Jury Denies Ross Merchants In Flood Lawsuit

Posted on Tuesday, 09 November 2010

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By Gary Klien
Marin Independent Journal

Posted: 11/09/2010 08:53:57 PM PST


After nearly half a decade of litigation, a Marin County jury ruled Tuesday that a Ross property owner should not be liable for damages sustained by two commercial tenants during the devastating New Year's Eve flood of 2005.


The case pitted two Ross Common merchants, Danielle Bourhis and Kristen Joyce, against their landlords, John and Kate Lord. Bourhis and Joyce leased commercial space from the Lords just months before the flood hit, then shut down their businesses in the aftermath.


Bourhis and Joyce claimed the Lords failed to warn them that the building was in a flood zone, and did not do enough to prevent the water damage to their clothing boutiques, Brown Eyed Girl and Material Girl. The plaintiffs claimed an estimated $750,000 in alleged losses and damage.


"They should not have rented the space in the first place," plaintiffs' attorney Ray Bourhis, Danielle's father, said during closing arguments last week. "They had a duty to mitigate, and they did nothing."


The Lords denied the allegations and countersued, saying the merchants walked away from a five-year lease and stiffed them for approximately $60,000 in rent.

"The building they rented was not defective," defense attorney Heidi Kohn Hugo wrote in a pre-trial brief. "The flood could not be prevented by defendants. They were victims of it as much as were Plaintiffs."


After a 13-day trial before Judge James Ritchie, the jury ruled unanimously for the Lords on Tuesday afternoon. Deliberations took about four hours over two days.


Jurors Kim Barr and Phil Shpilberg said a key factor in the verdict was the judge's instruction that, under the law, the landlords "did not have a duty to disclose or to warn any of the plaintiffs of prior floods or a duty to disclose the existence of conditions not on their property."


"That being the case, anything in the case begins to fall apart," said Shpilberg, a marketing director who lives in San Rafael.


That jury instruction will be the basis for a planned appeal, said Ray Bourhis, the plaintiffs' attorney.


The litigants return to court next week for a decision by Judge Ritchie on how much the plaintiffs owe in back rent and legal fees.


"Basically, they blame everyone but themselves for the situation they're in," said Edward Hugo, another attorney for the Lords.


The case was an offshoot of a larger barrage of litigation filed by Bourhis and his partner, Lawrence Mann, after the flood. The lawyers, acting on behalf of about 200 plaintiffs in the flood zone, sued a dozen municipal governments and public agencies on claims they contributed to the flood damage.


The defendants included seven Marin municipalities, the Marin Municipal Water District, the Tamalpais Union High School District, the Marin County Flood Control and Water Conservation District, the Ross Valley Sanitary District and the state of California.


Most have already paid settlements rather than face the expense of a trial. The settlements amount to "millions of dollars" combined, although Bourhis and Mann would not offer specific amounts.


The town of San Anselmo has declined to settle, and a jury trial is scheduled for January.

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