Filed 8/28/13




                              CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                       DIVISION THREE


LIBERTY MUTUAL INSURANCE
COMPANY,
                                                       G046731
    Plaintiff and Appellant,
                                                       (Super. Ct. No. 30-2011-00498089)
        v.
                                                       OPINION
BROOKFIELD CRYSTAL COVE LLC,

    Defendant and Respondent.



                  Appeal from a judgment of the Superior Court of Orange County,
Gregory Munoz, Judge. Reversed.
                  Law Offices of Brian J. Ferber, Brian J. Ferber, Jeffrey K. Jayson; Benedon
& Serlin, Gerald M. Serlin and Wendy S. Albers for Plaintiff and Appellant.
                  Susan M. Benson & Associates and Susan M. Benson for National
Association of Subrogation Professionals as Amicus Curiae on behalf of Plaintiff and
Appellant.
                  Ulich & Terry, Andrew K. Ulich, Donald W. Fisher, Ivette Kincaid and
Jonathan C. Terry for Defendant and Respondent.
             Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor,
John M. Kennedy and Allen Lohse for Comstock Crosser & Associates as Amicus Curiae
on behalf of Defendant and Respondent.
             Nick Cammarota for California Building Industry Association as Amicus
Curiae on behalf of Defendant and Respondent.
                                 *          *          *
                                     INTRODUCTION
             Eric Hart bought a newly constructed home from Brookfield Crystal Cove
LLC (Brookfield). A pipe in the home‟s sprinkler system burst, causing significant
damage. Brookfield repaired the damage. Hart‟s homeowners insurer, Liberty Mutual
Insurance Company (Liberty Mutual), paid Hart‟s relocation expenses, incurred while
Hart was out of his home during the repair period. Liberty Mutual sued Brookfield in
subrogation to recover those expenses. The trial court found Liberty Mutual‟s complaint
was time-barred under the Right to Repair Act, Civil Code section 895 et seq. (the Right
to Repair Act or the Act), and, sustaining a demurrer, dismissed it. We reverse.
             The Right to Repair Act was enacted to provide remedies where
construction defects have negatively affected the economic value of a home, although no
actual property damage or personal injuries have occurred as a result of the defects. We
hold the Act does not eliminate a property owner‟s common law rights and remedies,
otherwise recognized by law, where, as here, actual damage has occurred. Accordingly,
Liberty Mutual‟s complaint in subrogation, based on Hart‟s right to recover actual
damages, states causes of action. As our conclusion requires a reversal of the judgment,
we need not address additional arguments raised by Liberty Mutual.
                   STATEMENT OF FACTS AND PROCEDURAL HISTORY
             In 2004, Hart purchased a single-family home developed and built by
Brookfield. The grant deed transferring the property was executed in November 2004,
and recorded a month later. According to the complaint in subrogation, in January 2008,

                                            2
“a fire sprinkler and/or pipe suddenly burst and failed,” flooding Hart‟s home.
Brookfield acknowledged its liability for, and repaired, the damage to Hart‟s home.
              Hart moved into a hotel for several months while Brookfield repaired the
damage to the house. Liberty Mutual paid for Hart‟s hotel and other relocation expenses
during that time.
              In August 2011, Liberty Mutual filed a complaint in subrogation against
Brookfield to recover the relocation expenses it incurred on Hart‟s behalf. Liberty
Mutual later filed a first amended complaint, to which Brookfield demurred. Following
briefing and a hearing, the trial court sustained the demurrer with leave to amend.
Liberty Mutual did not amend its complaint within the time specified by the court;
Brookfield therefore filed an ex parte application for an order of dismissal and entry of
judgment. The court granted the application and entered judgment in favor of
Brookfield. Liberty Mutual timely appealed.
                                        DISCUSSION
                                              I.
               STANDARD OF REVIEW AND CONTROLLING LEGAL PRINCIPLES
              We review an order sustaining a demurrer de novo. (Santa Teresa Citizen
Action Group v. State Energy Resources Conservation & Development Com. (2003) 105
Cal.App.4th 1441, 1445.) We are not bound by the trial court‟s construction of the
complaint (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958); rather, we
independently evaluate the complaint, construing it liberally, giving it a reasonable
interpretation, reading it as a whole, and viewing its parts in context (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318).
              We also review de novo issues of statutory construction. (People ex rel.
Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) “The goal of statutory
construction is to ascertain and effectuate the intent of the Legislature. [Citation.]
Ordinarily, the words of the statute provide the most reliable indication of legislative

                                              3
intent. [Citation.] When the statutory language is ambiguous, the court may examine the
context in which the language appears, adopting the construction that best harmonizes the
statute internally and with related statutes. [Citations.] „“Both the legislative history of
the statute and the wider historical circumstances of its enactment may be considered in
ascertaining the legislative intent.”‟ [Citation.]” (Pacific Gas & Electric Co. v. County
of Stanislaus (1997) 16 Cal.4th 1143, 1152.)
              Liberty Mutual filed this action as a subrogee of Hart. The complaint
alleges causes of action for strict liability, negligence, breach of contract, breach of
warranty, equitable estoppel, and declaratory relief. Under the doctrine of subrogation,
when an insurer pays money to its insured for a loss caused by a third party, the insurer
succeeds to its insured‟s rights against the third party in the amount the insurer paid.
(Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 633-634.) Upon
subrogation, the insurer steps into the shoes of its insured. (Allstate Ins. Co. v. Mel
Rapton, Inc. (2000) 77 Cal.App.4th 901, 908.) “„Subrogation is the insurer‟s right to be
put in the position of the insured, in order to recover from third parties who are legally
responsible to the insured for a loss paid by the insurer.‟” (Plut v. Fireman’s Fund Ins.
Co. (2000) 85 Cal.App.4th 98, 104.) Liberty Mutual paid money to Hart for relocation
expenses incurred due to Brookfield‟s alleged acts or omissions. Liberty Mutual
therefore succeeded to Hart‟s rights against Brookfield for damages. Liberty Mutual‟s
right to recover from Brookfield is dependent on whether Hart would have been able to
recover the relocation expenses from Brookfield.
                                              II.
                         THE HISTORY OF THE RIGHT TO REPAIR ACT
              The issue before us is whether Liberty Mutual‟s complaint in subrogation
falls exclusively within the Right to Repair Act, and therefore is time-barred.1 We start

       1
         In sustaining the demurrer, the trial court concluded Civil Code section 896,
subdivision (e) applied; that section makes the Right to Repair Act applicable as follows:

                                               4
with a brief history of the Act and identification of the problem it was intended to
address. Normally, we would begin by analyzing the language of the statute. In this
case, however, the language of the statute can be best considered with an understanding
of the Act‟s impetus and purpose.
              In Aas v. Superior Court (2000) 24 Cal.4th 627, 632, the California
Supreme Court held that construction defects in residential properties, in the absence of
actual property damage, were not actionable in tort. The plaintiffs in Aas v. Superior
Court contended that their homes suffered a variety of construction defects, and sought as
damages from the homebuilders the costs of repair and/or the diminution in the value of
their homes. (Id. at p. 633.) The trial court excluded evidence of any defects that had not
caused property damage; both the Court of Appeal and the Supreme Court upheld that
evidentiary ruling. (Id. at pp. 633-634.)
              In 2002, the California Legislature enacted the Right to Repair Act. A key
specified goal of the Act was to abrogate the holding of Aas v. Superior Court. “In
response to the holding in Aas, the Legislature enacted Civil Code section 895 et seq.”
(Greystone Homes, Inc. v. Midtec, Inc. (2008) 168 Cal.App.4th 1194, 1202, fn. omitted.)
The legislative history of the Act explained: “This bill would make major changes to the

“(e) With respect to plumbing and sewer issues: [¶] Plumbing and sewer systems shall be
installed to operate properly and shall not materially impair the use of the structure by its
inhabitants. However, no action may be brought for a violation of this subdivision more
than four years after close of escrow.” (Civ. Code, § 896, subd. (e).) Another
subdivision of section 896, on which neither the trial court nor Brookfield relied, applies
as follows: “(a) With respect to water issues: [¶] . . . [¶] (14) The lines and components
of the plumbing system, sewer system, and utility systems shall not leak. [¶]
(15) Plumbing lines, sewer lines, and utility lines shall not corrode so as to impede the
useful life of the systems.” (Civ. Code, § 896, subd. (a)(14), (15).) We treat a fire
sprinkler system, which is nowhere specifically mentioned in the Right to Repair Act, as
falling within the definition of either a plumbing system or a utility system; it would
therefore, in a proper case, be covered by the Right to Repair Act. We do so in view of
the complaint‟s broad allegation that “a fire sprinkler and/or pipe suddenly burst and
failed.” Consequently, as alleged, those components are covered by the Act. (Civ. Code,
§ 897.)

                                             5
substance and process of the law governing construction defects. It is the product of
extended negotiations between various interested parties. Among other things, the bill
seeks to respond to concerns expressed by builders and insurers over the costs associated
with construction defect litigation, as well as concerns expressed by homeowners and
their advocates over the effects of a recent Supreme Court decision that held that defects
must cause actual damage prior to being actionable in tort [Aas v. Superior Court, (2000)
24 Cal.4th 627]. [¶] . . . [¶] . . . [E]xcept where explicitly specified otherwise, liability
would accrue under the standards regardless of whether the violation of the standard had
resulted in actual damage or injury. As a result, the standards would essentially overrule
the Aas decision and, for most defects, eliminate that decision‟s holding that construction
defects must cause actual damage or injury prior to being actionable.” (Sen. Com. on
Judiciary, Analysis of Sen. Bill No. 800 (2001-2002 Reg. Sess.) as amended Aug. 28,
2002, pp. 1, 4, italics added; see Assem. Com. on Judiciary, Rep. on Sen. Bill No. 800
(2001-2002 Reg. Sess.) as amended Aug. 26, 2002, p. 3 [“these standards effectively end
the debate over the controversial decision in the Aas case to the effect that homeowners
may not recover for construction defects unless and until those defects have caused death,
bodily injury, or property damage, no mat[t]er how imminent those threats may be”
(italics added)]; State and Consumer Services Agency, Enrolled Bill Rep. on Sen. Bill
No. 800 (2001-2002 Reg. Sess.) Sept. 16, 2002, p. 2 [“This bill is intended to address the
perceived inequity of the Aas decision and give homeowners the ability to have specified
defects in the construction of their homes corrected before the defects cause actual harm
or damage”].) 2
              Nowhere in the legislative history is there anything supporting a contention
that the Right to Repair Act barred common law claims for actual property damage.

       2
         Liberty Mutual asked this court to take judicial notice of the legislative history
of the Right to Repair Act. Brookfield did not oppose Liberty Mutual‟s request. We
have taken judicial notice of the Act‟s legislative history.

                                               6
Instead, the legislative history shows that the legislation was intended to grant statutory
rights in cases where construction defects caused economic damage; the Act did nothing
to limit claims for actual property damage. Simply put, a homeowner who suffers actual
damages as a result of a construction defect in his or her house has a choice of remedies;
nothing in the Act takes away those rights.
                                              III.
             THE STATUTORY LANGUAGE SHOWS LIBERTY MUTUAL’S SUBROGATION
                  CLAIMS ARE NOT COVERED BY THE RIGHT TO REPAIR ACT.
               The Act is organized in the following manner: “Chapter 2 of the Act . . .
sets out building standards, the violation of which constitutes a deficiency in construction
for which the builder may be held liable to the homeowner. ([Civ. Code, ]§§ 896, 897.)
Chapter 3 of the Act imposes obligations on the builder, including an obligation to
furnish an express limited warranty. ([Civ. Code, ]§§ 900-907.) Chapter 4 of the Act . . .
prescribes nonadversarial prelitigation procedures a homeowner must initiate prior to
bringing a civil action against the builder seeking recovery for alleged construction
deficiencies. ([Civ. Code, ]§§ 910-938.) Chapter 5 of the Act sets out the applicable
statute of limitations, the burden of proof, the damages that may be recovered, and the
affirmative defenses that may be asserted; it also makes the Act binding on
successors-in-interest of the original home purchaser. ([Civ. Code, ]§§ 941-945.5.)”
(Baeza v. Superior Court (2011) 201 Cal.App.4th 1214, 1222-1223.)
               Many provisions of the Right to Repair Act support the conclusion the Act
covers instances where construction defects were discovered before any actual damage
had occurred. Nothing in the Act supports a conclusion it rewrote the law on common
law claims arising from actual damages sustained as a result of construction defects. We
next review code sections of the Act that so demonstrate. These code sections would
make little sense if actual damage had already occurred in the manner alleged in the
complaint.


                                               7
                 (1) Civil Code section 916, subdivision (a) gives the builder the right
                      “to inspect the claimed unmet standards,” and specifies how that
                      inspection and testing are to take place. This code section requires
                      the builder to assume costs of damage occurring as a result of the
                      testing, and further requires the builder to “restore the property to
                      its pretesting condition within 48 hours of the testing.” (Civ. Code,
                      § 916, subd. (a).)

                 (2) Civil Code section 917 provides detailed information on how,
                      when, and by whom inspection and testing of the structure may
                      occur.3 The specific language quoted in footnote 3, ante,
                      dramatically illustrates that the legislative intent in enacting the Act
                      was to provide for identification and repair of construction defects
                      before they cause actual damage to the structure or its contents, not


       3
         “Within 30 days of the initial or, if requested, second inspection or testing, the
builder may offer in writing to repair the violation. The offer to repair shall also
compensate the homeowner for all applicable damages recoverable under Section 944,
within the timeframe for the repair set forth in this chapter. Any such offer shall be
accompanied by a detailed, specific, step-by-step statement identifying the particular
violation that is being repaired, explaining the nature, scope, and location of the repair,
and setting a reasonable completion date for the repair. The offer shall also include the
names, addresses, telephone numbers, and license numbers of the contractors whom the
builder intends to have perform the repair. Those contractors shall be fully insured for,
and shall be responsible for, all damages or injuries that they may cause to occur during
the repair, and evidence of that insurance shall be provided to the homeowner upon
request. Upon written request by the homeowner or his or her legal representative, and
within the timeframes set forth in this chapter, the builder shall also provide any available
technical documentation, including, without limitation, plans and specifications,
pertaining to the claimed violation within the particular home or development tract. The
offer shall also advise the homeowner in writing of his or her right to request up to three
additional contractors from which to select to do the repair pursuant to this chapter.”
(Civ. Code, § 917.)

                                              8
    to provide the sole remedy to recover actual damages that have
    occurred as a result of construction defects.

(3) Many code sections in the Act provide timeframes for the
    homeowner to notify the builder (Civ. Code, § 910, subd. (a)) and
    the builder to acknowledge receipt of the notice of the claim (id.,
    § 913), as well as the inspection of the property by the builder (id.,
    § 916), the builder‟s offer to repair (id., § 917), the homeowner‟s
    response to the offer to repair (id., § 918), and the completion of the
    repairs of the construction defects by the builder (id., § 921). In the
    case of an actual catastrophic loss, the detailed timeframes would be
    unnecessary and nonsensical. If, as Brookfield argues, the Right to
    Repair Act applies to all claims involving construction defects
    regardless of actual damage, a homeowner whose property was
    severely damaged or destroyed would be required to await a
    solution during a lengthy process. As noted by the amicus curiae on
    behalf of Liberty Mutual, enforcement of a requirement of
    exclusive compliance with the notice provisions of the Act under
    those circumstances would effectively extinguish the subrogation
    rights of all homeowners‟ insurers who promptly cover their
    insureds‟ catastrophic losses. There is nothing in the Act or in its
    legislative history that shows the Legislature intended to eliminate
    those subrogation rights.

(4) Civil Code section 942 eliminates the need to prove causation and
    damages in connection with claims brought for violation of the
    Right to Repair Act: “In order to make a claim for violation of the
    standards set forth in Chapter 2 (commencing with Section 896), a


                           9
    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.” (Civ. Code, § 942.) We find nothing in
    the language of the Act or its legislative history supporting a
    conclusion that the Legislature intended to eliminate the need to
    prove causation or damages on all claims arising out of construction
    defects where property damage occurs. The elimination of such
    basic elements of proof, however, makes perfect sense when the
    claim is for construction defects that have not yet caused any actual
    damage.

(5) Civil Code sections 931 and 943 disprove Brookfield‟s contention
    that the Right to Repair Act was intended to provide the sole means
    for seeking redress for damages incurred due to any and all
    construction defects identified in the Act. Section 931 provides, in
    relevant part: “If a claim combines causes of action or damages not
    covered by this part . . . , the claimed unmet standards shall be
    administered according to this part . . . .” Section 943,
    subdivision (a) provides: “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



                            10
                      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.” 4
                      These code sections establish the Act itself acknowledges that other
                      laws may apply to, and other remedies may be available for,
                      construction defect claims, and, therefore, that the Act is not the
                      exclusive means for seeking redress when construction defects
                      cause actual property damage.
              In support of Brookfield, amici curiae, California Building Industry
Association and Comstock Crosser & Associates (amici curiae), argue Civil Code
section 944‟s wide range of damages available for claims under the Right to Repair Act
proves Liberty Mutual‟s claims are covered by the Act and are therefore time-barred.
Section 944 provides: “If a claim for damages is made under this title, the homeowner is
only entitled to damages for the reasonable value of repairing any violation of the
standards set forth in this title, the reasonable cost of repairing any damages caused by
the repair efforts, the reasonable cost of repairing and rectifying any damages resulting
from the failure of the home to meet the standards, the reasonable cost of removing and
replacing any improper repair by the builder, reasonable relocation and storage expenses,
lost business income if the home was used as a principal place of a business licensed to
be operated from the home, reasonable investigative costs for each established violation,
and all other costs or fees recoverable by contract or statute.” The statute‟s inclusion of
“the reasonable cost of repairing and rectifying any damages resulting from the failure of
the home to meet the standards” as part of the damages available for a violation of the

       4
        Liberty Mutual describes this code section as “limit[ing] the causes of action
allowable under” the Act. We agree.

                                              11
Right to Repair Act does not mean that such actual damages may only be recovered by a
claim under the Act, given our discussion of the other language of the Act.
              Amici curiae also argue the Right to Repair Act abrogated the existing
statutes of limitations for construction defect cases, which distinguished between patent
defects (four years) and latent defects (10 years). (Code Civ. Proc., §§ 337.1, 337.15.)
They further argue this means all construction defect cases must be governed by the
Right to Repair Act. We disagree. While one of the purposes of the Act was
unquestionably to do away with different statutes of limitations applying to latent versus
patent defects when those defects do not result in actual property damage, the Legislature
did not repeal Code of Civil Procedure sections 337.1 and 337.15. Those statutes remain
and evidence a legislative intent and understanding that the limitations periods they
contain could and would be used in litigation other than cases under the Act.
              Notably, the legislative history for the Right to Repair Act provides, in part:
“This bill would provide for a ten-year statute of limitations for construction defect
actions, with certain limited exceptions . . . .” (Sen. Com. on Judiciary, Analysis of Sen.
Bill No. 800, supra, as amended Aug. 28, 2002, p. 2, underscoring omitted.) The
legislative history also shows the purpose of the statutes of limitations included in the Act
reflected how long various systems within a home can be expected to last. This history,
again, is consistent with our reading of the Act: “[Senate Bill No.] 800 shortens the
statute of limitations for several components of a home shorter than 10 years realistically
reflecting how long those components can be expected to meet the standards.” (Home
Ownership Advancement Foundation, Floor Alert re Sen. Bill No. 800 (2001-2002 Reg.
Sess.) Aug. 30, 2002.)
              Finally, Civil Code section 896 provides, in relevant part: “In any action
seeking recovery of damages arising out of, or related to deficiencies in, the residential
construction, design, specifications, surveying, planning, supervision, testing, or
observation of construction, a builder, and to the extent set forth in Chapter 4

                                             12
(commencing with Section 910), a general contractor, subcontractor, material supplier,
individual product manufacturer, or design professional, shall, except as specifically set
forth in this title, be liable for, and the claimant‟s claims or causes of action shall be
limited to violation of, the following standards, except as specifically set forth in this
title.” Brookfield argues the language “any action” means that the present case must fall
within the Right to Repair Act. Brookfield‟s argument, however, is circular; Brookfield‟s
argument is essentially that any action arising out of the Act is an action under the Act.
Section 896 refers to any action that is covered by the Right to Repair Act; as explained
ante, we conclude the Act was never intended to, and does not, establish exclusive
remedies for claims for actual damages for construction defects such as those suffered by
Hart.
              For all these reasons, Civil Code section 896 does not provide an exclusive
remedy, as Brookfield argues. By creating a remedy for a particular cause of action, the
Right to Repair Act does not expressly or impliedly support an argument that it mandates
an exclusive remedy, and certainly does not derogate common law claims otherwise
recognized by law. (See, e.g., Century Surety Co. v. Crosby Ins., Inc. (2004) 124
Cal.App.4th 116, 126 [by analogy, in the insurance context, statute establishing rescission
as remedy for concealment does not make rescission the exclusive remedy for such a
claim].)
              Based on the foregoing analysis of the language of the Right to Repair Act
and its legislative history, we hold the Act does not provide the exclusive remedy in cases
where actual damage has occurred because of construction defects. Therefore, Liberty
Mutual‟s subrogation claims were not time-barred for failing to comply with the Act. We
reject Brookfield‟s arguments that the Legislature sub silentio eliminated common law
actions for actual damages for construction defects, eliminated subrogation rights, and
repealed Code of Civil Procedure sections 337.1 and 337.15. The demurrer should have
been overruled.

                                              13
                                  DISPOSITION
          The judgment is reversed. Appellant to recover costs on appeal.



                                            FYBEL, J.

WE CONCUR:



MOORE, ACTING P. J.



THOMPSON, J.




                                       14
