In a matter tried by Robert M. Scherk of the firm’s San Diego office, Plaintiff, Harold Brody, was a tenant in a low income, senior citizen apartment building in San Diego know as the CCBA Garden Apartments. Plaintiff occupied a top unit close to the roof line. Defendant, Chinese Consolidated Benevolent Association (“CCBA”) is the legal owner of the building, and defendant, Barker Management managed and maintained the property.

Plaintiff alleged that defendants failed to properly construct, repair and/or maintain the building so that his unit was exposed to rain. Plaintiff claimed that rain water and residue from the roof repeatedly ran down the side of the building and was deposited onto his deck and heat pump. As a result, plaintiff claimed his pre-existing Chronic Obstructive Pulmonary Disease and Fibromyalgia worsened, his apartment was over-run with mold, and that his lung cancer stemmed from “toxic mold conditions in his apartment.” Plaintiff argued that the actions and/or inactions of the defendants amounted to a breach of the warranty of habitability; violations of California Health & Safety Code section 17920.3; nuisance; and gross negligence.

Plaintiff ultimately succeeded in getting the City of San Diego’s Department of Code Compliance to issue a Notice of Violation to CCBA, requiring them to carry out various repairs. During the repair process, plaintiff was housed at a residential hotel at defendants’ expense. Later the City inspectors concluded that the problems had been rectified, but plaintiff disagreed, and sued the various inspectors involved, only to have that suit thrown out of court.

Defendants obtained all of plaintiff’s relevant medical records and established that plaintiff’s lung condition had not worsened since he moved into the building. Defendants established that there was no likely connection between the minor moisture intrusion into his apartment and his ongoing complaints of shortness of breath, dizziness, and other related complaints. Defendants argued that his lung cancer diagnosis in February 2002 had no relationship to the conditions in his apartment, but was most likely related to plaintiff smoking 2 packs of cigarettes per day for 20-30 years. Defendants argued that the only unacceptable levels of mold ever confirmed in plaintiff’s apartment were found under his bathroom sink.

The case went to mediation in March of 2002, at which time defendants agreed to settle for $33,000 and some requested repairs. Plaintiff reneged on the settlement and defendants filed a Motion to Enforce the Settlement, which was denied on procedural grounds. The plaintiff learned he had lung cancer around this time. From that point forward, plaintiff never made a realistic settlement demand, and prior to trial indicated that he would settle for no less than $250,000.

After a three day jury trial in San Diego Superior Court, in which plaintiff represented himself, the jury deliberated approximately 2 1/2 hours before returning a 12-0 defense verdict on for both defendants, finding that plaintiff failed to meet his burden of proof for any of his causes of action.

Robert M. Scherk and Ian C. Fusselman, recently represented Leong Kuba Sea Products and obtained a defense verdict in a wrongful death action where the 12 year-old and 10 year-old plaintiffs sought damages for the death of their mother decedent, Maria Aviles, in an automobile accident.

The accident occurred while Ms. Aviles was traveling in the front seat of a car driven by her best friend and co-worker, defendant Maria Chavez. Defendant Chavez attempted to exit the freeway from the No. 3 lane cutting in front of a San Diego transit bus in the No. 4 lane. At the same time, a truck delivering fish for Leong Kuba Sea products was stopped at the side of the freeway with its flashers activated. The bus could not avoid colliding with Ms. Chavez’s car and as a result pushed the car into the fish truck. Ms. Aviles died at the scene of the accident.

The California Highway Patrol report concluded that the sole fault of the accident was the manner in which defendant Maria Chavez was operating her car. She was cited for unsafe lane change and vehicular manslaughter, and later pled nolo contendere to negligent homicide. However, this information was kept out of evidence at the time of the trial by plaintiffs.

There was never any dispute defendant Maria Chavez was the primary cause of the accident; the primary liability issue at trial was whether defendants San Diego Transit and their driver and/or Leong Kuba Sea Products and their driver had any liability. Plaintiffs alleged that co-defendant San Diego Transit and their driver were liable for failing to brake sooner when defendant Chavez changed lanes. Plaintiffs also alleged that Leong Kuba Sea Produts and their driver were also negligent for stopping along the freeway without legal cause to do so. Plaintiffs claimed that had the fish truck not stopped his truck on the side of the freeway, Ms. Chavez’s car would not have been pushed by the bus into his truck and Maria Aviles would not have died.

Prior to trial, Plaintiffs made only one settlement demand for a total of $500,000. In closing argument, plaintiff’s counsel asked the jury to award each plaintiff $100 per day for the approximate life expectancy of their mother, which totaled just under $3,000,000.00.

After a six day jury trial, which included the testimony of 23 witnesses, the jury deliberated for one hour and returned 12-0 defense verdicts for San Diego Transit, Leong Kuba Sea Products and their respective drivers.

Robert M. Scherk tried this case and Ian Fusselman prepared the trial briefs, motions in limine and conducted significant research throughout the trial. Both attorneys are resident in Murchison & Cumming’s San Diego office.