Plaintiffs Must Provide Notice Before Repair Is Made to Recover Under SB800

On Feb. 21, in KB Home Greater Los Angeles, Inc. v. Superior Court of Los Angeles B246769, the California Court of Appeal, Second Appellate District held that the failure to give timely notice or an opportunity to inspect under the Right to Repair Act before a repair is made is fatal to the cause of action.

In KB Home Greater Los Angeles, the plaintiff discovered a water leak in a home built by KB Home Coastal, Inc. (KB Home).  The homeowner’s insurer, Allstate, completed repairs and subsequently sent KB Home a notice of its intent to pursue its subrogation right for the cost of the repair.  After receiving no response from KB Home, Allstate filed a complaint.

The court held that due to Allstate’s failure to timely notify KB Home as required by the act’s prelitigation procedures, it could not recover for the repairs. The court rejected Allstate’s argument that the act does not specify the order of inspections and repairs. The court also rejected Allstate’s argument that the act should be construed to allow for reasonable notice in cases of emergency.  The court pointed to the ability under the act to utilize any of the builder’s customer service procedures and to recover compensation from all damages incurred within the time frame for repair.

It may be possible for a plaintiff to recover without first providing notice by bringing a common law tort claim instead.  Due to the recent holdings in Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 1194, 1212 and Burch v. Superior Court (Premier Homes LLC) B248830, a plaintiff can bring a tort claim for construction defects that caused actual property damage; a claim that is not subject to the requirements under the act.  See the previous blog post titled “Homeowners Maintain Right to Bring Common Law Claims for Construction Defects Causing Property Damage.”  However, if the plaintiff alleges claims under SB800, which doesn’t require property damage, then the plaintiff must provide notice before a repair is made to obtain recovery.

Image courtesy of Flickr by Jeff Drongowski