Charles Hornisher; Patricia Hornisher; Woodrow Banta; Monica Banta; Julia R. Dickens, individually and on behalf of all others similarly situated v. McBail Homes; Casa Grande Company; Bailey & McGah; Souza, Bailey & MCGah; Ed McBail; Ed Mc
Published: Nov. 7, 1998 | Result Date: Apr. 10, 1998 | Filing Date: Jan. 1, 1900 |Case number: C9405504 Verdict – $162,620
Judge
Court
Contra Costa Superior
Attorneys
Plaintiff
Kelly M. Dermody
(Lieff, Cabraser, Heimann & Bernstein LLP)
Kelly M. Dermody
(Lieff, Cabraser, Heimann & Bernstein LLP)
Defendant
Experts
Plaintiff
Paul Seidelman
(technical)
Steve Hupner
(technical)
James J. Nicholas
(technical)
Steven O'Connor
(technical)
Thomas K. Butt
(technical)
Defendant
K.C. Dewell
(technical)
Jesse B. Smyers
(technical)
Steven R. Fisk
(technical)
Alan Kropp
(technical)
Wes Daniels
(technical)
Ned Clyde
(technical)
Facts
The plaintiffs in this case bought new homes in the Rollingwood subdivision in Napa directly from defendant builder/developer Casa Grande. The 30 plaintiffs alleged their homes had extensive cracking in the interior finishes, floors out of level, windows and doors that did not open properly, and other damage indicative of differential foundation movement. The action was initially filed as class action, but proceeded to trial on only three of the 30 claims as a "test case" and for purposes of evaluation of the remaining claims. The class allegations were ultimately dismissed. The plaintiffs brought this action against the defendants based on strict liability, negligence, unfair business practices, negligent misrepresentation breach of the covenant of good faith and fair dealing and breach of warranties theories of recovery. The defendants filed cross-complaints against various subcontractors. Walline was a cross-defendant as to plaintiff's Ravano and Fitzpatrick only and was only sued with respect to drainage issues. Johnny's Masonry was a cross-defendant as to plaintiff Ravano only.
Settlement Discussions
Plaintiffs' pre-trial demands were: Phelan - $195,000 ($174,000 per the plaintiff); Ravano - $115,000 ($125,000 per the plaintiff); Fitzpatrick - $86,000. The defendants' C.C.P. º998 offers were: Phelan - $20,000 (10 - year statute); Ravano $55,000; Fitzpatrick - $20,000 (accepted prior to jury being sworn).
Damages
The plaintiff's attorney asked the jury to award $179,175 for Sydney Phelan, and $146,530 for the Ravanos. According to defendants, repair cost figures were: (as to Phelan) $46,011 to $52,622 and (as to Ravano) $29,741.40 to $36,621.40.
Other Information
Nonsuit was granted in favor of defendants McBail, Casa Grande, and Bailey on breach of warranty, unfair business practices, punitive damages, and the fireplace claim. Defendants then dismissed the cross-complaint against Johnny's Masonry (fireplace contractor) without prejudice pursuant to stipulation. The court later granted Bailey's motion for directed verdict as to all claims and McBail's motion for directed verdict on breach of the implied covenant of good faith and fair dealing. The verdict was reached approximately three years and four months after the case was filed. SETTLEMENT CONFERENCE: A settlement conference held on Jan. 20, 1998, before Judge Zuniga, and special Master Gordon McClintock, resulted in a settlement between defendant and one of the cross-defendants. One of the three claims, a home with very minor damage, settled for $20,000 during jury selection. The other two claims proceeded to trial and ultimately to the reported jury verdicts. One motion for summary judgment was granted. Defendants dispute that all homes exhibit the same damages and require the same repairs.
Deliberation
two days
Length
six weeks
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