LASC Grants Summary Judgment in Multi-Million Dollar Toxic Tort Case

June 14, 2013

On April 4, 2013, the Los Angeles Superior Court granted a Joint Motion for Summary Judgment to Murchison & Cumming’s client in a multi-million dollar toxic tort case handled by Dan L. Longo and Lisa D. Angelo.

In December 2007, a pipe burst in the plaintiff’s apartment in Beverly Hills, California. Soon after, the plaintiff's house flooded. The plaintiff's landlord hired a series of contractors to clean and restore the plaintiff's apartment back to its same or similar condition prior to the flood. The following month, by the plaintiff's request, the landlord hired an environmental consultant to sample the apartment for mold. By January 18, 2008, the plaintiff's pre-existing sinus and respiratory problems worsened and he was ultimately rushed to the hospital where he was informed for the first time that his medical conditions may be related to mold exposure. Two days later, the environmental consultants the landlord hired to assess the apartment prepared and tendered a "Mold and Bacteria Assessment Report" where they found only mold inside the apartment. Dissatisfied that the environmental consultant's report only found mold and not bacteria in the apartment, the plaintiff hired his own environmental consulting firm who also found only mold in the apartment. The plaintiff insisted that the first environmental consulting company hired by his landlord return to his apartment in February, 2008 to conduct a second inspection for both mold and fecal bacteria. On February 18, 2008, the environmental consultants returned to the apartment and collected new samples which were sent to an outside laboratory for testing. In a second "Mold and Bacteria Assessment Report" issued February 20, 2008, the first environmental consulting company again found only traces of mold in the plaintiff's apartment, not fecal bacteria, which the plaintiff continued to believe was in his apartment. Meanwhile, the plaintiff’s respiratory symptoms worsened and on April 22, 2008, he was again rushed to the hospital. On this occasion, however, the plaintiff was informed he had suffered a vertebral artery dissection stroke during his first hospital visit in January 2008 and that his stroke was most likely caused by mold and bacteria exposure.

Two years later, on April 22, 2010, the plaintiff filed a lawsuit in Los Angeles Superior Court against his former landlord, the restoration company she hired to remediate the apartment in January 2008, the environmental consultants that found mold in the apartment in January and February 2008, a general contractor that performed construction work in and about the apartment between 2007-2008 and a former plumbing company that worked on pipes in the apartment in 2006, well before the 2007 pipe burst and flood.

In the court's three-page written ruling granting the restoration and environmental consultant's joint motion for summary judgment, the court explained that as of January 18, 2008, the plaintiff was on inquiry notice for purposes of the two-year statute of limitations and even if it was fecal bacteria and not mold that contributed to the plaintiff's injury or the severity of the injury, the difference is immaterial for purposes of triggering the statute of limitations. The court held, "Plaintiff need not know of specific facts establishing causation to trigger the statute of limitations such as definitive diagnosis. '[T]he statute of limitations begins to run when the claimant 'suspects or should suspect' that his or her injury was' caused by [someone's] wrongdoing .... ' [citing Jolly v. Eli Lilly & Co.(1988) 44 Cal. 3d 1103,1110, fn. omitted.]" Rivas v. Safety-Kleen Corp. (2002) 98 Cal. App. 4th 218,228." The court further held, "[e]ven assuming, for argument's sake, the January, 2008 events somehow would not be sufficient, the February, 2008 events, which included Andersen's return visit and Plaintiff’s own inspection results later that month, also fall outside of the period and are dates which are equally fatal to plaintiff’s limitations argument. Plaintiff’s argument that the stroke was a latent disease, and, therefore, that the claim did not accrue until Plaintiff discovered it-- is unavailing. Plaintiff did not allege that his only injury was the stroke. Plaintiff’s verified FAC alleges he suffered ‘severe allergic reactions, respiratory and sinus problems, vomiting, dizziness and ultimately a stroke.’”