Barnett v. Garrigan

Background

Andrew Barnett and the other plaintiffs brought claims concerning mold discovered in their home. The defendants moved for summary judgment, which asks whether the evidence permits a reasonable jury to rule for the opposing party. The court addressed the statute of limitations, medical causation, and negligent supervision.

Statute of limitations

The defendants argued that some claims were barred by California Civil Code section 2079.4, which provides a two-year limitations period for a seller’s broker’s statutory duties to prospective residential buyers. The court rejected that argument. The record suggested that the defendants acted as brokers for both the sellers and the buyers, and the purchase agreement stated that The Land Man Office was the agent of both. The court therefore concluded that the defendants owed the plaintiffs a fiduciary duty independent of the duty imposed by section 2079, and that the plaintiffs’ claims arose from that fiduciary duty instead.

The court explained that California law provides different limitations periods for professional negligence, fraud, and other claims. For the professional-negligence and fraud claims, the period begins when the plaintiff discovers, or reasonably should have discovered, the relevant injury. The plaintiffs alleged, and the defendants did not contest, that they first discovered the mold in November 2018. Because the lawsuit was filed in April 2020, the court found the claims timely.

Medical causation and injury damages

To proceed with personal-injury claims, the plaintiffs needed evidence from which a reasonable jury could find both general causation—that the mold could cause the type of injuries at issue—and specific causation—that exposure to this mold actually caused their injuries.

The plaintiffs submitted two reports from Dr. Alla Liberstein, one for each plaintiff. They had not disclosed Dr. Liberstein as an expert or made her available for an expert deposition. The court held that summary judgment on causation was warranted on that ground alone. The court also stated that, even if it considered the reports, they were inadequate. The reports asserted that mold caused the relevant illnesses and injuries but did not explain how Dr. Liberstein reached those conclusions, address other possible causes, identify a genetic basis for unusual susceptibility, or establish the expertise and clinical experience needed to support the conclusions at trial.

The court further stated that the plaintiffs’ evidence concerning general causation was insufficient. The mold report they supplied could show exposure to certain types of mold, but it did not address the health effects of exposure at the doses the plaintiffs experienced. The report’s authors noted that they were not qualified to discuss specific health issues resulting from mold exposure. The court emphasized that its ruling did not determine that mold had not harmed the plaintiffs; it determined only that the plaintiffs’ evidentiary presentation was insufficient to survive summary judgment.

Negligent supervision

The court explained that a negligent-supervision claim requires evidence that a person supervising the alleged wrongdoer had prior knowledge of that person’s tendency to commit the wrongful act. The plaintiffs offered no evidence that Nored knew of Garrigan’s alleged tendency to mislead buyers. The court therefore granted summary judgment to Nored on the negligent-supervision claim.

Disposition

The court granted in part and denied in part the defendants’ motion for summary judgment. It granted summary judgment to Nored on the negligent-supervision claim and granted summary judgment on the plaintiffs’ claims for physical injuries. The remaining claims survived only to the extent they sought economic damages unrelated to illnesses, injuries, or medical expenses. The court also scheduled a case-management conference to address what remained of the case and whether action was needed concerning a motion to compel Christine Pfeffer to produce documents.