BILL NUMBER: AB 903 AMENDED
BILL TEXT
AMENDED IN SENATE JULY 15, 2003
AMENDED IN ASSEMBLY MAY 5, 2003
AMENDED IN ASSEMBLY APRIL 29, 2003
INTRODUCED BY Assembly Member Steinberg
FEBRUARY 20, 2003
An act to amend Sections 911, 916, 916
and 941 of, and to amend, renumber, and add Section 942 to, the
Civil Code, relating to construction defects.
LEGISLATIVE COUNSEL'S DIGEST
AB 903, as amended, Steinberg. Construction defect cases.
Existing law specifies the rights and requirements of a homeowner
to bring an action for construction defects.
This bill would revise the definition of builder, as that
term is used in and recast various provisions
regarding governing home construction
defect actions that relate to a builder's election to inspect,
the applicable statute of limitations, and the exclusivity of these
provisions . The bill would also recast and
reorganize related provisions.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 911 of the Civil Code is amended to read:
911. For purposes of this title, "builder" means any entity or
individual, including a developer, builder, or original seller, who,
at the time of sale, was in the business of selling residential units
to the public, and applies to the sale of new residential units
entered into contract on or after January 1, 2003.
SEC. 2.
SECTION 1. Section 916 of the Civil Code is amended to read:
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 spoliation 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 does 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.
SEC. 3.
SEC. 2. Section 941 of the Civil Code is amended to read:
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
may 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 do 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
subdivision (a) or (b) if of Section
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
subdivision (a) or (b) if
of 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.
SEC. 4.
SEC. 3. Section 942 of the Civil Code is amended and
renumbered to read:
943. (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.
SEC. 5.
SEC. 4. Section 942 is added to the Civil Code, to read:
942. 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.