrolled Bill Rep. on Sen. Bill No. 800 (2001–2002 Reg. Sess.) Sept. 7, 2002; 

Cal. Dept. of Housing and Community Development, Enrolled Bill Rep. on Sen. Bill 

No. 800 (2001–2002 Reg. Sess.) Aug. 28, 2002; Home Ownership Advancement 

Foundation, Sen. Floor Alert on Sen. Bill No. 800 (2001–2002 Reg. Sess.) Aug. 30, 

2002; Cal. Building Industry Assn., Sen. Floor Alert on Sen. Bill No. 800 (2001–2002

Reg. Sess.); Cal. Chamber of Commerce, Letter to Governor Davis, Sen. Bill No. 800 

(2001–2002 Reg. Sess.) Sept. 10, 2002.)

We doubt the Legislature would have viewed the legislation as “groundbreaking 

reform” or a “major change[]” in the law of construction defects if its provisions were 

mandatory only when the defect had not yet caused damage, and the homeowner could 

still sue for damages under any common law theory once property damage occurred, 
19.

without being subject to the statutory prelitigation procedure. Further, the codified 

construction standards could not constitute a uniform set of standards to comprehensively 

define construction defects if a homeowner could avoid their use simply by suing on 

common law causes of action after the construction defect has caused actual damage. 

Like the statutory provisions themselves, the legislative history does not contain any 

indication the Act was intended to exclude construction defect claims whenever the 

defect has caused actual property damage. In fact, by including “the reasonable cost of 

repairing and rectifying any damages resulting from the failure of the home to meet the 

standards” (§ 944) in the list of damages recoverable in an action under the Act, the 

Legislature expressed its intent that deficiencies that have resulted in actual property 

damage are to be covered by the Act. Additionally, it is unlikely the Legislature or the 

bill supporters would have expected that creating a new statutory cause of action for 

defects that have not yet caused damage, and leaving intact the common law causes of 

action available once property damage has occurred, would significantly reduce the cost 

of construction defect litigation and make housing more affordable. 

VI. Application to This Case

Real parties’ complaint alleged residential construction defects in components or 

functions for which standards have been established in section 896 of the Act. Thus, 

their 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. (§ 910, subd. (a).) That notice sets in motion the nonadversarial 

prelitigation procedure of Chapter 4, which affords the builder an opportunity to attempt 

to repair the claimed deficiencies before the homeowner initiates expensive and timeconsuming litigation. If the homeowner does not comply with the Chapter 4 procedure, 
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“the builder may bring a motion to stay any subsequent court action ... until the 

requirements of this chapter have been satisfied.” (§ 930, subd. (b).) 

Because real parties did not comply with the requirements of Chapter 4 and 

accommodate McMillin’s absolute right to attempt repairs, McMillin is entitled to a stay 

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

we will grant McMillin the relief sought in the writ petition. 

DISPOSITION

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

order of February 27, 2014, denying McMillin’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 procedures found in Civil Code sections 910 

through 938. The parties are to bear their own costs on appeal.

_____________________

HILL, P.J.

WE CONCUR:

_____________________

GOMES, J.

_____________________

KANE, J.