client where there were the record was replete with genuine issues of material fact trial court also imposed the burden of proof as to whether there was coverage on my client even though this was affirmative defense the defendant was relying on his most for summary judgment was a manifestation or known last rule was there an appreciable harm prior to the inception of the policy period in two thousand that put my clients required even if one of the hundreds of homeowners had mentioned if they had a problem with most your intrusion or mold which you would expect this is well you california as you know probably it's an upscale coastal community there's fog there's well you would expect people to periodically complain if you've got water intrusion we live in buildings work in buildings that have water pipes running through them sometimes they leak it's the most common type of la roof and we have the interior ministry through the end of the dryers which is not released through the leaf exactly where you put this question to you is there any place and maybe the question should be from roof leaks or from windows or from fireplaces or even condensation caused by lack of proper ventilation but the more specifically answer that question judge they have the facts as are disclosed in the record and on refuted from the architect who supervised the roof replacement in the ninety six ninety seven time frame fred baron is that when they remove that roof at that time when they thought they were dealing with roof leaks as being the cause of some of these occasional complaints of water intrusion there was not a significant concern with mall even of mall in that timeframe has been an issue no one noted but of course most of the not come to public consciousness until after two thousand people came aware that it could have potential adverse health effects but even in a  roof again in two thousand and two and at that time the area was rife with black mold which had never been a complaint before and to this today even though it's traveler's burden of proof to establish the cause of that they never endeavored to do so they to explore that by taking the deposition of the attorney tom miller renowned construction defect the plaintiff's attorney in california who wrote the treatise on a california construction defect law in his deposition he produced allegations talked about problems with ventilation and condensation and more secure or mildew but attorney miller testified his deposition and my client's confirmed there's something like half a dozen declarations of various board members and various unit owners who said that mold was never an issue in that action or any time prior to the presentation of this claim in two thousand and one and in fact even though there was homeowner's questionnaires distributed at the time of that construction defect complained to find out of people did have other concerns and i asked about veterans of issues only to homeowners checked well they were mold it was mildew i know your hon them the same and i understand that it makes sense but in fact one of them said it was a bluish mold so mildew which is more localized is probably not toxic and is different than the plaque pervasive multi found seven years later although it is a biological organism which is important because if there was a pervasive problem with more old in this much of this dynamic not static this would have been voted by these people you know the pain the site grant in this you know high rent which the defendant relied there were hotly disputed material issues of fact one was the content destruction defect complaint notice of appreciable harm that's at the very least a factual question for the trier  no your honor it was not my cup like kleis did not even have a copy of the complaint the homeowners questionnaires that they relied on obviously are not sworn all the deposition testimony and the declarations state that mall was not an issue including the nathan duval ski who was interesting enough in its declaration of microbiologist he said it was never an issue of mold for me although i did want them to install venting when they put the new roof on but again he's not a construction expert and a construction ex the time so i just tell those people open their windows when the user vast rooms or use their dryers and that was not necessary to put them thousand on it was not in the code when they installed the new roof in ninety six ninety seven and the roofing contractors the architect and the manufacture water leakage that's obviously an isolated instance you know and that's the second the third one is the unit owner market dropsy the only one of complaint of water intrusion on the eighteen units on the third floor of the subject building  a window that's a travel issue a fact those people are same old was not an issue and you know we all would have some mildew or mold if we live in our homes long enough at some point particularly have kids and bathtubs overflow that sort of thing it's almost inevitable but the interesting the issues that travelers talk to focus on coli in a thirteen year period and again in a multi unit complex with something like two hundred units to come up and say that we have four vance only two of which are in similar areas and may not even the mold doesn't even was it was raised and it was argued at the hearing when this was first presented and i did tell this in the reporter's transcript which is part of the excerpts of the record that we submitted to the court i could find a reference i believe if you like but basically i a material question of fact race or not so i think this time here i'm not sure that makes a difference the only reason why i pointed out is in some cases if you have a party that makes a clear admission in a deposition and then for the purpose of defeating summary face of this other evidence clearly presents a disputed issue of fact the fact that they had alleged all these things as i start to say it would preclude any insurance claim any policy any time because every major building component was mentioned in the construction complaint as a matter of policy surely this court can't say although my clients are paying premiums on policies all these years that they can never make a claim for any reason because an attorney doing his job in drafting a construction defect complaint was as expensive  on those theories which in fact no it's that time you were not required to certify the pleading as you would when you signed the plate in federal court and in fact attorneys can get themselves in trouble on construction defect cases i understand if they don't mention a particular item in the statute runs so they would  mention everything from the foundation all the way up to the chimney and then only proceed on those theories if their investigation turned up no that was attorney miller's testimony and again he's the lead attorney for at least one of them in that area and that's what his form complaint has in his book that he relied on in this case it had no bearing or any semblance to what was actually going out there other than the one customized paragraph he put in dealing with the boardwalks which are prematurely determining deteriorating the other walkways which were the actual subject of that complaint that's what they sued for that's what my clients retained him that's what they said they knew about and that alone has a purpose without litigation and when they got the money from that settlement they used it to repair the boardwalk is that there was appreciable harm and that either knew of the damage or by reasonable about all the gauge and would have none of this damage could occur without a lot of councils argument is focused on well they didn't have a neon sign saying there's a mall here there's mold here claim is you make you say that we're there is progressive loss if there is appreciable harm or appreciable loss then  the manifestation rule applies yes the question is is this progressive loss to my mind is the loss manifested in two thousand and one the same on then if they get mold after the new roofs on and the roof doesn't leak it may be because of a different cause neither has the drivers and condensation which is not and now you're not tell you your honor is that your the promise of your questions absolutely correct for the manifestation of all to apply for math a loss manifested in your one to damage it happens in your town it has to be part of the same for myself  replaced roofs were place clearly there were complaints that there were leaks leading to water's things which i thought of the lead to mold under the conditions in the hallway there were there's also the condition there are mention of they simply live by the ocean which could cause issues still but prior to the issuance of this policy there were complaints about improper ventilation there were complaints there was a specific lawsuit filed improper ventilation that was not boilerplate it was boilerplate language but if you look at the evidence in this construction defects suit mr miller himself testified that he was aware of the ventilation issue had investigated and he was aware there was a mop mold problem mr hardass the the framer expert testified that he himself investigated that issue and the witness mold on his site investigations and talk to homeowners about it so what we have to show for this progressive loss is not that all mold in the world back in one thousand and ninety four was related to the mold in two thousand and one what we have to show is that there was a notice of appreciable harm prior to the policy period relating to the ventilation issue which was later brought up there is evidence which is not contradicted nor rebutted by contrary it's that i'm old and was observed in two thousand and one was the same or similar and cause my and also mark leavitt was investigator another expert they indicated that the mold present that we're litigating in this case was caused by the ventilation issue now that was in the record it's in the court's record here and we also have homeowner complaints about the ventilation problem we have mr miller himself testifying that he was aware of the ventilation with the problem and it was investigated we have that listed in his plymouth  was yes i would put these allegations in there but then i would do a plume unary defect lesson that would have the real allegations in apollinaire defect list which is before the court in the record he did have the ventilation problem he also testified he was aware of bottle before that happened here on the evidence of that isn't a number of the homeowner complaints that talk about ventilation issues and also talk about mildew and also the fact that with the complaints are those of late people and mr har the framing stuff contract so you want me to take a look at harnesses declaration and hard to see will say then we should cause mold he says i can one hundred ninety four yes he said well he's what he says precisely and i don't i'm not going to represent specific words complaint as a construction the fact that it's causing a problem a number of people who identify the ventilation issues and these are so forth in the very people homeowners yes homeowners but i think part of that the problem with the question is that they the doctor and of manifestation they could progressive injury is really based on a concern for f and the case law is pretty clear and cited around page twenty seven twenty eight of our brief that they don't have to know it's covered they don't necessarily have to know the cause or all they have to know is that there's appreciable harm so we have something that's no longer a fortuitous they judgment was justified well i think it's justified on a number of grounds and one one ground is that what we're talking about here was we're not talking about establishing that in fact someone said in ninety four that mold was caused by ventilation what we need to establish is that there was notice of this ventilation problem there was notice of mold problems that there would have been a reasonable investigation that they specifically chose not to do that is enough for ma for instance we have their own expert in this case saying that the morgue was caused by the defective ventilation system the mall they're suing about now it's hard to see now that is the and what was going to happen is if there's a concern on the manifestation issue and we really believe that all the other issues set then we're going to go back to me another summary judgment of me another three years that i mean that's just as a practical matter and what's going to happen is you know review exactly the same evidence you have before you now because nothing's changed is the summary judgment was filed so we're really talking about this court has the ability for you never know because if it goes back to the district court district court may have an evidentiary hearing it well but i said just to address that issue though we do have these exclusions these were brought up we i think this has been you know over two years now but they weren't addressed by the court and i think the court no there was not at the time at an absolute equivalent to rule eleven however most prosecution lives state of california has been for the last hundred years that if you allege any claim that is false or without probable cause you can be not covered under the exclusions the acts are decisions exclusion the basis for that that is this problem occurred because they made a specific decision at their homeowners board no that can be a problem in the context of certain cases but in the proper context of just case really what that thing's trying to do is it's related to the fortuity issue and if you make a specific decision i'm got not going to investigate a problem even though it's  complain even though you've brought it to my attention but it's not going to do it now and that leads to these damages then that really brings in to the issue of fortuity that's required for each bit as its base of insurance and fit into the opinion on that and i think the reason was because as counsel pointed out she had me in our reply we brought we were able to discover between the time my motion was a minute and after opposition was filed the existence of this complaint which had been requested in discovery and had never been produced we discovered if were to asli because an attorney i hired happened to know an attorney that worked on their case some years ago now i think the fact  that hadn't been produced the fact that that was now before the court is sort of a bombshell because whether you want to say that the allegations are boilerplate or not they track exactly what the expert was saying was the cause i think that focused that court on that issue and he was not happy about that and he let us take a deposition the mold of the mold explosion however is very clear and it's not going to change that exclusion states that there is no coverage for anything resulting from a caused by mall and he damage now in this case the only arguments they've had against that position are that well no it's not the more the cause of damage it's condensation that causes the damage cause the conversations not there without the construction defect so the prominent cause is clearly the construction defect the immediate cause was the malt the conversation is just something that resulted from the predominant cause the immediate cause of the mold was also a res that the the cases that are relied on fruit for also are some texas cases where he and they indicate that if the mode of self is a damage the exclusion doesn't apply and supposed to cause damage any time you can say if something goes wrong that someone had acted differently or made some decision that was more prudent they might have avoided it so you have to take a reasonable person interpretation with the board was faced with were complaints of water intrusion their best information was it was caused by the roof they decided to replace the roof on the nose to them and you've got several experts who are speculating that one of the things happen is you replace the roof and make it tighter you create th by the way no one has given an opinion that there were construction defects everything was built to co just because problems arose and there's now newer construction techniques doesn't mean it was a construction defect and there's no testimony that anything was done apart from standard of care or code when it was built but assuming there is a construction defect with this policy says is any resulting damage will be covered and that's why the adjuster if you look at the excerpts of the records in their own claim file record can be found in that regard on page one forty two and one forty three of the record one sixty two one sixty three one seventy one so travel is recognized and it quotes a language in its own policy that the resulting damage is covered in every case that look success or moral does not develop over time because of say the wet weather or fog but it results from some type of water intrusion event either roof leak when the leak or condensation building up  days or weeks or months and you don't fix it that's more than making this issue mold forms under those circumstances and you know you knew that the condition existed that's your problem but if you have a pipe burst behind a wall which again a common thing and  you don't know about it for some time and by the time you do because now it's working the floors of the walls and then they go in and find mold that's covered because that resulted from the pipe likewise with the efficient proximate cause doctrine council says well efficient proximate cause of the excluded construction defect one where's the proof these were construction defects as opposed to unfortunate situations that the bell because of new code you have more watertight buildings and that's why we have better insulation now and better  settled and they fix those we're talking about here is a different source of the water intrusion and the experts and there's four of them and three of them are travelers and they say they don't know for sure what's causing it most of them to say they think there's continued problems with roof leaks or water intrusion some other ventilation to molt they were looking at a checklist for people checked up dozens of items and said well yeah i can see that person said maybe they should have venting here the other person said those windows aren't seated properly another one said they were just noting that people made observations that weren't even complaints so there was not a situation where anybody tied what we made this claim for in two thousand and one with anything that had happened previously for any possible connection certainly not one that was undisputed by the facts in the record