Green Peace v. Citywide Property Management

Filed 3/23/07 Green Peace v. Citywide Property Management CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Plaintiffs and appellants Shaaron Green-Peace and Keith Tisdell appeal from a judgment entered against them after a jury trial. Appellants contend there is no substantial evidence to support the jurys special verdict finding in favor of defendants and respondents Citywide Property Management, Inc. (Citywide), and Mariners Village Condominium Owners Association (Association). We affirm.

Background

Mariners Village was constructed in the 1950s by the United States Navy as officers quarters and converted into condominiums in approximately 1981. It is comprised of 13 buildings on 11 acres, with six to eight units per building. The Association was formed in approximately 1981, when the units became condominiums, and operates as a nonprofit corporation. The Association formed a property management relationship with Citywide in 1999. The Association is responsible for maintaining common areas, which are generally considered to be the walls of the building outward, while individual owners are responsible for everything inside their walls.

Green-Peace purchased a two story, three bedroom condominium in Mariners Village in 1998. Tisdell was staying in this condo with Green-Peace over the weekend of January 26 and 27, 2002, and has lived with her continuously since October 2002. According to appellants, sometime during the evening of Saturday, January 26, or the morning of Sunday, January 27, 2002, they discovered water or sewage intruding into their home.^[1] They explained they could see water flowing out of the downstairs toilet, like a slow moving fountain. The water was coming into the hallway and the carpets were wet. Green-Peace telephoned a representative from the Association and was told the Associations plumber was not on duty, so she would have to call her own plumber. Green-Peace contacted Rescue Rooter and watched the Rescue Rooter employee pull out big wads of toilet paper, feces, sanitary napkins, roots, and something that looked like panties or a diaper from inside her bathroom where the toilet had been removed. A company called Service Master arrived at the condo later in the day on January 27 to move the furniture, pull up the carpet, and place blowers and dehumidifiers downstairs.

Green-Peace, who was fighting breast cancer and had undergone several rounds of chemotherapy, also called her doctor on January 27, told him of the backup, and was advised to leave the house to avoid the potentially toxic properties of the sewage. Green-Peace and Tisdell left the condo on January 27, 2002, and took up residence in various hotels and a motorhome, returning to the condo occasionally for clothes or to accompany an Association representative or claim adjuster. Appellants continued to reside in the motorhome at the time of trial.

As a result of the sewage backup, appellants filed a complaint against respondents on May 28, 2003, for negligence, trespass, and nuisance. Appellants filed a first amended complaint (the operative complaint) for property damage, trespass, and nuisance on May 7, 2004. Appellants alleged that respondents allowed the sewer system to fall into disrepair, which caused the sewage backup into their home. Respondents filed the operative answer on April 20, 2005.

In May 2005, the case proceeded to a jury trial. All claims relating to real property damage were settled prior to the jurys deliberation. Following argument and instruction, the jury retired to deliberate with a special verdict form. The special verdict form contained 21 questions. The first question asked, Did the . . . Association and Citywide cause a condition at [appellants residence] that was harmful to health or was offensive to the senses? The instructions stated If you answered Question No. 1 No, your verdict is complete, you are to go no further . . . . The jury answered No to question one and returned the verdict. The court entered judgment on the special verdict in favor of respondents. This appeal followed.

Discussion

When a jurys factual determination is challenged on appeal, the reviewing appellate court must determine whether any substantial evidence, contradicted or uncontradicted, supports the jurys conclusion. (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1489.) We must review the entire record in the light most favorable to the judgment below and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Rivera (2003) 109 Cal.App.4th 1241, 1244.)   [W]hen two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. [Citation.]  (Piedra, at p. 1489.)

Substantial evidence supports the jurys special verdict.^[2] The court instructed the jury on causation as follows: A substantial factor in causing harm is a factor that a

reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. The jury then answered No to the question of whether respondents caused a condition at appellants residence that was harmful to health or offensive to the senses. We find substantial evidence that respondents did not cause the condition in appellants home and we affirm on this basis.

Appellants called three witnesses in addition to themselves to testify on their behalf at trial, and also read the deposition testimony of a fourth witness. Green-Peace testified she was unaware of any other sewer problems in her building prior to the events of January 27, 2002. During the backup in her home on January 27, she testified to seeing certain items pulled from the sewer attached to her home, including wads of toilet paper, feces, roots, a sanitary napkin, and panties or a diaper. Green-Peace also testified there was a backup in at least three other units on January 27. Tisdell testified that he had not experienced any previous water or sewage intrusions into his and Green-Peaces unit, and although he claimed to remember a previous intrusion that affected a neighbor, he could not remember the date or details of the intrusion. He testified that on January 27 he observed feces, toilet paper, and sanitary napkins coming out of the toilet.

Portions of a deposition of Lanny Felder were read into the record. At the time of his deposition, Felder was a manager for Citywide and was responsible for overseeing the Association. Felder confirmed the Association was responsible for anything considered a common area, and specifically for maintaining the sewer lines. Felder explained that usually when there is a backup such as the one experienced by appellants, there is a stoppage somewhere in one of the plumbing lines, and if people continue to use the plumbing facilities, the water will not be able to flow through the pipe but will instead back up and run over through the sink, bathtub, or lavatory. Felder did not elaborate on what may have caused a block in this case and stated he did not know the cause of the backup into appellants home.

Appellants called James Blanding as a witness. Blanding owned one of the units in Mariners Village for three years at the time of trial and served as the Association manager for one year around 1998 or 1999. Blanding testified he remembered two sewage backups during his tenure as Association manager. He stated he proposed a preventative maintenance plan for cleaning out the main sewer lines, which the Association did not implement.

Francis Offermann was called as an expert witness for appellants, as a certified industrial hygienist. Offermann was retained by appellants to inspect their residence in November 2003, almost two years after the January 2002 backup. His testimony was directed to the lingering mold and bacteria in appellants residence and he did not address the cause of the backup itself.

Dr. Bruce Barker was also called, as Green-Peaces treating physician. Dr. Barkers testimony concerned Green-Peaces health situation and also did not address the cause of the sewage backup.

Beuleh Jackson Brown, called as a witness by the defense, moved into Mariners Village when it opened in 1981. She moved out of Mariners Village in 1988, but continued to own the property and has allowed her daughter to occupy her unit since 1988. Brown became a member of the Associations Board of Directors in 2002 and was serving as the president at the time of trial. Brown testified she was aware there had been other sewage backups in Mariners Village prior to January 2002, but she was not aware of any prior sewage backups in appellants unit or building. Fay Callier, a resident at Mariners Village since 1981 and a member of the Associations Board of Directors since 2000, was also called by the defense. Callier testified she was not aware of any sewage backups in appellants unit or building prior to January 2002.

Appellants argued the sewage backup in their unit was caused by years of poor maintenance and the encroachment of tree roots throughout the sewer, for which respondents were responsible. Appellants presented evidence of prior backups elsewhere in the complex and of the Associations general responsibility for maintaining the common sewer lines. However, appellants did not present a plumber or any other witness to testify that the particular event in question was caused by defective maintenance, or overgrown tree roots, as they contended. Further, the jury could have reasonably inferred from appellants own testimony that too many foreign objects, such as the sanitary napkins, diapers, or panties, were flushed into the sewer lines near the date of the sewage backup, and this conduct, not any act or omission attributable to respondents created the blockage. In addition, Brown and Callier testified there were no prior backups into appellants unit or building, and, from this testimony, the jury could have reasonably inferred that the sewer lines surrounding appellants building were sufficiently maintained. In sum, there was substantial evidence that the state of the sewer mains was at best a remote factor in causing the backup into appellants home and, therefore, respondents did not cause the backup.

Disposition

The judgment is affirmed. Respondents shall be awarded costs on appeal.

SIMONS, J.

We concur.

JONES, P.J.

NEEDHAM, J.

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^[1] The testimony of Green-Peace and Tisdell differed from the depositions each gave prior to the trial, and also differed from the testimony of the other. At this point, a broad description of the alleged situation that led to this litigation will suffice as background.

^[2] There is some discussion in the briefs regarding the proper application of nuisance law. Appellants stated, The facts of nuisance in this case did not require that respondents caused the sewer blockage, but only that it occurred in the sewer system for which they were responsible. But, where a party to a civil lawsuit claims a jury verdict is not supported by the evidence, but asserts no error in the jury instructions, the adequacy of the evidence must be measured against the instructions given the jury. (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1535.) Appellants do not challenge the jury instructions on appeal. Therefore, we look for substantial evidence to support the jurys answer to special verdict question No. 1 as it was presented.