Kristen Gomez, Natalie Gomez, a minor by and through her Guardian ad Litem, Kristen Gomez v. David Varon, Sheryl Varon, San Carlos Agency Inc.
Published: Mar. 15, 2005 | Result Date: Sep. 9, 2004 | Filing Date: Jan. 1, 1900 |Case number: M59953 Verdict – $0
Judge
Court
Monterey Superior
Attorneys
Plaintiff
Craig E. Farmer
(Farmer, Smith & Lane LLP)
Defendant
David S. Spini
(Scruggs, Spini & Fulton)
Experts
Plaintiff
Stephen C. Davis
(technical)
Gary Sackett
(technical)
James Caplan M.D.
(medical)
Nancy Cummings
(medical)
Defendant
Patricia A. Heinsohn
(technical)
Janet S. Weiss
(medical)
Facts
In June 1999, plaintiffs Kristen Gomez and her daughter Natalie, age 10, moved into a small house in Carmel under a lease agreement. The house was owned by defendants David and Sheryl Varon, and managed by San Carlos Agency Inc. (SCA). Between June 1999 and June 2001, Gomez claimed they had numerous minor maintenance problems, many plumbing related. SCA claimed it resolved the complaints. In spring of 2001, Gomez claimed she reported standing water under the house to SCA. SCA told her that standing water under houses in Carmel was normal. Gomez then made several complaints of accelerated mold in the interior of the house. She was told to open windows in order to ventilate the house. Gomez did so and took additional measures to reduce moisture in the house to no avail. Gomez signed a renewal of the lease in June 2001. The next month, she went to the doctor and was treated for an upper respiratory infection which she believed might be due to the conditions in her home. She complained to the Monterey County Department of Health which conducted an investigation. The county then issued an enforcement letter to SCA stating that the county's inspector found excessive moisture and noted that this would support unhealthy fungal growth. It required corrective action within 30 days. SCA inspected the home, along with a remediation contractor and SCA's insurance adjuster. Plastic sheeting was laid on the ground under the home to reduce the moisture. The remediation contractor provided estimates to remediate the home and plaintiffs' personal property. The county reinspected the home in September 2001 and found it required remediation. SCA wrote three separate letters to plaintiffs, offering to rent them another dwelling and help to move. In late September, plaintiffs, with their rent paid through October, vacated the home. The plaintiffs sued defendants Varons and SCA alleging negligence, breach of contract, breach of implied warranty of habitability, nuisance, intentional and negligent infliction of emotional distress, constructive eviction, fraudulent concealment, and intentional and negligent misrepresentation.
Settlement Discussions
Plaintiff Kristen Gomez made a demand of $203,974 and Natalie made a demand of $22,870. This was reduced to $95,000 combined and a request for entry of judgment in their favor, and a stipulation that they are deemed the prevailing party in order to bring a motion for attorney fees and costs. The defendants made a C.C.P. Section 998 offer of $50,000 to Kristen, and an offer of $5,000 to Natalie, exclusive of attorney fees and costs.
Damages
The plaintiffs claimed past medical expenses of $2,700, past therapy expenses of $12,000, property cleaning expenses of $16,500, property damage of $23,000, storage and moving expenses of $4,400, and Kristen's past lost earnings of $6,000. They also claimed future therapy expenses for Kristen of $37,000 and future therapy expenses for Natalie of $10,000. They sought a total award between $428,000 and $828,000.
Injuries
Plaintiff Kristen Gomez claimed she suffered bronchitis and treated without success for over two months with three courses of antibiotics. She claimed her illness resolved rapidly after she vacated the home. She also suffered a fractured rib from coughing. Her psychotherapist testified that Kristen's financial set back from becoming physically ill, losing her personal property and receiving derogatory references from SCA to prospective landlords caused her to suffer anxiety attacks and aggravated preexisting moderate depression. This resulted in the need for five years of therapy and the use of Klonopin. Plaintiff Natalie Gomez claimed she suffered a sore throat and aggravation of asthma. Both plaintiffs claimed they suffered from repeated colds, bronchitis, sinusitis, fatigue and congestion. A pulmonologist and an allergist/immunologist opined that plaintiffs' symptoms were due to the excessive moisture in the home and an irritant effect from the mold spores and inhaled hyphae.
Result
After the evidence was presented, the trial court granted defendants' motion for nonsuit as to plaintiffs' causes of action for intentional infliction of emotional distress, fraudulent concealment, and intentional and negligent misrepresentation. The court also granted defendants' motion to strike plaintiffs' punitive damages allegation. The jury returned a defense verdict on the remaining claims.
Deliberation
2.5 hours
Poll
various between 12-0 and 10-2
Length
13 days
For reprint rights or to order a copy of your photo:
Email
jeremy@reprintpros.com
for prices.
Direct dial: 949-702-5390