Lewis v. RDM Mgmt., B280728

CourtCalifornia Court of Appeals
Decision Date02 March 2020
Docket NumberB287407,B280728
PartiesANN LEWIS et al., Plaintiffs and Appellants. v. RDM MANAGEMENT, INC., Defendant and Respondent; MICHAEL MIKYSKA et al., Defendants and Appellants.

ANN LEWIS et al., Plaintiffs and Appellants.
RDM MANAGEMENT, INC., Defendant and Respondent;
MICHAEL MIKYSKA et al., Defendants and Appellants.



March 2, 2020


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. SC111139)

APPEAL from a judgment and orders of the Superior Court of Los Angeles County, Victor E. Chavez, Judge. Judgment affirmed; postjudgment order on motion to strike or tax costs reversed in part and remanded; appeal from postjudgment order denying motion to compel satisfaction of judgment dismissed.

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Mesisca Riley & Kreitenberg, Dennis P. Riley and Rena E. Kreitenberg for Plaintiffs and Appellants.

Wood, Smith, Henning & Berman, Tracy M. Lewis and Peter J. Burfening, Jr., for Defendant and Respondent.

Horvitz & Levy, Jason R. Litt, Emily V. Cuatto; Clark Hill, Micah M. Hoffman; Lynberg & Watkins, Lane E. Webb; Citron & Citron and Thomas H. Citron for Defendants and Appellants.


The tenants of a 23-unit apartment building (Tenants) appeal from a judgment entered following a jury trial in their negligence action against the owners and property manager of the building following a seven-year history of sewage spills into Tenants' apartments, the ensuing mold, and the alleged negligent remediation of mold in Tenants' units. The jury awarded Tenants a total of $729,780 in compensatory damages against the owners of the building, Michael Mikyska, individually and as trustee of the Michael Mikyska Trust, and Irwin Thaler, individually and as trustee of the Thaler Family 1987 Trust (Owners), and $850,000 in punitive damages against Mikyska, but the jury found in favor of the property manager, RDM Management, Inc.

On appeal, Tenants contend the trial court improperly instructed the jury as to RDM with a jury instruction for professional negligence. Tenants also argue the court abused its discretion in denying their motion to strike or tax $137,559 in

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costs claimed by RDM.1 Specifically, they contend RDM was not entitled to recover costs under Code of Civil Procedure section 9982 because it made only a "token" settlement offer, and they challenge specific costs items awarded by the trial court under section 1032.

Owners separately appeal from the judgment, arguing the trial court erred in denying their request to offset the judgment with the amount of the good faith settlements made by the contractors who remediated the mold and the settlement with the subsequent owners of the building. Owners also appeal the trial court's postjudgment order denying Owners' motion to compel satisfaction of judgment, in which Owners again asserted their right to an offset.3 In that appeal, Owners also contend they

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overpaid the amount of interest owed on the judgment and orders awarding attorneys' fees and costs.

We affirm the judgment but reverse in part the order denying Tenants' motion to strike or tax costs. We dismiss Owners' appeal from the order denying their motion to compel satisfaction of judgment as moot.


A. The Apartment Building4

From 1981 to November 2011 Owners owned a 23-unit rent-controlled apartment building in Los Angeles built around 1965. Mikyska managed the building in return for a share of the gross rental revenue.

The Tenants resided in six 2-story units in the apartment building. Dominic Quant, Georgina Saez, and their two children lived in unit 23 since June 1, 1997; Cynthia Roark lived in unit 20 since August 1, 2002; David Park, Katherine Eads, and their three children lived in unit 19 since November 11, 2002; Ann Lewis lived in unit 22 since May 1, 2004; Matthew Goodman and his daughter lived in unit 18 from March 1, 2008 to November 2011; and Geraldine Vergara and her two daughters lived in unit 6 since August 2009.

From January 1, 1997 until September 27, 2010, Kelsey Hernandez, who lived in unit 13, was the on-site resident manager. Hernandez "was responsible for collecting rent, leasing units, keeping the property maintained, handling tenant

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complaints, [and] maintenance requests." Hernandez created vendor sheets, which she faxed to Mikyska to apprise him of the tenants' maintenance requests and the vendors' work. In 2004 she became Mikyska's office manager, but she continued to manage the apartment building.

B. Sewage and Water Leaks in the Units

Starting in 2002 the apartment building's sewage system and galvanized pipes caused raw sewage spills and water leakage into the Tenants' units. On September 16, 2002 Hernandez reported to Mikyska that the bathtubs in units 22 and 23 did not drain and the toilets overflowed. On October 10, 2003 raw sewage flooded units 22 and 23. Hernandez reported to Mikyska on her vendor sheet: "[P]lumbers called out on Friday night for emergency in units 22 & 23[.] [B]oth units backing up and flooding units with sewage. Unit 22 came out of toilet and flooded upstairs and of course sewage leaked down to lower level[.] Plumbers came [and] snaked toilet[']s main drain. Unclogged both sides, removed nothing abnormal, only hair and toilet paper. Plumbers left. Two hours late[r] tubs in both unit[s] started backing up. Plumbers came out again on Sat. Snaked tubs & drain, pulled out only hair. Th[is] problem is continuous[,] happens every 3-4 month[s]."

On November 4, 2003 the City of Los Angeles Housing and Community Investment Department issued an order to comply with respect to unit 22, requiring Owners to "[m]aintain all plumbing and waste drain lines clear of blockages which would cause any fixture to overflow under the condition of normal water supply to that fixture." The housing inspector noted, "Frequent sewer backups indicates possible damaged/blocked pipes[.]

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— NOTE: Repair or replace any/all damaged waste water drain pipes to maintain clear of blockages under normal use." The order also required, as to unit 22, Owners to "[e]liminate causes of dampness in habitable rooms, and maintain the areas in a dry and sanitary condition." The housing inspector explained, "Recent sewer backups require adequate sanitation remedies to prevent growth of mildew, mold, etc."

In 2009 Saez and her family were eating dinner in unit 23 when water started leaking into her unit from the kitchen ceiling. According to Saez, that year there were frequent sewage backups that came out of the toilet and spilled into the bedrooms, hallway, stairs, kitchen, and laundry room. In August 2010 sewage flowed from Saez's downstairs toilet and covered the downstairs with sewage. Saez testified the sewage flowed out of the toilet all night, and she stayed up to clean the mess. Saez complained, but Hernandez did not provide a plumber until the next morning. Even then the plumbers worked on the main sewage line, but no one came to Saez's unit to help clean up the sewage. Raw sewage also flowed from the toilets in Lewis's unit (No. 22), which was next door.

In September 2010 Lewis and Saez again experienced sewage flowing from the downstairs toilets of their units. Saez testified the September sewage overflow was worse than the one in August and continued throughout the evening. The plumbers came the next day to address the spill, but again, no one helped to clean up the sewage. Saez and her family had diarrhea for a week after one of the sewage spills. At the recommendation of the health department, Saez and her family were tested for Hepatitis C, but the results were negative.

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In August 2009 Eads reported to Hernandez a sewage overflow in unit 19. Hernandez testified, "I saw raw sewage through [Eads'] bathroom[,] kitchen and into her living room area at a level of two inches, covered with human feces, food, and other unidentified substances." Two or three days later, Hernandez called a restoration company to clean up the sewage, but she did not get Mikyska's approval because he was on vacation. When Hernandez later informed Miskyska, he threatened to fire her "immediately on the spot" if she "ever did anything like that again."

In November 2009 Park saw sewage come out of a pipe outside unit 19 into his driveway. In October 2010 Park saw mold behind the downstairs bathroom toilet when Paul Taylor, a mold inspector retained by Tenants, inspected unit 19.

Roark, who lived in unit 20, also experienced issues with her unit in 2009. The water heater leaked, and the downstairs toilet kept "running all the time." When it rained, water came under the back sliding glass door, the front door, and holes in the kitchen flooring. Water from the roof leaked into the bedroom closet and upstairs bedroom. In October or November 2010, the water heater failed and water flooded the downstairs of her unit.

Goodman and his daughter experienced problems in unit 18 starting in March 2008. Water came through the sliding glass patio door when it rained. In August 2009 Goodman saw rat droppings in his kitchen and downstairs closet. In late October 2010 Goodman had another rodent problem. On October 26, 2010 Goodman sent a letter to building management stating there were leaks in the garage and a health department inspector had "found black mold in [his] bathroom and kitchen."

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On May 9, 2011 Vergara, who lived in unit 6 with her two daughters, came home from work and saw water on the floor flowing towards the front door. The water damaged the unit's drywall and carpeting.

C. RDM's Management of the Building

On September 23, 2010 Owners and RDM entered into an agreement for RDM to serve as the property manager for the apartment building. Mikyska testified he hired RDM because he "was tired of managing after...

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