Lynn Gerlach and Lola Seals, plaintiffs and appellants, appeal a judgment from the Riverside County Superior Court against K. Hovnanian’s Four Seasons at Beaumont, LLC, the defendant and respondent, under California's Right to Repair Act (Civil Code section 895 et seq.) concerning alleged construction defects. The appeal was affirmed, clarifying that a roof qualifies as a manufactured product under section 896, subdivision (g)(3)(A) only if it is entirely manufactured offsite. Furthermore, to establish a roof defect claim under subdivisions (a)(4) or (g)(11) of section 896, plaintiffs must demonstrate actual water intrusion or the falling of roofing material.
The dispute arose from the development of Four Seasons, a community for adults aged 55 and over, where both plaintiffs own homes. Gerlach's escrow closed in March 2006, and Seals's in May 2007. They served notices of claims in 2015 and 2016, citing deficiencies in the roofing system, including weatherproofing issues, water ponding, improper tile fastening, and other defects. The defendant acknowledged the claims, conducted inspections, and attempted repairs.
In September 2016, plaintiffs filed a lawsuit claiming damages due to the defendant's failure to meet building standards under section 896, alongside breach of contract and warranty claims. They alleged various defects in the roofs and associated components that allowed water intrusion, compromising the structures' integrity.
Plaintiffs alleged that roofing materials fell from the roofs and that various manufactured products—including windows, doors, plumbing fixtures, and HVAC units—were installed in a manner that interfered with their useful life. The defendant denied these allegations and raised affirmative defenses, including a limitations defense based on section 945.5, subdivision (e). This defense was reiterated in response to the first amended complaint, which is not part of the appellate record, violating California Rules of Court rule 8.122(b)(1)(F).
Before trial, the defendant objected to a proposed jury instruction regarding roof defect claims under section 896(g)(3)(A), arguing that the roofs did not qualify as manufactured products since they are made up of various components. The trial court agreed, stating that the statute only applies to completely prefabricated roofs. Plaintiffs subsequently filed a motion for reconsideration of this ruling, which was not addressed by the court.
At trial, plaintiffs' roofing expert, Gerald Vandewater, explained that tile roofs consist of a primary visible layer (the tile) and numerous underlying components. He emphasized that tile roofs undergo extensive testing and that his testimony would cover installation practices. However, the defendant's counsel objected to questions regarding the relevance of the roofing contracts, leading to a sidebar discussion outside the jury's presence.
The court permitted testimony regarding violations of standards in section 896, subdivisions (a)(4) and (g)(11), which address water intrusion and materials falling from roofs. During discussions, plaintiffs’ counsel indicated that expert Vandewater would detail how the roofing installation allowed water to bypass the moisture barrier and present a risk of falling materials. Counsel argued that a violation could exist without proof of actual damage. However, the defendant's counsel contended that evidence of water leakage or falling materials was necessary to establish a violation. The court expressed concern that without such evidence, Vandewater's testimony would delve into the roofs' useful lives, which is prohibited. Consequently, the court limited plaintiffs to presenting only evidence of specific violations, concluding that Vandewater's additional testimony would be irrelevant. When asked if Vandewater had other relevant information, plaintiffs' counsel affirmed his belief in Vandewater's capacity to opine on statutory violations but had no further testimony. The defendant moved to exclude Vandewater, and the court agreed, terminating his testimony. After a brief recess, the jury was instructed that claims related to the roof were no longer at issue, and they were advised against speculating on this matter. In the verdict, the jury awarded Seals $1,931.08 for window installation defects, found that Gerlach's claims were barred due to her untimely complaint, and determined that the defendant did not breach the purchase and sales contract or the warranty claim. The court subsequently entered judgment based on the jury's findings.
The Act, enacted in 2002, reformed construction defect litigation for individual residential units, establishing statewide standards and a prelitigation dispute resolution process. Builders are notified of alleged defects with the opportunity to remedy them, while homeowners retain the right to sue for deficiencies even without property damage or personal injury. The Act serves as the exclusive remedy for residential construction defect claims, excluding claims related to personal injury, breach of contract, or fraud. It adds a new title to the Civil Code, consisting of five chapters that define terms, set construction standards, outline builder obligations, create dispute resolution procedures, and describe lawsuit processes.
In the context of roof defect claims, plaintiffs contend that the trial court improperly struck their claims. They reference three specific provisions in section 896 related to roofs, asserting that the court misinterpreted the statute's language. Plaintiffs argue that the trial court erred by not allowing a claim under section 896(g)(3)(A), which they believe categorizes roofs as manufactured products. However, the court emphasizes that determining legislative intent is crucial in statutory interpretation and that the statute defines 'manufactured products' distinctly, which does not unequivocally support the plaintiffs' position regarding roofs.
The term "manufactured product," as defined in section 896(g)(3)(A), refers to products that are entirely manufactured offsite. Consequently, only roofs that meet this definition fall under the coverage of this section. The trial court correctly determined that the plaintiffs' roofs do not qualify as "completely manufactured offsite," leading to the denial of their claim under section 896(g)(3)(A). The plaintiffs argued that concrete roof tiles should be considered manufactured products but failed to provide legal analysis or authority to substantiate this claim, resulting in the forfeiture of their argument.
Regarding roof defect claims under sections 896(a)(4) and (g)(11), the plaintiffs contended that actionable claims could exist without evidence of water leakage or materials falling from the roofs, positing that both provisions are preventative in nature. However, the court disagreed, emphasizing that the statutory language necessitates evidence of actual water intrusion or falling materials for a violation to be actionable. Section 896(a)(4) specifies that roofs must prevent water entry past moisture barriers, and section 896(g)(11) requires that roofing materials be installed to avoid falling. The plaintiffs did not demonstrate how a violation could be established without such evidence, which would undermine the intention of the Act to reform construction defect litigation and eliminate common law negligence claims related to construction defects. The court underscored the necessity of demonstrating actual violations to support claims.
Plaintiffs' roofs, over 12 years old at trial, showed no evidence of leaks or falling material. They attempted to introduce evidence of improper construction or installation to suggest future risks of leaks or material falling, but the court upheld the trial court's ruling that such claims were barred by the relevant Act. The court rejected plaintiffs’ challenges to proceed with roof defect claims under section 896, subdivisions (a)(4), (g)(3)(A), and (g)(11).
Regarding the statute of limitations defense raised by defendant against Gerlach's claims, the court found no error in the trial court's rulings. Under section 945.5, affirmative defenses include the expiration of the time period for filing actions. Section 941 states that actions must be initiated within 10 years of substantial completion of the improvement. Section 927 allows an extension of the filing period for 100 days after repairs are completed if the statute of limitations has run during the prelitigation process.
Gerlach closed escrow on her home on March 16, 2006, and served a notice of claim to the defendant on October 15, 2015. The defendant offered repairs on March 16, 2016, which were completed by Home Maintenance Inspection Inc. on April 29 and May 23, 2016. Gerlach filed her lawsuit on September 30, 2016, 130 days post-repair. The defendant cited the statute of limitations as a defense in its responses to the complaints but did not initially reference sections 927 or 941. In March and September 2019, the defendant indicated its intention to argue that Gerlach's claims were barred by the statute of limitations and filed proposed jury instructions reflecting sections 927 and 941. In April 2019, the defendant also moved to exclude evidence related to claims barred by the statute of limitations.
Defendant contended that Gerlach's claims were barred by the statute of limitations under section 927, asserting that the 10-year limit elapsed prior to her filing a complaint over 100 days after repairs were completed. A January 2020 pretrial hearing transcript reveals that plaintiffs had previously objected to this statute of limitations defense, although the written objection is missing from the record. Defense counsel claimed that the objection was not a properly noticed motion and that the limitations defense had been adequately pled, referencing proposed jury instructions. He offered to amend the answer to clarify the limitations defense under section 945.5, subdivision (e), and indicated that plaintiffs could not be surprised by this defense, pointing to a related motion filed in April 2020. The trial court agreed that the limitations defense was not a surprise and ruled to overrule plaintiffs' objection, stating that section 945.5, subdivision (e), included section 927.
Additionally, plaintiffs sought to exclude the testimony of Adrian Lopez, HMI's vice president, due to alleged failures in discovery. Defendant countered that plaintiffs had not pursued necessary discovery and noted that HMI's involvement was disclosed prior to the hearing. The trial court deemed the motion untimely and denied it, affirming that defendant had adequately identified HMI in response to discovery requests. At trial, Lopez confirmed the completion dates of the repair work as April 29, 2016, and May 23, 2016. Gerlach's subsequent arguments that the trial court erred in allowing the statute of limitations defense and related rulings were deemed meritless.
Gerlach contends that the defendant did not reference sections 927 and 941 in its answer and claims that the trial court erred by not enforcing Code of Civil Procedure section 458 regarding the statute of limitations defense. However, Gerlach's argument is flawed for several reasons. She does not specify which trial court ruling constituted an abuse of discretion and fails to reference the record, leading to forfeiture of the argument. Furthermore, her challenge to the trial court's overruling of her written objection is unsupported because she did not include the objection in the clerk’s transcript, which is necessary for appellate review. Additionally, Gerlach does not demonstrate prejudice, as she needed to show a reasonable probability that a different outcome would have occurred without the alleged error. The court had already allowed the defendant to amend its answer, suggesting that any error was unlikely to result in a more favorable outcome for Gerlach. Gerlach's other claims regarding discovery responses and evidentiary rulings lack legal support and citation, leading to their forfeiture as well. Consequently, the court affirms the rulings on the statute of limitations defense and upholds the judgment, ordering the defendant to recover its appeal costs.
