Pollard v. Saxe & Yolles Dev. Co., 525 P.2d 88 (Cal. 1974). · Go Syfert
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Pollard v. Saxe & Yolles Dev. Co., 525 P.2d 88 (Cal. 1974). Cases Citing This Book View Copy Cite
Quick Summary

Builders and sellers of new construction are subject to an implied warranty that the completed structure is designed and constructed in a reasonably workmanlike manner.

Plaintiffs purchased apartment buildings that contained structural defects discovered shortly after possession. They sued the developers for breach of implied warranty, but the trial court denied recovery, finding that such warranties do not apply to real property and that the plaintiffs failed to provide timely notice of the breach. The court holds that builders and sellers of new construction are subject to an implied warranty that the completed structure is designed and constructed in a reasonably workmanlike manner. However, because the plaintiffs failed to notify the defendants of the defects for nearly four years after discovering them, the court affirms that the action is barred by the requirement of reasonable notice.

311 citation events (82 in the last 25 years) across 38 distinct courts.
Strongest positive: Keegan v. Am. Honda Motor Co., 838 F. Supp. 2d 929 (C.D. Cal. 2012)
Treatment trajectory · 1975 → 2026 · click a year to view as-of
1975 2000 2026
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Cited for
12 Cal. 3d at 380 Requirement of notice for breach of warranty16 citing cases“builders and sellers of new construction should be held to what is impliedly represented-that the completed structure was designed and constructed in a reasonably workmanlike manner.”3 citing courts quote it
  • Keegan v. Am. Honda Motor Co., 838 F. Supp. 2d 929 (C.D. Cal. 2012).published 3 cites
    (The requirement of notice of breach is ... designed to allow the defendant opportunity for repairing the defective item, reducing damages, avoiding defective products in the future, and negotiating settlements)
  • Stearns v. Select Comfort Retail Corp., 763 F. Supp. 2d 1128 (N.D. Cal. 2010).published 6 cites
    (The requirement of notice of breach is ... designed to allow the defendant opportunity for repairing the defective item, reducing damages, avoiding defective products in the future, and negotiating settlements.)
  • Byron v. McCray, No. B306599 (Cal. Ct. App. Feb. 14, 2022).unpublished
    (In the absence of prejudice, the trial court has broad discretion in allowing relief on grounds of inadvertence from a failure to timely file a cost bill”; determining the court did not abuse its discretion in granting…)
  • Price v. Gullan, No. D075332 (Cal. Ct. App. Oct. 21, 2020).unpublished
    Co. (1974) 12 Cal.3d 374, 380-381 [cost bill] (Pollard).) We reverse a trial court’s good-cause determination only if it was arbitrary or capricious, or resulted in a miscarriage of justice.
  • Windham at Carmel Mtn. Ranch Ass'n v. Superior Court, 109 Cal. App. 4th 1162 (Cal. Ct. App. 2003).published
    Co. (1974) 12 Cal.3d 374, 380 [ 115 Cal.Rptr. 648 , 525 P.2d 88 ].) Pollard established an implied warranty of reasonable workmanship in design and construction that applies to the sale of newly constructed real property.
  • Fieldstone Co. v. Briggs Plumbing Prods., Inc., 54 Cal. App. 4th 357 (Cal. Ct. App. 1997).published 2 cites
    Co. (1974) 12 Cal.3d 374, 380 [ 115 Cal.Rptr. 648 , 525 P.2d 88 ].) Presiding Bishop v. Cavanaugh, supra, 217 Cal.App.2d 492 , upon which Fieldstone also relies, was decided several years before Pollard , and is factually dissimilar, as th…
  • Poway Unified Sch. Dist. v. Jih Jung Chow, 39 Cal. App. 4th 1478 (Cal. Ct. App. 1995).published
    Co. (1974) 12 Cal.3d 374, 380-381 [ 115 Cal.Rptr. 648 , 525 P.2d 88 ].) Where a cost bill is not timely filed, relief may be given under section 473.
  • Russell v. Trans Pac. Grp., 19 Cal. App. 4th 1717 (Cal. Ct. App. 1993).published
    Co. (1974) 12 Cal.3d 374, 380-381 [ 115 Cal.Rptr. 648 , 525 P.2d 88 ].
  • Hoover Cmty. Hotel Dev. Corp. v. Thomson, 168 Cal. App. 3d 485 (Cal. Ct. App. 1985).published
    Co. (1974) 12 Cal.3d 374, 380-381 [ 115 Cal.Rptr. 648 , 525 P.2d 88 ]; Reese v. Borghi (1963) 216 Cal.App.2d 324, 333-334 [ 30 Cal.Rptr. 868 ]; Le Deit v. Ehlert (1962) 205 Cal.App.2d 154, 169-170 [ 22 Cal.Rptr. 747 ].) The order appealed…
  • Becker v. IRM Corp., 698 P.2d 116 (Cal. 1985).published 2 cites
    Co. (1974) 12 Cal.3d 374, 378 [ 115 Cal. Rptr. 648 , 525 P.2d 88 ]; Green v. Superior Court (1974) 10 Cal.3d 616, 626 [ 111 Cal. Rptr. 704 , 517 P.2d 1168 ].) And in Pollard v. Saxe & Yolles Dev.
Show 6 more citing cases
  • Knight v. Hallsthammar, 623 P.2d 268 (Cal. 1981).published 2 cites
    Co. (1974) 12 Cal.3d 374, 380 [ 115 Cal. Rptr. 648 , 525 P.2d 88 ], concluding a warranty of quality exists for sales of new buildings, we imposed the notice requirement.
  • Marini v. Mun. Court, 99 Cal. App. 3d 829 (Cal. Ct. App. 1979).published
    Co. (1974) 12 Cal.3d 374, 380-381 [ 115 Cal.Rptr. 648 , 525 P.2d 88 ]).
  • Pas v. Hill, 87 Cal. App. 3d 521 (Cal. Ct. App. 1978).published
    Co., 12 Cal.3d 374, 380-381 [ 115 Cal.Rptr. 648 , 525 P.2d 88 ]; City of Salinas v. Souza & McCue Construction Co., 66 Cal.2d 217, 229 .) Even on appeal, defendants do not contend that the costs claimed by plaintiffs were in any respect un…
  • Pinn v. Comm'r, 105 T.C.M. 1291 (Tax Ct. 2013).unpublished
  • Lovell v. Fong, No. A139309 (Cal. Ct. App. Apr. 2, 2014).unpublished
  • In re Sony Gaming Networks & Customer Data Sec. Breach Litig., 996 F. Supp. 2d 942 (S.D. Cal. 2014).published
12 Cal. 3d at 381 Trial court discretion in allowing late filing of cost bill6 citing cases“in the absence of prejudice, the trial court has broad discretion in allowing relief on grounds of inadvertence from a failure to timely file a cost bill”4 citing courts quote it
  • Byron v. McCray, No. B306599 (Cal. Ct. App. Feb. 14, 2022).unpublished
    Co. (1974) 12 Cal.3d 374, 380-381 [“In the absence of prejudice, the trial court has broad discretion in allowing relief on grounds of inadvertence from a failure to timely file a cost bill”; determining the court did not abuse its discret…
  • Rincon EV Realty v. CP III Rincon Towers, No. A155104 (Cal. Ct. App. June 10, 2021).unpublished
    (In the absence of prejudice, the trial court has broad discretion in allowing relief on grounds of inadvertence from a failure to timely file a cost bill”; relief upheld where, five days after deadline, party moved for…)
  • Robinson v. U-Haul Co. of California, 4 Cal. App. 5th 304 (Cal. Ct. App. 2016).published 2 cites
    Co. (1974) 12 Cal.3d 374, 381 [ 115 Cal.Rptr. 648 , 525 P.2d 88 ] (Pollard) [cost bill].) A litigant faces a steep uphill battle in seeking to reverse a court’s finding of “good cause” for an extension of time.
  • Ganey v. Doran, 191 Cal. App. 3d 901 (Cal. Ct. App. 1987).published
    Co. (1974) 12 Cal.3d 374, 381 [ 115 Cal.Rptr. 648 , 525 P.2d 88 ].) And, “In the absence of prejudice, the trial court has broad discretion in allowing relief on grounds of inadvertence from a failure to timely file a cost bill.” (Pollard…
  • Pac. Sw. Airlines v. Dowty-Rotol, Ltd., 144 Cal. App. 3d 491 (Cal. Ct. App. 1983).published
    Co. (1974) 12 Cal.3d 374, 381 [ 115 Cal.Rptr. 648 , 525 P.2d 88 ].) By ordering the filing of a supplemental cost memorandum containing a proper itemization of costs and allowing a supplemental verification, the trial court exercised its d…
  • Wilson v. Hinkle, 67 Cal. App. 3d 506 (Cal. Ct. App. 1977).published
    Co., 12 Cal.3d 374, 381 [ 115 Cal.Rptr. 648 , 525 P.2d 88 ].) Given the confused procedural circumstances following the initial orders of dismissal and appellants’ own attempts to secure a reconsideration of the sustaining of the demurrers…
525 P.2d at 91 Extending implied warranty to apartment purchasers7 citing casesextending implied warranty for new construction to purchasers of an apartment complex2 citing courts put it this way · 6 listed here
  • Tina Zambrano v. M & Rc II LLC, 517 P.3d 1168 (Ariz. 2022).published
    Co., 525 P.2d 88, 91 (Cal. 1974)). ¶23 This inequality in bargaining power, expertise, and knowledge distinguishes the new-home-buying scenario from ones in which the parties are on similar footing and are thus better able to decide what c…
  • Luana Sav. Bank v. Pro-Build Holdings, Inc., 856 N.W.2d 892 (Iowa 2014).published 3 cites
    (extending implied warranty for new construction to purchasers of an apartment complex)
  • Davencourt at Pilgrims Landing Homeowners Ass'n v. Davencourt at Pilgrims Landing, LC, 2009 UT 65, 221 P.3d 234.published
    Co., 12 Cal.3d 374 , 115 Cal.Rptr. 648 , 525 P.2d 88, 91 (1974); Carpenter v. Donohoe, 154 Colo. 78 , 388 P.2d 399, 402 (1964); Vernali v. Centrella, 28 Conn.Supp. 476 , 266 A.2d 200, 203-04 (1970); Council of Unit Owners of Breakwater Hou…
  • Phillip W. Twitty & Alice F. Twitty v. Young v. Kenton, Young, & Roy Edward Brown & Volunteer Realty Co. of Knoxville, Inc., No. 03A01-9801-CH-00031, 1998 WL 453681 (Tenn. Ct. App. Aug. 6, 1998).published 2 cites
    Co., 115 Cal.Rptr. 648, 651, 525 P.2d 88, 91 (1974).
  • J. Stiles, Inc. v. Evans, 683 S.W.2d 481 (Tex. App.—Dallas 1984).published
    These include courts in California, Pollard v. Saxe & Yolles Development Co., 12 Cal.3d 374 , 15 Cal.Rptr. 648 , 525 P.2d 88, 91 (1974); Florida, Schmeck v. Sea Oats Condominium Association, Inc., 441 So.2d 1092, 1097 (Dist.Ct.App. 1983);…
  • Columbia W. Corp. v. Vela, 592 P.2d 1294 (Ariz. Ct. App. 1979).published
    The ordinary home buyer is not in a position, by skill or training, to discover defects lurking in the plumbing, the electrical wiring, the structure itself, all of which is usually covered up and not open for inspection.” Or as stated in…
12 Cal. 3d at 376 Applying implied warranties to sale of newly constructed real property4 citing casesthe trial judge has full power over the record, and as long as he does not act arbitrarily, his action is final.1 citing court put it this way
  • Mellein v. Gerges, No. B255462 (Cal. Ct. App. Mar. 14, 2016).unpublished
    (the trial judge has full power over the record, and as long as he does not act arbitrarily, his action is final.)
  • Burch v. Superior Court, 223 Cal. App. 4th 1411 (Cal. Ct. App. 2014).published
    Co. (1974) 12 Cal.3d 374, 376, 379-380 [ 115 Cal.Rptr. 648 , 525 P.2d 88 ] {Pollard), held that there is implied in a sales contract for newly constructed real property a warranty of quality and fitness.
  • People v. Hawthorne, 841 P.2d 118 (Cal. 1992).published
    Co. (1974) 12 Cal.3d 374, 376, fn. 1 [ 115 Cal.Rptr. 648 , 525 P.2d 88 ]; see Burns v. Brown (1946) 27 Cal.2d 631, 636 [ 166 P.2d 1 ].) In a related argument, defendant contends the absence of a reporter’s transcript of the events of Decem…
  • People v. Gzikowski, 651 P.2d 1145 (Cal. 1982).published
    Co. (1974) 12 Cal.3d 374, 376, fn. 1 [ 115 Cal.Rptr. 648 , 525 P.2d 88 ]; Burns v. Brown, supra, 27 Cal.2d 631, 636 .) However, it cannot refuse to make that assessment.
525 P.2d at 92 cited at this page2 citing cases
  • S. California Stroke Rehab. Assocs., Inc. v. Nautilus, Inc., 554 F. App'x 656 (9th Cir. 2014).unpublished
    Co., 12 Cal.3d 374 , 115 Cal.Rptr. 648 , 525 P.2d 88, 92 (1974).
  • Aycock v. Vantage Mgmt. Co., 554 S.W.2d 235 (Tex. Civ. App.—Dallas 1977).published
    Pollard v. Saxe & Yolles Development Co., 12 Cal.3d 374 , 115 Cal.Rptr. 648 , 525 P.2d 88, 92 (1974); and see Rogowicz v. Taylor and Gray, Inc., 498 S.W.2d 352, 355 (Tex.Civ.App.—Tyler 1973, writ ref’d n.r.e.).
115 Cal. Rptr. at 652 cited at this page2 citing cases
  • Greeter Constr. Co. v. Tice, 11 S.W.3d 907 (Tenn. Ct. App. 1999).published
    Co., 12 Cal.3d 374 , 525 P.2d 88, 92 , 115 Cal.Rptr. 648, 652 (1974); Sturdy Concrete Corp. v. Nab Constr.
  • Carter v. Krueger, 916 S.W.2d 932 (Tenn. Ct. App. 1995).published
    Co., 12 Cal.3d 374 , 525 P.2d 88, 92 , 115 Cal.Rptr. 648, 652 (1974); Sturdy Concrete Corp. v. Nab Constr.
115 Cal. Rptr. at 651 cited at this page2 citing cases
12 Cal. 3d at 377 Analyzing implied warranties in real property sales2 citing casesPlaintiffs took possession on 1 April 1963, and became aware of certain defects in the buildings at that time. The ceiling in one apartment was buckling, the…opening of page *377 (no citing court says what it cites this page for)
  • Shapiro v. Hu, 188 Cal. App. 3d 324 (Cal. Ct. App. 1986).published
    Co. (1974) 12 Cal.3d 374, 377 ( 115 Cal.Rptr. 648 , 525 P.2d 88 ].) Although this doctrine has been eroded in the context of the sale of new construction {id., at pp. 377-380), no warranty of quality could apply to the instant case for at…
  • Quevedo v. Braga, 72 Cal. App. Supp. 3d 1 (Cal. App. Dep’t Super. Ct. 1977).published
    Co. (1974) 12 Cal.3d 374, 377-378 [ 115 Cal.Rptr. 648 , 525 P.2d 88 ].) A cause of action for breach of an implied warranty of inhabitability should allege facts which show the following: One.
12 Cal. 3d at 378 Developing contractor liability for faulty construction2 citing cases“that an implied warranty of merchantability arises from a contract to build a portion of a building because the contract is one for material and labor.”the opinion's own words at *378, quoted by 1 later opinions
  • Mills v. Forestex Co., 108 Cal. App. 4th 625 (Cal. Ct. App. 2003).published
    Co. (1974) 12 Cal.3d 374, 378-380 [ 115 Cal.Rptr. 648 , 525 P.2d 88 ].) “Privity of contract is a prerequisite in California for recovery on a theory of breach of implied warranties of fitness and merchantability.” (All West Electronics, I…
  • Becker v. IRM Corp., 698 P.2d 116 (Cal. 1985).published 2 cites
    Co. (1974) 12 Cal.3d 374, 378 [ 115 Cal. Rptr. 648 , 525 P.2d 88 ]; Green v. Superior Court (1974) 10 Cal.3d 616, 626 [ 111 Cal. Rptr. 704 , 517 P.2d 1168 ].) And in Pollard v. Saxe & Yolles Dev.
12 Cal. 3d at 379 “the doctrine of implied warranty in a sales contract is based on the actual and presumed knowledge of the seller, reliance on the seller's skill or judgment, and the ordinary expectations of the parties.”1 citing casethe opinion's own words at *379, quoted by 2 later opinions
  • Jones v. ConocoPhillips Co., 198 Cal. App. 4th 1187 (Cal. Ct. App. 2011).published
    Co. (1974) 12 Cal.3d 374, 379 [ 115 Cal.Rptr. 648 , 525 P.2d 88 ].) As a general rule, a cause of action for breach of implied (or express) warranty requires privity of contract; “there is no privity between the original seller and a subse…
Other citing cases3 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
MAURICE A. POLLARD, and
v.
SAXE & YOLLES DEVELOPMENT COMPANY, and
S.F. No. 23029.
California Supreme Court.
Aug 20, 1974.
Published opinion
525 P.2d 88
1974 Cal. LEXIS 233
Counsel, Raymond H. Levy and Paul E. Rabin for Plaintiffs and Appellants., William J. Bush and Hanson, Bridgett, Marcus & Jenkins for Defendants and Respondents.
Clark, McComb, Molinari, Mosk, Taylor, Wright.
Cited by 24 opinions  |  Published
2 passages pin-cited by 2 cases
Citer courts: C.D. California (3) · N.D. California (3) · Alaska Supreme Court (1)

Opinion

CLARK, J.

Plaintiffs appeal from judgment denying recovery for structural defects in apartment buildings purchased from defendants.

This case presents the issue whether the doctrine of implied warranties of quality and fitness — now applicable to the sale of goods and to some contracts for labor and material — should also apply to the sale of newly constructed real property.

In 1960 and 1961, defendants entered written agreements with a general contractor for the construction of five apartment buildings in San Jose.[1] As each building was completed, defendants took possession, renting the units, and ultimately conveying the property to plaintiffs. Defendants represented themselves as developers — not as contractors.

[*377] Plaintiffs took possession on 1 April 1963, and became aware of certain defects in the buildings at that time. The ceiling in one apartment was buckling, the sliding glass doors in two were sticking, and water remained on some of the patio decks after a rainfall, all resulting in the loss of rental in two apartments.

It was later determined that the defects resulted from the contractor’s having removed center posts and installed undersized headers or beams inadequate to support the floor loads of the second-story patio decks. Concrete was substituted — at defendants’ order — for lighter-weight magnesite called for in the plans, increasing the stress.

Plaintiffs did not notify defendants of the defects until January 1967. Suit was commenced on 3 February 1967, more than three years but less than four years after both actual and constructive notice of the damage to their property.

The trial court held that the implied warranties of quality and fitness of purpose do not attach to the sale of real property, and that in any event, plaintiffs would be barred by their failure to give timely notice of breach of warranty.[2]

Implied Warranty

Historically, the laws governing sales of real property have developed along lines different from those governing sales of commercial goods. In the normal sale of land and buildings, courts have traditionally applied the doctrine of caveat emptor, with the buyer assuming the risk on quality —absent express warranty, fraud, or misrepresentation. (Gustafson v. Dunman, Inc. (1962) 204 Cal.App.2d 10, 13 [22 Cal.Rptr. 161]; Murphy v. Sheftel (1932) 121 Cal.App. 533, 539 [9 P.2d 568].) In contrast, in the sale or furnishing of tangible chattels, warranties of quality and fitness have been implied (Gagne v. Bertran (1954) 43 Cal.2d 481 [275 P.2d 15]), and in California statutes dealing with such warranties now govern the sale of goods (Cal.U.Com.Code, § 2105).

Gradually, many of the principles governing chattel transactions have been adopted in the law of real property, and a number of exceptions[*378] have developed to the rule imposing the risk of faulty construction on the buyer. Departures from the older rule have occurred in the areas of both tort and contract liability.

In Dow v. Holly Manufacturing Co. (1958) 49 Cal.2d 720, 724-725 [321 P.2d 736], this court, quoting from.Prosser on Torts (2d ed. 1955) pages 517-519, recognized that several recent decisions abrogating the rule of nonliability for negligently caused personal injuries “have placed building contractors on the same footing as sellers of goods, and have held them to the • general standard of reasonable care for the protection of anyone who may foreseeably be endangered by the negligence even after acceptance of the work.”

The contractor’s liability for negligence for faulty construction has not been limited to personal injuries but now extends to diminution in the value of the construction (Sabella v. Wisler (1963) 59 Cal.2d 21, 29 [27 Cal.Rptr. 689, 377 P.2d 889]; Stewart v. Cox (1961) 55 Cal.2d 857, 862-863 [13 Cal.Rptr. 521, 362 P.2d 345]; cf. Connor v. Great Western Sav. & Loan Assn. (1968) 69 Cal.2d 850, 869 [73 Cal.Rptr. 369, 447 P.2d 609, 39 A.L.R.3d 224]), and the strict liability doctrine developed with respect to chattels has been applied to defective construction in two cases (Avner v. Longridge Estates (1969) 272 Cal.App.2d 607, 609-615 [77 Cal.Rptr. 633]; Kriegler v. Eichler Homes, Inc. (1969) 269 Cal.App.2d 224, 227 [74 Cal.Rptr. 749]).

Exceptions to the rule excusing building contractors have also been recognized on the basis of implied warranties. In Gagne v. Bertran, supra, 43 Cal.2d 481, 48.6, this court recognized that in appropriate circumstances warranty liability extends beyond the sale of tangible chattels; and Aced v. Hobbs-Sesack Plumbing Co. (1961) 55 Cal.2d 573, 580-583 112 Cal.Rptr. 257, 360 P.2d 897], rejecting the view that implied warranties were limited to contracts within the sales act, held that an implied warranty of merchantability arises from a contract to build a portion of a building because the contract is one for material and labor. (55 Cal.2d at pp. 582-583.)

Likewise, a contract to build an entire building is essentially a contract for material and labor, and there is an implied warranty protecting the owner from defective construction. (See Green v. Superior Court (1974) 10 Cal.3d 616, 626 [111 Cal.Rptr. 704, 5.17 P.2d 1168]; Kuitems v. Covell (1951) 104 Cal.App.2d 482, 485 [231 P.2d 552]; Roscoe Moss Co. v. Jenkins (1942) 55 Cal.App.2d 369, 376 [130 P.2d 477].) Clearly, it would be anomalous to imply a warranty of quality when[*379] construction is pursuant to a contract with the owner — but fail to recognize a similar warranty when the sale follows completion of construction.

Recent decisions in other jurisdictions conclude an implied warranty of quality attaches to the sale of new construction.[3] Further, this result has been urged by many commentators'.[4]

The doctrine of implied warranty in a sales contract is based on the actual and presumed knowledge of the seller, reliance on the seller’s skill or judgment, and the ordinary expectations of the parties.'(8 Williston on Contracts, supra, pp. 541, 549-550.)

In the setting of the marketplace, the builder or seller of new construction — not unlike the manufacturer or merchandiser of personalty— makes implied representations, ordinarily indispensable to the sale, that the builder has used reasonable skill and judgment in constructing the building. On the other hand, the purchaser does not usually possess the knowledge of the builder and is unable to fully examine a completed house and its components without disturbing the finished product. Further, unlike the purchaser of an older building, he has no opportunity to observe how the building has withstood the passage of time. Thus he generally relies on those in a position to know the quality of the work to be sold, and his reliance is surely evident to the construction industry.

[*380] Therefore, we conclude builders and sellers of new construction should be held to what is impliedly represented — that the completed structure was designed and constrücted in.- a reasonably workmanlike manner.[5]

Notice of Breach of Warranty

Although the statute requiring notice within a reasonable time (Cal.U.Com.Code, § 2607, subd. (3)) is applicable to sales of goods (see Cal.U.Com.Code, § 2102 et seq.), a similar requirement should apply here. In treating common -law warranties, it has been recognized that statutory standards should be utilized where appropriate. (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 61 [27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049]; Franck v. J. J. Sugarman-Rudolph Co. (1952) 40 Cal.2d 81, 88 [251 P.2d 949].) The requirement of notice of breach is based on a sound commerical- rule designed to allow the defendant opportunity for repairing the defective item, reducing damages, avoiding defective products in the future, and negotiating settlements. The notice requirement also protects against stale claims. (E.g., Whitfield v. Jessup (1948) 31 Cal.2d 826, 829 [193 P.2d 1].) These considerations are as applicable to builders and sellers of new construction as to manufacturers and dealers of chattels.

The buyer is required to give notice within a reasonable time after he discovers or should have discovered the breach of warranty. (Cal.U. Com.Code, § 2607, subd. (3); Whitfield v. Jessup, supra, 31 Cal.2d 826, 829; see Rest., Contracts (1932) § 412.) In April 1963, plaintiffs were aware the ceiling was buckling and walls were not straight in one apartment, sliding glass doors were sticking, and water was remaining on decks after rainfalls. Although possibly not aware of the causes, they knew of the defects for nearly four years before giving notice. We therefore uphold the trial court’s determination that the action for breach of warranty is barred by unreasonable delay in giving notice.

Cost Bill

Five days after the statutory time to file a cost bill, defendants moved for permission to file a late memorandum of costs on the ground that due[*381] to the press of other matters counsel inadvertently failed to file a timely memorandum. The motion was granted. In the absence of prejudice, the trial court has broad discretion in allowing- relief on grounds of inadvertence from a failure to timely file a cost bill. (Reese v. Borghi (1963) 216 Cal.App.2d 324, 333-334 [30 Cal.Rptr. 868]; LeDeit v. Ehlert (1962) 205 Cal.App.2d 154, 169-170 [22 Cal.Rptr. 747].) There is no showing of prejudice, and the court did not abuse its discretion.

The judgment and the order allowing the late filing of cost bill are affirmed.

Wright, C. J., McComb, J., Mosk, J., Molinari, J.,* and Taylor, J.,* concurred.

Appellants' petition for a rehearing was denied September 19, 1974. Tobriner, J., and Sullivan, J., did not participate therein.

1

The facts are based on a 15-page settled statement prepared pursuant to rule 7, California Rules of Court. Plaintiffs attack the settled statement as being conclusionary. We do not have transcripts but so far as appears, the statement is accurate and the conclusionary statements objected to may reflect conclusionary testimony. On the basis of similar considerations, it has been held that the trial judge has full power over the record, and as long as he does not act arbitrarily, his action is final. (Burns v. Brown (1946) 27 Cal.2d 631 [166 P.2d 1]; St. George v. Superior Court (1949) 93 Cal.App.2d 815 [209 P.2d 823].) There is no showing he acted arbitrarily.

2

The trial court held that causes of action based on negligence, fraud, or strict liability are barred by the statute of limitations requiring an action for injury to real property be brought within three years. (Code Civ. Proc., § 338, subd. 2.) By claiming breach of implied warranty plaintiffs attempt to invoke the four-year statute of limitations covering actions founded on an instrument in writing. (Code Civ. Proc., § 337, subd. 1.)

3

Cochran v. Keeton (1971) 287 Ala. 439 [252 So.2d 313]; Wawak v. Stewart (1970) 247 Ark. 1093 [449 S.W.2d 922]; Carpenter v. Donohoe (1964) 154 Colo. 78 [388 P.2d 399]; Glisan v. Smolenske (1963) 153 Colo. 274 [387 P.2d 260]; Bethlahmy v. Bechtel (1966) 91 Idaho 55 [415 P.2d 698]; Hanavan v. Dye (1972) 4 Ill.App.3d 576 [281 N.E.2d 398]; Weeks v. Slavick Builders, Inc. (1970) 24 Mich. App. 621 [180 N.W.2d 503]; Schipper v. Levitt & Sons, Inc. (1965) 44 N.J. 70 [207 A.2d 314]; Vanderschrier v. Aaron (1957) 103 Ohio App. 340 [3 Ohio Ops.2d 367, 140 N.E.2d 819]; Jones v. Gatewood (Okla. 1963) 381 P.2d 158; Elderkin v. Gaster (1972) 447 Pa. 118 [288 A.2d 771]; Waggoner V. Midwestern Development, Inc. (1967) 83 S.D. 57 [154 N.W.2d 803]; Humber v. Morton (Tex. 1968) 426 S.W.2d 554 [25 A.L.R.3d 372]; Rothberg v. Olenik (1970) 128 Vt. 295 [262 A.2d 461]; House v. Thornton (1969) 76 Wn.2d 428 [457 P.2d 199]; Hoye v. Century Builders, Inc. (1958) 52 Wn.2d 830 [329 P.2d 474].

4

Bearman, Caveat Emptor in Sales of Realty — Recent Assaults Upon the Rule (1961) 14 Vand.L.Rev. 541; Dunham, Vendor’s Obligation as to Fitness of Land for a Particular Purpose (1952) 37 Minn.L.Rev. 108; Haskell, The Case for an Implied Warranty of Quality in Sales of Real Property (1965) 53 Geo.L.J. 633; Roberts, The Case of the Unwary Home Buyer: The Housing Merchant Did It (1967) 52 Cornell L.Q. 835; Williston, Contracts (3d ed. 1963) § 926A; Note, Implied Warranty of Fitness for Habitation in Sale of Residential Dwellings (1966) 43 Denver L.Rev. 379; (1968) 10 Ariz.L.Rev. 484; (1965) 1 Cal.Western L.Rev. 110; (1965) 44 N.C.L.Rev. 236; (1965) 26 U.Pitt.L.Rev. 862; (1968) 71 W.Va. L.Rev. 87; see also Annot., 25 A.L.R.3d 383, 390 et seq.

5

Civil Code section 1113 does not require a different result. The section merely specifies and limits the warranties implied from the use of the word “grant” in a conveyance; the code section deals with warranties of title not of quality. (Cf. Humber v. Morton, supra, 426 S.W.2d 554, 555-556 (discussing a similar Texas code section).) ,