Winser v. Pardee Homes CA2/6

Filed 8/7/14 Winser v. Pardee Homes CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

ANTHONY WINSER et al., 2d Civil No. B243615 (Super. Ct. No. 56-2011- Plaintiffs and Appellants, 00397236-CU-CD-VTA) (Ventura County) v.

PARDEE HOMES,

Defendant and Appellant.

In this construction defect case the jury found the defendant developer negligent and the building defective, but awarded no damages. On appeal plaintiffs claim the judgment is not supported by substantial evidence, damages must be awarded as a matter of law and the verdict was the result of juror misconduct. The defendant developer appeals the trial court's decision not to award expert witness fees pursuant to Code of Civil Procedure section 998. We affirm. FACTS Anthony and Michelle Winser purchased a home directly from the developer, Pardee Homes (Pardee) in March 2002. Other than installing a security system and tinting windows, the Winsers have made no modifications to the home.

In March 2004 the Winsers contacted Pardee complaining of water leaks at their doors and windows. Pardee sent its service representative, Robert Spielman, to the home. Spielman looked for cracking and water stains, pulled back the carpet and checked for clogs in the window track weep holes. He found no signs of water intrusion. The Winsers complained of water intrusion again in 2005. Spielman conducted another inspection but found no signs of water intrusion. In 2006 the Winsers complained that the exterior paint was bubbling and peeling. Spielman determined that the paint was not bonding properly to the stucco. Pardee repainted the house with "Elastometric" paint. The Winsers did not complain again until March 2011. They complained about water leaks around windows and doors and paint defects. Spielman inspected but found no evidence of water intrusion. He found, however, bubbling in the paint on the rear elevation of the house. Pardee agreed to paint the rear elevation. After the painting was complete, the Winsers complained their windows were fogging. Spielman inspected and concluded it was a window warranty problem. In May 2011 the Winsers filed the instant complaint against Pardee. The Winsers retained Neil Tomison, a general contractor with expertise in building envelopes. The building envelope includes windows, doors and the general waterproofing of the home. The building envelope also includes a water proof membrane behind the stucco. Tomison conducted tests by connecting a spray rack to a hose and spraying the windows and doors. He found extensive leaking around windows and doors and from tears in the building envelope membrane. Tomison also observed staining and damage to the wood framing caused by water intrusion. The Winsers' expert contractor, Keith Daniels, estimated the total cost of repair at $202,181.23.