CACI 4573 Right to Repair Act—Affirmative Defense—Unreasonable Failure to Minimize or Prevent Damage (Civ. Code, § 945.5(b))

California Civil Jury Instructions CACI

4573 Right to Repair Act—Affirmative Defense—Unreasonable Failure to Minimize or Prevent Damage (Civ. Code, § 945.5(b))

[Name of defendant] claims that [he/she/nonbinary pronoun/it] is not responsible for [name of plaintiff]’s harm because [name of plaintiff] unreasonably failed to minimize or prevent [his/her/nonbinary pronoun] damages in a timely manner. To establish this defense, [name of defendant] must prove [select one or more of the following:]

[a.[Name of plaintiff] failed to allow [name of defendant] reasonable and timely access to the home for inspections and repairs.]

[b.[Name of plaintiff] failed to give [name of defendant] timely notice after discovery of a construction defect.]

[c.[Specify other act or omission of plaintiff that is alleged to constitute failure to minimize or prevent damage.]]

[Name of defendant] cannot avoid responsibility for damages due to an untimely or inadequate response to [name of plaintiff]’s claim.

Directions for Use

This instruction sets forth a builder’s affirmative defense to a homeowner’s construction defect claim under the Right to Repair Act, asserting the homeowner’s failure to minimize or prevent damages. (See Civ. Code, § 945.5(b).) Select the particular failure to mitigate alleged from a or b, or specify a different failure in c. CACI No. 3931, Mitigation of Damages (Property Damage), may also be given for the general principle of the plaintiff’s duty to mitigate damages.

Sources and Authority

Right to Repair Act Affirmative Defense of Homeowner’s Failure to Mitigate. Civil Code section 945.5(b).

“Although the Act establishes various maximum time periods in which the builder may respond, inspect, offer to repair, and commence repairs, the builder avails itself of the full time allowed by the Act at its peril. The builder is liable for the damages its construction defects cause, and even when a homeowner has acted unreasonably in failing to limit losses, the builder remains liable for ‘damages due to the untimely or inadequate response of a builder to the homeowner’s claim.’ (§ 945.5, subd. (b).) What constitutes a timely response will vary according to the circumstances, and the maximum response periods set forth by the Act do not necessarily insulate a builder from damages when the builder has failed to take remedial action as promptly as is reasonable under the circumstances. The Act’s liability provisions thus supply builders and homeowners clear incentives to move quickly to minimize damages when alerted to emergencies.” (McMillin Albany LLC v. Superior Court (2018) 4 Cal.5th 241, 257–258 [227 Cal.Rptr.3d 191, 408 P.3d 797].)

Secondary Sources

6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1312
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.43 (Matthew Bender)
12 California Real Estate Law and Practice, Ch. 441, Consumers’ Remedies, § 441.70 (Matthew Bender)