California Jury Rejects Homeowners’ Claims in Major Construction Defect Lawsuit

Chekene v. Bowers

In a construction defect lawsuit, the California jury delivered a verdict in favor of the Defendant and against the Plaintiff.

Case Background

The plaintiffs Andrew Chekene and Melanie Chekene filed the construction defect lawsuit on November 29, 2017, in the California State, Contra Costa County, Superior Court (Case number: MSC17-02330). Judge Barry Baskin and Danielle K. Douglas presided over the case.

Cause

In April 2015, developer Damon Bowers, acting through his companies DB Investments and DB Capital Investments, Inc., acquired an existing single-family home at 40 Gran Via in Alamo, California. Bowers undertook a substantial renovation and expansion of the property, more than doubling its living space. The project included adding new bedrooms, a great room, a garage, and other amenities.

On November 10, 2016, Andrew and Melanie Chekene entered into a purchase agreement with Bowers to buy the newly renovated home. Prior to the sale, Bowers provided the Chekenes with disclosure documents, including a Real Estate Transfer Disclosure Statement and a Seller Property Questionnaire. In these documents, Bowers described the house as “new” and “fully remodeled,” explicitly stating he was unaware of any flooding, drainage, or grading problems. Bowers also provided a “List of Improvements” document touting new gutters and downspouts draining to the street, as well as new landscaping and hardscape. The Chekenes relied on these representations in deciding to purchase the home. The sale closed on December 20, 2016, and the Chekenes moved in around January 7, 2017.

Injuries

Almost immediately after moving in, the Chekenes discovered extensive water intrusion and flooding throughout the property, including standing water up to 20 inches deep in the crawlspace and 6-8 inches deep around the home’s exterior. This caused significant damage, such as cracks in ceilings, walls, and shower/bath finishes; cracking of newly constructed stone veneer and stucco; cracking of gypsum wallboards; separations at door and window trim and crown molding corners and splices; water intrusion through the roof in the master bathroom; swollen and damaged decorative column cladding; and leaks at gutter seams and between fascia and gutter. The Chekenes spent over $100,000 on emergency repairs to mitigate the flooding damage.

They later discovered that costly permanent repairs were necessary. These repairs were needed to correct defective conditions. The issues included adverse surface drainage. There was also a lack of a proper conveyance system for roof gutter downspouts. Additionally, buried downspout lines were not connected to appropriate drainage facilities. Area drains suffered from the same issue. There was a lack of a functional drain system for landscape runoff. Reverse slopes were found in gutter downspout connections. Furthermore, appropriate outfall locations for drainage were absent. Construction defects were also discovered. These included missing water barriers behind stone veneer. There was inadequate water table flashing between siding and stone veneer. Door flashing was also missing. Improperly installed window flashing was identified. Missing insulation was found in wall cavities. Stucco walls were buried in concrete flatwork.

Damages

The Chekenes sought over $600,000 in compensatory damages to cover repair costs and other losses. They also requested punitive damages against Bowers for fraud. The complaint alleged the defects and damages were ongoing and progressive, likely to worsen over time without proper remediation. 

Key Arguments and Proceedings

Legal representation

• Plaintiff(s): Andrew Chekene | Melanie Chekene
  • Counsel for Plaintiff: Michael J. Cochrane| Peter C. Lyon

• Defendant(s):Friar Associates, Incorporated | Scott Cirimeli | Mission Addition, Inc. | Damon Bowers | DB Capital Investments Inc. | John Friar | Persevere Lending Inc.
  • Counsel for Defendants: Matthew J. Webb| Patrick Talbot Hall | Bryan S. Silverman | Patrick Talbot Hall

Claims

The Chekenes filed suit against Bowers, his companies, the contractors, and the engineer, alleging:

1. Negligence: The defendants breached their duty of care in the development, design, and construction of the home, particularly the drainage system. They failed to construct the home in conformance with approved plans, building codes, and standard practices.
2.  Breach of contract: Bowers breached the purchase agreement by failing to disclose material information about the property’s condition, specifically the significant drainage problems resulting in flooding and water intrusion.
3. Breach of implied warranty: Bowers impliedly warranted that the home would be free from defects and fit for ordinary residential use. The extensive defects and water intrusion issues breached this warranty.
4. Fraud by concealment: Bowers actively concealed material facts about inadequate construction and known defects. He also failed to disclose that he had previously sued the general contractor, Priceless Kitchen & Bath, for similar construction defects on his own home.
5. Professional negligence: Engineer Cyrus Mashhoodi breached the professional standard of care in designing the site drainage system, resulting in the flooding and water intrusion issues.

Defense

The Defendant generally denied all allegations and raised several affirmative defenses. He claimed the Complaint failed to state a valid cause of action and argued it was barred by the statutes of limitations under the California Code of Civil Procedure. Mashhoodi also asserted that the Plaintiffs assumed the risk of injury or damage, failed to exercise ordinary care, and their own negligence contributed to any damages suffered. He invoked the doctrines of laches and unclean hands and argued that Plaintiffs had waived and were estopped from alleging the matters set forth in the Complaint. Additionally, Mashhoodi claimed the Plaintiffs failed to mitigate their damages and suffered no damages in connection with their claims. Consequently, the Defendant sought judgment in his favor, including costs of suit, reasonable attorney’s fees, and any other relief deemed just and proper by the Court.

Jury Verdict

On June 26, 2024, the jury found that the Plaintiffs purchased the property located at 40 Gran Via, Alamo, from DB Capital Investments, Inc., the company owned by the Defendant and his wife. The jury also determined that the Defendant had no actual knowledge of material facts affecting the quality of workmanship at 40 Gran Via. Consequently, awarded zero damages to the Plaintiff in construction defect lawsuit.

Court Documents:

Available Upon Request