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Real Property
Defects
Non-Disclosure

John Preston and Barbara Calabrese v. Coldwell Banker Residential Realty

Published: Nov. 8, 1997 | Result Date: Jun. 25, 1997 | Filing Date: Jan. 1, 1900 |

Case number: N68779 –  $0

Judge

Lisa Schall

Court

San Diego Superior


Attorneys

Plaintiff

Mary Ellen Thorne


Defendant

Todd F. Stevens
(Keeney, Waite & Stevens APC)

Richard B. Gould


Experts

Plaintiff

Robert Garfield
(technical)

Michael Fitsimmons
(technical)

Lon Whaley
(technical)

Rick Zeihl
(technical)

Defendant

Lee R. Hess
(technical)

Eric Jensen
(technical)

Dave Stanley
(technical)

Facts

Defendant Jennifer Mascarella sold a single family residence to plaintiffs, John Preston, a car dealership general manager, and Barbara Calabrese, a tack shop operator. The plaintiffs claimed that defects existed in the home such as room additions built in violation of building codes and without building permits. The plaintiffs further claimed that defendant Mascarella and her real estate broker, defendant Coldwell Banker Residential Realty, failed to disclose material defects allegedly present at the property that the defendants allegedly knew were present. The defendants contended that they did not fail to disclose any material aspects of the property and that, even if they did, the plaintiffs did not rely on the representations. The plaintiff brought this action against the defendants based on negligence, fraud and breach of contract theories of recovery.

Settlement Discussions

The plaintiffs made a settlement demand for $75,000. The defendants made an offer of $20,000. Defendant Mascarella recovered $50,000 in attorney fees and costs which was compromised and then satisfied by plaintiffs.

Damages

The plaintiffs contended the cost to remedy the defects exceeded $70,000.

Other Information

The verdict was reached approximately two years after the case was filed. An arbitration was held before Stephanie Sontag of Post, Kirby, Noonan & Sweet (San Diego) resulting in an award for plaintiffs for $3,000 (according to defendant Mascarella), $4,000 (according to defendant Coldwell). The plaintiffs requested a trial de novo. Motions for judgment notwithstanding the verdict and new trial were denied. Motion for attorney fees by defendant Mascarella was granted in full.

Deliberation

two hours

Poll

9-3

Length

six days


#79842

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