Thursday, September 27, 2012
Construction Defect Specialist Loses in C.A. in His Own Defect Case
Div. Three Says David H. Pierce Fails to Show Defects Not Disclosed by Seller or His Own Efforts Before Home Purchase
By a MetNews Staff Writer
A Sherman Oaks attorney who specializes in construction defects, along with his wife, have been shorn of a $275,000 judgment they won based on defects in the Brentwood house they bought for $2.85 million.
Writing for Div. Three of this district’s Court of Appeal, Presiding Justice Joan Dempsey Klein said that attorney David H. Pierce knew or should have known of the major defects from reports by a legion of experts who examined the property, or from actual disclosures by the seller. She found complaints of other deficiencies to be so trifling, in the context of the value of the property, as to be immaterial.
The opinion in the case, Pierce v. Urbinati, B221711, was handed down Tuesday and was not certified for publication.
It recites that David and Ilysia Pierce purchased the home in 2004 from arts dealer Fiorella Urbinati. They brought their action in 2006, and at trial, in 2009, they sought damages of at least $1.05 million.
The jury, in a special verdict, found that Urbinati failed “to do something that the contract required her to do”—that finding amounting to a declaration that she breached her express written promise to disclose defects known to her.
Urbinati appealed from the judgment and from Los Angeles Superior Court Judge Allan J. Goodman’s denial of her motion for a judgment notwithstanding the verdict; the Pierces appealed from the denial of attorney fees and prejudgment interest. The opinion reverses the judgment and directs the trial court to grant Urbinati’s motion for judgment NOV.
Construction Defect Expertise
Pierce’s firm boasts on its website:
“David H. Pierce & Associates PC has a long track record of successful Construction Defect Litigation throughout the State of California….
“At David H. Pierce & Associates PC, we have litigated hundreds of such cases. We have access to the right expert witnesses which is key to success in obtaining the results by way of settlement or judgment you need and deserve, whether you are a homeowner, developer, or contractor.”
Klein’s opinion says that Pierce, in his own case, failed to show any major defect that was not known by him, actually or constructively.
One major defect which he asserted should have been disclosed, but wasn’t, was the existence of a watercourse at the rear of the property, creating a 5-foot setback and thus limiting development.
(A footnote explains: “The City requires landowners to keep watercourses unimpeded in order to allow the free flow of water and avoid flooding downstream. At the time Urbinati owned the property, the presence of the watercourse precluded construction on a five-foot setback determined by the Department of Building and Safety.”)
Klein pointed out that Ilysia Pierce admitted at trial that the matter of the setback came up during escrow but that there was no follow-up.
A 2001 pool permit which Urbinati had obtained (and which had expired) specified that water from the pool and deck area would have “to drain into the existing watercourse area.”
“At trial, [David] Pierce initially denied seeing the pool permit during the escrow period, but later he merely testified he did not remember receiving a copy of the pool permit. With respect to the permits, which were all in the same packet, Pierce then stated, ‘I saw probably a majority of the permits.’ However, in the real estate transfer disclosure statement, which was signed by the Pierces during escrow, they acknowledged having ‘seen all permits.’ ”
Pierce is a former real estate agent.
“In sum, this record belies the Pierces’ contention they purchased the property unaware of the presence of the watercourse setback,” Klein said.
Other contentions of a breach by Urbinati of her duty to disclose, Klein determined in her opinion for a unanimous panel, were also contradicted by the evidence.
Complaints Declared Trivial
She declared that the duty in issue was to disclose “material facts” and some of the alleged defects were relatively insignificant.
As to one trivial matter, she said:
“The Pierces complained of Urbinati’s removal of the telephone system from the home.
“In fact, Urbinati did not remove the telephone system. She merely removed the telephones. As a result, when the Pierces moved in, they had to purchase telephones. They bought four Panasonic telephones, at a cost of $400 each, for a total of $1,600.
“…[L]eaving aside whether the telephones were included in the sale of the real property, this item was not a material defect affecting the value and desirability of a $2.85 million property.”
The presiding justice rapped Pierce for faulting Urbinati’s brief, while submitting a defective one, himself. She observed in a footnote:
“California Rules of Court, rule 8.204(a)(1)(C), states each brief must support any reference to a matter in the record with a citation to the volume and page number of the record where the matter appears. The Pierces, in their respondent’s brief, attack Urbinati’s opening brief for failing to submit a proper statement of facts. However, it is the Pierces’ brief which is completely deficient. Their respondent’s brief argues the trial court properly denied JNOV because the verdict is supported by substantial evidence; however, the brief does not contain a single citation to the reporter’s transcript of the two-week trial. Although the Pierces’ brief was noncompliant, because the matter was already fully briefed, this court elected to disregard the noncompliance and resolve the matter on the merits (Cal. Rules of Court, rule 8.204(e)), so as to expedite the matter and relieve Urbinati of the necessity to revise her appellant’s reply brief. Following oral argument, the parties were given the opportunity to file supplemental letter briefs addressing the evidence at trial.”
Klein corrected what she saw as two misconceptions at the trial court level.
Urbinati’s contractual promise to disclose known defects was of no significance, she said, because it merely mirrored what was required by case law.
She also said Goodson erred in declaring that “the Court will exercise its broad discretion to deny the motion” for judgment non obstante verdicto. Klein wrote:
“Contrary to the trial court’s ruling, a decision to grant or deny a motion for JNOV is a matter of law, not a matter of discretion”
Mark E. Hellenkamp, Dean A. Olson and Penelope M. Deihl of Morris Polich & Purdy acted for Urbinati,
Pierce represented himself, joined by an associate in his firm, Charles A. Pressman, a former real estate developer and contractor.
Copyright 2012, Metropolitan News Company