Defect liability
A defect claim rarely turns first on whether the work was good. It turns on which body of law applies, whether the claimant followed the procedure the statute required, what category of loss is being claimed, and whether the claim arrived inside the outer time limits. Those questions get answered before anyone opens a wall. This guide, reviewed by Jayson R. Elliott, sets out what a contractor should expect and the decisions that come early.
Before strategy, four facts. What kind of building is it, and when did the original close of escrow occur — which together decide whether the Right to Repair Act applies. What is the defendant’s role: builder within the Act, or hired contractor outside it. What is the claimant actually claiming — repair cost alone, or damage to something else. And when did the work complete, measured against the outer limits below.
Those four answers select the framework, and the framework selects everything else. A defense assembled before they are settled is a defense to a case that may not be the one filed.
Where the Right to Repair Act applies, its prelitigation procedure at Civil Code sections 910 through 938 is a precondition to filing. A claimant who did not initiate it has a problem, and the statute supplies a response.
Civil Code section 930 addresses non-conformance: where the claimant does not comply with the chapter’s requirements, the builder may bring a motion to stay a subsequent court action until those requirements have been satisfied, and the court in its discretion may award the prevailing party attorney’s fees and costs in bringing or opposing the motion. On such a motion the claimant bears the burden of establishing compliance, or an applicable exception.
That is a genuinely useful early tool. It does not end the case, but it can return the dispute to a forum where the builder inspects and offers a repair rather than one where both sides retain experts.
The flip side is worth stating plainly, because it is where builders lose this argument: the release provisions run the other way. If the builder failed to acknowledge under section 913, failed to inspect within the section 916 limits, failed to make an offer, or failed to complete a repair within the repair plan’s time, sections 915, 916(d), 920 and 925 release the claimant from the process. A builder who missed a deadline cannot then complain that the claimant proceeded.
Where the prelitigation process was followed and did not resolve the matter, the case proceeds — and the Act’s standards continue to apply to it. Section 925 says so expressly for the failed-repair scenario, and section 920 says so for the failure-to-offer scenario.
One consequence is that the work done during the prelitigation phase carries forward. The inspection findings, the scope discussions, and the repair documentation are all part of the record. Section 923 requires the builder to provide, on request, copies of all correspondence, photographs, and other materials relating to the repairs — so that documentation is reachable by the claimant as a matter of statute rather than only through discovery.
Section 922 cuts the other way and is worth remembering: nothing occurring during the repair process may be used to support a spoliation defense. Having performed the repair does not become a weapon against the builder.
Where the Act does not apply and the claimant has no contract with the contractor, the claim is in tort and it faces two hurdles that must both be cleared. A defense addressing only one leaves the other open, and they are frequently conflated.
A non-privity plaintiff must establish that the contractor owed them a duty of care. The analysis runs through the multi-factor test in Biakanja v. Irving (1958) 49 Cal.2d 647, applied to construction professionals in Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568. Beacon is an architect case; its extension to contractors specifically is doctrinal inference rather than a direct holding, which is itself a point available to the defense.
Even where duty exists, Aas v. Superior Court (2000) 24 Cal.4th 627 bars negligence recovery for purely economic loss — the cost of repairing defective work that has not caused property damage or personal injury. Where the claim is that the work is defective and fixing it costs money, and nothing else has been damaged, the rule is often the most efficient defense available because it turns on the category of loss rather than on workmanship.
Claimants know this, which is why defect claims outside the Act are frequently pleaded as misrepresentation or concealment rather than negligence. Robinson Helicopter Co. v. Dana Corp. (2004) 34 Cal.4th 979 permits tort recovery for affirmative intentional misrepresentation independent of the contract breach. Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1 is the current controlling authority on whether fraudulent concealment arising from contract performance survives the rule, and sets a two-part test.
A defense built only on the economic loss rule, without attention to how the claim is actually pleaded, can miss the theory that is doing the work.
Code of Civil Procedure section 337.15 sets a ten-year absolute statute of repose for latent construction defects, running regardless of when the defect was discovered. It is an outer boundary, not a limitations period — a claim filed inside ten years still has to be timely under whatever limitations rule applies to the theory pleaded.
Where fraud is pleaded, Code of Civil Procedure section 338(d) sets a three-year period with a delayed-discovery rule, and the plaintiff bears the burden to plead the time and manner of discovery and the inability to have discovered earlier. That pleading burden is a real one and is frequently underserved in complaints.
Few defect claims involve only one responsible party, and the question of who else belongs in the matter arrives early.
Inside the Right to Repair Act, section 916(e) provides the structured moment: the builder gives notice to subcontractors, design professionals, suppliers, and insurers, and notifies the claimant of those invitees. Bringing the trades and carriers in at the inspection stage is materially easier than bringing them in after positions have hardened.
Outside the Act, the same objective is pursued through the contract documents and through indemnity and additional-insured provisions rather than through a statutory notice step. What those provisions permit is a contract question, and the indemnification guide in this pillar addresses it.
Either way, the practical point is timing. A tender made early, with the project file assembled, is a different proposition from one made after the claimant has developed an expert record.
Assuming the threshold questions do not dispose of it, a defect case tends to become a contest between experts about causation, scope, and cost of repair. That is expensive on both sides, which is why the prelitigation process and early resolution are worth taking seriously rather than treating as formalities.
The material that decides those contests is generated during the project, not during the litigation: the contract and its scope, change orders, submittals and approvals, inspection records, photographs, and correspondence. A contractor whose project documentation is orderly is in a materially different position from one whose is not, and that difference is established years before any claim arrives.
Before you ask
Civil Code section 930 allows the builder to bring a motion to stay a subsequent court action until the chapter’s requirements have been satisfied, and the court in its discretion may award the prevailing party attorney’s fees and costs on the motion, with the claimant bearing the burden of establishing compliance or an exception. Note the reverse also applies: if the builder missed its own deadlines, sections 915, 916(d), 920 and 925 release the claimant.
Code of Civil Procedure section 337.15 sets a ten-year absolute statute of repose for latent construction defects, regardless of when the defect was discovered. That is an outer boundary rather than a limitations period, so a claim filed within ten years still has to be timely under the limitations rule applying to the theory actually pleaded.
Outside the Right to Repair Act, Aas v. Superior Court (2000) 24 Cal.4th 627 bars negligence recovery for purely economic loss — the cost of repairing defective work that has not caused property damage or personal injury. Inside the Act the position reverses: its building standards are actionable without proof of resulting damage.
Inside the Right to Repair Act, Civil Code section 916(e) provides a structured route: the builder gives notice to subcontractors, design professionals, suppliers, and insurers, and notifies the claimant of those invitees. Outside the Act, the same objective depends on the contract documents and on indemnity and additional-insured provisions rather than on a statutory notice step.
Civil Code section 922 provides that nothing occurring during the repair process may be used or introduced as evidence to support a spoliation defense by any potential party in subsequent litigation. Section 923 does require the builder to provide, on request, copies of all correspondence, photographs and other materials relating to the repairs.
Once the threshold framework questions are resolved, defect cases generally turn on expert evidence about causation, scope, and cost of repair — and the underlying material is generated during the project rather than during the litigation. Contract scope, change orders, submittals and approvals, inspection records, photographs and correspondence do most of the work.
Keep reading
Breadcrumb + pillar parent
Prelitigation process
The deadlines referenced throughout
“the indemnification guide in this pillar”
Economic loss rule in depth
Duty to a non-privity plaintiff
Which side of the Act you are on
First steps on an old-work contact
Inline first mention: repose, delayed discovery, tender, additional insured, non-privity, spoliation
Attorneys section — end of article
If this describes your situation, an attorney affiliated with Bay Legal PC, CA Bar No. 332479, can review it with you.