What is the time limit for filing a complaint?
A consumer complaint against a contractor generally must be filed in writing with the Contractor’s State License Board within four years after the act. The CSLB website has a complaint form. The California Attorney General (or assistant) can also file a complaint. This generally comes in the form of an “accusation.” An accusation must be filed within four years of the complained of act, or within eighteen months of the filing of a consumer complaint. Thus, (with certain exceptions) the statute of limitations for filing an accusation recommending disciplinary action is four years and eighteen months. (B&PC §7091)
There is a longer statute of limitations for complaints of latent defective structural work. An allegation that the contractor willfully departed from accepted trade standards with respect to a latent structrual defects may be filed up to ten years after the act. A latent defect is one that is not apparent by a reasonable inspection. The attorney general has eighteen months after a complaint is filed to make an accusation for the same.
What Does A “Willful Departure From Accepted Trade Standards” Mean?
The term “willful” might make you think of something more than a mere mistake that falls below the standard of care. It might make you think the attorney general has to prove the contractor knew the right way to do it, but did it another way instead. Instead, willful simply means the contractor intended to do what he did- even if he did not know it was not appropriate.
For example, in the 1979 case of Mikelson Concrete Co. versus the Contractors’ State License Board the attorney general filed an accusation against the contractor, Mikelson, for work alleged to be below “accepted standards for good and workmanlike construction.” There was a hearing before an administrative law judge which resulted in an order of discipline against Mikelson. He appealed the decision to his local county superior court. Superior courts, which are normally trial courts, will make an independent review of the evidence at an administrative hearing and decide whether there was enough evidence to support the order. The superior court does not retry the case. In Mikelson’s case the superior court agreed with the administrative law judge so he appealed to the court of appeals. That is as high as you can go, unless there is some interesting area of unsettled law involved in the case. The supreme court does not normally hear administrative law appeals.
Mikelson had done a “pour-over” on top of an existing concrete slab. The existing slab had just been poured by another contractor but was cracking and pooling. The owner, who used a wheelchair, could not get to her car it was so bad. The pour-over was not appropriate because the existing slab had been poured over ground that was not properly graded, was poured without expansion joints, and was poured in two layers that hadn’t bonded to each other. Mikelson should have demolished the existing slab and started over.
The important part of Mikelson’s case is that the appeals court did not find Mikelson had known he was doing the wrong thing. There was no finding of “willfulness” in the sense that he knew a pour-over was not an acceptable fix. The court simply said that the work was below the standard of care because Mikelson should have known the pour-over would not work. Here are the court’s words:
“Mickelson’s representation that he could repair the first slab with a pour over, his inadequate preparation of the bottom slab to accept a pour over, his failure to use expansion joints in either the first or the second slabs, and his failure to adequately grade for the first slab indicates a purposeful departure from accepted trade standards which may be properly characterized as “willful.”
The court of appeals cited the California Penal Code in support of its decision. Section 7 defines willful as merely implying a willingness to commit the act. It does not require any intent to knowingly violate the law, building code, or perform work below industry standards. It could have been just that Mikelson was not very smart or experienced and did not know his pour-over would just make the problem worse. That would not matter as long as he intended to do a pour-over and a pour over was not an acceptable solution as determined by the experts in the trade.
A Contractor’s Work Must Conform to Accepted Trade Standards
The lesson to learn from this is that a contractor is held to an accepted standard for good and workmanlike construction. If the contractor falls below this standard he may be subject to a disciplinary action. It does not matter that the contractor thought he was doing the best job possible.
Exception for Work Conforming to Plans and Specifications
As always, there are exceptions to every rule. For example, if the contractor was merely following plans prepared by a licensed architect, and the plans call for a construction design that is below accepted trade standards the contractor may not be at fault for following those plans. However, I think an argument could be made that if the plans were clearly in error and unacceptable, the contractor should not have followed the plans anyway but should have checked with the architect.
The foregoing article is a generalization. There are exceptions and details that apply to each situation and these laws must be analyzed in context with a larger legislative scheme that is beyond the scope of this article . Also keep in mind that the law is constantly changing. The laws and precedents cited by this article may change after I posted it. To be sure of your rights and responsibilities you need to consult with an attorney in person. If you think you have grounds for filing a complaint against a contractor you should seek the advice of a construction attorney or immediately file a compalint. Do not wait. If you are a contractor against whom a complaint or an accusation has been filed you should immediately seek the advice of an attorney. Do not wait. In either event you could lose rights by failing to promptly and properly take legal action.
Attorney Graden Tapley represents contractors and property owners throughout Sonoma County, including Santa Rosa, Cotati, Healdsburg, Petaluma, Rohnert Park, Santa Rosa, and Windsor
I bought a house built by an unlicensed owner-builder. Actually the building permit was signed by the owner and it was built by another guy without a license from Nicaragua, using unlicensed casual labor found from the Home Depot parking lot. The house was lost by the owner-builder in foreclosure.
In my due diligence before purchase, the inspection records and the inspector showed that all of the work had “passed” inspection.
It was only later that all of the construction defects were discovered.
In reality all of the plumbing, electrical and HVAC systems were in violation of Code, defective and had to be completely re-done (such as toilets with no vents to the roof that wouldn’t flush.) It appears that this work was done with unskilled and unlicensed labor.
The State License Board says they have no jurisdiction over unlicensed owner-builders unless they sold more than 4 houses a year. What liability does the County building department have for passing work that doesn’t meet Code? Could the State License Board have jurisdiction over the Nicaragua guy? Civil action may be possible, but the Board might have more weight in resolution of this matter.
You bought a house by a seller who was acting as an “owner-builder.” This is an exception to the contractor’s license law and it applies to someone that is making improvements to his own property using only employees or subcontractors. (B&PC 7044) There are limitations to this exception but as long as they do not apply the seller was probably allowed to be unlicensed.
Generally, a cause of action against a builder accrues when the act causes actual damage to the property. If the damage did not become apparent until after you bought the house the right to sue is yours, provided the statute of limitations has not run.
However, under the “Aas” rule there is no right to sue a builder for negligent or defective work unless there was actual damage. The mere fact that the defective work is worth less under an “economic loss” theory is not enough. I would have to know more about the defects themselves to form an opinion about whether you have actual damages.
However, since the builder was also the seller it could be argued that any defects should have been disclosed during the sale. On the other hand, it can be anticipated that the seller will argue it could not disclose what it did not know about. The seller will cite the fact that the bulding department passed the work as evidence that it had no way to know it was defective.
Suing and winning against the building department is even more difficult. Public employees are generally immune from suit for their discretionary acts. This includes the negligent approval of construction work. You would have to have additional facts beyone mere negligent inspection.
I would not say all hope is lost. However, your case requires some careful thought before filing a lawsuit. I would first want to map out a viable legal theory. You should consult with an attorney in person. There are statutes of limitations on all legal rights. After the deadline runs you may no longer enforce those rights.