Garret Murai | California Construction Law Blog
A rather short case for a short week.
In Gerlach v. K. Hovnanian’s Four Seasons at Beaumont, LLC, 82 Cal.App.5th 303 (2022), the 4th District Court of appeals examined provisions of the Right to Repair Act (Civ. Code §§895 et. seq), also known as “SB 800” after its original bill number, as it applies to roofs.
The Gerlach Case
Lynn Gerlach and Lola Seals are homeowners who purchased their homes in the Four Seasons at Beaumont adult community, for those 55 year old and older, located in Beaumont, California. Gerlach purchased her home when it was built in 2006. Seals purchased her home from the original owners in 2015.
In 2015 and 2016, Gerlach and Seals served the developer, K. Hovnanian’s Four Seasons at Beaumont, LLC, with claim notices under the Right to Repair Act. The Right to Repair Act, as its name implies, provides notice requirements and repair rights by developers of new single-family homes. The Right to Repair Act also includes construction standards, the violation of which, provides homeowners with a statutory basis for bringing construction defect claims.
Both Gerlach and Seals’ notices raised claims regarding their roofs. Specifically, Gerlach and Seals’ notices raised three statutory claims under the Right to Repair Act under Civil Code sections 896(a)(4), (g)(3)(A), and (g)(11) which provide as follows:
896(a): With respect to water issues: . . . (4) Roofs, roofing systems, chimney caps, and ventilation components shall not allow water to enter the structure or to pass beyond, around, or through the designed or actual moisture barriers, including, without limitation, internal barriers located within the systems themselves. For purposes of this paragraph, “systems” include, without limitation, framing, substrate, and sheathing, if any.
896(g)(3)(A): With respect to issues regarding other areas of construction: . . . (3)(A) To the extent not otherwise covered by these standards, manufactured products, including, but not limited to, windows, doors, roofs, plumbing products and fixtures, fireplaces, electrical fixtures, HVAC units, countertops, cabinets, paint, and appliances shall be installed so as not to interfere with the products’ useful life, if any.
896(g)(11): Roofing materials shall be installed so as to avoid materials falling from the roof.
Hovnanian, upon receipt of Gerlach and Seal’s notices, made various repairs to the homes. Apparently, however, not enough, because Gerlach and Seals later filed suit.
Prior to trial, Hovnanian objected to Gerlach and Seal’s proposed jury instructions as to their roof claims. Specifically, Hovnanian argued that while, Civil Code section 896(g)(3)(A) makes specific to “roofs,” the roofs at issue were not “manufactured products” because the Right to Repair Act defines “manufactured products” as “a product that is completely manufactured offsite,” and the roofs at issue (which were tile) were not completely manufactured offsite. The trial court agreed.
At trial, Gerard Vandewater testified as a roofing expert for Gerlach and Seals. During his testimony, Hovnanian’s counsel objected to Vandewater’s testimony on relevancy grounds and under Evidence Code section 352. At side bar with the trial court, Hovnanian’s counsel argued that Civil Code section 896(a) required a showing that the roofs allowed water to leak into the homes, that Civil Code section 896(g)(11) required a showing that all or a portion of the roof fell to the ground, and that unless Vandewater was prepared to testify that either of these events occurred (i.e., water intrusion or roofing materials falling off), Vandewater’s testimony was irrelevant. When asked by the trial court whether Vandewater would be testifying that either water intrusion occurred or roofing materials fell off, Gerlach and Seals’ counsel stated that Vandewater would not. As such, the trial court terminated Vandewater’s testimony.
Following trial, the jury awarded Seals a grand total of $1,931.08 for defects related to windows and awarded Gerlach nothing on the ground that she failed to timely file her claim under the Right to Repair Act.
Gerlach and Seals appealed.
The Appeal
On Appeal, Gerlach and Seals made two arguments:
- A roof is a manufactured product under Civil Code section 896(g)(3)(A); and
- Civil Code sections 896(a) and 896(g)(11) do not require actual water intrusion or that roofing materials have actually fallen off, but rather, that the roof be in such a condition that water intrusion or roofing materials falling off will not occur.
In the spirit of the season, and in a bit of an “all turkeys are birds, but not all birds are turkeys” logic analysis, the Court of Appeal explained that while Civil Code section 896(g)(3)(A) includes “roofs” among the list of manufactured products that may be covered by the provision, not all roofs are “manufactured products.” Enough said.
And as to Civil Code section 896(a) and 896(g)(11), the Court of Appeal explained that the plain language of the sections required actual water intrusion and that roofing material have actually fallen off, because “[o]therwise, a plaintiff could recover on the basis of the mere possibility that such violations might occur.”
Conclusion
So there you have it. A short case for a short week. If there’s any lesson to be learned here, other than read the statute as it usually means what it says, it is that the underlying purpose of the Right to Repair Act is to give builders an opportunity to repair defects, and if claims can proceed to litigation merely because something “might” happen, it kind of defeats the whole purpose of giving someone the right to repair.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.