BILL NUMBER: SB 800	CHAPTERED
	BILL TEXT

	CHAPTER  722
	FILED WITH SECRETARY OF STATE  SEPTEMBER 20, 2002
	APPROVED BY GOVERNOR  SEPTEMBER 20, 2002
	PASSED THE SENATE  AUGUST 31, 2002
	PASSED THE ASSEMBLY  AUGUST 29, 2002
	AMENDED IN ASSEMBLY  AUGUST 28, 2002
	AMENDED IN ASSEMBLY  AUGUST 28, 2002
	AMENDED IN ASSEMBLY  AUGUST 26, 2002
	AMENDED IN ASSEMBLY  AUGUST 25, 2002
	AMENDED IN ASSEMBLY  AUGUST 15, 2002
	AMENDED IN ASSEMBLY  AUGUST 12, 2002
	AMENDED IN SENATE  MAY 21, 2001
	AMENDED IN SENATE  APRIL 25, 2001
	AMENDED IN SENATE  APRIL 5, 2001

INTRODUCED BY   Senator Burton and Assembly Member Wesson
   (Principal coauthors:  Senators Dunn, Escutia, Romero, and
Torlakson)
   (Principal coauthors:  Assembly Members Calderon, Corbett, Dutra,
and Steinberg)
   (Coauthors:  Assembly Members Aroner, Alquist, Canciamilla,
Cardoza, Cedillo, Chan, Chavez, Chu, Cohn, Diaz, Firebaugh, Florez,
Frommer, Goldberg, Jackson, Keeley, Kehoe, Koretz, Longville,
Lowenthal, Nakano, Negrete McLeod, Oropeza, Papan, Pavley, Reyes,
Salinas, Shelley, Vargas, Wayne, and Wiggins)

                        FEBRUARY 23, 2001

   An act to add Section 43.99 to, and to add Title 7 (commencing
with Section 895) to Part 2 of Division 2 of, the Civil Code,
relating to construction defects.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 800, Burton.  Liability:  construction defects.
   Existing law provides for stipulated judgments in construction
defect actions, as defined.
   The bill would 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.
   This bill would also provide that there is no personal monetary
liability on the part of, and no cause of action for damages shall
arise against, any person, in any of the specified categories, who is
under contract with an applicant for a residential building permit
to provide independent quality review of the plans and specifications
provided with the application in order to determine compliance with
all applicable requirements imposed pursuant to the State Housing Law
or any rules or regulations adopted pursuant to that law, or to
inspect a work of improvement to determine compliance with these
plans and specifications, except as specified.  The bill would also
set forth specified findings and declarations of the Legislature
regarding construction defects.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  The Legislature finds and declares, as follows:
   (a) The California system for the administration of civil justice
is one of the fairest in the world, but certain procedures and
standards should be amended to ensure fairness to all parties.
   (b) The prompt and fair resolution of construction defect claims
is in the interest of consumers, homeowners, and the builders of
homes, and is vital to the state's continuing growth and vitality.
However, under current procedures and standards, homeowners and
builders alike are not afforded the opportunity for quick and fair
resolution of claims.  Both need clear standards and mechanisms for
the prompt resolution of claims.
   (c) It is the intent of the Legislature that this act improve the
procedures for the administration of civil justice, including
standards and procedures for early disposition of construction
defects.
  SEC. 2.  Section 43.99 is added to the Civil Code, to read:
   43.99.  (a) There shall be no monetary liability on the part of,
and no cause of action for damages shall arise against, any person or
other legal entity that is under contract with an applicant for a
residential building permit to provide independent quality review of
the plans and specifications provided with the application in order
to determine compliance with all applicable requirements imposed
pursuant to the State Housing Law (Part 1.5 (commencing with Section
17910) of Division 13 of the Health and Safety Code), or any rules or
regulations adopted pursuant to that law, or under contract with
that applicant to provide independent quality review of the work of
improvement to determine compliance with these plans and
specifications, if the person or other legal entity meets the
requirements of this section and one of the following applies:
   (1) The person, or a person employed by any other legal entity,
performing the work as described in this subdivision, has completed
not less than five years of verifiable experience in the appropriate
field and has obtained certification as a building inspector,
combination inspector, or combination dwelling inspector from the
International Conference of Building Officials (ICBO) and has
successfully passed the technical written examination promulgated by
ICBO for those certification categories.
   (2) The person, or a person employed by any other legal entity,
performing the work as described in this subdivision, has completed
not less than five years of verifiable experience in the appropriate
field and is a registered professional engineer, licensed general
contractor, or a licensed architect rendering independent quality
review of the work of improvement or plan examination services within
the scope of his or her registration or licensure.
   (3) The immunity provided under this section does not apply to any
action initiated by the applicant who retained the qualified person.

   (4) A "qualified person" for purposes of this section means a
person holding a valid certification as one of those inspectors.
   (b) Except for qualified persons, this section shall not relieve
from, excuse, or lessen in any manner, the responsibility or
liability of any person, company, contractor, builder, developer,
architect, engineer, designer, or other individual or entity who
develops, improves, owns, operates, or manages any residential
building for any damages to persons or property caused by
construction or design defects.  The fact that an inspection by a
qualified person has taken place may not be introduced as evidence in
a construction defect action, including any reports or other items
generated by the qualified person.  This subdivision shall not apply
in any action initiated by the applicant who retained the qualified
person.
   (c) Nothing in this section, as it relates to construction
inspectors or plans examiners, shall be construed to alter the
requirements for licensure, or the jurisdiction, authority, or scope
of practice, of architects pursuant to Chapter 3 (commencing with
Section 5500) of Division 3 of the Business and Professions Code,
professional engineers pursuant to Chapter 7 (commencing with Section
6700) of Division 3 of the Business and Professions Code, or general
contractors pursuant to Chapter 9 (commencing with Section 7000) of
Division 3 of the Business and Professions Code.
   (d) Nothing in this section shall be construed to alter the
immunity of employees of the Department of Housing and Community
Development under the Tort Claims Act (Division 3.6 (commencing with
Section 810) of Title 1 of the Government Code) when acting pursuant
to Section 17965 of the Health and Safety Code.
   (e) The qualifying person shall engage in no other construction,
design, planning, supervision, or activities of any kind on the work
of improvement, nor provide quality review services for any other
party on the work of improvement.
   (f) The qualifying person, or other legal entity, shall maintain
professional errors and omissions insurance coverage in an amount not
less than two million dollars ($2,000,000).
   (g) The immunity provided by subdivision (a) does not inure to the
benefit of the qualified person for damages caused to the applicant
solely by the negligence or willful misconduct of the qualified
person resulting from the provision of services under the contract
with the applicant.
  SEC. 3.  Title 7 (commencing with Section 895) is added to Part 2
of Division 2 of the Civil Code, to read:

      TITLE 7.  REQUIREMENTS FOR ACTIONS FOR CONSTRUCTION DEFECTS
      CHAPTER 1.  DEFINITIONS

   895.  (a) "Structure" means any residential dwelling, other
building, or improvement located upon a lot or within a common area.

   (b) "Designed moisture barrier" means an installed moisture
barrier specified in the plans and specifications, contract
documents, or manufacturer's recommendations.
   (c) "Actual moisture barrier" means any component or material,
actually installed, that serves to any degree as a barrier against
moisture, whether or not intended as such.
   (d) "Unintended water" means water that passes beyond, around, or
through a component or the material that is designed to prevent that
passage.
   (e) "Close of escrow" means the date of the close of escrow
between the builder and the original homeowner.  With respect to
claims by an association, as defined in subdivision (a) of Section
1351, "close of escrow" means the date of substantial completion, as
defined in Section 337.15 of the Code of Civil Procedure, or the date
the builder relinquishes control over the association's ability to
decide whether to initiate a claim under this title, whichever is
later.
   (f) "Claimant" or "homeowner" includes the individual owners of
single-family homes, individual unit owners of attached dwellings
and, in the case of a common interest development, any association as
defined in subdivision (a) of Section 1351.

      CHAPTER 2.  ACTIONABLE DEFECTS

   896.  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 (commencing with Section 910), a 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.  This title applies to original construction
intended to be sold as an individual dwelling unit.  As to
condominium conversions, this title does not apply to or does not
supersede any other statutory or common law.
   (a) With respect to water issues:
   (1) A door shall not allow unintended water to pass beyond,
around, or through the door or its designed or actual moisture
barriers, if any.
   (2) Windows, patio doors, deck doors, and their systems shall not
allow water to pass beyond, around, or through the window, patio
door, or deck door or its designed or actual moisture barriers,
including, without limitation, internal barriers within the systems
themselves.  For purposes of this paragraph, "systems" include,
without limitation, windows, window assemblies, framing, substrate,
flashings, and trim, if any.
   (3) Windows, patio doors, deck doors, and their systems shall not
allow excessive condensation to enter the structure and cause damage
to another component.  For purposes of this paragraph, "systems"
include, without limitation, windows, window assemblies, framing,
substrate, flashings, and trim, if any.
   (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.
   (5) Decks, deck systems, balconies, balcony systems, exterior
stairs, and stair systems shall not allow water to pass into the
adjacent structure.  For purposes of this paragraph, "systems"
include, without limitation, framing, substrate, flashing, and
sheathing, if any.
   (6) Decks, deck systems, balconies, balcony systems, exterior
stairs, and stair systems shall not allow unintended water to pass
within the systems themselves and cause damage to the systems.  For
purposes of this paragraph, "systems" include, without limitation,
framing, substrate, flashing, and sheathing, if any.
   (7) Foundation systems and slabs shall not allow water or vapor to
enter into the structure so as to cause damage to another building
component.
   (8) Foundation systems and slabs shall not allow water or vapor to
enter into the structure so as to limit the installation of the type
of flooring materials typically used for the particular application.

   (9) Hardscape, including paths and patios, irrigation systems,
landscaping systems, and drainage systems, that are installed as part
of the original construction, shall not be installed in such a way
as to cause water or soil erosion to enter into or come in contact
with the structure so as to cause damage to another building
component.
   (10) Stucco, exterior siding, exterior walls, including, without
limitation, exterior framing, and other exterior wall finishes and
fixtures and the systems of those components and fixtures, including,
but not limited to, pot shelves, horizontal surfaces, columns, and
plant-ons, shall be installed in such a way so as not to allow
unintended water to pass into the structure or to pass beyond,
around, or through the designed or actual moisture barriers of the
system, including any internal barriers located within the system
itself.   For purposes of this paragraph, "systems" include, without
limitation, framing, substrate, flashings, trim, wall assemblies, and
internal wall cavities, if any.
   (11) Stucco, exterior siding, and exterior walls shall not allow
excessive condensation to enter the structure and cause damage to
another component.  For purposes of this paragraph, "systems"
include, without limitation, framing, substrate, flashings, trim,
wall assemblies, and internal wall cavities, if any.
   (12) Retaining and site walls and their associated drainage
systems shall not allow unintended water to pass beyond, around, or
through its designed or actual moisture barriers including, without
limitation, any internal barriers, so as to cause damage.  This
standard does not apply to those portions of any wall or drainage
system that are designed to have water flow beyond, around, or
through them.
   (13) Retaining walls and site walls, and their associated drainage
systems, shall only allow water to flow beyond, around, or through
the areas designated by design.
   (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.
   (16) Sewer systems shall be installed in such a way as to allow
the designated amount of sewage to flow through the system.
   (17) Shower and bath enclosures shall not leak water into the
interior of walls, flooring systems, or the interior of other
components.
   (18) Ceramic tile and tile countertops shall not allow water into
the interior of walls, flooring systems, or other components so as to
cause damage.
   (b) With respect to structural issues:
   (1) Foundations, load bearing components, and slabs, shall not
contain significant cracks or significant vertical displacement.
   (2) Foundations, load bearing components, and slabs shall not
cause the structure, in whole or in part, to be structurally unsafe.

   (3) Foundations, load bearing components, and slabs, and
underlying soils shall be constructed so as to materially comply with
the design criteria set by applicable government building codes,
regulations, and ordinances for chemical deterioration or corrosion
resistance in effect at the time of original construction.
   (4) A structure shall be constructed so as to materially comply
with the design criteria for earthquake and wind load resistance, as
set forth in the applicable government building codes, regulations,
and ordinances in effect at the time of original construction.
   (c) With respect to soil issues:
   (1) Soils and engineered retaining walls shall not cause, in whole
or in part, damage to the structure built upon the soil or
engineered retaining wall.
   (2) Soils and engineered retaining walls shall not cause, in whole
or in part, the structure to be structurally unsafe.
   (3) Soils shall not cause, in whole or in part, the land upon
which no structure is built to become unusable for the purpose
represented at the time of original sale by the builder or for the
purpose for which that land is commonly used.
   (d) With respect to fire protection issues:
   (1) A structure shall be constructed so as to materially comply
with the design criteria of the applicable government building codes,
regulations, and ordinances for fire protection of the occupants in
effect at the time of the original construction.
   (2) Fireplaces, chimneys, chimney structures, and chimney
termination caps shall be constructed and installed in such a way so
as not to cause an unreasonable risk of fire outside the fireplace
enclosure or chimney.
   (3) Electrical and mechanical systems shall be constructed and
installed in such a way so as not to cause an unreasonable risk of
fire.
   (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.
   (f) With respect to electrical system issues:
   Electrical systems shall operate properly and shall not materially
impair the use of the structure by its inhabitants.  However, no
action shall be brought pursuant to this subdivision more than four
years from close of escrow.
   (g) With respect to issues regarding other areas of construction:

   (1) Exterior pathways, driveways, hardscape, sidewalls, sidewalks,
and patios installed by the original builder shall not contain
cracks that display significant vertical displacement or that are
excessive.  However, no action shall be brought upon a violation of
this paragraph more than four years from close of escrow.
   (2) Stucco, exterior siding, and other exterior wall finishes and
fixtures, including, but not limited to, pot shelves, horizontal
surfaces, columns, and plant-ons, shall not contain significant
cracks or separations.
   (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.
   (B) For purposes of this paragraph, "useful life" means a
representation of how long a product is warranted or represented,
through its limited warranty or any written representations, to last
by its manufacturer, including recommended or required maintenance.
If there is no representation by a manufacturer, a builder shall
install manufactured products so as not to interfere with the product'
s utility.
   (C) For purposes of this paragraph, "manufactured product" means a
product that is completely manufactured offsite.
   (D) If no useful life representation is made, or if the
representation is less than one year, the period shall be no less
than one year.  If a manufactured product is damaged as a result of a
violation of these standards, damage to the product is a recoverable
element of damages.  This subparagraph does not limit recovery if
there has been damage to another building component caused by a
manufactured product during the manufactured product's useful life.
   (E) This title does not apply in any action seeking recovery
solely for a defect in a manufactured product located within or
adjacent to a structure.
   (4) Heating, if any, shall be installed so as to be capable of
maintaining a room temperature of 70 degrees Fahrenheit at a point
three feet above the floor in any living space.
   (5) Living space air-conditioning, if any, shall be provided in a
manner consistent with the size and efficiency design criteria
specified in Title 24 of the California Code of Regulations or its
successor.
   (6) Attached structures shall be constructed to comply with
interunit noise transmission standards set by the applicable
government building codes, ordinances, or regulations in effect at
the time of the original construction.  If there is no applicable
code, ordinance, or regulation, this paragraph does not apply.
However, no action shall be brought pursuant to this paragraph more
than one year from the original occupancy of the adjacent unit.
   (7) Irrigation systems and drainage shall operate properly so as
not to damage landscaping or other external improvements.  However,
no action shall be brought pursuant to this paragraph more than one
year from close of escrow.
   (8) Untreated wood posts shall not be installed in contact with
soil so as to cause unreasonable decay to the wood based upon the
finish grade at the time of original construction.  However, no
action shall be brought pursuant to this paragraph more than two
years from close of escrow.
   (9) Untreated steel fences and adjacent components shall be
installed so as to prevent unreasonable corrosion.  However, no
action shall be brought pursuant to this paragraph more than four
years from close of escrow.
   (10) Paint and stains shall be applied in such a manner so as not
to cause deterioration of the building surfaces for the length of
time specified by the paint or stain manufacturers' representations,
if any.  However, no action shall be brought pursuant to this
paragraph more than five years from close of escrow.
   (11) Roofing materials shall be installed so as to avoid materials
falling from the roof.
   (12) The landscaping systems shall be installed in such a manner
so as to survive for not less than one year.  However, no action
shall be brought pursuant to this paragraph more than two years from
close of escrow.
   (13) Ceramic tile and tile backing shall be installed in such a
manner that the tile does not detach.
   (14) Dryer ducts shall be installed and terminated pursuant to
manufacturer installation requirements.  However, no action shall be
brought pursuant to this paragraph more than two years from close of
escrow.
   (15) Structures shall be constructed in such a manner so as not to
impair the occupants' safety because they contain public health
hazards as determined by a duly authorized public health official,
health agency, or governmental entity having jurisdiction.  This
paragraph does not limit recovery for any damages caused by a
violation of any other paragraph of this section on the grounds that
the damages do not constitute a health hazard.
   897.  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.

      CHAPTER 3.  OBLIGATIONS

   900.  As to fit and finish items, a builder shall provide a
homebuyer with a minimum one-year express written limited warranty
covering the fit and finish of the following building components.
Except as otherwise provided by the standards specified in Chapter 2
(commencing with Section 896), this warranty shall cover the fit and
finish of cabinets, mirrors, flooring, interior and exterior walls,
countertops, paint finishes, and trim, but shall not apply to damage
to those components caused by defects in other components governed by
the other provisions of this title.  Any fit and finish matters
covered by this warranty are not subject to the provisions of this
title.  If a builder fails to provide the express warranty required
by this section, the warranty for these items shall be for a period
of one year.
   901.  A builder may, but is not required to, offer greater
protection or protection for longer time periods in its express
contract with the homeowner than that set forth in Chapter 2
(commencing with Section 896).  A builder may not limit the
application of Chapter 2 (commencing with Section 896) or lower its
protection through the express contract with the homeowner. This type
of express contract constitutes an "enhanced protection agreement."
   902.  If a builder offers an enhanced protection agreement, the
builder may choose to be subject to its own express contractual
provisions in place of the provisions set forth in Chapter 2
(commencing with Section 896).  If an enhanced protection agreement
is in place, Chapter 2 (commencing with Section 896) no longer
applies other than to set forth minimum provisions by which to judge
the enforceability of the particular provisions of the enhanced
protection agreement.
   903.  If a builder offers an enhanced protection agreement in
place of the provisions set forth in Chapter 2 (commencing with
Section 896), the election to do so shall be made in writing with the
homeowner no later than the close of escrow.  The builder shall
provide the homeowner with a complete copy of Chapter 2 (commencing
with Section 896) and advise the homeowner that the builder has
elected not to be subject to its provisions.  If any provision of an
enhanced protection agreement is later found to be unenforceable as
not meeting the minimum standards of Chapter 2 (commencing with
Section 896), a builder may use this chapter in lieu of those
provisions found to be unenforceable.
   904.  If a builder has elected to use an enhanced protection
agreement, and a homeowner disputes that the particular provision or
time periods of the enhanced protection agreement are not greater
than, or equal to, the provisions of Chapter 2 (commencing with
Section 896) as they apply to the particular deficiency alleged by
the homeowner, the homeowner may seek to enforce the application of
the standards set forth in this chapter as to those claimed
deficiencies.  If a homeowner seeks to enforce a particular standard
in lieu of a provision of the enhanced protection agreement, the
homeowner shall give the builder written notice of that intent at the
time the homeowner files a notice of claim pursuant to Chapter 4
(commencing with Section 910).
   905.  If a homeowner seeks to enforce Chapter 2 (commencing with
Section 896), in lieu of the enhanced protection agreement in a
subsequent litigation or other legal action, the builder shall have
the right to have the matter bifurcated, and to have an immediately
binding determination of his or her responsive pleading within 60
days after the filing of that pleading, but in no event after the
commencement of discovery, as to the application of either Chapter 2
(commencing with Section 896) or the enhanced protection agreement as
to the deficiencies claimed by the homeowner.  If the builder fails
to seek that determination in the timeframe specified, the builder
waives the right to do so and the standards set forth in this title
shall apply.  As to any nonoriginal homeowner, that homeowner shall
be deemed in privity for purposes of an enhanced protection agreement
only to the extent that the builder has recorded the enhanced
protection agreement on title or provided actual notice to the
nonoriginal homeowner of the enhanced protection agreement.  If the
enhanced protection agreement is not recorded on title or no actual
notice has been provided, the standards set forth in this title apply
to any nonoriginal homeowners' claims.
   906.  A builder's election to use an enhanced protection agreement
addresses only the issues set forth in Chapter 2 (commencing with
Section 896) and does not constitute an election to use or not use
the provisions of Chapter 4 (commencing with Section 910).  The
decision to use or not use Chapter 4 (commencing with Section 910) is
governed by the provisions of that chapter.
   907.  A homeowner is obligated to follow all reasonable
maintenance obligations and schedules communicated in writing to the
homeowner by the builder and product manufacturers, as well as
commonly accepted maintenance practices.  A failure by a homeowner to
follow these obligations, schedules, and practices may subject the
homeowner to the affirmative defenses contained in Section 944.

      CHAPTER 4.  PRELITIGATION PROCEDURE

   910.  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:
   (a) The claimant or his or her legal representative shall provide
written notice via certified mail, overnight mail, or personal
delivery to the builder, in the manner prescribed in this section, of
the claimant's claim that the construction of his or her residence
violates any of the standards set forth in Chapter 2 (commencing with
Section 896).  That notice shall provide the claimant's name,
address, and preferred method of contact, and shall state that the
claimant alleges a violation pursuant to this part against the
builder, and shall describe
    the claim in reasonable detail sufficient to determine the nature
and location, to the extent known, of the claimed violation.  In the
case of a group of homeowners or an association, the notice may
identify the claimants solely by address or other description
sufficient to apprise the builder of the locations of the subject
residences.  That document shall have the same force and effect as a
notice of commencement of a legal proceeding.
   (b) The notice requirements of this section do not preclude a
homeowner from seeking redress through any applicable normal customer
service procedure as set forth in any contractual, warranty, or
other builder-generated document; and, if a homeowner seeks to do so,
that request shall not satisfy the notice requirements of this
section.
   911.  For purposes of this title, "builder" means a builder,
developer, or original seller and applies to the sale of new
residential units on and after January 1, 2003.
   912.  A builder shall do all of the following:
   (a) Within 30 days of a written request by a homeowner or his or
her legal representative, the builder shall provide copies of all
relevant plans, specifications, mass or rough grading plans, final
soils reports, Department of Real Estate public reports, and
available engineering calculations, that pertain to a homeowner's
residence specifically or as part of a larger development tract.  The
request shall be honored if it states that it is made relative to
structural, fire safety, or soils provisions of this title.  However,
a builder is not obligated to provide a copying service, and
reasonable copying costs shall be borne by the requesting party.  A
builder may require that the documents be copied onsite by the
requesting party, except that the homeowner may, at his or her
option, use his or her own copying service, which may include an
offsite copy facility that is bonded and insured.  If a builder can
show that the builder maintained the documents, but that they later
became unavailable due to loss or destruction that was not the fault
of the builder, the builder may be excused from the requirements of
this subdivision, in which case the builder shall act with reasonable
diligence to assist the homeowner in obtaining those documents from
any applicable government authority or from the source that generated
the document.  However, in that case, the time limits specified by
this section do not apply.
   (b) At the expense of the homeowner, who may opt to use an offsite
copy facility that is bonded and insured, the builder shall provide
to the homeowner or his or her legal representative copies of all
maintenance and preventative maintenance recommendations that pertain
to his or her residence within 30 days of service of a written
request for those documents.  Those documents shall also be provided
to the homeowner in conjunction with the initial sale of the
residence.
   (c) At the expense of the homeowner, who may opt to use an offsite
copy facility that is bonded and insured, a builder shall provide to
the homeowner or his or her legal representative copies of all
manufactured products maintenance, preventive maintenance, and
limited warranty information within 30 days of a written request for
those documents.  These documents shall also be provided to the
homeowner in conjunction with the initial sale of the residence.
   (d) At the expense of the homeowner, who may opt to use an offsite
copy facility that is bonded and insured, a builder shall provide to
the homeowner or his or her legal representative copies of all of
the builder's limited contractual warranties in accordance with this
part in effect at the time of the original sale of the residence
within 30 days of a written request for those documents.  Those
documents shall also be provided to the homeowner in conjunction with
the initial sale of the residence.
   (e) A builder shall maintain the name and address of an agent for
notice pursuant to this chapter with the Secretary of State or,
alternatively, elect to use a third party for that notice if the
builder has notified the homeowner in writing of the third party's
name and address, to whom claims and requests for information under
this section may be mailed.  The name and address of the agent for
notice or third party shall be included with the original sales
documentation and shall be initialed and acknowledged by the
purchaser and the builder's sales representative.
   This subdivision applies to instances in which a builder contracts
with a third party to accept claims and act on the builder's behalf.
  A builder shall give actual notice to the homeowner that the
builder has made such an election, and shall include the name and
address of the third party.
   (f) A builder shall record on title a notice of the existence of
these procedures and a notice that these procedures impact the legal
rights of the homeowner.  This information shall also be included
with the original sales documentation and shall be initialed and
acknowledged by the purchaser and the builder's sales representative.

   (g) A builder shall provide with the original sales documentation,
a written copy of this part which shall be initialed and
acknowledged by the purchaser and the builder's sales representative.

   (h) As to any documents provided in conjunction with the original
sale, the builder shall instruct the original purchaser to provide
those documents to any subsequent purchaser.
   (i) Any builder who fails to comply with any of these requirements
within the time specified is not entitled to the protection of this
chapter, and the homeowner is released from the requirements of this
chapter and may proceed with the filing of an action, in which case
the remaining chapters of this part shall continue to apply to the
action.
   913.  A builder or his or her representative shall acknowledge, in
writing, receipt of the notice of the claim within 14 days after
receipt of the notice of the claim.  If the notice of the claim is
served by the claimant's legal representative, or if the builder
receives a written representation letter from a homeowner's attorney,
the builder shall include the attorney in all subsequent substantive
communications, including, without limitation, all written
communications occurring pursuant to this chapter, and all
substantive and procedural communications, including all written
communications, following the commencement of any subsequent
complaint or other legal action, except that if the builder has
retained or involved legal counsel to assist the builder in this
process, all communications by the builder's counsel shall only be
with the claimant's legal representative, if any.
   914.  (a) This chapter establishes a nonadversarial procedure,
including the remedies available under this chapter which, if the
procedure does not resolve the dispute between the parties, may
result in a subsequent action to enforce the other chapters of this
title.  A builder may attempt to commence nonadversarial contractual
provisions other than the nonadversarial procedures and remedies set
forth in this chapter, but may not, in addition to its own
nonadversarial contractual provisions, require adherence to the
nonadversarial procedures and remedies set forth in this chapter,
regardless of whether the builder's own alternative nonadversarial
contractual provisions are successful in resolving the dispute or
ultimately deemed enforceable.
   At the time the sales agreement is executed, the builder shall
notify the homeowner whether the builder intends to engage in the
nonadversarial procedure of this section or attempt to enforce
alternative nonadversarial contractual provisions.  If the builder
elects to use alternative nonadversarial contractual provisions in
lieu of this chapter, the election is binding, regardless of whether
the builder's alternative nonadversarial contractual provisions are
successful in resolving the ultimate dispute or are ultimately deemed
enforceable.
   (b) Nothing in this title is intended to affect existing statutory
or decisional law pertaining to the applicability, viability, or
enforceability of alternative dispute resolution methods, alternative
remedies, or contractual arbitration, judicial reference, or similar
procedures requiring a binding resolution to enforce the other
chapters of this title or any other disputes between homeowners and
builders.  Nothing in this title is intended to affect the
applicability, viability, or enforceability, if any, of contractual
arbitration or judicial reference after a nonadversarial procedure or
provision has been completed.
   915.  If a builder fails to acknowledge receipt of the notice of a
claim within the time specified, elects not to go through the
process set forth in this chapter, or fails to request an inspection
within the time specified, or at the conclusion or cessation of an
alternative nonadversarial proceeding, this chapter does not apply
and the homeowner is released from the requirements of this chapter
and may proceed with the filing of an action.  However, the standards
set forth in the other chapters of this title shall continue to
apply to the action.
   916.  (a) If a builder elects to inspect the claimed unmet
standards, the builder shall complete the initial inspection and
testing within 14 days after acknowledgment of receipt of the notice
of the claim, at a mutually convenient date and time.  If the
homeowner has retained legal representation, the inspection shall be
scheduled with the legal representative's office at a mutually
convenient date and time, unless the legal representative is
unavailable during the relevant time periods.  All costs of builder
inspection and testing, including any damage caused by the builder
inspection, shall be borne by the builder.  The builder shall also
provide written proof that the builder has liability insurance to
cover any damages or injuries occurring during inspection and
testing.  The builder shall restore the property to its pretesting
condition within 48 hours of the testing.  The builder shall, upon
request, allow the inspections to be observed and electronically
recorded, videotaped, or photographed by the claimant or his or her
legal representative.
   (b) Nothing that occurs during a builder's or claimant's
inspection or testing may be used or introduced as evidence to
support a spoilation defense by any potential party in any subsequent
litigation.
   (c) If a builder deems a second inspection or testing reasonably
necessary, and specifies the reasons therefor in writing within three
days following the initial inspection, the builder may conduct a
second inspection or testing.  A second inspection or testing shall
be completed within 40 days of the initial inspection or testing.
All requirements concerning the initial inspection or testing shall
also apply to the second inspection or testing.
   (d) If the builder fails to inspect or test the property within
the time specified, the claimant is released from the requirements of
this section and may proceed with the filing of an action.  However,
the standards set forth in the other chapters of this title shall
continue to apply to the action.
   (e) If a builder intends to hold a subcontractor, design
professional, individual product manufacturer, or material supplier,
including an insurance carrier, warranty company, or service company,
responsible for its contribution to the unmet standard, the builder
shall provide notice to that person or entity sufficiently in advance
to allow them to attend the initial, or if requested, second
inspection of any alleged unmet standard and to participate in the
repair process.  The claimant and his or her legal representative, if
any, shall be advised in a reasonable time prior to the inspection
as to the identity of all persons or entities invited to attend.
This subdivision shall not apply to the builder's insurance company.
Except with respect to any claims involving a repair actually
conducted under this chapter, nothing in this subdivision shall be
construed to relieve a subcontractor, design professional, individual
product manufacturer, or material supplier of any liability under an
action brought by a claimant.
   917.  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.
   918.  Upon receipt of the offer to repair, the homeowner shall
have 30 days to authorize the builder to proceed with the repair.
The homeowner may alternatively request, at the homeowner's sole
option and discretion, that the builder provide the names, addresses,
telephone numbers, and license numbers for up to three alternative
contractors who are not owned or financially controlled by the
builder and who regularly conduct business in the county where the
structure is located.  If the homeowner so elects, the builder is
entitled to an additional noninvasive inspection, to occur at a
mutually convenient date and time within 20 days of the election, so
as to permit the other proposed contractors to review the proposed
site of the repair.  Within 35 days after the request of the
homeowner for alternative contractors, the builder shall present the
homeowner with a choice of contractors.  Within 20 days after that
presentation, the homeowner shall authorize the builder or one of the
alternative contractors to perform the repair.
   919.  The offer to repair shall also be accompanied by an offer to
mediate the dispute if the homeowner so chooses.  The mediation
shall be limited to a four-hour mediation, except as otherwise
mutually agreed before a nonaffiliated mediator selected and paid for
by the builder.  At the homeowner's sole option, the homeowner may
agree to split the cost of the mediator, and if he or she does so,
the mediator shall be selected jointly.  The mediator shall have
sufficient availability such that the mediation occurs within 15 days
after the request to mediate is received and occurs at a mutually
convenient location within the county where the action is pending.
If a builder has made an offer to repair a violation, and the
mediation has failed to resolve the dispute, the homeowner shall
allow the repair to be performed either by the builder, its
contractor, or the selected contractor.
   920.  If the builder fails to make an offer to repair or otherwise
strictly comply with this chapter within the times specified, the
claimant is released from the requirements of this chapter and may
proceed with the filing of an action.  If the contractor performing
the repair does not complete the repair in the time or manner
specified, the claimant may file an action.  If this occurs, the
standards set forth in the other chapters of this part shall continue
to apply to the action.
   921.  (a) In the event that a resolution under this chapter
involves a repair by the builder, the builder shall make an
appointment with the claimant, make all appropriate arrangements to
effectuate a repair of the claimed unmet standards, and compensate
the homeowner for all damages resulting therefrom free of charge to
the claimant.  The repair shall be scheduled through the claimant's
legal representative, if any, unless he or she is unavailable during
the relevant time periods.  The repair shall be commenced on a
mutually convenient date within 14 days of acceptance or, if an
alternative contractor is selected by the homeowner, within 14 days
of the selection, or, if a mediation occurs, within seven days of the
mediation, or within five days after a permit is obtained if one is
required.  The builder shall act with reasonable diligence in
obtaining any such permit.
   (b) The builder shall ensure that work done on the repairs is done
with the utmost diligence, and that the repairs are completed as
soon as reasonably possible, subject to the nature of the repair or
some unforeseen event not caused by the builder or the contractor
performing the repair.  Every effort shall be made to complete the
repair within 120  days.
   922.  The builder shall, upon request, allow the repair to be
observed and electronically recorded, videotaped, or photographed by
the claimant or his or her legal representative.  Nothing that occurs
during the repair process may be used or introduced as evidence to
support a spoliation defense by any potential party in any subsequent
litigation.
   923.  The builder shall provide the homeowner or his or her legal
representative, upon request, with copies of all correspondence,
photographs, and other materials pertaining or relating in any manner
to the repairs.
   924.  If the builder elects to repair some, but not all of, the
claimed unmet standards, the builder shall, at the same time it makes
its offer, set forth with particularity in writing the reasons, and
the support for those reasons, for not repairing all claimed unmet
standards.
   925.  If the builder fails to complete the repair within the time
specified in the repair plan, the claimant is released from the
requirements of this chapter and may proceed with the filing of an
action.  If this occurs, the standards set forth in the other
chapters of this title shall continue to apply to the action.
   926.  The builder may not obtain a release or waiver of any kind
in exchange for the repair work mandated by this chapter.  At the
conclusion of the repair, the claimant may proceed with filing an
action for violation of the applicable standard or for a claim of
inadequate repair, or both, including all applicable damages
available under Section 944.
   927.  If the applicable statute of limitations has otherwise run
during this process, the time period for filing a complaint or other
legal remedies for violation of any provision of this title, or for a
claim of inadequate repair, is extended from the time of the
original claim by the claimant to 100 days after the repair is
completed, whether or not the particular violation is the one being
repaired.  If the builder fails to acknowledge the claim within the
time specified, elects not to go through this statutory process, or
fails to request an inspection within the time specified, the time
period for filing a complaint or other legal remedies for violation
of any provision of this title is extended from the time of the
original claim by the claimant to 45 days after the time for
responding to the notice of claim has expired.  If the builder elects
to attempt to enforce its own nonadversarial procedure in lieu of
the procedure set forth in this chapter, the time period for filing a
complaint or other legal remedies for violation of any provision of
this part is extended from the time of the original claim by the
claimant to 100 days after either the completion of the builder's
alternative nonadversarial procedure, or 100 days after the builder's
alternative nonadversarial procedure is deemed unenforceable,
whichever is later.
   928.  If the builder has invoked this chapter and completed a
repair, prior to filing an action, if there has been no previous
mediation between the parties, the homeowner or his or her legal
representative shall request mediation in writing.  The mediation
shall be limited to four hours, except as otherwise mutually agreed
before a nonaffiliated mediator selected and paid for by the builder.
  At the homeowner's sole option, the homeowner may agree to split
the cost of the mediator and if he or she does so, the mediator shall
be selected jointly.  The mediator shall have sufficient
availability such that the mediation will occur within 15 days after
the request for mediation is received and shall occur at a mutually
convenient location within the county where the action is pending.
In the event that a mediation is used at this point, any applicable
statutes of limitations shall be tolled from the date of the request
to mediate until the next court day after the mediation is completed,
or the 100-day period, whichever is later.
   929.  (a) Nothing in this chapter prohibits the builder from
making only a cash offer and no repair.  In this situation, the
homeowner is free to accept the offer, or he or she may reject the
offer and proceed with the filing of an action.  If the latter
occurs, the standards of the other chapters of this title shall
continue to apply to the action.
   (b) The builder may obtain a reasonable release in exchange for
the cash payment.  The builder may negotiate the terms and conditions
of any reasonable release in terms of scope and consideration in
conjunction with a cash payment under this chapter.
   930.  (a) The time periods and all other requirements in this
chapter are to be strictly construed, and, unless extended by the
mutual agreement of the parties in accordance with this chapter,
shall govern the rights and obligations under this title.  If a
builder fails to act in accordance with this section within the
timeframes mandated, unless extended by the mutual agreement of the
parties as evidenced by a postclaim written confirmation by the
affected homeowner demonstrating that he or she has knowingly and
voluntarily extended the statutory timeframe, the claimant may
proceed with filing an action.  If this occurs, the standards of the
other chapters of this title shall continue to apply to the action.
   (b) If the claimant does not conform with the requirements of this
chapter, the builder may bring a motion to stay any subsequent court
action or other proceeding until the requirements of this chapter
have been satisfied.  The court, in its discretion, may award the
prevailing party on such a motion, his or her attorney's fees and
costs in bringing or opposing the motion.
   931.  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,
although evidence of the property in its unrepaired condition may be
introduced to support the respective elements of any such cause of
action.  As to any fraud-based claim, if the fact that the property
has been repaired under this chapter is deemed admissible, the trier
of fact shall be informed that the repair was not voluntarily
accepted by the homeowner.  As to any class action claims that
address solely the incorporation of a defective component into a
residence, the named and unnamed class members need not comply with
this chapter.
   932.  Subsequently discovered claims of unmet standards shall be
administered separately under this chapter, unless otherwise agreed
to by the parties.  However, in the case of a detached single family
residence, in the same home, if the subsequently discovered claim is
for a violation of the same standard as that which has already been
initiated by the same claimant and the subject of a currently pending
action, the claimant need not reinitiate the process as to the same
standard.  In the case of an attached project, if the subsequently
discovered claim is for a violation of the same standard for a
connected component system in the same building as has already been
initiated by the same claimant, and the subject of a currently
pending action, the claimant need not reinitiate this process as to
that standard.
   933.  If any enforcement of these standards is commenced, the fact
that a repair effort was made may be introduced to the trier of
fact.  However, the claimant may use the condition of the property
prior to the repair as the basis for contending that the repair work
was inappropriate, inadequate, or incomplete, or that the violation
still exists.  The claimant need not show that the repair work
resulted in further damage nor that damage has continued to occur as
a result of the violation.
   934.  Evidence of both parties' conduct during this process may be
introduced during a subsequent enforcement action, if any, with the
exception of any mediation.  Any repair efforts undertaken by the
builder, shall not be considered settlement communications or offers
of settlement and are not inadmissible in evidence on such a basis.
   935.  To the extent that provisions of this chapter are enforced
and those provisions are substantially similar to provisions in
Section 1375 of the Civil Code, but an action is subsequently
commenced under Section 1375 of the Civil Code, the parties are
excused from performing the substantially similar requirements under
Section 1375 of the Civil Code.
   936.  Each and every provision of the other chapters of this title
apply to subcontractors, material suppliers, individual product
manufacturers, and design professionals to the extent that the
subcontractors, material suppliers, individual product manufacturers,
and design professionals caused, in whole or in part, a violation of
a particular standard as the result of a negligent act or omission
or a breach of contract.  In addition to the affirmative defenses set
forth in Section 945.5, a subcontractor, material supplier, design
professional, individual product manufacturer, or other entity may
also offer common law and contractual defenses as applicable to any
claimed violation of a standard.  All actions by a claimant or
builder to enforce an express contract, or any provision thereof,
against a subcontractor, material supplier, individual product
manufacturer, or design professional is preserved.  Nothing in this
title modifies the law
  pertaining to joint and several liability for subcontractors,
material suppliers, individual product manufacturer, and design
professionals that contribute to any specific violation of this
title.  However, this section does not apply to any subcontractor,
material supplier, individual product manufacturer, or design
professional to which strict liability would apply.
   937.  Nothing in this title shall be interpreted to eliminate or
abrogate the requirement to comply with Section 411.35 of the Code of
Civil Procedure or to affect the liability of design professionals,
including architects and architectural firms, for claims and damages
not covered by this title.
   938.  This title applies only to residences originally sold on or
after January 1, 2003.

      CHAPTER 5.  PROCEDURE

   941.  (a) Except as specifically set forth in this title, no
action may be brought to recover under this title more than 10 years
after substantial completion of the improvement but not later than
the date of recordation of a valid notice of completion.
   (b) As used in this section, "action" includes an action for
indemnity brought against a person arising out of that person's
performance or furnishing of services or materials referred to in
this title, except that a cross-complaint for indemnity may be filed
pursuant to subdivision (b) of Section 428.10 of the Code of Civil
Procedure in an action which has been brought within the time period
set forth in subdivision (a).
   (c) The limitation prescribed by this section shall not be
asserted by way of defense by any person in actual possession or the
control, as owner, tenant or otherwise, of such an improvement, at
the time any deficiency in the improvement constitutes the proximate
cause for which it is proposed to make a claim or bring an action.
   (d) Sections 337.15 and 337.1 of the Code of Civil Procedure shall
not apply to actions under this title.
   (e) Existing statutory and decisional law regarding tolling of the
statute of limitations shall apply to the time periods for filing an
action or making a claim under this title, except that repairs made
pursuant to Chapter 4 (commencing with Section 910), with the
exception of the tolling provision contained in Section 927, do not
extend the period for filing an action, or restart the time
limitations contained in subdivisions (a) or (b) if 7091 of the
Business and Professions Code.  If a builder arranges for a
contractor to perform a repair pursuant to Chapter 4 (commencing with
Section 910), as to the builder the time period for calculating the
statute of limitation in subdivisions (a) or (b) if Section 7091 of
the Business and Professions Code shall pertain to the substantial
completion of the original construction and not to the date of
repairs under this title.  The time limitations established by this
title do not apply to any action by a claimant for a contract or
express contractual provision.  Causes of action and damages to which
this chapter does not apply are not limited by this section.  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 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.  (a) 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.
   (b) As to any claims involving a detached single-family home, the
homeowner's right to the reasonable value of repairing any
nonconformity is limited to the repair costs, or the diminution in
current value of the home caused by the nonconformity, whichever is
less, subject to the personal use exception as developed under common
law.
   944.  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.
   945.  The provisions, standards, rights, and obligations set forth
in this title are binding upon all original purchasers and their
successors-in-interest.  For purposes of this title, associations and
others having the rights set forth in Section 383 of the Code of
Civil Procedure shall be considered to be original purchasers and
shall have standing to enforce the provisions, standards, rights, and
obligations set forth in this title.
   945.5.  A builder, under the principles of comparative fault
pertaining to affirmative defenses, may be excused, in whole or in
part, from any obligation, damage, loss, or liability if the builder
can demonstrate any of the following affirmative defenses in response
to a claimed violation:
   (a) To the extent it is caused by an unforeseen act of nature
which caused the structure not to meet the standard.  For purposes of
this section an "unforeseen act of nature" means a weather
condition, earthquake, or manmade event such as war, terrorism, or
vandalism, in excess of the design criteria expressed by the
applicable building codes, regulations, and ordinances in effect at
the time of original construction.
   (b) To the extent it is caused by a homeowner's unreasonable
failure to minimize or prevent those damages in a timely manner,
including the failure of the homeowner to allow reasonable and timely
access for inspections and repairs under this title.  This includes
the failure to give timely notice to the builder after discovery of a
violation, but does not include damages due to the untimely or
inadequate response of a builder to the homeowner's claim.
   (c) To the extent it is caused by the homeowner or his or her
agent, employee, subcontractor, independent contractor, or consultant
by virtue of their failure to follow the builder's or manufacturer's
recommendations, or commonly accepted homeowner maintenance
obligations.  In order to rely upon this defense as it relates to a
builder's recommended maintenance schedule, the builder shall show
that the homeowner had written notice of these schedules and
recommendations and that the recommendations and schedules were
reasonable at the time they were issued.
   (d) To the extent it is caused by the homeowner or his or her
agent's or an independent third party's alterations, ordinary wear
and tear, misuse, abuse, or neglect, or by the structure's use for
something other than its intended purpose.
   (e) To the extent that the time period for filing actions bars the
claimed violation.
   (f) As to a particular violation for which the builder has
obtained a valid release.
   (g) To the extent that the builder's repair was successful in
correcting the particular violation of the applicable standard.
   (h) As to any causes of action to which this statute does not
apply, all applicable affirmative defenses are preserved.