Facts

Plaintiff Mindy Chapman and her children, plaintiffs, Marcus and Megan Shapiro, resided in a unit which was a part of the Kensington Park Homeowners Association. The matter involved a dispute over whether there was water coming from a common area source that the HOA had notice of and did not repair that allegedly caused damage to the townhouse and caused plaintiffs to suffer property damage, personal injuries, lost use, lost value, and personal property damage.

PLAINTIFF'S CONTENTIONS:
Plaintiffs contended that water was intruding into their townhouse from an adjacent common area planting strip causing water damage and mold growth throughout the unit. They claimed that the HOA knew that the common area adjacent to the unit needed drainage since an underlying construction defect action brought against the builder by the HOA, and that the HOA failed to install this drainage.

Plaintiffs vacated the property on two separate occasions over a four-year period because they believed the unit was uninhabitable.

DEFENDANT'S CONTENTIONS:
The HOA, using plaintiffs' own experts' testimony, contended that there was no evidence of water coming into the property at all, but that if it was entering the plaintiffs' unit, it was coming from the defects in their own backyard landscaping, including sloping towards the house, insufficient and ill-maintained drainage, and a poorly installed patio.

Defendant also claimed that plaintiffs knew all of the backyard defects and they refused to correct them despite their own experts' advice. Defendant alleged that there was no mold in the unit and none that could be traced to the rear yard drainage issue. Thus, defendant claimed that it was not responsible for any of plaintiffs' damages.

Defendant maintained that it met the standard of care for the HOA in the performance of its investigation of the issue.

Settlement Discussions

Mindy Chapman and Megan Shapiro demanded $400,000 from the HOA at the MSC in August 2010 and never reduced the demand. Defendant made a CCP 998 offer of $40,001 to Mindy Chapman, exclusive of fees, and $2,501 each to Marcus and Megan Shapiro. All CCP 998 offers expired.

Damages

Plaintiffs sought damages for lost value, personal property they discarded, and lost use for the two years they were out of the unit, repairs to the real property and emotional distress. $28,000 (ALE); $30,000 (personal property loss); $100,000 (real property repairs).

Injuries

Plaintiffs Mindy Chapman and Megan Shapiro claimed that they sustained serious personal injuries from mold and mycotoxin exposure including respiratory issues, brain damage, increased anxiety, rashes, asthma, and ADD. The personal injury claims were precluded after Evidence Code section 402 hearings pursuant to Geffcken v. D'Andrea, (2006) 137 Cal.App.4th 1298 and Dee v. PCS Property Management Inc. (2009) 174 Cal.App.4th 390 as they lacked foundation and the testing was unreliable.

Result

The court granted defendant's motion for nonsuit at the close of plaintiffs' case. All of plaintiffs claims hinged on whether there was water that came from a common area space into the subject property that was known to and went unrepaired by the HOA causing plaintiffs' damage. Marcus Shapiro dismissed his claims without prejudice before trial.

Other Information

On May 18, 2011, defendant obtained Judgment against both plaintiffs and an order of costs against Megan Shapiro of $75,598.00. The Motion for Fees and Memo of Costs as to Mindy Chapman is still pending. FILING DATE: Dec. 29, 2008.