Facts

Plaintiffs purchased a Lake Arrowhead home for the price of $3.6 million for the residence and an additional $395,000 for custom made furniture. The residence was advertised as "tucked away on 6.34 acres for total privacy."

PLAINTIFF'S CONTENTIONS:
Plaintiffs alleged intentional misrepresentation, concealment and civil conspiracy. Plaintiffs alleged that defendant real estate agents and their unlicensed assistant misrepresented and concealed the proximity of a neighborhood school, telling Plaintiffs that the school was too far away to be heard and concealing the fact that the school playground (which was fully concealed by dense forest along a steep hillside) was immediately adjacent to the property, a mere 250 feet from the residence.

Plaintiffs' purchase of the property took place during the summer months, when school was not in session. Plaintiffs visited the school during escrow, but the gates to the school were locked, making a visual inspection impossible. Additionally, the topography of the area, the one-half mile driving distance from the school driveway to the driveway of the property and the misrepresentations of defendant real estate agents' unlicensed assistant led plaintiffs to believe that the school was not immediately adjacent to the property and was approximately one half-mile away.

Plaintiffs alleged defendant real estate agents had prior knowledge of the proximity of the school. In completing the Seller's Property Questionnaire, the sellers asked defendant real estate agents if the proximity of the school and the noise generated from the school should be disclosed to Plaintiffs. Defendant real estate agents instructed the sellers not to disclose the proximity of the school or the school noise unless the sellers found the noise to be bothersome. Based thereon, the sellers did not disclose either the proximity of the school or the noise generated by the school. After the close of escrow, Plaintiffs discovered that the school playground was immediately adjacent to the property and that the school generated loud, unreasonable and offensive noise in the form of children yelling, amplified school announcements and school bells.

During trial, plaintiffs produced uncontroverted expert testimony establishing that the school noise level at the property reached 79 decibels.

DEFENDANT'S CONTENTIONS:
Defendants claimed that there was no noise problem and Plaintiffs knew the presence of the school before they made an offer. The school and school playground was pointed out to them during escrow and plaintiffs never complained, cancelled or asked to extend escrow so they could complete their pre-purchase inspections. There was no fraud.

Defendants claimed that Plaintiffs received all required written disclosures and advisories. Plaintiffs had full and fair opportunity to conduct an inspection that would have revealed existence of alleged noise. The school complied with the applicable County noise ordinance. Defendants further claimed that there was no evidence of any prior noise complaints or issues from adjoining property owners.

Result

Defense on all claims.

Other Information

Based on jury verdict, there was no Civil Code 3295 punitive damage second phase. Jury heard evidence that Plaintiffs sold a previous house due to noise but did not include this on their disclosure statement suggesting that they minimized noise issue when selling their own home making them guilty of same conduct they charged against Defendants. Plaintiffs and sellers had previous contractual arbitration in which arbitrator found in Plaintiffs' favor and against sellers. Sellers complaint against Defendants was dismissed before trial. Mediation before Hon. David Brickner, retired, did not settle the case. FILING DATE: Jan. 12, 2009.

Deliberation

four hours.

Poll

11-1 on intentional misrepresentation; 10-2 on intentional concealment; 12-0 on malice, oppression or fraud

Length

12 days