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Bourdette v. Gardality

California Court of Appeals, Fourth District, First Division
Mar 25, 2008
No. D049011 (Cal. Ct. App. Mar. 25, 2008)

Opinion


ROBERT BOURDETTE et al., Plaintiffs and Respondents, v. STEVE GARDALITY et al., Defendants and Appellants. D049011 California Court of Appeal, Fourth District, First Division March 25, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. GIN041715 Michael M. Anello, Judge.

McDONALD, J.

Defendants Steve Gardality and Twin Oaks Estate, Inc., (Defendants) built a home and sold it to plaintiffs Robert and Margaret Bourdette (Plaintiffs). Plaintiffs subsequently discovered mold in the house and filed this action against Defendants alleging the mold was caused by defectively installed plumbing. The jury found in Plaintiffs' favor, and awarded damages of $27,468. On appeal, Defendants assert the evidence is insufficient to support the judgment.

FACTS

Defendants constructed a house and sold it to Plaintiffs. However, because plumbing in the master bathroom was defectively installed, water leaked and damaged various portions of the house.

On appeal, we are required to view the facts most favorably to the judgment. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1203.) Defendants' brief, although hinting that it contests whether the evidence is sufficient to show the plumbing was defective or was the cause of various items of damage in the house, makes no effort to state any of the facts that support the determination that defective plumbing caused the damages. Instead, they ignore the testimony of Plaintiffs and Plaintiffs' experts that the plumbing was defective and was the source of the water damage. Because this omission violates fundamental rules of appellate advocacy, to the extent Defendants intended to assert on appeal there was insufficient evidence on the existence of defects or whether those defects were the cause of the water damage and resulting mold, we deem those assertions waived. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) Accordingly, we examine only whether there was evidence to support the amount of the damage award.

Mr. Floyd testified on the costs to repair the damages. Floyd, who had been in the business of water and fire damage repairs and restorations for 15 years, personally inspected the home, observed various items of damage and mold, and gave estimates for costs to (1) remediate the mold and (2) replace specific items that appeared to have suffered water damage and to repair the faulty plumbing. He estimated it would cost $12,127.35 to remediate the mold, and that reconstruction and repair costs would be between $17,367.63 (if the granite countertops from the kitchen could be salvaged) to $25,488.22 (were it discovered during the repair process that it was necessary to replace the granite countertops). The jury awarded $27,468 as damages under Bourdette's negligence and strict liability claims.

ANALYSIS

Defendants assert that Mr. Floyd's testimony should have been excluded because, although he was competent to assess the costs of particular repairs, he was not an expert on whether there was toxic mold on (or structural impairments to) the items he provided cost estimates to replace, and therefore lacked the expertise to testify to the necessity of the repairs. Defendants peremptorily assert that, absent expert testimony that each item of repair was required either to restore the structural integrity of the house or to eliminate toxic mold, the evidence was insufficient to support a judgment awarding the costs of such repairs.

A plaintiff who demonstrates his real property was injured as a result of defective construction is entitled to recover the reasonable cost of repairs. (Erlich v. Menezes (1999) 21 Cal.4th 543, 555.) Floyd had expertise in repairing the type of water damage caused by Defendants' defectively constructed plumbing, and Floyd's inspection provided a foundation for his testimony that various tasks needed to be undertaken to ensure that the mold resulting from the water damage was eliminated and the walls, floor, cabinetry and pipes were completely repaired. A contractor is competent to provide testimony on the cost of repairing improvements to real property. (LeBrun v. Richards (1930) 210 Cal. 308, 319-320.)

Defendants' argument appears to be that, absent testimony that the repairs were necessary because the mold was toxic or because the structural integrity of the house was threatened, Plaintiffs were not entitled to recover the costs of eliminating any nontoxic mold or repairing cosmetic damages to the house. However, Defendants cite no pertinent law to support this contention. More importantly, to the extent Defendants assert that the amounts sought by Plaintiffs represented unnecessary or excessive repairs, Defendants had the opportunity to challenge those amounts either by cross-examination of Floyd (to impeach his opinions) or by introducing their own expert to testify the property could be fully repaired by less costly measures. (See, e.g., Rhodes v. Firestone Tire etc. Co. (1921) 51 Cal.App. 569, 574 ["the burden of showing matters in reduction or mitigation of damages rested upon the defendant"].) Although Defendants cross-examined Floyd, they elected not to produce any expert testimony to impeach his opinion on the appropriate measures to be taken to restore the house. We conclude Floyd's testimony provides sufficient evidentiary support for the amount of the damage award.

Under Defendants' theory, a defendant who scratched the door of a plaintiff's car would not be obligated to pay to repair the scratch because the car still ran and posed no danger to its passengers. Defendants cite no authority to support this contention, and we therefore reject this argument.

DISPOSITION

The judgment is affirmed. Plaintiffs shall recover costs on appeal.

WE CONCUR: HUFFMAN, Acting P. J., HALLER, J.


Summaries of

Bourdette v. Gardality

California Court of Appeals, Fourth District, First Division
Mar 25, 2008
No. D049011 (Cal. Ct. App. Mar. 25, 2008)
Case details for

Bourdette v. Gardality

Case Details

Full title:ROBERT BOURDETTE et al., Plaintiffs and Respondents, v. STEVE GARDALITY et…

Court:California Court of Appeals, Fourth District, First Division

Date published: Mar 25, 2008

Citations

No. D049011 (Cal. Ct. App. Mar. 25, 2008)