1 2 3 4 5 6 7 8 9 Gordon Rees Scully Mansukhani, LLP 101 W. Broadway Suite 2000 San Diego, CA 92101 10 ROGER M. MANSUKHANI (SBN: 164463) rmansukhani@grsm.com BRIAN M. LEDGER (SBN: 156942) bledger@grsm.com WILLIAM L. COGGSHALL (SBN: 211731) wcoggshall@grsm.com KRISTIN REYNA DEHART (SBN: 211075) kreyna@grsm.com ROBERT J. OLSON (SBN: 284736) rolson@grsm.com GORDON REES SCULLY MANSUKHANI, LLP 101 W. Broadway Suite 2000 San Diego, CA 92101 Telephone: (213) 270-7868 Facsimile: (619) 696-7124 Attorneys for Defendants SAN DIEGO FAMILY HOUSING, LLC; and LINCOLN MILITARY PROPERTY MANAGEMENT LP 11 SUPERIOR COURT OF CALIFORNIA 12 COUNTY OF SAN DIEGO 13 14 15 16 MATTHEW CHARVAT, an Individual; LEIGH CHARVAT, an Individual; ANNA CHARVAT, a minor, by and through her guardian ad litem, MATTHEW CHARVAT; JONATHAN CHARVAT, a minor, by and through his guardian ad litem, MATTHEW CHARVAT; t CASE NO. 37-2018-00002360-CU-PO-CTL NOTICE OF RULING ON DEFENDANTS’ MOTION FOR NEW TRIAL 17 18 19 20 21 22 Plaintiffs, v. SAN DIEGO FAMILY HOUSING, LLC, a California Limited Liability Company; LINCOLN MILITARY PROPERTY MANAGEMENT LP, a Delaware Limited Partnership; and DOES 1 to 50, inclusive, 23 24 Defendants. PLEASE TAKE NOTICE that on December 6, 2019 at 11:00 a.m., the Court heard 25 Defendants San Diego Family Housing, LLC and Lincoln Military Property Management LP’s 26 Motion for New Trial. Following argument on the matters, the Court granted the Defendants’ 27 Motion for a New Trial on the issue of damages for past pain and suffering and past emotional 28 distress only. -1NOTICE OF RULING 1 The Defendants’ motion to tax costs hearing is continued to March 20, 2020 at 11:00 a.m. 2 A true and correct copy of the Court’s Minute Order as entered on December 10, 2019, is 3 attached as Exhibit A. 4 Dated: December 16, 2019 GORDON REES SCULLY MANSUKHANI, LLP 5 6 By: Roger M. Mansukhani Brian M. Ledger William L. Coggshall Kristin Reyna DeHart Robert J. Olson Attorneys for Defendants SAN DIEGO FAMILY HOUSING, LLC; and LINCOLN MILITARY PROPERTY MANAGEMENT LP 7 8 9 Gordon Rees Scully Mansukhani, LLP 101 W. Broadway Suite 2000 San Diego, CA 92101 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- NOTICE OF RULING EXHIBIT A SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO CENTRAL MINUTE ORDER DATE: 12/06/2019 TIME: 11:00:00 AM DEPT: C-70 JUDICIAL OFFICER PRESIDING: Randa Trapp CLERK: Anthony Shirley Lynette Marie Nelson 11585 ATTENDANT: S. Parriott CASE NO: 37-2018-00002360-CU-P0-CTL CASE 01/16/2018 CASE TITLE: Matthew Charvat vs. San Diego Family Housing LLC CASE CATEGORY: Civil - Unlimited CASE TYPE: - Other EVENT TYPE: Motion Hearing (Civil) MOVING PARTY: San Diego Family Housing LLC, Lincoln Military Property Management LP CAUSAL FILED: Motion for New Trial, 10/31/2019 APPEARANCES Matthew Poelstra, counsel, present for Guardian Ad William Coggshall, specially appearing for counsel Ian Williamson, present for Defendant(s). Brian Ledger, specially appearing for counsel ROGER M. MANSUKHANI, present for Defendant(s). The Court hears oral argument and MODIFIES AND CONFIRMS the tentative ruling as follows: MOTION FOR A NEW TRIAL by defendants San Diego Family Housing LLC and Lincoln Military Property Management LP is GRANTED. (CCP 657(5)) The $500,000 awarded to each of the four plaintiffs for past pain and suffering and past emotional distress is excessive. Plaintiffs moved into a rental home on April 29, 2015 and moved out on April 1, 2016. Evidence was presented that the family reported feeling tired and ill starting about January 25, 2016. Plaintiffs discovered mold on the property on February 12, 2016. The family claimed they experienced illness, pain and suffering and emotional distress allegedly from the presence of mold in their rental. The apparently resolved at some point after they vacated the premises. The amount of damages is a fact question, first committed to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial. (Janice H. v. 696 North Robertson, LLC (2016) 1 Cal.App.5th 586, 602) The judge is not permitted to substitute her judgment for that of the jury on the question of damages unless it appears from the record the jury verdict was improper. (Bigboy v. County of San Diego (1984) 154 Cal.App.3d 397, 406) If a cause of action is othenNise established, it is settled that damages may be given for mental suffering naturally ensuing from the acts complained of. The unitary concept of "pain and suffering" has served as a convenient label under which a plaintiff may recover not only for physical pain but for fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal. Admittedly these terms refer to DATE: 12/06/2019 MINUTE ORDER Page 1 DEPT: C-70 Calendar No. 44 CASE TITLE: Matthew Charvat vs. San Diego Family CASE NO: 37-2018-00002360-CU-P0-CTL Housing LLC subjective states, representing a detriment which can be translated into monetary loss only with great difficulty. But the detriment, nevertheless, is a genuine one that requires compensation. (Cape/auto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892?893) The evidence produced at trial as to pain and suffering and/or emotional distress is insufficient to support the amount of the award. Mrs. Charvat testified that prior to moving into the subject property, she never observed the children having any significant illnesses or sickness. But after they moved in, she felt tired and felt out of it on a daily basis, causing her to be irritable. She had a non-stop runny nose, congestion and frequent night sweats. She was miserable every day. Her relationship with her husband deteriorated because they were always trying to figure out what was wrong and both were always tired. Her children's problems were draining her. She testified "it was like a whole year had just been taken from us. A whole year." Mr. Charvat did not get sick before moving into the home. He was typically a loud and hyper person and always active. But while occupying the property, he had a constant dry cough and was congested. He was fatigued and exhausted and would fall asleep on the couch when he came home from work. He coughed and spit up brown stuff into the sink. He is allergic to mold. He did not seek past medical expenses. Anna Charvat, who was five to six years old at the time, could not sleep because she had problems breathing. She had congestion, causing her to be moody and irritable. She was taken to the doctor for coughing and congestion in May 2015. The doctor prescribed antibiotics for an upper respiratory infection. She was taken to the Emergency Room in July 2015 because she was "gasping for air" at night while sleeping and again diagnosed with an upper respiratory infectionallergist and was diagnosed with nasal obstruction/allergic rhinitis. Jonathan Charvat, who was two to three years old at the time, would hold his ears and scream, "my ears, my head." His breathing at night was loud and also when he was playing with his head down. He would have meltdowns and became difficult to deal with. His breathing issues did not end until 2017 after they left the home. Three of the four plaintiffs were awarded medical expenses totaling $4,546.46, yet all four family members were awarded $500,000 each for past pain/suffering and past emotional distress. The evidence presented does not support such a high amount for what appears to be temporary nasal insomnia and irritability, breathing difficulties, tiredness and Mrs. Charvat feeling like she lost a year. Plaintiffs' minimal medical treatment and the temporary nature of the diagnosed as common illnesses such as upper respiratory infections, nasal obstruction and/or rhinitis, and resolving after they left the home, does not support an award of $500,000 for each plaintiff for a combined award of $2 million in past pain and suffering and emotional distress. (See, Thompson v. John Strona Sons (1970) 5 Cal.App.3d 705) The court will order a new trial on the issue of damages for past pain and suffering and past emotional distress only. The Motion is denied as to the other grounds raised. Defendant Motion to Tax Costs is continued pursuant to party's motion to 03/20/2020 at before Judge Randa Trapp. IT IS SO ORDERED. WM Judge Randa Trapp DATE: 12/06/2019 MINUTE ORDER Page 2 DEPT: C-70 Calendar No.44 1 2 3 4 5 6 7 8 9 PROOF OF SERVICE I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is: Gordon Rees Scully Mansukhani, LLP 101 W. Broadway Suite 2000, San Diego, CA 92101. My email address is crogers@grsm.com. On December 16, 2019, I served the within document: NOTICE OF RULING ON DEFENDANTS’ MOTION FOR NEW TRIAL ELECTRONIC TRANSMISSION: By transmitting a pdf.format version of the  document(s) via electronic mail to the party(s) identified on the service list using the email address(es) indicated below per agreement. By placing the document(s) listed above in a sealed envelope with postage MAIL: thereon fully prepaid, in United States mail in the State of California at San Diego, addressed as set forth below Gordon Rees Scully Mansukhani, LLP 101 W. Broadway Suite 2000 San Diego, CA 92101 10 15 Matthew T. Poelstra Colin Mani GREEN BRYANT & FRENCH, LLP 402 West Broadway, Suite 1950 San Diego, CA 92101 Telephone: (619) 239·7900 Facsimile: (619) 239-7800 Email: mpoelstra@gbflawyers.com cmani@gbflawyers.com 16 Attorneys for Plaintiffs 11 12 13 14 17 18 19 20 21 22 I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on December 16, 2019, at San Diego, California. 23 24 Coral M. Rogers 25 26 27 28 1151996/48995614v.1 PROOF OF SERVICE