1 Attorney for Defendant, Mr. Delbert Duke.

5 SUPERIOR COURT OF THE STATE OF CALIFORNIA

6 FOR THE COUNTY OF SAN DIEGO
7
PAULA PLISSKEN, Case No.: 18-cv-02359-DMS-NLS
8
Plaintiff,
9
DEFENDANT MR. DUKE’S
10 vs.
CONFIDENTIAL MEDIATION BRIEF
11 DELBERT DUKE,
12
Defendant
13

14
I.
15
INTRODUCTION
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17 Paula Plissken alleged Delbert Duke discriminated in violation of the Fair Housing
18 Act (FHA) along with a Nuisance claim under Civil Code, section 3479. The plaintiff
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claims that she suffers from Multiple Chemical Sensitivity (MCS). The Plaintiff will
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21 likely not prevail in establishing both claims.

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DEFENDANT MR. DUKE’S CONFIDENTIAL MEDIATION BRIEF - 1
1 II.
2
FACTUAL SUMMARY
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The plaintiff did not notice any odors during an inspection of an apartment
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5 Plaintiff reviewed after contacting the defendant on 15 August 2017.

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The plaintiff had informed Defendant that she is “very sensitive to chemicals and
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chemical odors, and if you paint the walls, I will have to delay my move-in date. I am
8

9 happy with the paint as it is.” (Email, 22 August 2017, Duke and Plissken). The
10
defendant happily granted this request. Ibid.
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The plaintiff omitted a medical condition of sensitivity via email nor on the rental
12

13 application. (Rental application) The plaintiff did not mention a specific disability. Ibid.

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15
III.
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17
LEGAL ISSUES AND CONTENTIONS

18 A. FHA Claim
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A tenant with a disability as defined under the FHA. 42 U.S.C. § 3604 (f)(1)(A). A
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landlord’s failure to reasonably accommodate a tenant. 42 U.S.C. § 3604 (B). A disability
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22 is a physical or mental disability that substantially impairs, limits a major life activity, a
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record of having such impairment or regarded as having such an impairment.
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Landlord’s deference to a prior tenant is appropriate. Temple v. Gunsalus, 97 F.3d
25

26 1452 (1996). Recurrent symptoms in response to chemicals at doses below those in the

27 general population. Reuther v. State, 455 N.W.2d 475, 476 n.1 (Minn. 1990). There is no
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DEFENDANT MR. DUKE’S CONFIDENTIAL MEDIATION BRIEF - 2
1 single, widely accepted physiologic test. Ibid. MCS meets the definition of
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“handicap”/disability. 455 N.W.2d 475, 476 n.1 (Minn. 1990).
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MCS is so severe that reactions cause one to call the ambulance. Slocum v.
4

5 Califano, No. 77-0298, slip op. (D. Haw. Aug. 27, 1979).
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1. Plaintiff’s Contentions
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9 The plaintiff alleges that the Defendant has failed to make reasonable
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accommodations for the Plaintiff. Here, Defendant refrained from painting. The
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defendant has had the ventilation inspected, and he has asked Ms. Deets to adjust her
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13 cleaning habits.

14 However, reasonable accommodation is impractical because the Defendant did not

15
know the condition of the Plaintiff’s health. Also, it should be at least apparent that he
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17
should know the context of a health issue, so his decisions can be adjusted accordingly. A

18 vague explanation that lacks a reference on how to accommodate one with MCS is
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insufficient.
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The plaintiff contends that her doctor has diagnosed her with MCS. Here, Dr.
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22 Sunder’s letter states that Plaintiff’s symptoms and medical history are consistent with
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MCS.
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However, a more likely explanation is that this letter concedes that Dr. Sunder’s
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26 opinion cannot overcome the fact that it is inconsistent with the medical industry’s lack

27 of an official diagnostic test for MCS.

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DEFENDANT MR. DUKE’S CONFIDENTIAL MEDIATION BRIEF - 3
1 Accordingly, the Plaintiff failed to prove that the Defendant has discriminated
2
against her.
3

5 2. Defendant’s Contentions
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There is no conclusion the Plaintiff has MCS, which shows that the Plaintiff has
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failed to show that she has a recorded history of MCS. Although the Plaintiff was
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9 hospitalized, no official conclusion of MCS was reported.

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No diagnostic exists cited by Plaintiff so that one can attribute her “severe”
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reaction to that of an MCS reaction. The Plaintiff’s doctor (Dr. Sunder) concedes that
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13 there is no official diagnostic test for MCS. Therefore, Dr. Sunder’s opinion cannot

14 confirm MCS disables the Plaintiff.

15
Defendant refrained from painting, which shows a reasonable accommodation.
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17
The defendant requested that Ms. Deets change her cleaning habits. Ms. Deets also has

18 health issues. Ms. Deets may induce the Defendant to accommodate her reasonably
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because he knows her disability of obsessive-compulsive disorder. This cannot be said
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for Plaintiff because Defendant has not been officially informed of Plaintiff’s disability.
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22 Also, Ms. Deets was a tenant of the Defendant’s before Plaintiff. The ventilation
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system was examined by a handyman who concluded that the ventilation was working
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fine.
25

26 Here, the facts are analogous to Gunsalus in a manner that is likely to result in a

27 similar outcome. Here, Ms. Deets was a tenant before the Plaintiff became a tenant. In the
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DEFENDANT MR. DUKE’S CONFIDENTIAL MEDIATION BRIEF - 4
1 present case, the facts seem to make it evident that many of the options the Plaintiff
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would like implemented hurt a prior tenant. Ms. Deets moved in before Plaintiff which
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shows that Ms. Deets will likely receive deference from the court.
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5 Accordingly, the Plaintiff is likely to fail in establishing that Defendant is in

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violation of the FHA.
7

9 B. Nuisance Claim
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That Ms. Plissken occupied the property;
11 That Mr. Duke, by acting or failing to act, created a condition or permitted
a condition to exist that was harmful to health; was indecent or offensive to
12 the senses; was an obstruction to the free use of property, so as to interfere
13 with the comfortable enjoyment of life or property.
That this condition substantially interfered with Ms. Plissken’s use or
14 enjoyment of her land;
15
That an ordinary person would reasonably be annoyed or disturbed by Mr.
Duke’s conduct;
16 That Ms. Plissken did not consent to Mr. Duke’s conduct;
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That Ms. Plissken was harmed;
That Mr. Duke’s conduct was a substantial factor in causing Ms. Plissken’s
18 harm; and
That the seriousness of the harm outweighs the public benefit of Mr.
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Duke’s conduct. (CACI 2021); (Civ. Code. § 3479).
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1. Plaintiff’s Contentions
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The plaintiff cannot use and enjoy her apartment because of the use of toxic
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24 chemicals and an industrial strength vacuum cleaner. The plaintiff has been harmed via

25 problems with breathing, walking, and dizziness. The toxic chemicals are offensive to the
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senses, obstruct the free use of Plaintiff’s apartment because the odors prevent Plaintiff
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from leaving and enjoying her apartment.
DEFENDANT MR. DUKE’S CONFIDENTIAL MEDIATION BRIEF - 5
1 An ordinary person would suffer annoyance or disturbance from an industrial-
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grade vacuum used at such high frequency, which is also unreasonable. The plaintiff’s
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non-consent of the defendant’s actions are shown by email on 14 September 2017. The
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5 plaintiff’s harm is shown by hospitalization.

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Also, but for the Defendant’s failure, nuisance would not exist, which shows that
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the Defendant’s conduct was a substantial factor in causing Plaintiff’s harm.
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9 The plaintiff’s harm outweighs the social utility of Defendant’s actions because
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Plaintiff has a disability. The balancing of harm is misguided considering Gunsalus
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because the court held that deference should be to the first tenant.
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13 Accordingly, there is unlikely a showing that the Defendant is liable for Nuisance.

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2. Defendant’s Contentions
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17
The defendant lacks negligence for liability in nuisance because he took the

18 initiative to create a better environment for Plaintiff. The defendant made efforts to
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ameliorate interference with Plaintiff’s apartment by requesting that Ms. Deets adjust her
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cleaning habits. The defendant’s actions have not harmed Plaintiff’s health because
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22 Plaintiff has symptoms that are also consistent with other medical issues.
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Obstruction of the free use of the property is misguided because the Plaintiff’s
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health is not normal. 3 Cal. App.5th at p. 262. The defendant has not imposed any actions
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26 on to the Plaintiff that would require the Plaintiff to provide consent.

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1 The plaintiff is suffering harm because of other illnesses that are manifesting
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themselves as the symptoms she is currently suffering which are the cause of her harm.
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The Defendant is not a substantial factor. Assuming without agreeing that the
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5 Plaintiff is suffering from a diagnosable form of MCS, the Plaintiff would still suffer
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from her alleged disability regardless of the Defendant’s actions. The Plaintiff has
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admitted that she is sick because of substances, which rule out the actions of the
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9 Defendant.
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Lastly, the seriousness of harm (vacuuming habits of Ms. Deets) is likely
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outweighed by caselaw directing the court to give deference to the first tenant (Ms.
12

13 Deets), therefore limiting what Defendant can offer. 97 F.3d 1452 (1996).

14 Accordingly, the Defendant will likely prevail on the nuisance issue.

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16

17
C. Affirmative Defenses

18 1. Contributory Negligence and Assumption of Risk

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The plaintiff should have inquired about use of chemicals on the City Apartments;
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this shows that she is contributorily negligent. Therefore, she assumed the risk of a
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22 negligent act. It is common for others to use cleaning chemicals.

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DEFENDANT MR. DUKE’S CONFIDENTIAL MEDIATION BRIEF - 7
1 2. Comparative Fault
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The plaintiff must have known cleaning chemicals are prevalent and that her
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actions to move into a building that commonly contains chemicals shows that the
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5 Plaintiff established a comparative fault.

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3. Failure to Exhaust
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9 The FHA states that a plaintiff can go directly to an agency that resolves FHA
10
issues. Moreover, the Plaintiff’s issues would have been addressed more efficiently
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because a court of the agency is more familiar with such issues.
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14 4. Fraud
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The plaintiff’s claim is barred due to fraud. The plaintiff omitted information
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17
about her MCS within the “Special Requests” portion of her rental application. The

18 plaintiff knew she had adverse reactions to chemicals, as commonly used in households,
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and she guarded this information from Defendant.
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22 5. Waiver
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The plaintiff’s claim is waived due to Plaintiff’s intentional omittance of relevant
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information in her rental application labeled “Special Requests.”
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DEFENDANT MR. DUKE’S CONFIDENTIAL MEDIATION BRIEF - 8
1 6. Estoppel
2
The plaintiff is estopped from asserting a claim under the Fair Housing Act due to her
3
intentional omittance of relevant information in her rental application labeled “Special
4

5 Requests.”
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IV.
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9 DAMAGES
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The relief sought by the Plaintiff is as follows:
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1. Plaintiff declares that Defendant Delbert Duke has committed discriminatory
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13 housing practices, as set forth above, in violation of the Fair Housing Act, 42

14 U.S.C. § 3604;
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2. Enjoins Defendant Delbert Duke from discriminating against any person in the
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17
terms, conditions, or privileges of sale or rental of a dwelling, or in the provision

18 of services or facilities in connection with such dwelling, because of a handicap of

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that person, under 42 U.S.C.A. § 3604 (f)(2)(A)(B);
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3. Orders Defendant to make reasonable accommodations in the rules, policies,
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22 practices, or services of the City Apartments as accommodations are necessary to

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afford the Plaintiff the equal opportunity to use and enjoy her dwelling, under 42
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U.S.C.A. § 3604 (f)(3)(B);
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26 4. Awards monetary damages to Plaintiff, under 42 U.S.C. § 3613 (c)(1);

27 5. Awards punitive damages to Plaintiff, under 42 U.S.C. § 3613 (c)(1);

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DEFENDANT MR. DUKE’S CONFIDENTIAL MEDIATION BRIEF - 9
1 6. Awards attorneys’ fees to the Plaintiff, under 42 U.S.C. § 3613 (c)(2). The
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Plaintiff further prays for such additional relief as the interests of justice may
3
require.
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5 7. Pain and Suffering:

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a. $100/Per Day
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9 8. Medical Expenses:
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a. Bay Front Hospital Outpatient visits: $2,505.00
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b. Hospital stays at Bay Front: $33,080.00
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13 c. Sarah Evans, M.D. office visits/medications: $510.00

14 d. Bay Front Pharmacy: $1,386.00

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e. Bay Front Doctor visits: $232.00
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f. Bay Front pharmaceutical expenses: $184.00

18 9. Work and Wages:

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a. Unpaid sick leave:
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i. $928.00
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22 10. Promotional denial:

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a. $11,500.00 (plus an additional $500/per month starting 15 February 2018
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until the end of the trial.)
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Dated this 19 of April 2018.
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