gno.law

Oliver v. Superior Court

California Court of Appeal · D009574 · 1989-05-31 · Published · 211 Cal. App. 3d 86 · 259 Cal. Rptr. 160 · 1989 Cal. App. LEXIS 552

MARK OLIVER Et Al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; REGIS BUILDERS, INC., Real Party in Interest

Area
civil
Panel
Patricia D. Benke (author)

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T07:39Z · confidence high

The trial court granted the builder's motion for summary adjudication, dismissing the strict liability cause of action because the builder was not a mass producer of residential units. The Court of Appeal affirmed, holding that strict liability in tort does not apply to the occasional construction and sale of single-family homes, but only to mass-produced housing.

Ruling reviewedStandardThe courtThe model
Granting of motion for summary adjudication dismissing the strict liability cause of action
“The trial court agreed with Regis. Oliver thereafter sought relief from the trial court’s ruling by way of petition for mandate.”
unclearcorrectagree with court
The appellate court reviewed the legal question de novo, determining that the trial court correctly applied the existing limitation of strict liability to mass producers. The court found that building two homes at different times and locations constitutes 'occasional construction, not mass production,' thus supporting the trial court's dismissal of that specific cause of action.

Authorities

  • relied: Kriegler v. Eichler Homes, Inc. (1969) 269 Cal.App.2d 224 — Strict liability applies to developers of mass-produced residential housing where buyers rely on the developer's skill and advertised models.
  • relied: Avner v. Longridge Estates (1969) 272 Cal.App.2d 607 — Strict liability applies to developers who develop property into tracts of house lots, distinguishing them from occasional sellers.
  • relied: Del Mar Beach Club Owners Assn. v. Imperial Contracting Co. (1981) 123 Cal.App.3d 898 — Strict liability applies to developers of planned multiunit complexes who are in the business of developing and selling residential units, not occasional sellers.
  • relied: Price v. Shell Oil Co. (1970) 2 Cal.3d 245 — Supports the characterization of strict liability defendants as mass producers.
  • relied: Hyman v. Gordon (1973) 35 Cal.App.3d 769 — Supports the requirement that strict liability defendants be mass producers.
  • relied: Rawlings v. D. M. Oliver, Inc. (1979) 97 Cal.App.3d 890 — A manufacturer is subject to strict liability if in the business of manufacturing and selling, even if the product was special-ordered; emphasizes the role of mass production/business status.
  • relied: Schipper v. Levitt & Sons, Inc. (1965) 44 N.J. 70 — Buyers of development houses rely on the developer's skill for workmanlike erection.
  • relied: Patitucci v. Drelich (1977) 153 N.J. Super. 177 — New Jersey case involving a tract development of at least six lots, held not to be an isolated or occasional sale under NJ law.

The appellate opinion: sound — The court reasoned that strict liability in tort for residential construction has historically been limited to mass producers who sell in volume, allowing them to spread risk and costs. The court found that the builder's construction of only two homes at different times and locations constituted 'occasional construction,' which lacks the buyer reliance on advertised models and the ability to spread costs that justify strict liability. Therefore, the doctrine does not extend to this case.

How this analysis was made · dispute it

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:32Z · confidence medium

The trial court granted Regis Builders' motion for summary adjudication eliminating the Olivers' strict liability cause of action, finding that a developer who built only two single-family homes was not a mass producer of housing. On the Olivers' petition for writ of mandate, the Court of Appeal held that strict liability in tort applies only to mass-produced homes, found Regis's construction of two homes at different times and places to be occasional construction, and denied the petition.

Ruling reviewedStandardThe courtThe model
Summary adjudication eliminating the strict liability cause of action because Regis, having built only two single-family homes, was not a mass producer of residential housing subject to strict liability.
“Here, Regis built two homes, at two different times, in two different locations. Such building is reflective of occasional construction, not mass production.”
unclearcorrectagree with court
The opinion does not state a standard of review, but it treats the question presented—whether strict liability extends beyond mass-produced homes—as a pure question of law decided on undisputed facts, and the only existing California authority (Kriegler, Avner, Del Mar Beach Club) involved mass producers. The court also addressed and reasonably distinguished Patitucci (New Jersey 'major subdivision' statute) and Rawlings (manufacturer in the business of selling, not an occasional seller), and tied its result to the policy rationales of reliance on an advertised model and risk spreading. The conclusion follows from the authorities cited and the undisputed facts.

Authorities

  • relied: Kriegler v. Eichler Homes, Inc. (1969) 269 Cal.App.2d 224 — Strict liability in tort extends to a developer who mass-produces and sells residential housing (over 4,000 units), analogizing to mass production of automobiles.
  • relied: Avner v. Longridge Estates (1969) 272 Cal.App.2d 607 — Strict liability applies to a developer who prepared a tract of house lots that later failed.
  • relied: Del Mar Beach Club Owners Assn. v. Imperial Contracting Co. (1981) 123 Cal.App.3d 898 — Strict liability applies to developers of a 192-unit planned residential complex who were in the business of developing and selling units rather than occasional sellers.
  • relied: Price v. Shell Oil Co. (1970) 2 Cal.3d 245 — Strict liability rests on the defendant being engaged in the business of placing products in the stream of commerce, not an occasional seller.
  • relied: Hyman v. Gordon (1973) 35 Cal.App.3d 769 — Strict liability for residential construction defects is tied to the mass-producer rationale.
  • relied: Rawlings v. D. M. Oliver, Inc. (1979) 97 Cal.App.3d 890 — A manufacturer in the business of making and selling machines is not an occasional seller merely because the goods were special-ordered; the case emphasizes rather than minimizes the role of being in the business of mass production.

The appellate opinion: sound — The court surveyed every California case extending strict liability to housing, showed each involved a mass producer, and answered the petitioner's two counterarguments (Patitucci and Rawlings) directly before confirming the result with the Kriegler policy rationales of buyer reliance and risk spreading. It did not articulate a standard of review or engage general products cases such as Greenman and Vandermark, but those omissions do not affect the result because the question was a legal one resolved on undisputed facts.

How this analysis was made · dispute it

Opinion — Benke

Opinion

BENKE, J.

Regis Builders, Inc. (Regis), constructed a single-family residence in San Diego which was purchased by Mark and Lisa Oliver (Oliver). Sometime later, deficiencies began to appear and Oliver brought suit for negligence, breach of implied warranty, strict liability and negligent misrepresentation. A second amended complaint added a cause of action for fraud.

Regis brought a motion for summary adjudication of issues seeking to eliminate the cause of action for strict liability. It did not dispute it had been a developer of commercial properties during 1978 to 1980, the period in question. However, Regis argued it was not a mass producer of residential units because it had built only two single-family homes and thus was not subject to strict liability. The trial court agreed with Regis. Oliver thereafter sought relief from the trial court’s ruling by way of petition for mandate. The question presented is whether the theory of strict liability applies to other than mass-produced homes. We conclude it does not.

The doctrine of strict liability was first extended to developers of residential housing in Kriegler v. Eichler Homes, Inc. (1969) 269 Cal.App.2d 224 [74 Cal.Rptr. 749], where the court found no difference between Eichler’s mass production and sale of more than 4,000 residential units and the mass *88 production and sale of cars. Quoting extensively from Schipper v. Levitt & Sons, Inc. (1965) 44 N.J. 70 [207 A.2d 314, 325-326], the Kriegler court noted: “ ‘When a vendee buys a development house from an advertised model, as in a Levitt or in a comparable project, he clearly relies on the skill of the developer . . . that the house will be erected in reasonably workmanlike manner ....’” (269 Cal.App.2d at p. 228.)

Following Kriegler, in Avner v. Longridge Estates (1969) 272 Cal.App.2d 607, 615 [77 Cal.Rptr. 633], the doctrine of strict liability in tort was held applicable to a defendant who had developed property into a tract consisting of an unspecified number of house lots. This court thereafter applied the doctrine where the developer of a planned multiunit complex placed the complex upon an unstable bluff. (Del Mar Beach Club Owners Assn. v. Imperial Contracting Co. (1981) 123 Cal.App.3d 898 [176 Cal.Rptr. 886, 25 A.L.R.4th 336].) While single-family homes were not involved, we observed: “Although this case does not involve the mass-production of tract houses, it does involve a multiple-unit, residential, planned development complex which consists of 192 units with 27 residential buildings as well as parking structures and recreational facilities. . . . The individual units appear to fit the classic mold of buyers of mass-produced housing.” (Id. at pp. 911-912, italics added.) In finding strict liability applied, we emphasized the defendants were not occasional sellers of residential units but were in the business of developing and selling them. (Id. at pp. 912-913.)

An overview of the aforementioned cases reflects that in each instance, the doctrine of strict liability has been applied to defendants who were characterized as mass producers. (See Price v. Shell Oil Co. (1970) 2 Cal.3d 245, 254 [85 Cal.Rptr. 178, 466 P.2d 722]; Hyman v. Gordon (1973) 35 Cal.App.3d 769, 773-774 [111 Cal.Rptr. 262], Rest. 2d Torts, § 402A.) The doctrine has been extended no further.

Oliver suggests the New Jersey courts have been the leaders in expanding the application of strict liability to residential housing and that we should follow their lead. He cites Patitucci v. Drelich (1977) 153 N.J. Super. 177 [379 A.2d 297], contending the court there held the development of six homes was sufficient for strict liability. However, Patitucci involved a tract development of “at least six” lots, which is a “major subdivision” under New Jersey law. In light of New Jersey’s law, the court held the case did not involve an isolated or occasional sale of a residence. 1

Oliver also argues “mass production” is no longer required in order to apply strict liability to manufacturers of products and by analogy the same rule should apply to real estate. For this proposition, Oliver relies upon *89 Rawlings v. D. M. Oliver, Inc. (1979) 97 Cal.App.3d 890 [159 Cal.Rptr. 119]. There, the manufacturer of a kelp drying machine argued it was not a product of mass production because the buyer had “special ordered” nine machines. The court, however, concluded the manufacturer was in the business of manufacturing and selling and therefore was not an occasional seller. The fact a special order was involved which was not sold to the general public did not insulate the manufacturer from strict liability. Rawlings emphasizes rather than minimizes the role of mass production as a factor in the application of strict liability.

In short, we find no case law supporting imposition of strict liability on other than “mass-produced” homes. Whether a residence falls within the category of a mass-produced home is a question which must be determined on a case-by-case basis. Here, Regis built two homes, at two different times, in two different locations. Such building is reflective of occasional construction, not mass production.

Having concluded existing case law does not provide a basis for extending the doctrine of strict liability into the occasional construction and sale of residences, it remains to be determined whether the policies underlying Kriegler v. Eichler Homes, Inc., supra, 269 Cal.App.2d 224, compel such a result. They do not. A home purchase through an occasional construction and sale does not involve the buyer reliance attending sales based upon an advertised model. Nor does it present a situation where the builder may protect himself from substantial financial loss by effectively spreading both the risk and actual costs of defective construction among a number of residences in a development. Since the rationale underlying the application of strict liability does not apply to the occasional or isolated construction and sale of a residence, we are not inclined to expand the concept beyond its current, limited application to mass-produced homes.

The petition is denied.

Kremer, P. J., and Froehlich, J., concurred.

1

In noting the New Jersey statutes, we do not imply there is any talismanic number in this state at which the occasional sale becomes mass production and sale.

Cites, in this corpus

Cited by