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Christopher Berman and Heidi Berman v. Amex Assurance Company and Does 1 Through 50

February 22, 2011

CHRISTOPHER BERMAN AND HEIDI BERMAN, PLAINTIFFS,
v.
AMEX ASSURANCE COMPANY AND DOES 1 THROUGH 50, INCLUSIVE, DEFENDANTS.
AMEX ASSURANCE COMPANY, DEFENDANT AND THIRD-PARTY PLAINTIFF,
v.
JOANNA KLASS DBA TOUCH OF KLASS, THIRD PARTY DEFENDANT.



The opinion of the court was delivered by: David O. Carter United States District Judge

I. Background

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This cause came for trial on February 2, 2010, February 3, 2010, and February 24, 2010, before the Court sitting without a jury, as to Plaintiffs Christopher Berman and Heidi Berman ("Plaintiffs" or the "Bermans") claims against Defendant AMEX Assurance Company ("Defendant" or "AMEX") for breach of contract, declaratory relief, and breach of the implied covenant of good faith and fair dealing and Defendant and Third-Party Plaintiff AMEX's claims against Third Party Defendant Joanna Klass dba Touch of Klass ("Third Party Defendant" or "Klass") for indemnification and subrogation. The Court, having heard the testimony and having examined the proofs offered by the respective parties, the cause having been submitted for decision, and the Court being fully advised in the premises, makes its finding of fact and conclusions of law as follows:

II. Findings of Fact

1. The Bermans own a single-family residence located at 25321 Abilene Court, Laguna Hills, CA 92653 that was constructed in 1989 (the "house"). The residence is approximately 4,493 square feet, and has five bedrooms and four and one half bathrooms. Trial Ex. 11 at 1. The residence uses stucco and tile roof on the "exterior facade" and the "interior facade consists of drywall." Id.

2. The Bermans purchased the house on October 17, 1991, which had been used as a model home between 1989 and 1991. (Trial Tr., dated February 2, 2010, Vol. I, 27:8-17.) When the Bermans purchased the house, it sat on a lot that was one-third of an acre in size. Id. at 26:11-19.

3. The house has wood-framed windows on the front and back elevations, and aluminum-framed windows on the side elevations. Id. at 27:8-17. Wood windows at the residence, primarily on the front and back elevations, use a style of framing manufactured by Pozzi, Inc. and are hereinafter referred to as the "Pozzi windows." Pozzi windows, unlike more conventional windows, are "nail on units" such that the window panes adhere to the wood frames in which they are housed. Trial Ex. 2 at 2. As a result, the window panes must be removed from the frames only after disassembling the frame pieces at the interlocking mortise-and-tenon joints. Trial Tr., dated February 3, 2010, Vol. II, at 77:15-78:5. Some of the wood framed windows are "fixed" and others are "crank windows." Trial Tr., dated February 3, 2010, Vol. I, at 12-13. The window panes are held by glazing stops that cannot be unscrewed. Id. at 14-15.

4. There are seven aluminum framed windows on the second floor, six aluminum framed windows on the first floor, twelve wood framed windows on the second floor, and four wood framed windows on the first floor. Id. at 29-30. There is evidence of "fogging" to various windows, whereby "the hermetic seal that is between the two panels of glass has been ruptured and moisture or vapor" has developed "in between the panels." Id. at 34:14-17.

5. The Bermans caused damage to the windows in the residence between 1991 and 2006.

6. For instance, a window in Bermans' formal dining room "looks like it was attacked with an Airsoft gun," which is probably because at least one of the Bermans' sons has "pellet guns or Airsoft guns." Trial Tr., February 2, 2010, Vol. II, at 17:15-25. Certain windows that "face into a little patio or little courtyard area" as well as certain windows "going across the backyard" have suffered from water damage. See id. at 38:1-7.

7. Mr. Berman caused minor damage to windows embedded in and around the master bedroom's French doors. In 1995, Mr. Berman replaced a wood framed window in the second-floor master bedroom with two adjoining French doors with embedded windows - and two side lights - that opened up to a wood deck that was installed one year later. Trial Tr., dated February 2, 2010, Vol. II, at 13:13-14:22; see also id. at 26:3-9. Mr. Berman testified that none of the windows embedded in the French Doors, or the adjacent side lights, were scratched or otherwise damaged during installation. Id. He testified that he applied stucco around the newly installed doors and side lights, but taped blue plastic to the edges of the glass in and around the doors that was not removed "until after the stucco and work was done." Id. at 27:3-5. However, Mr. Berman admitted to using windex and a paper towel to clean the glass in the doors and side lights soon after their installation. Id. at 27:9-10.

8. Between 1993 and 1995, Mr. Berman attempted to apply tint to two windows: (1) a "little rectangular window" located "[i]n the upstairs master bathroom [] water closet"; and (2) a window in one of his sons' rooms. Id. at 35:3-9. In order to apply tint to the windows, Mr. Berman applied "a big, slippery sheet of plastic that you put on wet." Id. at 35:16-19. The project failed because the sheet of plastic "bubbled" when affixed to the windows, and Mr. Berman ultimately decided "it was not a task that was meant for me." Id. at 35:10-11. It is unclear from Mr. Berman's testimony whether the "bubbled" sheet of plastic remains affixed to the two windows.

9. Finally, one of the Bermans' sons applied a "bluish" film to a window that is "by the shower" in order to "obscure view into the shower." Id. at 35:21-36:4.

10. In 1995, Mr. Berman converted a bonus room in the residence into a bedroom with limited help from a friend. Id. at 25:11-17. This project involved the erection of dry wall at some distance from the window. Id.

11. Mr. Berman also "painted" the stucco around the windows of the residence on at least two occasions. See id. at 31:19-20 (clarifying prior testimony about window frames and stating that "I did not paint the window frames. I painted the stucco."). When the Bermans first moved into the residence, Mr. Berman painted the interior window frames of the house. See id. at 29:20-30:3, 31:2-4. He thereafter painted the interior frames of the windows in the residence's family room at some time between 2002 and 2010. Id. at 30:7-10. He also painted the exterior frames of the windows on one occasion in or about 2000, though he could not recall the exact date. Id. at 30:11-24, 31:5-11. He "papered and taped" the windows in order to prevent the fresh paint applied to the stucco from seeping on to the window frames or panes. See id. at 32:17-22. Despite these efforts, Mr. Berman admits "[t]here is some residue paint on some of the wood windows in the formal dining room and living room." Id. at 33:24-25.

12. In addition to home improvement work, Mr. Berman also washed the windows of the house between 1991 and 2004, and, in particular, after he repainted the stucco surrounding the windows. He used a device that he credibly described as "a sheepskin fur[r]y thing that I would dip into a soapy container." Id. at 27:11-16. Mr. Berman used this device to "wash or rub the window" and then proceeded to "take a squeegee" to wipe off the soapy water and other residue on the window pane. Id. at 27:13-20. The device and squeegee are not the same, though they have similar shapes. Both were purchased between 1995 and 2000. Id. at 28:23-25.

11. Mr. Berman washed the windows by removing the screen to the windows and cleaning the inside pane of the windows. On occasion, Mr. Berman would also clean the outside pane of the windows. In order to clean the outside panes of windows on the upper level of the house, Mr. Berman would use the built-in sliders to "remove the side windows, and then [] reach out through the open window and get the window in the center." Id. at 33:-9-12.

12. Mr. Berman left the country in February 2004. Id. at 27:24-28:2. He did not clean the windows in the residence between that date and November 11, 2006, the date of the conduct that gives rise to this lawsuit. Id. at 28:3-6.

13. In November 2006, a friend of the Bermans hired third-party defendant A Touch of Klass ("TOK") to provide cleaning services for the Bermans. There is no evidence in the record as to whether either the Bermans, or their family friend, discussed the provision of window-cleaning services. Trial Tr., dated February 2, 2010, Vol. I, at 33:12-17.

14. A team of individuals from TOK first arrived to clean the Bermans' residence on November 11, 2006. Id. at 32-35. One of the individuals began washing the glass windows and doors. Id. at 35. Soon after the individual started this project, Ms. Berman left the residence to go to her workplace. Id. at 38-41. When Ms. Berman returned home, she observed scratches on almost every pane of glass in the house. Id.

15. Some of the windows in the Bermans' residence bear scratches. Those scratches "vary in that they occur in all different positions." See Trial Ex. 11 at 3; see also, e.g., Trial Ex 25 (bathroom window with both vertical and diagonal scratches); Trial Ex. 104 (horizontal scratch on unidentified window); Trial Ex. 108 (similar). The scratches also vary in terms of their girth. Compare Trial Ex. 111 (thick scratches), with Trial Ex. 121 (narrow scratches). There are some visual consistencies between the scratches. Compare Trial Ex. 111, with Trial Ex. 122 (scratches of similar size).

16. Ms. Berman contacted Ms. Joanna Klass, owner of TOK, the next day to complain about the scratches. Id. at 42. Ms. Berman also complained about other concerns she had about TOK's service, including the potential theft of personal items and clothing. See id. Ms. Berman continued to receive TOK's services for another one and one half year. Id. at 33:12-17.

17. Ms. Klass visited the Bermans residence within the next week, apologized for the scratches, and agreed to compensate the Bermans for the damage to the extent practicable. See id. at 42, 62. Ms. Klass' attempt to enter into a compromise with Ms. Berman is inadmissible for the purpose of determining liability. Fed. R. Evid. 408.

18. AMEX has admitted that "[o]n or about November 11, 2006 . . . a house cleaning service attempted to clean windows at the Property. In the process, the house cleaning service nicked, scored, gouged, scraped, scuffed, abraded and/or scratched virtually every pane of glass at the Property." Docket 25 ¶ 8 (admitting Ex. A to Docket 1, ¶ 8). That admission is not binding upon TOK in AMEX's separate action for against TOK. See Sekaquaptewa v. MacDonald, 575 F.2d 239, 247 (9th Cir. 1978).

19. The preponderance of the evidence does not establish that TOK caused the scratches to the windows at the Bermans' residence for three reasons.

20. First, the disparity between the patterns, girth, and angles of the scratches on the windows undermines the suggestion that TOK caused the scratches. Trial Tr., dated February 3, 2010, Vol. II, at 69:14-18 ("There were no specific patterns. The scratches that I did observe were at different angles, at different orientations."); see also id. at 93:15-20 (same). There is no evidence that TOK's employees used multiple cleaning tools capable of creating the different types and patterns of scratches observable on the windows in the residence. In addition, photographs of the windows taken at or around the time this lawsuit was filed show that some of the scratches have expanded, while others have not, even on the same windows. See Trial Ex. 25 (different scratches and streaks of different ages).

21. Second, though Ms. Berman testified that she had never seen the scratches prior to November 11, 2006, it had been more than two years since the windows had last been cleaned, and the accumulated dirt and dust likely concealed pre-existing scratches and other blemishes. See Trial Tr., dated February 2, 2010, Vol. II, at 28:3-6. Ms. Berman is a credible witness, but her attribution of the scratches to TOK's conduct on November 11, 2006 likely results from the fact that her ability to view pre-existing scratches had been obstructed by accumulated dirt prior to that date. For instance, TOK's expert witness Mr. Steve Clements credibly testified that the vast majority of the scratches on the Bermans' windows were only visible after he cleaned the windows during his November 6, 2009 inspection of the residence. See Trial Tr., dated February 3, 2010, Vol. II, at 62-65.

22. Third, the nature of the Bermans' home improvement activity prior to that date also undermines the likelihood that TOK's conduct caused the scratches to the windows. Between striking the windows with toy gun pellets, partially tinting some of the windows, re-painting the window frames, causing cracks to the windows, and using two cleaning ...


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