Facts

On Oct. 15, 2004, plaintiffs Michael Brokaw and Anna Mikesell filed a complaint against their neighbor, defendant George Raquelsantos, alleging trespass and fraud (intentional misrepresentation).

The plaintiffs are the owners of real property, which is down slope but adjacent to real property owned by the defendant. The plaintiffs contended that Raquelsantos, in an effort to effectuate repairs to the slope which separates his property from their property, requested and obtained permission from the plaintiffs to enter upon their property to undertake said repairs.

The plaintiffs contended however, that the only reason they permitted Raquelsantos to enter onto their property to effectuate repairs was because Raquelsantos represented to them that a permit had been obtained for the repair work and further, that the repair work would be completed by a licensed contractor.

Raquelsantos admitted that he did not have a permit and that he was unaware that he needed a permit until the Department of Building and Safety issued a Stop Order requiring that all work be stopped until such time as proper permits were obtained. At the time the stop order was issued, Raquelsantos spent the better part of 2002 resolving the problem of permits. In May 2003, Raquelsantos finally obtained the necessary permits and completed the job around September 2003.

In their complaint, the plaintiffs contended that not only in the course of the original non-permitted work, but again in the course of the final and permitted repair work; that damages occurred by improper and unauthorized grading and construction; diminution in value of the properties and damages to structures on plaintiff Anna Mikesell's property.

PLAINTIFFS' CONTENTIONS:
The plaintiffs contended that the defendant wrongfully gained access to the plaintiffs' property by falsely representing that he had a permit for the work he intended to perform and that the same was going to be done by a licensed contractor. As a result of the un-permitted work, the plaintiffs suffered damages.

The plaintiffs alleged two separate items of damages. First, the plaintiffs alleged that the slope was damaged by both the permitted and non-permitted work performed by the defendant, which necessitated various repairs, including the re-planting of damaged vegetation, replacement of damaged lattice and the replacement/extension of a drainage swale.

Secondly, the plaintiffs alleged that their respective properties had diminished in value because they contended they would be required to disclose to potential future purchasers; that the defendant initially began construction on the slope without a permit and the existence of the lawsuit they filed, thereby causing a reduction in the market value of their properties.

DEFENDANT'S CONTENTIONS:
The defendant contended that the defendant never entered the plaintiffs' property without permission and never told the plaintiffs that he had obtained a permit or that a licensed contractor was doing the work. The defendant also contended that the plaintiffs suffered no diminution in value as a result of the work performed by the defendant permitted or otherwise.

Settlement Discussions

On Nov. 2, 2005, the Parties participated in a voluntary settlement conference through the Court's V.A.S.T. program. The Parties were not able to settle the matter based on the plaintiffs’ contention that they suffered damages in excess of $100,000.

Other Information

MEDIATION: On March 22, 2005 both Parties attended mediation. Mediation concluded however without any resolution of the matter. POST-TRIAL MOTIONS: The defendant served the plaintiffs individually, with statutory offers to compromise each in the amount of $1,250. These offers expired by operation of law when they were not accepted within 35 days of mailing. As the prevailing party, the defendant is entitled to recover costs. In addition, pursuant to C.C.P. section 998, if an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, it is within the Court’s discretion to require the plaintiff to pay a reasonable sum to cover costs of services of expert witnesses which were actually incurred and reasonably necessary in either the preparation of or trial of the case by the defendant. The defendant therefore filed a motion to recover costs, including expert fees, in the total amount of $17,487. EXPERT TESTIMONY: Matt Epstein, a licensed real estate agent, testified that the plaintiffs' properties had diminished in value by 10 percent based upon the work performed by the defendant. During Epstein's trial testimony he opined that the plaintiffs' properties had diminished in value by up to 20 percent. Epstein opined that the increase from the time of his deposition to the time of trial was based upon a change in the market. The defendant immediately objected and requested a ruling from the Court on a prior motion in limine. In essence, the Court held that if Epstein testified that the diminution in value was based upon the market and the market changed from the time of his deposition to the time of trial, he could provide an opinion, which was inconsistent with his deposition testimony. However, defense counsel brought to the Court's attention a California case in which the Court determined that when no causal relationship could be made between the actions of a defendant and a decrease in the market, the plaintiffs could not benefit from the same in order to increase their damages. The Court excused the jury, reviewed the case and returned with a decision in favor of the defendant. As such, the Court instructed the jury that as a matter of law, the plaintiffs' recovery of diminution in value damages, if any, would be capped at 10 percent. Had the Court allowed the testimony, it would have effectively increased the plaintiffs’ potential damage recovery to near $500,000.

Deliberation

one hour

Poll

12-0

Length

seven days