A builder who opts out of the non-adversarial statutory pre-litigation procedures of Civ. Code, §§ 910-938, in favor of its own contractual procedures opts out of the entirety of §§ 910-938, and the disclosure provisions of Civ. Code, § 912, do not apply to such a builder.
§ 910 sets out pre-litigation procedures that a claimant must follow before initiating an action for construction defect. § 912 sets out pre-litigation disclosure requirements that a builder must comply with. If a builder fails to do so, the claimant is not bound by the pre-litigation procedures. However, § 914 allows for a builder to opt out of the non-adversarial statutory pre-litigation procedures in favor of its own contractual pre-litigation procedures. In Baeza, homeowners sued the developer of several homes claiming construction defects but failed to comply with the § 910 pre-litigation procedures, arguing that the procedures were excused based on the developer’s failure to comply with § 912’s disclosure requirements.
The appellate court held that when a builder opts out of the non-adversarial pre-litigation procedures of §§ 910-938, it opts out of the non-adversarial pre-litigation statute entirely, including the disclosure requirements of § 912. Thus, because the homeowners’ failure to comply with the pre-litigation procedures were not excused by the developer’s failure to make the statutory disclosures, the homeowners were required to first comply with the pre-litigation procedures before initiating the civil suit.