Miller v. Lakeside Village Condominium Assn., B051869

• Decision Date: 24 December 1991
• Docket Number: No. B051869,B051869
• Citation: 1 Cal.App.4th 1611,2 Cal.Rptr.2d 796
• Parties: , 60 USLW 2452 Meredith MILLER, Plaintiff and Appellant, v. LAKESIDE VILLAGE CONDOMINIUM ASSOCIATION, INC., Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 796

2 Cal.Rptr.2d 796

1 Cal.App.4th 1611, 60 USLW 2452

Meredith MILLER, Plaintiff and Appellant, v. LAKESIDE VILLAGE CONDOMINIUM ASSOCIATION, INC., Defendant and Respondent.

No. B051869.

Court of Appeal, Second District, Division 7, California.

Dec. 24, 1991.

Lindenbaum & Young and Robert J. Young, Los Angeles, for plaintiff and appellant.

Wilner, Klein & Siegel, Leonard Siegel, Laura J. Snoke, and Terri L. Einbund, Beverly Hills, for defendant and respondent.

LILLIE, Presiding Justice.

Plaintiff Meredith Miller appeals from summary judgment granted in favor of defendant Lakeside Village Condominium Association, Inc. (Lakeside Village) on plaintiff's fourth amended complaint for damages for personal injuries allegedly caused by defendant's negligence in failing to repair and maintain the plumbing system in plaintiff's condominium. ¹ The primary

question on appeal is whether the trial court properly concluded that [1 Cal.App.4th 1616] there was no triable issue of material fact on the statute of limitations defense and that as a matter of law defendant was entitled to judgment.

PROCEDURAL AND FACTUAL BACKGROUND

Miller filed her action on August 27, 1986. The gravamen of the fourth amended complaint is the claim that defendant's failure to maintain and repair the plumbing in plaintiff's condominium caused the premises to become mold-infested and caused plaintiff to suffer from a fungal infection, which condition was diagnosed in December 1986 as immune dysregulation.

According to the allegations of the verified fourth amended complaint, the facts in the parties' separate statements which the parties agree are undisputed, and other testimony which is not disputed, plaintiff moved into her future husband's condominium unit in January 1983; the unit and adjacent hallway were flooded several times from mid-1981 through February 1983, and flooded again in February 1983; plaintiff's husband notified defendant of the flooding in February 1983; in September 1983, plaintiff began experiencing allergies and asthma. Plaintiff had no history of asthma. Aside from prior episodes of mild seasonal hay fever which she experienced back east and for which she took no medication, plaintiff had no allergies before October 1983.

In September and October 1983, an allergist, Dr. Epstein, tested plaintiff and determined that she was highly allergic to all types of pollens and numerous other substances, including mold. Dr. Epstein advised her that the sudden onset of such allergic reactions was not unusual, but rather, it was common to develop allergies to an environment after having lived there for a substantial number of years. In October 1983, plaintiff noticed that after taking her asthma medication, her heart started beating very fast; she told Dr. Epstein about her rapid heartbeat; when she developed more and more symptoms with her heart, he referred her to Dr. Rubins.

In May through June of 1984, plaintiff was writing her master's thesis and spent most if not all of her time in the unit; she experienced further and more severe bouts of asthma. In July 1984, for her worsening condition, she was hospitalized at Cedars Sinai Hospital; she was diagnosed as suffering from allergies, asthma, and an episode of mitral valve prolapse, a heart condition that she had had all her life.

In July and August 1984, plaintiff noticed that the unit smelled musty; Dr. Epstein advised her to have the unit tested for mold contamination; in August, Health Science Associates tested the unit for mold and told plaintiff that they found more mold in her unit than they had found previously in any residence; although the location of the mold was not determined, plaintiff told Dr. Epstein of the results of the mold contamination testing in early September 1984; he advised plaintiff to leave the unit. According to plaintiff's declaration submitted in opposition to the summary judgment motion, Dr. Epstein did not tell her that the mold was the cause of her allergies or asthma; plaintiff admits, however, that the doctor told her that the mold was "probably causing a temporary worsening of my general allergic symptoms."

On Labor Day weekend in 1984, plaintiff and her husband relocated to a hotel; plaintiff's allergies did not subside while she was living at the hotel.

In October 1984, the Millers retained a microbiologist, Dr. Swatek, who located the source of the mold infestation behind the panelling on the walls and under the carpeting; Dr. Swatek told plaintiff that the mold was caused by the floods. From September to October 1984, the Millers renovated the unit; they removed the panelling, put antifungal paint on the walls, replaced the carpeting with wood flooring, and cleaned out the air ducts. In October 1984, plaintiff attempted to move back into the unit, but her allergic reactions worsened and she remained in the unit for only three days; Dr. Epstein advised her to leave the unit.

In October 1984, the Millers moved out of the unit permanently. An October 10, 1984 letter written by plaintiff's husband to defendant stated in pertinent part, "I have owned my unit for over five years and as you know, my building has had a great deal of problems due to the inferior plumbing system. My condominium has been flooded numerous times and the association has replaced my carpeting due to the plumbing failures in the building.... [p] I became engaged to Meredith Labes in June 1984. She has been living with me since January 1983. In the summer of 1983, Meredith began to experience extreme allergic reactions. By late 1983, her condition worsened with the onset of an asthmatic condition. We have discovered the cause of this severe allergic condition: it was a prolonged and severe exposure to a particular mold fungi [sic ]. [p] I had my condo inspected and tested for the presence of mold and the results were positive.... As a result of these findings and after discovering the cause of her illness, we have been unable to live in our condo, and have been living at the Airport Hilton...."

After October 1984, the Millers moved to another condominium and had that unit specifically tested for mold. From October to December 1984, plaintiff continued to see various physicians. A cardiologist, Dr. Rubins, referred her to a psychologist, Dr. Reiter. According to plaintiff's deposition testimony, Dr. Rubins and Dr. Reiter believed that she was making too much out of her medical problems; however, her medical records reveal that they continued prescribing asthma and other medication and pulmonary and other testing.

In December 1984, Dr. Rubins referred plaintiff to Dr. Young, a pulmonary physician at Cedars Sinai Hospital, who diagnosed plaintiff as suffering from asthma. Plaintiff was treated with medication which managed and controlled the asthma; from March through July 1985, plaintiff was in a pulmonary rehabilitation program. Although plaintiff had sporadic asthma attacks, she testified in a deposition that her condition was improving until October 1985, when she had a "severe month long asthma attack" which ended when she took a steroid, prednisone. At this time, she also began to experience, off and on, blurred vision, numbness in her arms and legs, and forgetfulness and confusion, which became worse through December 1985. At about this time, plaintiff saw a psychologist, Dr. Pines. According to plaintiff, Dr. Pines was "very sympathetic" to her claim that no one believed that she was sick and suffering from asthma; Dr. Pines wanted her to see an allergist.

In January 1986, an allergist, Dr. Eitches, diagnosed plaintiff as suffering from a fungal infection or candidiasis, and plaintiff began an anti-fungal treatment. Dr. Eitches prescribed medication which lessened the symptoms of her fungal infection, including the blurred vision, numbness and tingling of her arms and legs, rashes on her neck and face, and mental confusion; however, the symptoms did not completely go away.

In December 1986, Dr. Levin diagnosed plaintiff as suffering from immune dysregulation, which was caused by having an untreated fungal infection, which infection was caused by exposure to the severe mold in the condominium unit. In her deposition, plaintiff stated that in December 1986, Dr. Levin told her that her immune system was damaged because of the long-term fungus infection since the summer and fall of 1983.

According to Dr. Levin's declaration, at the time of plaintiff's injury, an overwhelming In March 1987, plaintiff began gamma globulin infusion treatment for immune dysregulation. Plaintiff has not suffered from asthma since 1987.

number of physicians were unfamiliar with the disease of [1 Cal.App.4th 1619] immune dysregulation; moreover "based upon the manifestations of allergic reactions and asthmatic conditions, it was not unusual for any of [plaintiff's] physicians to attribute her condition to an emotional and psychological overreaction. Basically, the manifestation of such symptoms, which are, in fact, the beginning symptoms of immune dysregulation, are often misdiagnosed due to the fact that they appear on the surface to be simply allergic reactions or asthma."

In its answer to the fourth amended complaint, defendant asserted the affirmative defense, inter alia, that plaintiff's cause of action for personal injuries (third cause of action) was barred by the one-year statute of limitations of Code of Civil Procedure section 340, subdivision (3). Defendant moved for summary judgment with respect to plaintiff's claim for damages for personal injuries on the ground that the claim was barred by the one-year statute of limitations because the action, filed in August 1986, was filed over one year after she suffered appreciable harm--asthma and allergies--which she knew were caused by the mold in the unit.

In opposition to the motion for summary judgment, plaintiff admitted that her allergies and asthma were constant and chronic from October 1983 through 198...