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Myrick v. Mastagni

June 21, 2010


(Super. Ct. No. CV040613) (San Luis Obispo County), Theresa Estrada-Mullaney, Judge.

The opinion of the court was delivered by: Gilbert, P.J.


Here we decide two distinct issues and conclude: A city ordinance requiring hazardous buildings to be retrofitted by a certain date does not insulate owners of unreinforced masonry buildings from negligence causing death or injuries prior to the compliance date.

Civil Code sections 1431.1 and 1431.2, which limit a defendant's tort liability for non-economic damages, do not apply to defendants in a joint venture. Defendants in a joint venture are jointly and severally liable for non-economic damages whatever their respective interests in the joint venture.

This case arises from the death of two women who were killed in 2003, when a portion of a building collapsed on them during an earthquake. The women's survivors sued the building's owners for negligence in failing to perform seismic retrofitting of the building. The jury found the owners negligent and awarded substantial damages. The jury also found the owners were members of a joint venture in the ownership and maintenance of the building. The judgment made the defendant owners jointly and severally liable.

On appeal, the defendants contend they had no duty to retrofit the building until 2018, the deadline established by city ordinance. They also contend the court erred in making them jointly and severally liable. We affirm.


On the morning of December 22, 2003, Jennifer Lynn Myrick and Marilyn Frost-Zafuto were at work at a clothing store in downtown Paso Robles. The building in which they worked was a 111-year-old unreinforced masonry structure, known as the "Acorn Building." At about 11:00 a.m., the San Simeon earthquake struck. When the shaking began, Myrick and Frost-Zafuto fled the building to the street. Instead of finding safety there, however, a portion of the building collapsed, crushing them.

Between 1989 and 1992, the city had retained a consultant to inventory the unreinforced masonry buildings within its jurisdiction. The inventory was conducted pursuant to Government Code section 8875.2, subdivision (a). That subdivision requires local building departments to identify buildings that are potentially hazardous during an earthquake. Subdivision (b) of the section requires local governments to establish a mitigation program that includes notification to the buildings' owners. The city identified the Acorn Building as potentially hazardous and sent notice to the building's owners in December 1989.

As part of the mitigation program, the city enacted an ordinance in November 1992. The ordinance required owners of unreinforced masonry buildings to retrofit them to comply with earthquake safety standards. The ordinance specified that the owners must comply within 15 years from the date of official notice. The city notified the owners of the Acorn Building of the retrofit requirement on November 5, 1993. The city amended the ordinance in 1998 to extend the deadline for compliance to 2018.

On October 28, 1998, the city and the Acorn Building's owners entered into an agreement with structural engineer, Robert F. Alderman. Alderman agreed to prepare a seismic structural design study of the Acorn Building to determine what structural improvements are necessary to bring the building into compliance with the city's remediation ordinance. Alderman prepared and delivered his report to the city and the building's owners. The report identified various seismic deficiencies and contained plans to retrofit the building to make it comply with the city's ordinance. Nevertheless, the building's owners did not complete the seismic retrofitting prior to the earthquake.

The survivors of Myrick and Frost-Zafuto (hereafter collectively "Myrick") brought a wrongful death action against the building's owners. The action was based on general negligence.

Building Owners

Mary and Armand Mastagni purchased the Acorn Building in 1973. In 1995, Armand suffered a series of strokes. The Mastagnis transferred the building into a living trust in which they were both trustees. Prior to the time Armand became ill, he and Mary jointly managed the building. After Armand became ill, Mary took over management as trustee. Nevertheless, until Armand's death, they continued to discuss everything together including "management issues on the Acorn Building."

At the end of 1995, Armand and Mary executed deeds as individuals intending to transfer a 3 percent interest in the building to the Mastagni children's trust. The three Mastagni children were co-trustees of that trust.

Armand died in 1997. The assets of the Mastagni living trust were transferred to the Mastagni survivor trust. Mary is ...

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