Briana Leakas v. Monterey Bay Military Housing, LLC

CourtDistrict Court, N.D. California
DecidedJune 15, 2022
Docket5:22-cv-01422
StatusUnknown

This text of Briana Leakas v. Monterey Bay Military Housing, LLC (Briana Leakas v. Monterey Bay Military Housing, LLC) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Briana Leakas v. Monterey Bay Military Housing, LLC, (N.D. Cal. 2022).

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 BRIANA LEAKAS, et al., Case No. 22-cv-01422-VKD

9 Plaintiffs, ORDER GRANTING IN PART AND 10 v. DENYING IN PART DEFENDANTS’ MOTION TO DISMISS COMPLAINT 11 MONTEREY BAY MILITARY HOUSING, LLC, et al., Re: Dkt. No. 16 12 Defendants.

13 14 Plaintiffs Briana Leakas and her minor son, D.L. (along with Theodore Leakas, D.L.’s 15 guardian ad litem),1 bring this tort action for personal injuries they claim they sustained as a result 16 of toxic mold contamination in the home they leased while living on the U.S. Army Garrison 17 Presidio of Monterey. Following the removal of this action from the Monterey County Superior 18 Court, plaintiffs voluntarily dismissed two defendants, Clark Enterprises USA, LLC and Pinnacle 19 Monterey, LLC. See Dkt. Nos. 11, 12. 20 The remaining three defendants—Monterey Bay Military Housing, LLC (“MBMH”), 21 Michaels Management Company, Inc. (“Michaels”)2 and Clark Pinnacle Monterey Bay, LLC 22 (“Clark Pinnacle”) (collectively “defendants”)—now move pursuant to Rules 8, 9, and 12(b)(6) to 23 dismiss the complaint. Plaintiffs oppose the motion. Upon consideration of the moving and 24

25 1 Plaintiffs obtained an order appointing Mr. Leakas as D.L.’s guardian ad litem while this case was pending in the state court. See Dkt. No. 1 at ECF 14-15. 26

2 The complaint names “Michaels Management Services, LLC.” However, Michaels seems to 27 refer to itself variously as “Michaels Management Company, Inc.” and “Michaels Management 1 responding papers, as well as the oral arguments presented on June 14, 2022, the Court grants in 2 part and denies in part defendants’ motion to dismiss the complaint.3 3 I. BACKGROUND 4 The following background facts are drawn from the allegations of plaintiffs’ complaint, 5 which for present purposes, are deemed true. 6 From June 2019 through August 31, 2020, plaintiffs lived in a home on the U.S. Army 7 Garrison Presidio of Monterey that they leased from the defendants. Dkt. No. 1 (Complaint ¶ 11). 8 Defendants are all identified as entities that “participated in the ownership, management, leasing, 9 maintenance, and/or attempted and negligent repair” of the subject property. Id. ¶¶ 3, 4, 7. 10 MBMH allegedly failed to provide or maintain a reasonably habitable environment for plaintiffs, 11 despite repeated fraudulent representations of habitability. Id. ¶ 12. 12 Sometime in February 2020, Ms. Leakas complained to MBMH about feeling ill and about 13 a “musty” smell in the master bedroom of their home. Id. ¶ 15. Defendants inspected the property 14 on February 26, 2020, stated that plaintiffs had “the flu,” and opened windows in the home, but 15 did not conduct any tests or any further inspection of the property. Id. ¶ 17. 16 Two days later, on February 28, 2020, defendants conducted an annual inspection of the 17 property. A test revealed a high level of moisture in the master bedroom. Although defendants 18 scheduled remediation, “apparently due to COVID-19, remediation was pushed back to in [sic] 19 June of 2020.” Id. ¶ 18. Plaintiffs allege, on information and belief, that defendants knew or 20 reasonably should have known about the mold problem in their home by at least the February 28, 21 2020 annual inspection. Id. According to plaintiffs, Colonel Gregory Ford, then the Garrison 22 Company Commander, told Ms. Leakas that defendants knew of ongoing and persistent leaks 23 involving the toilets in the homes managed by defendants, but that defendants were not taking 24 active steps to address the issues. Id. ¶ 19. Plaintiffs further allege, on information and belief, that 25 water intrusion and mold issues in their home were caused by those same toilet issues. Id. ¶ 20. 26

27 3 Plaintiffs and all remaining defendants have expressly consented that all proceedings in this 1 During the June 2020 remediation, plaintiffs remained in the home and aver that they were 2 subject to improper protocols, including a toilet wrapped in plastic, having to remove waste in 3 untied bags, a lack of protective materials on the floor, and the removal of baseboards in Ms. 4 Leakas’s bedroom. Id. ¶ 21. That same month, on the day following remediation, Ms. Leakas 5 became ill and went to urgent care where she was diagnosed with a sinus infection. Id. ¶ 22. 6 During this same period, D.L. vomited profusely while sleeping in the master bedroom where the 7 initial remediation took place. Id. ¶ 23. Plaintiffs complained to Colonel Ford, the military officer 8 in charge of housing issues, about the lack of care taken during the remediation process. Plaintiffs 9 claim that they also constantly noted their concerns to MBMH about visible mold growth in the 10 master bedroom and bathroom, but their concerns were disregarded. Id. ¶ 24. 11 On June 12, 2020, following remediation, defendants began to rebuild the bathroom. 12 Colonel Ford moved plaintiffs to a hospitality home. Plaintiffs left all their household goods 13 behind due to mold contamination and were not able to use any of their personal property without 14 proper remediation. Id. ¶¶ 25, 28. Plaintiffs further allege that they were not told how long they 15 would be displaced from their home and were not given personal property (e.g., trash cans, 16 cookware, and a washer and dryer) to use in the meantime. Although the hospitality home 17 recently had been remodeled, plaintiffs say that they quickly discovered mold also growing in that 18 home. Id. ¶¶ 26, 27. 19 Around June 24, 2020, MBMH agreed to conduct an inspection of the completed 20 remediation at plaintiffs’ leased home. However, the inspection reportedly “failed due to the dust 21 and debris which was left behind from the remediation and rebuild of the Master bathroom.” Id. 22 ¶ 29. Meanwhile, plaintiffs allege that for one month, the home “sat empty while [they] fought 23 with MBMH to pay for additional testing” at the property. Id. ¶ 30. 24 Oscar Ordonez, identified as an MBMH military advisor, suggested testing by Green 25 Home Solution. Id. ¶ 32. Plaintiffs say that because Green Home Solution had a contract with 26 MBMH, they instead chose to hire Adviro Environmental Consulting and Testing (“Adviro”), a 27 private mold testing company, to conduct an air quality test to identify the types of mold present at 1 been conducted within 48 hours of remediation, and that testing would not accurately reflect the 2 levels of mold in the house during the period of time plaintiffs occupied the premises. Id. ¶ 31. 3 Adviro conducted an air quality test on July 10, 2020, and results showed higher-than-normal 4 levels of aspergillus and penicillium, as well as the presence of Chaetomium, a heavy spore said to 5 be indicative of a larger problem in the house caused by water damage. Id. ¶ 33. Humidity levels 6 in the house were also found to be higher than recommended. Id. Plaintiffs say they emailed 7 Adviro’s report to MBMH on July 17, 2020, but their “concerns were once again brushed off,” 8 and plaintiffs were expected to move back into the leased home following an inspection. Id. 9 ¶¶ 34, 35. 10 Around July 24, 2020, MBMH conducted an inspection and moisture test of the leased 11 home. According to the complaint, defendants represented that the inspection did not show 12 elevated moisture levels. However, plaintiffs say that they continued to notice mold growth on the 13 surface of the drywall in the living room closet. Id. ¶ 36. Before plaintiffs moved back into the 14 leased home, defendants allegedly conducted a second “remediation” of the property, “despite 15 representing that the July 2020 inspection did not reveal elevated levels of moisture.” Id. ¶ 37. 16 Plaintiffs allege that they were not informed about this second “remediation” and were not given 17 an opportunity to remove their belongings from the home. Id.

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