Preview
1 Paul D. Van Der Walde, Esq. SBN 169332
Paul F. Caputo, Esq. SBN 144592
2 Kathryn H. Montaperto, Esq. SBN 325878
CAPUTO & VAN DER WALDE LLP
3 51 E. Campbell Avenue, Suite 120
Campbell, CA 95008
4 (408) 733-0100
(408) 733-0123 fax
5
Attorneys for Plaintiffs
6 Milan Zencirci, by and through her GAL, Edmond Zencirci;
Edmond Zencirci; and Melissa Zencirci
7
8
SUPERIOR COURT OF CALIFORNIA
9
COUNTY OF SAN MATEO
10
MILAN ZENCIRCI, by and through her Case No.: 21-CIV-04233
11 Guardian Ad Litem, EDMOND ZENCIRCI;
EDMOND ZENCIRCI, an individual; and FIRST AMENDED COMPLAINT FOR
12 MELISSA ZENCIRCI, an individual, DAMAGES:
Negligence, Premises Liability, Intentional
13 Plaintiffs, Infliction of Emotional Distress, Negligent
Infliction of Emotional Distress, Breach of
14 vs. Warranty of Habitability
15 LYNDA LAKE GARDENS HOMEOWNER’S
ASSOCIATION, a California Nonprofit [UNLIMITED CIVIL CASE]
16 Corporation; DAVID ALVAREZ JR., an
individual; GARY ERNST, an individual and as
17 trustee of the Gary W. Ernst Separate Property
Trust dated September 21, 2007; MARYANNE
18 DOBEL, an individual; and DOES 1 to 50,
19 Defendants.
20
21
22 Come now Plaintiffs, MILAN ZENCIRCI, by and through her Guardian Ad Litem,
23 EDMOND ZENCIRCI, EDMOND ZENCIRCI, and MELISSA ZENCIRCI and complain of
24 Defendants, and each of them, as follows:
25 JURISDICTIONAL ALLEGATIONS
26 1. Plaintiff MILAN ZENCIRCI is a minor. She is the daughter of MELISSA ZENCIRCI and
27 EDMOND ZENCIRCI, and at all times mentioned herein was a resident of San Mateo
28 County.
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1 2. EDMOND ZENCIRCI is, and at all times herein mentioned herein was, Plaintiff MILAN
2 ZENCIRCI’S biological father, and a resident of San Mateo County. MR. ZENCIRCI is
3 concurrently applying to this court to be appointed as guardian ad litem of Plaintiff MILAN
4 ZENCIRCI.
5 3. MELISSA ZENCIRCI is, and at all times mentioned herein was, Plaintiff MILAN
6 ZENCIRCI’S biological mother, and a resident of San Mateo County.
7 4. Defendant LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION (the “HOA”)
8 is, and at all times relevant to this action was, a California domestic nonprofit corporation
9 with its primary place of business located at 948 Center Street, San Carlos, California,
10 94070 in the County of San Mateo.
11 5. Defendant DAVID ALVAREZ JR., a resident of San Mateo County, was at all times
12 relevant to this action serving as the Chief Executive Officer and board member of the
13 LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION, and at all times relevant
14 hereto was acting within the course and scope of his is role at that corporation. Defendant
15 ALVAREZ also owns an undivided interest in the parcel containing the Upper Emerald
16 Lake (hereinafter the “Lake Lot” or “Upper Emerald Lake”) as tenants in common with
17 several of the other HOA members.
18 6. Defendant GARY ERNST is a resident of San Mateo County, and was at all times relevant
19 to this action serving as the Secretary and board member of the LYNDA LAKE GARDENS
20 HOMEOWNER’S ASSOCIATION, and at all times relevant hereto was acting within the
21 course and scope of his role at that corporation. He also owns an undivided interest in the
22 Lake Lot as tenants in common with several of the other HOA members. Defendant GARY
23 ERNST is also the Plaintiffs’ landlord, and the trustee of the Gary W. Ernst Separate
24 Property Trust dated September 21, 2007.
25 7. Defendant MARYANNE DOBEL is a resident of San Mateo County, and was at all times
26 relevant to this action serving as the Chief Financial Officer, Registered Agent, and board
27 member of the LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION, and at all
28 times relevant hereto was acting within the course and scope of her role at that corporation.
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1 Defendant MARYANNE DOBEL also owns an undivided interest in the Lake Lot as
2 tenants in common with several of the other HOA members.
3 GENERAL ALLEGATIONS
4 8. Plaintiffs are ignorant of the true names and capacities of Defendants sued herein as DOES
5 1 through 50, inclusive, and therefore sues these Defendants by such fictitious names.
6 Plaintiffs will amend this Complaint to allege their true names and capacities when
7 ascertained. Plaintiffs are informed and believe and thereon allege that each of the
8 fictitiously named defendants is responsible in some manner for the occurrences herein
9 alleged, and Plaintiffs’ damages as herein alleged, as well as any punitive damages, and that
10 those damages which were proximately caused by and/or arise from the conduct of said
11 Defendants, and each of them.
12 9. At all times relevant to this action, the Defendants, and each of them, including those
13 fictitiously named, were the agent, servant, employee, officer, director, managing agent,
14 partner, joint venturer, or surety of the other Defendants, and were acting within the scope
15 of said agency, employment, partnership, venture, or suretyship, with the knowledge and
16 consent or ratification of each of the other Defendants in doing the things alleged herein,
17 and/or exercised substantial independent authority and judgment in his or her corporate
18 decision making such that his or her decisions ultimately determined corporate policy
19 and/or action.
20 10. Defendant GARY ERNST owns 3865 Jefferson Avenue, Emerald Hills, CA 94062. He has
21 rented the three units at that address, and the Zencirci family is one of his tenants. The other
22 units were occupied at the time of the incident by Jonathan Lee, and Bella Lena who is
23 Defendant GARY ERNST’s mother in law. Defendant GARY ERNST also owns an
24 undivided interest in the Lake Lot, which is contiguous to 3865 Jefferson Avenue.
25 11. Lynda Lake Gardens is a small, exclusive, housing development around a man-made lake,
26 referred to as Upper Emerald Lake. As part of the privileges granted to residents by the
27 HOA, the Upper Emerald Lake is held open to the residents of the community for
28 swimming. Plaintiffs are informed and believe, and thereon allege that non-residents are
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1 excluded from accessing the lake. The Upper Emerald Lake is maintained by Defendant
2 LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION and its directors and
3 board members DAVID ALVAREZ JR., GARY ERNST and MARYANNE DOBEL.
4 Pursuant to the Covenants, Conditions and Restrictions and Bylaws of the LYNDA LAKE
5 GARDENS HOMEOWNER’S ASSOCIATION, the HOA has a duty to “maintain, repair,
6 replace (when necessary), restore, operate and manage the Lake Lot and easements… in a
7 clean, sanitary and attractive condition.” The HOA board members, and each of them,
8 personally directed and/or participated in the maintenance decisions regarding the common
9 areas and Lake Lot, including the decision whether or not to remediate the Lake Lot or
10 prohibit swimming.
11 12. Plaintiffs are informed and believe and thereon allege that before August 8, 2020,
12 Defendant LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION did not have an
13 appropriate program to test the quality of the lake water; did not conduct testing of the
14 appropriate type and/or with the appropriate frequency to ensure the lake was safe and
15 sanitary. The HOA occasionally and irregularly tested the lake water in Upper Emerald
16 Lake for Cloriform and E. Coli, both of which are indicators of the overall quality of the
17 water, but did not test for other possible toxins likely to be present in free standing water. In
18 the summer months of 2020, before Plaintiff MILAN ZENCIRCI’S injury, the water was
19 tested, and that test showed that the water quality had sharply declined. Despite this
20 knowledge, the HOA, including but not limited to the Defendant board members, did not
21 increase testing, warn residents of the poor water quality, prohibit swimming, remediate the
22 Lake Lot, or take any other measures to make the Lake Lot safe for swimming.
23 13. Plaintiffs are informed and believe, and thereon allege, that on or before August 8, 2020,
24 the Defendant LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION, and its
25 board of directors GARY ERNST, MARYANNE DOBEL, and DAVID ALVAREZ JR.
26 issued passes to residents granting them permission and inviting them to use the Lake Lot.
27 14. Plaintiffs are informed and believe and thereon allege that before August 8, 2020,
28 Defendant LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION, and its board
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1 of directors GARY ERNST, MARYANNE DOBEL, and DAVID ALVAREZ JR. were
2 aware that there was algae and other organic material growing on the surface of the Upper
3 Emerald Lake. Instead of remediating this dangerous condition, that was not consistently
4 visible to the residents, said Defendants instead simply chose to have a maintenance person
5 skim the algae off of the surface of the lake, thereby further concealing the algae bloom that
6 said Defendants clearly knew or should have known of the algae bloom which was
7 occurring in the summer of 2020.
8 15. Plaintiffs are informed and believe, and thereon allege that Defendants, and each of them,
9 failed to implement and maintain the proper sanitation measures to ensure that the Upper
10 Emerald Lake was safe for swimming. Plaintiffs are also informed and believe, and thereon
11 allege that Defendant LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION did
12 not hire a professional management company to monitor, manage, and/or consult about the
13 Lake Lot and other common areas, as is common practice for homeowner’s associations in
14 the area.
15 16. Plaintiffs are informed and believe, and thereon allege that in or about July of 2019,
16 residents of the development notified Defendants, and each of them, repeatedly and in
17 writing about the unsanitary and dangerous condition of the Upper Emerald Lake and
18 requests were made for Defendants to remediate the water.
19 17. Plaintiffs are informed and believe, and thereon allege that Defendants, and each of them,
20 were aware of the poor water quality and made the choice to do nothing to remediate the
21 lake water or alternately did nothing to act on this information and further failed to either
22 prohibit swimming or warn residents of the water quality. As such, Plaintiffs are informed
23 and believe, and thereon allege that Defendants, and each of them, failed to perform their
24 duties with such care as an ordinarily prudent person in a like position would use under
25 similar circumstances, and acted with reckless indifference to the safety of the residents of
26 the Lynda Lake Gardens development. In addition, Defendant LYNDA LAKE GARDENS
27 HOMEOWNER’S ASSOCIATION, as well as its officers DAVID ALVAREZ JR., GARY
28 ERNST, MARYANNE DOBEL and DOES 1 to 50 failed to maintain the Upper Emerald
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1 Lake in compliance with the governing documents of the HOA, and breached their duty of
2 due diligence in failing to maintain the lake.
3 18. Plaintiffs are informed and believe, and thereon allege, that Defendant LYNDA LAKE
4 GARDENS HOMEOWNER’S ASSOCIATION does not carry the requisite insurance
5 mandated by the Davis-Stirling Act.
6 19. Plaintiffs are informed and believe, and thereon allege that: on or about August 7, 2020 an
7 email was sent to the Lynda Lake Gardens homeowners, including the board members,
8 regarding the water quality of the lake; that email raised concerns about the water quality,
9 and in it one of the members of the HOA stated that he would not allow his children to
10 swim in the lake due to the water quality issues; the e-mail was not sent to Plaintiff MILAN
11 ZENCIRCI or her family; and, Defendants GARY ERNST (Landlord), and DAVID
12 ALVAREZ JR. (CEO/President of the HOA) received the email, however they did not
13 warn Plaintiffs about the water quality concerns.
14 20. The next day, on August 8, 2020, Plaintiff MILAN ZENCIRCI went swimming in the
15 Upper Emerald Lake, which was permitted by the HOA rules.
16 21. After returning from her swim, Plaintiff MILAN ZENCIRCI began to experience burning
17 and tingling sensations in her legs, which she had shaved just before swimming that day.
18 The tingling turned into pain that became more severe over the following weeks.
19 22. Plaintiff MILAN ZENCIRCI saw a dermatologist because of the irritated skin on her legs.
20 The pain was constant and had become so severe that she struggled with any physical
21 touch, including sheets and clothing. At that time, she had also developed a number of
22 additional symptoms, including hyperreflexia and an elevated heart rate.
23 23. Plaintiff MILAN ZENCIRCI’S condition continued to deteriorate into the fall of 2020. She
24 started experiencing weakness and involuntary tremors in her legs in addition to the intense
25 pain she felt when her skin was touched.
26 24. In the coming months, Plaintiff MILAN ZENCIRCI’S condition worsened. She began to
27 have difficulties eating and drinking, and was consistently dehydrated. This led to a number
28 of dizzy spells and falls. Plaintiff MILAN ZENCIRCI also began losing significant
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1 amounts of weight. At her lightest, Plaintiff MILAN ZENCIRCI, who normally weighed
2 approximately 115 pounds, weighed only 74 pounds. By Thanksgiving of 2020, Plaintiff
3 MILAN ZENCIRCI’S condition had declined so much that she was forced to withdraw
4 from school.
5 25. In late 2020, Plaintiff MILAN ZENCIRCI’S condition deteriorated further. Shortly before
6 Christmas, she lost the ability to blink her eyes and experienced facial paralysis.
7 26. On or about January 3, 2021, Plaintiff MILAN ZENCIRCI began having difficulty holding
8 down food and liquids and began vomiting daily. She was hospitalized on January 11,
9 2021. Her medical team inserted a feeding tube, which took two unsuccessful tries to place.
10 To date she has not been able to eat or drink normally, and has extensively relied upon a
11 feeding tube.
12 27. Since her exposure to the Cyanotoxin, Plaintiff MILAN ZENCIRCI has spent most of her
13 time in hospitals, and has had multiple admissions to the intensive care unit. She continues
14 to be unable to eat and vomits daily. Additionally, she continues to suffer from weakness,
15 tingling, numbness, and lack of temperature sensation in her lower legs, as well as Bell’s
16 Palsy and hair loss. Plaintiff MILAN ZENCIRCI has also suffered from countless painful
17 and invasive medical procedures and tests to attempt to improve her condition. Despite
18 tireless efforts by her family and medical team, Plaintiff MILAN ZENCIRCI remains in
19 tremendous pain, and it is unclear if or when her condition will improve.
20 28. From the time of Plaintiff MILAN ZENCIRCI’S exposure through the present, her parents
21 EDMOND AND MELISSA ZENCIRCI, and her siblings have been watching her continue
22 to suffer and decline. This has caused the entire family to experience severe distress and has
23 resulted in Plaintiff MELISSA ZENCIRCI becoming a full-time caregiver to MILAN.
24 29. In the spring of 2021 Plaintiff MILAN ZENCIRCI was finally able to leave the hospital and
25 return home, although she continues to require around the clock care. Shortly after she
26 arrived home, a “No Swimming” sign was posted in the Zencirci’s yard only. This sign
27 does not provide a warning to residents other than the Zencircis. The attorney for Defendant
28 LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION was notified on or about
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1 May 27, 2021 of the prospective claim for intentional infliction of emotional distress due to
2 the posting of the sign. On or about June 2, 2021, one other sign was put up at the far end of
3 the lake and GARY ERNST contacted the Zencircis stating that: “You probably noticed the
4 new “No Swimming” signs around the Lake. The Lynda Lake HOA board has implemented
5 a no swimming policy until further notice. Your cooperation and compliance is
6 appreciated.”
7 30. The “No Swimming” sign was posted in the Plaintiffs’ yard just after Plaintiff MILAN
8 ZENCIRCI returned home from several difficult and emotionally exhausting months in the
9 hospital. The sign caused Plaintiff MILAN ZENCIRCI and her parents EDMOND and
10 MELISSA ZENCIRCI severe emotional distress. MILAN ZENCIRCI had spent the several
11 months prior fighting for her life. She had been in and out of the ICU due to the Cyanotoxin
12 poisoning she suffered in that same lake. Plaintiffs are informed and believe, and thereon
13 allege, that the sign was put up for the purpose of causing them severe emotional distress,
14 and/or that the Defendants, and each of them acted with reckless disregard of the
15 probability that Plaintiffs would suffer emotional distress, knowing that MILAN was
16 present when the sign was placed in the Zencirci’s yard.
17 31. Residents have been swimming in the lake since the “No Swimming” signs have been
18 posted. There is no “no swimming” sign at the main beach and it appears there is no
19 enforcement of the alleged rule, and/or that the residents are unaware of the new “No
20 Swimming” rule allegedly enacted by the HOA, and/or that the residents haven’t been
21 informed of any new regulations, and/or the warnings as posted are ineffective visual
22 deterrents to prevent residents from swimming.
23 FIRST CAUSE OF ACTION
24 (NEGLIGENCE)
25 MILAN ZENCIRCI by and through her Guardian Ad Litem EDMOND ZENCIRCI v.
26 LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION, DAVID ALVAREZ JR.,
27 GARY ERNST, MARYANNE DOBEL and DOES 1 to 50
28
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1 32. Plaintiff MILAN ZENCIRCI realleges and incorporates herein by reference each and every
2 allegation of the above paragraphs 1 through 31 inclusive, as though fully set forth herein.
3 33. At all times relevant to this action, Defendant LYNDA LAKE GARDENS
4 HOMEOWNER’S ASSOCIATION, as well as its officers DAVID ALVAREZ JR., GARY
5 ERNST, MARYANNE DOBEL and DOES 1 to 50 had a duty imposed by the HOA
6 Bylaws and Conditions, Covenants and Restrictions to “maintain, repair, replace (when
7 necessary), restore, operate and manage the Lake Lot and Easements… in a clean, sanitary
8 and attractive condition.” The HOA further had a common law duty to exercise due care for
9 residents’ safety in the common areas under their control, and a duty of due diligence to
10 investigate and maintain the common areas of the development in a safe manner.
11 34. At all times relevant to this action, Defendants DAVID ALVAREZ JR., GARY ERNST,
12 MARYANNE DOBEL and DOES 1 to 50 were members of the board of directors of the
13 LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION, and personally directed
14 and/or participated in the maintenance decisions concerning the common areas, including
15 the Lake Lot.
16 35. Defendant LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION, as well as its
17 officers DAVID ALVAREZ JR., GARY ERNST, MARYANNE DOBEL and DOES 1 to
18 50 breached this duty as previously alleged herein.
19 36. As a result of Defendants LYNDA LAKE GARDENS HOMEOWNER’S
20 ASSOCIATION, DAVID ALVAREZ JR., GARY ERNST, MARYANNE DOBEL and
21 DOES 1 to 50 negligence and/or gross negligence and/or recklessness involving want of
22 even scant care, and as a proximate result thereof, Plaintiff MILAN ZENCIRCI was
23 exposed to neurotoxins which have caused her significant physical and emotional damages.
24 37. As a further proximate result of the negligence of Defendants LYNDA LAKE GARDENS
25 HOMEOWNER’S ASSOCIATION, DAVID ALVAREZ JR., GARY ERNST,
26 MARYANNE DOBEL and DOES 1 to 50, Plaintiff MILAN ZENCIRCI was hurt and
27 injured in her health, strength, and activity, sustaining injury to her nervous system and
28 person, all of which have caused, and continue to cause, Plaintiff MILAN ZENCIRCI great
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1 mental, physical, and nervous pain and suffering. Plaintiff MILAN ZENCIRCI is informed
2 and believes and thereon alleges that such injuries may result in some permanent disability
3 to her. As a result of such injuries, Plaintiff MILAN ZENCIRCI has suffered general
4 damages in an amount according to proof.
5 38. As a further result of the negligence and/or gross negligence and/or recklessness involving
6 want of even scant care of Defendants LYNDA LAKE GARDENS HOMEOWNER’S
7 ASSOCIATION, DAVID ALVAREZ JR., GARY ERNST, MARYANNE DOBEL and
8 DOES 1 to 50, Plaintiff MILAN ZENCIRCI has suffered a great loss and depreciation in
9 her earnings and earning power, and will continue to suffer such loss and depreciation for
10 an indefinite time into the future, all to her great detriment and loss.
11 39. As a further result of the negligence and/or gross negligence and/or recklessness involving
12 want of even scant care of Defendants LYNDA LAKE GARDENS HOMEOWNER’S
13 ASSOCIATION, DAVID ALVAREZ JR., GARY ERNST, MARYANNE DOBEL and
14 DOES 1 to 50, Plaintiff MILAN ZENCIRCI has been forced, and will for an indefinite
15 amount of time continue to be obligated to spend significant amounts of money in an effort
16 to cure herself of the injuries she has suffered. She has employed physicians, surgeons and
17 other health care professionals for examination, treatment and care, and incurred, and will
18 continue to incur costs related to medical care, durable medical goods and supplies, and
19 other medical expenses, the exact amount of which is currently unknown to Plaintiff. It is
20 possible that Plaintiff MILAN ZENCIRCI may never fully recover from the poisoning.
21 40. In doing the acts described herein, including but not limited to acting with gross negligence
22 and want of ordinary care in the maintenance of the lake, Defendants LYNDA LAKE
23 GARDENS HOMEOWNER’S ASSOCIATION, DAVID ALVAREZ JR., GARY ERNST
24 and MARYANNE DOBEL and DOES 1 through 50 acted with malice and oppression by
25 engaging in despicable conduct that subjected Plaintiff to unjust hardship in conscious
26 disregard of Plaintiff’s rights, and/or conduct which was intended to cause injury to
27 Plaintiff. By engaging in such malicious and oppressive acts, Defendants LYNDA LAKE
28 GARDENS HOMEOWNER’S ASSOCIATION, DAVID ALVAREZ JR., GARY ERNST
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1 and MARYANNE DOBEL and DOES 1 through 50 are subject to Punitive damages to
2 punish and deter their conduct pursuant to California Civil Code section 3294.
3 SECOND CAUSE OF ACTION
4 (NEGLIGENCE)
5 MILAN ZENCIRCI by and through her Guardian Ad Litem EDMOND ZENCIRCI v.
6 GARY ERNST, individually and as trustee of the Gary W. Ernst Separate Property Trust
7 dated September 21, 2007 and DOES 1 to 50
8 41. Plaintiff MILAN ZENCIRCI realleges and incorporates herein by reference each and every
9 allegation of the above paragraphs 1 through 40 inclusive, as though fully set forth herein.
10 42. At all times relevant to this action, Defendant GARY ERNST in his capacity as Plaintiff
11 MILAN ZENCIRCI’S landlord had an affirmative duty to warn her of any dangerous
12 conditions and/or latent defects at the Property of which he had knowledge. He also had a
13 duty imposed by Civil Code Section 1941.1(a)(6) to keep all areas under his control “clean,
14 sanitary and free from all accumulations of … filth.”
15 43. Defendants GARY ERNST and DOES 1 to 50 breached that duty as previously alleged
16 herein.
17 44. Because of the negligence and/or gross negligence and/or recklessness involving want of
18 even scant care of Defendants GARY ERNST and DOES 1 to 50, and as a proximate result
19 thereof, Plaintiff MILAN ZENCIRCI was exposed to neurotoxins which have caused her
20 significant physical and emotional damages.
21 45. As a proximate result of the negligence of Defendants GARY ERNST and DOES 1 to 50,
22 Plaintiff MILAN ZENCIRCI was hurt and injured in her health, strength, and activity,
23 sustaining injury to her nervous system and person, all of which have caused, and continue
24 to cause, Plaintiff MILAN ZENCIRCI great mental, physical, and nervous pain and
25 suffering. Plaintiff MILAN ZENCIRCI is informed and believes and thereon alleges that
26 such injuries may result in some permanent disability to her. As a result of such injuries,
27 Plaintiff MILAN ZENCIRCI has suffered general damages in an amount according to
28 proof.
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1 46. As a further result of the negligence and/or gross negligence and/or recklessness involving
2 want of even scant care of Defendants GARY ERNST and DOES 1 to 50, Plaintiff MILAN
3 ZENCIRCI has suffered a great loss and depreciation in her earnings and earning power,
4 and will continue to suffer such loss and depreciation for an indefinite time into the future,
5 all to her great detriment and loss.
6 47. As a further result of the negligence and/or gross negligence and/or recklessness involving
7 want of even scant care of Defendants GARY ERNST and DOES 1 to 50, Plaintiff MILAN
8 ZENCIRCI has been forced, and will for an indefinite amount of time continue to be
9 obligated to spend significant amounts of money in an effort to cure herself of the injuries
10 she has suffered. She has employed physicians, surgeons and other health care professionals
11 for examination, treatment and care, and incurred, and will continue to incur costs related to
12 medical care, durable medical goods and supplies, and other medical expenses, the exact
13 amount of which is currently unknown to Plaintiff. It is possible that Plaintiff MILAN
14 ZENCIRCI may never fully recover from the poisoning.
15 48. In doing the acts described herein, Defendants GARY ERNST and DOES 1 through 50
16 acted with malice and oppression by engaging in despicable conduct that subjected Plaintiff
17 to unjust hardship in conscious disregard of Plaintiff’s rights, and/or conduct which was
18 intended to cause injury to Plaintiff. By engaging in such malicious and oppressive acts,
19 Defendants GARY ERNST and DOES 1 through 50 are subject to Punitive damages to
20 punish and deter their conduct pursuant to California Civil Code section 3294.
21 THIRD CAUSE OF ACTION
22 (PREMISES LIABILITY)
23 MILAN ZENCIRCI by and through her Guardian Ad Litem EDMOND ZENCIRCI
24 v. LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION, DAVID
25 ALVAREZ JR., GARY ERNST, MARYANNE DOBEL and DOES 1 to 50
26 49. Plaintiff realleges and incorporates by reference each and every allegation of the above
27 paragraphs 1 through 48 inclusive, as though fully set forth herein.
28
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1 50. At all times herein mentioned, Defendants LYNDA LAKE GARDENS HOMEOWNER’S
2 ASSOCIATION, by and through its board members DAVID ALVAREZ JR., GARY
3 ERNST and MARYANNE DOBEL and DOES 1 to 50 negligently controlled, maintained,
4 owned, operated and managed the common areas of the Lynda Lake Gardens development,
5 including the Lake Lot.
6 51. Defendants had a duty imposed by California law and the Conditions, Covenants and
7 Restrictions of the Homeowner’s Association to maintain the Lake Lot in a sanitary, safe
8 and attractive manner. Defendants DAVID ALVAREZ JR., GARY ERNST and
9 MARYANNE DOBEL were members of the board of directors of the LYNDA LAKE
10 GARDENS HOMEOWNER’S ASSOCIATION, and personally directed or participated in
11 the maintenance and health and safety decisions concerning the common areas and Lake
12 Lot.
13 52. Defendants LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION, DAVID
14 ALVAREZ JR., GARY ERNST, MARYANNE DOBEL and DOES 1 to 50 knew, or in the
15 exercise of reasonable care should have known that the lake water was dangerous to swim
16 in and created an unreasonable risk of harm to Plaintiff MILAN ZENCIRCI. Defendants,
17 and each of them, negligently failed to take steps to either make the condition safe or warn
18 Plaintiff MILAN ZENCIRCI of the dangerous condition, all of which resulted in injuries to
19 her when she swam in the contaminated lake.
20 53. As a proximate result of Defendants’ negligence, and/or gross negligence, as herein alleged,
21 Plaintiff was hurt and injured in her health, strength, and activity, sustaining injury to her
22 nervous system and person, all of which have caused, and continue to cause, Plaintiff
23 MILAN ZENCIRCI great mental, physical, and nervous pain and suffering. Plaintiff
24 MILAN ZENCIRCI is informed and believes and thereon alleges that such injuries may
25 result in some permanent disability to her.
26 54. As a further proximate result of the negligence and/or gross negligence and/or recklessness
27 involving want of even scant care of Defendants LYNDA LAKE GARDENS
28 HOMEOWNER’S ASSOCIATION, DAVID ALVAREZ JR., GARY ERNST,
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1 MARYANNE DOBEL and DOES 1 to 50, Plaintiff MILAN ZENCIRCI has suffered a
2 great loss and depreciation in her earnings and earning power, and will continue to suffer
3 such loss and depreciation for an indefinite time into the future, all to her great detriment
4 and loss.
5 55. As a further result of the negligence and/or gross negligence and/or recklessness involving
6 want of even scant care of Defendants LYNDA LAKE GARDENS HOMEOWNER’S
7 ASSOCIATION, DAVID ALVAREZ JR., GARY ERNST, MARYANNE DOBEL and
8 DOES 1 to 50, Plaintiff MILAN ZENCIRCI has been forced, and will for an indefinite
9 amount of time continue to be obligated to spend significant amounts of money in an effort
10 to cure herself of the injuries she has suffered. She has employed physicians, surgeons and
11 other health care professionals for examination, treatment and care, and incurred, and will
12 continue to incur costs related to medical care, durable medical goods and supplies, and
13 other medical expenses, the exact amount of which is currently unknown to Plaintiff. It is
14 possible that Plaintiff MILAN ZENCIRCI may never fully recover from the poisoning.
15
16 FOURTH CAUSE OF ACTION
17 (INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)
18 MILAN ZENCIRCI, by and through her Guardian Ad Litem EDMOND ZENCIRCI,
19 EDMOND ZENCIRCI and MELISSA ZENCIRCI v. LYNDA LAKE GARDENS
20 HOMEOWNER’S ASSOCIATION, DAVID ALVAREZ JR., GARY ERNST,
21 MARYANNE DOBEL and DOES 1 to 50
22 56. Plaintiffs reallege and incorporate by reference each and every allegation of the above
23 paragraphs 1 through 55 inclusive, as though fully set forth herein.
24 57. Defendants’ conduct including, but not limited to placing the “No Swimming” sign in the
25 Zencirci’s yard as hereinbefore alleged was extreme and outrageous, especially given the
26 suffering Defendants, and each of them, knew Plaintiffs have endured as a result of the
27 injuries sustained by MILAN ZENCIRCI as herein before alleged.
28
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1 58. The conduct of Defendants LYNDA LAKE GARDENS HOMEOWNER’S
2 ASSOCIATION, DAVID ALVAREZ JR., GARY ERNST, MARYANNE DOBEL and
3 DOES 1 to 50 was intentional and malicious and/or done with reckless disreg
Preview
1 Paul D. Van Der Walde, Esq. SBN 169332 Paul F. Caputo, Esq. SBN 144592 2 Kathryn H. Montaperto, Esq. SBN 325878 CAPUTO & VAN DER WALDE LLP 3 51 E. Campbell Avenue, Suite 120 Campbell, CA 95008 4 (408) 733-0100 (408) 733-0123 fax 5 Attorneys for Plaintiffs 6 Milan Zencirci, by and through her GAL, Edmond Zencirci; Edmond Zencirci; and Melissa Zencirci 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SAN MATEO 10 MILAN ZENCIRCI, by and through her Case No.: 21-CIV-04233 11 Guardian Ad Litem, EDMOND ZENCIRCI; EDMOND ZENCIRCI, an individual; and FIRST AMENDED COMPLAINT FOR 12 MELISSA ZENCIRCI, an individual, DAMAGES: Negligence, Premises Liability, Intentional 13 Plaintiffs, Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, Breach of 14 vs. Warranty of Habitability 15 LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION, a California Nonprofit [UNLIMITED CIVIL CASE] 16 Corporation; DAVID ALVAREZ JR., an individual; GARY ERNST, an individual and as 17 trustee of the Gary W. Ernst Separate Property Trust dated September 21, 2007; MARYANNE 18 DOBEL, an individual; and DOES 1 to 50, 19 Defendants. 20 21 22 Come now Plaintiffs, MILAN ZENCIRCI, by and through her Guardian Ad Litem, 23 EDMOND ZENCIRCI, EDMOND ZENCIRCI, and MELISSA ZENCIRCI and complain of 24 Defendants, and each of them, as follows: 25 JURISDICTIONAL ALLEGATIONS 26 1. Plaintiff MILAN ZENCIRCI is a minor. She is the daughter of MELISSA ZENCIRCI and 27 EDMOND ZENCIRCI, and at all times mentioned herein was a resident of San Mateo 28 County. ___________________________________ CAPUTO & VAN DER WALDE LLP 51 E. CAMPBELL AVENUE, SUITE 120 FIRST AMENDED COMPLAINT FOR DAMAGES PAGE 1 CAMPBELL, CA 95008 (408) 733-0100 1 2. EDMOND ZENCIRCI is, and at all times herein mentioned herein was, Plaintiff MILAN 2 ZENCIRCI’S biological father, and a resident of San Mateo County. MR. ZENCIRCI is 3 concurrently applying to this court to be appointed as guardian ad litem of Plaintiff MILAN 4 ZENCIRCI. 5 3. MELISSA ZENCIRCI is, and at all times mentioned herein was, Plaintiff MILAN 6 ZENCIRCI’S biological mother, and a resident of San Mateo County. 7 4. Defendant LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION (the “HOA”) 8 is, and at all times relevant to this action was, a California domestic nonprofit corporation 9 with its primary place of business located at 948 Center Street, San Carlos, California, 10 94070 in the County of San Mateo. 11 5. Defendant DAVID ALVAREZ JR., a resident of San Mateo County, was at all times 12 relevant to this action serving as the Chief Executive Officer and board member of the 13 LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION, and at all times relevant 14 hereto was acting within the course and scope of his is role at that corporation. Defendant 15 ALVAREZ also owns an undivided interest in the parcel containing the Upper Emerald 16 Lake (hereinafter the “Lake Lot” or “Upper Emerald Lake”) as tenants in common with 17 several of the other HOA members. 18 6. Defendant GARY ERNST is a resident of San Mateo County, and was at all times relevant 19 to this action serving as the Secretary and board member of the LYNDA LAKE GARDENS 20 HOMEOWNER’S ASSOCIATION, and at all times relevant hereto was acting within the 21 course and scope of his role at that corporation. He also owns an undivided interest in the 22 Lake Lot as tenants in common with several of the other HOA members. Defendant GARY 23 ERNST is also the Plaintiffs’ landlord, and the trustee of the Gary W. Ernst Separate 24 Property Trust dated September 21, 2007. 25 7. Defendant MARYANNE DOBEL is a resident of San Mateo County, and was at all times 26 relevant to this action serving as the Chief Financial Officer, Registered Agent, and board 27 member of the LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION, and at all 28 times relevant hereto was acting within the course and scope of her role at that corporation. ___________________________________ CAPUTO & VAN DER WALDE LLP 51 E. CAMPBELL AVENUE, SUITE 120 FIRST AMENDED COMPLAINT FOR DAMAGES PAGE 2 CAMPBELL, CA 95008 (408) 733-0100 1 Defendant MARYANNE DOBEL also owns an undivided interest in the Lake Lot as 2 tenants in common with several of the other HOA members. 3 GENERAL ALLEGATIONS 4 8. Plaintiffs are ignorant of the true names and capacities of Defendants sued herein as DOES 5 1 through 50, inclusive, and therefore sues these Defendants by such fictitious names. 6 Plaintiffs will amend this Complaint to allege their true names and capacities when 7 ascertained. Plaintiffs are informed and believe and thereon allege that each of the 8 fictitiously named defendants is responsible in some manner for the occurrences herein 9 alleged, and Plaintiffs’ damages as herein alleged, as well as any punitive damages, and that 10 those damages which were proximately caused by and/or arise from the conduct of said 11 Defendants, and each of them. 12 9. At all times relevant to this action, the Defendants, and each of them, including those 13 fictitiously named, were the agent, servant, employee, officer, director, managing agent, 14 partner, joint venturer, or surety of the other Defendants, and were acting within the scope 15 of said agency, employment, partnership, venture, or suretyship, with the knowledge and 16 consent or ratification of each of the other Defendants in doing the things alleged herein, 17 and/or exercised substantial independent authority and judgment in his or her corporate 18 decision making such that his or her decisions ultimately determined corporate policy 19 and/or action. 20 10. Defendant GARY ERNST owns 3865 Jefferson Avenue, Emerald Hills, CA 94062. He has 21 rented the three units at that address, and the Zencirci family is one of his tenants. The other 22 units were occupied at the time of the incident by Jonathan Lee, and Bella Lena who is 23 Defendant GARY ERNST’s mother in law. Defendant GARY ERNST also owns an 24 undivided interest in the Lake Lot, which is contiguous to 3865 Jefferson Avenue. 25 11. Lynda Lake Gardens is a small, exclusive, housing development around a man-made lake, 26 referred to as Upper Emerald Lake. As part of the privileges granted to residents by the 27 HOA, the Upper Emerald Lake is held open to the residents of the community for 28 swimming. Plaintiffs are informed and believe, and thereon allege that non-residents are ___________________________________ CAPUTO & VAN DER WALDE LLP 51 E. CAMPBELL AVENUE, SUITE 120 FIRST AMENDED COMPLAINT FOR DAMAGES PAGE 3 CAMPBELL, CA 95008 (408) 733-0100 1 excluded from accessing the lake. The Upper Emerald Lake is maintained by Defendant 2 LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION and its directors and 3 board members DAVID ALVAREZ JR., GARY ERNST and MARYANNE DOBEL. 4 Pursuant to the Covenants, Conditions and Restrictions and Bylaws of the LYNDA LAKE 5 GARDENS HOMEOWNER’S ASSOCIATION, the HOA has a duty to “maintain, repair, 6 replace (when necessary), restore, operate and manage the Lake Lot and easements… in a 7 clean, sanitary and attractive condition.” The HOA board members, and each of them, 8 personally directed and/or participated in the maintenance decisions regarding the common 9 areas and Lake Lot, including the decision whether or not to remediate the Lake Lot or 10 prohibit swimming. 11 12. Plaintiffs are informed and believe and thereon allege that before August 8, 2020, 12 Defendant LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION did not have an 13 appropriate program to test the quality of the lake water; did not conduct testing of the 14 appropriate type and/or with the appropriate frequency to ensure the lake was safe and 15 sanitary. The HOA occasionally and irregularly tested the lake water in Upper Emerald 16 Lake for Cloriform and E. Coli, both of which are indicators of the overall quality of the 17 water, but did not test for other possible toxins likely to be present in free standing water. In 18 the summer months of 2020, before Plaintiff MILAN ZENCIRCI’S injury, the water was 19 tested, and that test showed that the water quality had sharply declined. Despite this 20 knowledge, the HOA, including but not limited to the Defendant board members, did not 21 increase testing, warn residents of the poor water quality, prohibit swimming, remediate the 22 Lake Lot, or take any other measures to make the Lake Lot safe for swimming. 23 13. Plaintiffs are informed and believe, and thereon allege, that on or before August 8, 2020, 24 the Defendant LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION, and its 25 board of directors GARY ERNST, MARYANNE DOBEL, and DAVID ALVAREZ JR. 26 issued passes to residents granting them permission and inviting them to use the Lake Lot. 27 14. Plaintiffs are informed and believe and thereon allege that before August 8, 2020, 28 Defendant LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION, and its board ___________________________________ CAPUTO & VAN DER WALDE LLP 51 E. CAMPBELL AVENUE, SUITE 120 FIRST AMENDED COMPLAINT FOR DAMAGES PAGE 4 CAMPBELL, CA 95008 (408) 733-0100 1 of directors GARY ERNST, MARYANNE DOBEL, and DAVID ALVAREZ JR. were 2 aware that there was algae and other organic material growing on the surface of the Upper 3 Emerald Lake. Instead of remediating this dangerous condition, that was not consistently 4 visible to the residents, said Defendants instead simply chose to have a maintenance person 5 skim the algae off of the surface of the lake, thereby further concealing the algae bloom that 6 said Defendants clearly knew or should have known of the algae bloom which was 7 occurring in the summer of 2020. 8 15. Plaintiffs are informed and believe, and thereon allege that Defendants, and each of them, 9 failed to implement and maintain the proper sanitation measures to ensure that the Upper 10 Emerald Lake was safe for swimming. Plaintiffs are also informed and believe, and thereon 11 allege that Defendant LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION did 12 not hire a professional management company to monitor, manage, and/or consult about the 13 Lake Lot and other common areas, as is common practice for homeowner’s associations in 14 the area. 15 16. Plaintiffs are informed and believe, and thereon allege that in or about July of 2019, 16 residents of the development notified Defendants, and each of them, repeatedly and in 17 writing about the unsanitary and dangerous condition of the Upper Emerald Lake and 18 requests were made for Defendants to remediate the water. 19 17. Plaintiffs are informed and believe, and thereon allege that Defendants, and each of them, 20 were aware of the poor water quality and made the choice to do nothing to remediate the 21 lake water or alternately did nothing to act on this information and further failed to either 22 prohibit swimming or warn residents of the water quality. As such, Plaintiffs are informed 23 and believe, and thereon allege that Defendants, and each of them, failed to perform their 24 duties with such care as an ordinarily prudent person in a like position would use under 25 similar circumstances, and acted with reckless indifference to the safety of the residents of 26 the Lynda Lake Gardens development. In addition, Defendant LYNDA LAKE GARDENS 27 HOMEOWNER’S ASSOCIATION, as well as its officers DAVID ALVAREZ JR., GARY 28 ERNST, MARYANNE DOBEL and DOES 1 to 50 failed to maintain the Upper Emerald ___________________________________ CAPUTO & VAN DER WALDE LLP 51 E. CAMPBELL AVENUE, SUITE 120 FIRST AMENDED COMPLAINT FOR DAMAGES PAGE 5 CAMPBELL, CA 95008 (408) 733-0100 1 Lake in compliance with the governing documents of the HOA, and breached their duty of 2 due diligence in failing to maintain the lake. 3 18. Plaintiffs are informed and believe, and thereon allege, that Defendant LYNDA LAKE 4 GARDENS HOMEOWNER’S ASSOCIATION does not carry the requisite insurance 5 mandated by the Davis-Stirling Act. 6 19. Plaintiffs are informed and believe, and thereon allege that: on or about August 7, 2020 an 7 email was sent to the Lynda Lake Gardens homeowners, including the board members, 8 regarding the water quality of the lake; that email raised concerns about the water quality, 9 and in it one of the members of the HOA stated that he would not allow his children to 10 swim in the lake due to the water quality issues; the e-mail was not sent to Plaintiff MILAN 11 ZENCIRCI or her family; and, Defendants GARY ERNST (Landlord), and DAVID 12 ALVAREZ JR. (CEO/President of the HOA) received the email, however they did not 13 warn Plaintiffs about the water quality concerns. 14 20. The next day, on August 8, 2020, Plaintiff MILAN ZENCIRCI went swimming in the 15 Upper Emerald Lake, which was permitted by the HOA rules. 16 21. After returning from her swim, Plaintiff MILAN ZENCIRCI began to experience burning 17 and tingling sensations in her legs, which she had shaved just before swimming that day. 18 The tingling turned into pain that became more severe over the following weeks. 19 22. Plaintiff MILAN ZENCIRCI saw a dermatologist because of the irritated skin on her legs. 20 The pain was constant and had become so severe that she struggled with any physical 21 touch, including sheets and clothing. At that time, she had also developed a number of 22 additional symptoms, including hyperreflexia and an elevated heart rate. 23 23. Plaintiff MILAN ZENCIRCI’S condition continued to deteriorate into the fall of 2020. She 24 started experiencing weakness and involuntary tremors in her legs in addition to the intense 25 pain she felt when her skin was touched. 26 24. In the coming months, Plaintiff MILAN ZENCIRCI’S condition worsened. She began to 27 have difficulties eating and drinking, and was consistently dehydrated. This led to a number 28 of dizzy spells and falls. Plaintiff MILAN ZENCIRCI also began losing significant ___________________________________ CAPUTO & VAN DER WALDE LLP 51 E. CAMPBELL AVENUE, SUITE 120 FIRST AMENDED COMPLAINT FOR DAMAGES PAGE 6 CAMPBELL, CA 95008 (408) 733-0100 1 amounts of weight. At her lightest, Plaintiff MILAN ZENCIRCI, who normally weighed 2 approximately 115 pounds, weighed only 74 pounds. By Thanksgiving of 2020, Plaintiff 3 MILAN ZENCIRCI’S condition had declined so much that she was forced to withdraw 4 from school. 5 25. In late 2020, Plaintiff MILAN ZENCIRCI’S condition deteriorated further. Shortly before 6 Christmas, she lost the ability to blink her eyes and experienced facial paralysis. 7 26. On or about January 3, 2021, Plaintiff MILAN ZENCIRCI began having difficulty holding 8 down food and liquids and began vomiting daily. She was hospitalized on January 11, 9 2021. Her medical team inserted a feeding tube, which took two unsuccessful tries to place. 10 To date she has not been able to eat or drink normally, and has extensively relied upon a 11 feeding tube. 12 27. Since her exposure to the Cyanotoxin, Plaintiff MILAN ZENCIRCI has spent most of her 13 time in hospitals, and has had multiple admissions to the intensive care unit. She continues 14 to be unable to eat and vomits daily. Additionally, she continues to suffer from weakness, 15 tingling, numbness, and lack of temperature sensation in her lower legs, as well as Bell’s 16 Palsy and hair loss. Plaintiff MILAN ZENCIRCI has also suffered from countless painful 17 and invasive medical procedures and tests to attempt to improve her condition. Despite 18 tireless efforts by her family and medical team, Plaintiff MILAN ZENCIRCI remains in 19 tremendous pain, and it is unclear if or when her condition will improve. 20 28. From the time of Plaintiff MILAN ZENCIRCI’S exposure through the present, her parents 21 EDMOND AND MELISSA ZENCIRCI, and her siblings have been watching her continue 22 to suffer and decline. This has caused the entire family to experience severe distress and has 23 resulted in Plaintiff MELISSA ZENCIRCI becoming a full-time caregiver to MILAN. 24 29. In the spring of 2021 Plaintiff MILAN ZENCIRCI was finally able to leave the hospital and 25 return home, although she continues to require around the clock care. Shortly after she 26 arrived home, a “No Swimming” sign was posted in the Zencirci’s yard only. This sign 27 does not provide a warning to residents other than the Zencircis. The attorney for Defendant 28 LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION was notified on or about ___________________________________ CAPUTO & VAN DER WALDE LLP 51 E. CAMPBELL AVENUE, SUITE 120 FIRST AMENDED COMPLAINT FOR DAMAGES PAGE 7 CAMPBELL, CA 95008 (408) 733-0100 1 May 27, 2021 of the prospective claim for intentional infliction of emotional distress due to 2 the posting of the sign. On or about June 2, 2021, one other sign was put up at the far end of 3 the lake and GARY ERNST contacted the Zencircis stating that: “You probably noticed the 4 new “No Swimming” signs around the Lake. The Lynda Lake HOA board has implemented 5 a no swimming policy until further notice. Your cooperation and compliance is 6 appreciated.” 7 30. The “No Swimming” sign was posted in the Plaintiffs’ yard just after Plaintiff MILAN 8 ZENCIRCI returned home from several difficult and emotionally exhausting months in the 9 hospital. The sign caused Plaintiff MILAN ZENCIRCI and her parents EDMOND and 10 MELISSA ZENCIRCI severe emotional distress. MILAN ZENCIRCI had spent the several 11 months prior fighting for her life. She had been in and out of the ICU due to the Cyanotoxin 12 poisoning she suffered in that same lake. Plaintiffs are informed and believe, and thereon 13 allege, that the sign was put up for the purpose of causing them severe emotional distress, 14 and/or that the Defendants, and each of them acted with reckless disregard of the 15 probability that Plaintiffs would suffer emotional distress, knowing that MILAN was 16 present when the sign was placed in the Zencirci’s yard. 17 31. Residents have been swimming in the lake since the “No Swimming” signs have been 18 posted. There is no “no swimming” sign at the main beach and it appears there is no 19 enforcement of the alleged rule, and/or that the residents are unaware of the new “No 20 Swimming” rule allegedly enacted by the HOA, and/or that the residents haven’t been 21 informed of any new regulations, and/or the warnings as posted are ineffective visual 22 deterrents to prevent residents from swimming. 23 FIRST CAUSE OF ACTION 24 (NEGLIGENCE) 25 MILAN ZENCIRCI by and through her Guardian Ad Litem EDMOND ZENCIRCI v. 26 LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION, DAVID ALVAREZ JR., 27 GARY ERNST, MARYANNE DOBEL and DOES 1 to 50 28 ___________________________________ CAPUTO & VAN DER WALDE LLP 51 E. CAMPBELL AVENUE, SUITE 120 FIRST AMENDED COMPLAINT FOR DAMAGES PAGE 8 CAMPBELL, CA 95008 (408) 733-0100 1 32. Plaintiff MILAN ZENCIRCI realleges and incorporates herein by reference each and every 2 allegation of the above paragraphs 1 through 31 inclusive, as though fully set forth herein. 3 33. At all times relevant to this action, Defendant LYNDA LAKE GARDENS 4 HOMEOWNER’S ASSOCIATION, as well as its officers DAVID ALVAREZ JR., GARY 5 ERNST, MARYANNE DOBEL and DOES 1 to 50 had a duty imposed by the HOA 6 Bylaws and Conditions, Covenants and Restrictions to “maintain, repair, replace (when 7 necessary), restore, operate and manage the Lake Lot and Easements… in a clean, sanitary 8 and attractive condition.” The HOA further had a common law duty to exercise due care for 9 residents’ safety in the common areas under their control, and a duty of due diligence to 10 investigate and maintain the common areas of the development in a safe manner. 11 34. At all times relevant to this action, Defendants DAVID ALVAREZ JR., GARY ERNST, 12 MARYANNE DOBEL and DOES 1 to 50 were members of the board of directors of the 13 LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION, and personally directed 14 and/or participated in the maintenance decisions concerning the common areas, including 15 the Lake Lot. 16 35. Defendant LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION, as well as its 17 officers DAVID ALVAREZ JR., GARY ERNST, MARYANNE DOBEL and DOES 1 to 18 50 breached this duty as previously alleged herein. 19 36. As a result of Defendants LYNDA LAKE GARDENS HOMEOWNER’S 20 ASSOCIATION, DAVID ALVAREZ JR., GARY ERNST, MARYANNE DOBEL and 21 DOES 1 to 50 negligence and/or gross negligence and/or recklessness involving want of 22 even scant care, and as a proximate result thereof, Plaintiff MILAN ZENCIRCI was 23 exposed to neurotoxins which have caused her significant physical and emotional damages. 24 37. As a further proximate result of the negligence of Defendants LYNDA LAKE GARDENS 25 HOMEOWNER’S ASSOCIATION, DAVID ALVAREZ JR., GARY ERNST, 26 MARYANNE DOBEL and DOES 1 to 50, Plaintiff MILAN ZENCIRCI was hurt and 27 injured in her health, strength, and activity, sustaining injury to her nervous system and 28 person, all of which have caused, and continue to cause, Plaintiff MILAN ZENCIRCI great ___________________________________ CAPUTO & VAN DER WALDE LLP 51 E. CAMPBELL AVENUE, SUITE 120 FIRST AMENDED COMPLAINT FOR DAMAGES PAGE 9 CAMPBELL, CA 95008 (408) 733-0100 1 mental, physical, and nervous pain and suffering. Plaintiff MILAN ZENCIRCI is informed 2 and believes and thereon alleges that such injuries may result in some permanent disability 3 to her. As a result of such injuries, Plaintiff MILAN ZENCIRCI has suffered general 4 damages in an amount according to proof. 5 38. As a further result of the negligence and/or gross negligence and/or recklessness involving 6 want of even scant care of Defendants LYNDA LAKE GARDENS HOMEOWNER’S 7 ASSOCIATION, DAVID ALVAREZ JR., GARY ERNST, MARYANNE DOBEL and 8 DOES 1 to 50, Plaintiff MILAN ZENCIRCI has suffered a great loss and depreciation in 9 her earnings and earning power, and will continue to suffer such loss and depreciation for 10 an indefinite time into the future, all to her great detriment and loss. 11 39. As a further result of the negligence and/or gross negligence and/or recklessness involving 12 want of even scant care of Defendants LYNDA LAKE GARDENS HOMEOWNER’S 13 ASSOCIATION, DAVID ALVAREZ JR., GARY ERNST, MARYANNE DOBEL and 14 DOES 1 to 50, Plaintiff MILAN ZENCIRCI has been forced, and will for an indefinite 15 amount of time continue to be obligated to spend significant amounts of money in an effort 16 to cure herself of the injuries she has suffered. She has employed physicians, surgeons and 17 other health care professionals for examination, treatment and care, and incurred, and will 18 continue to incur costs related to medical care, durable medical goods and supplies, and 19 other medical expenses, the exact amount of which is currently unknown to Plaintiff. It is 20 possible that Plaintiff MILAN ZENCIRCI may never fully recover from the poisoning. 21 40. In doing the acts described herein, including but not limited to acting with gross negligence 22 and want of ordinary care in the maintenance of the lake, Defendants LYNDA LAKE 23 GARDENS HOMEOWNER’S ASSOCIATION, DAVID ALVAREZ JR., GARY ERNST 24 and MARYANNE DOBEL and DOES 1 through 50 acted with malice and oppression by 25 engaging in despicable conduct that subjected Plaintiff to unjust hardship in conscious 26 disregard of Plaintiff’s rights, and/or conduct which was intended to cause injury to 27 Plaintiff. By engaging in such malicious and oppressive acts, Defendants LYNDA LAKE 28 GARDENS HOMEOWNER’S ASSOCIATION, DAVID ALVAREZ JR., GARY ERNST ___________________________________ CAPUTO & VAN DER WALDE LLP 51 E. CAMPBELL AVENUE, SUITE 120 FIRST AMENDED COMPLAINT FOR DAMAGES PAGE 10 CAMPBELL, CA 95008 (408) 733-0100 1 and MARYANNE DOBEL and DOES 1 through 50 are subject to Punitive damages to 2 punish and deter their conduct pursuant to California Civil Code section 3294. 3 SECOND CAUSE OF ACTION 4 (NEGLIGENCE) 5 MILAN ZENCIRCI by and through her Guardian Ad Litem EDMOND ZENCIRCI v. 6 GARY ERNST, individually and as trustee of the Gary W. Ernst Separate Property Trust 7 dated September 21, 2007 and DOES 1 to 50 8 41. Plaintiff MILAN ZENCIRCI realleges and incorporates herein by reference each and every 9 allegation of the above paragraphs 1 through 40 inclusive, as though fully set forth herein. 10 42. At all times relevant to this action, Defendant GARY ERNST in his capacity as Plaintiff 11 MILAN ZENCIRCI’S landlord had an affirmative duty to warn her of any dangerous 12 conditions and/or latent defects at the Property of which he had knowledge. He also had a 13 duty imposed by Civil Code Section 1941.1(a)(6) to keep all areas under his control “clean, 14 sanitary and free from all accumulations of … filth.” 15 43. Defendants GARY ERNST and DOES 1 to 50 breached that duty as previously alleged 16 herein. 17 44. Because of the negligence and/or gross negligence and/or recklessness involving want of 18 even scant care of Defendants GARY ERNST and DOES 1 to 50, and as a proximate result 19 thereof, Plaintiff MILAN ZENCIRCI was exposed to neurotoxins which have caused her 20 significant physical and emotional damages. 21 45. As a proximate result of the negligence of Defendants GARY ERNST and DOES 1 to 50, 22 Plaintiff MILAN ZENCIRCI was hurt and injured in her health, strength, and activity, 23 sustaining injury to her nervous system and person, all of which have caused, and continue 24 to cause, Plaintiff MILAN ZENCIRCI great mental, physical, and nervous pain and 25 suffering. Plaintiff MILAN ZENCIRCI is informed and believes and thereon alleges that 26 such injuries may result in some permanent disability to her. As a result of such injuries, 27 Plaintiff MILAN ZENCIRCI has suffered general damages in an amount according to 28 proof. ___________________________________ CAPUTO & VAN DER WALDE LLP 51 E. CAMPBELL AVENUE, SUITE 120 FIRST AMENDED COMPLAINT FOR DAMAGES PAGE 11 CAMPBELL, CA 95008 (408) 733-0100 1 46. As a further result of the negligence and/or gross negligence and/or recklessness involving 2 want of even scant care of Defendants GARY ERNST and DOES 1 to 50, Plaintiff MILAN 3 ZENCIRCI has suffered a great loss and depreciation in her earnings and earning power, 4 and will continue to suffer such loss and depreciation for an indefinite time into the future, 5 all to her great detriment and loss. 6 47. As a further result of the negligence and/or gross negligence and/or recklessness involving 7 want of even scant care of Defendants GARY ERNST and DOES 1 to 50, Plaintiff MILAN 8 ZENCIRCI has been forced, and will for an indefinite amount of time continue to be 9 obligated to spend significant amounts of money in an effort to cure herself of the injuries 10 she has suffered. She has employed physicians, surgeons and other health care professionals 11 for examination, treatment and care, and incurred, and will continue to incur costs related to 12 medical care, durable medical goods and supplies, and other medical expenses, the exact 13 amount of which is currently unknown to Plaintiff. It is possible that Plaintiff MILAN 14 ZENCIRCI may never fully recover from the poisoning. 15 48. In doing the acts described herein, Defendants GARY ERNST and DOES 1 through 50 16 acted with malice and oppression by engaging in despicable conduct that subjected Plaintiff 17 to unjust hardship in conscious disregard of Plaintiff’s rights, and/or conduct which was 18 intended to cause injury to Plaintiff. By engaging in such malicious and oppressive acts, 19 Defendants GARY ERNST and DOES 1 through 50 are subject to Punitive damages to 20 punish and deter their conduct pursuant to California Civil Code section 3294. 21 THIRD CAUSE OF ACTION 22 (PREMISES LIABILITY) 23 MILAN ZENCIRCI by and through her Guardian Ad Litem EDMOND ZENCIRCI 24 v. LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION, DAVID 25 ALVAREZ JR., GARY ERNST, MARYANNE DOBEL and DOES 1 to 50 26 49. Plaintiff realleges and incorporates by reference each and every allegation of the above 27 paragraphs 1 through 48 inclusive, as though fully set forth herein. 28 ___________________________________ CAPUTO & VAN DER WALDE LLP 51 E. CAMPBELL AVENUE, SUITE 120 FIRST AMENDED COMPLAINT FOR DAMAGES PAGE 12 CAMPBELL, CA 95008 (408) 733-0100 1 50. At all times herein mentioned, Defendants LYNDA LAKE GARDENS HOMEOWNER’S 2 ASSOCIATION, by and through its board members DAVID ALVAREZ JR., GARY 3 ERNST and MARYANNE DOBEL and DOES 1 to 50 negligently controlled, maintained, 4 owned, operated and managed the common areas of the Lynda Lake Gardens development, 5 including the Lake Lot. 6 51. Defendants had a duty imposed by California law and the Conditions, Covenants and 7 Restrictions of the Homeowner’s Association to maintain the Lake Lot in a sanitary, safe 8 and attractive manner. Defendants DAVID ALVAREZ JR., GARY ERNST and 9 MARYANNE DOBEL were members of the board of directors of the LYNDA LAKE 10 GARDENS HOMEOWNER’S ASSOCIATION, and personally directed or participated in 11 the maintenance and health and safety decisions concerning the common areas and Lake 12 Lot. 13 52. Defendants LYNDA LAKE GARDENS HOMEOWNER’S ASSOCIATION, DAVID 14 ALVAREZ JR., GARY ERNST, MARYANNE DOBEL and DOES 1 to 50 knew, or in the 15 exercise of reasonable care should have known that the lake water was dangerous to swim 16 in and created an unreasonable risk of harm to Plaintiff MILAN ZENCIRCI. Defendants, 17 and each of them, negligently failed to take steps to either make the condition safe or warn 18 Plaintiff MILAN ZENCIRCI of the dangerous condition, all of which resulted in injuries to 19 her when she swam in the contaminated lake. 20 53. As a proximate result of Defendants’ negligence, and/or gross negligence, as herein alleged, 21 Plaintiff was hurt and injured in her health, strength, and activity, sustaining injury to her 22 nervous system and person, all of which have caused, and continue to cause, Plaintiff 23 MILAN ZENCIRCI great mental, physical, and nervous pain and suffering. Plaintiff 24 MILAN ZENCIRCI is informed and believes and thereon alleges that such injuries may 25 result in some permanent disability to her. 26 54. As a further proximate result of the negligence and/or gross negligence and/or recklessness 27 involving want of even scant care of Defendants LYNDA LAKE GARDENS 28 HOMEOWNER’S ASSOCIATION, DAVID ALVAREZ JR., GARY ERNST, ___________________________________ CAPUTO & VAN DER WALDE LLP 51 E. CAMPBELL AVENUE, SUITE 120 FIRST AMENDED COMPLAINT FOR DAMAGES PAGE 13 CAMPBELL, CA 95008 (408) 733-0100 1 MARYANNE DOBEL and DOES 1 to 50, Plaintiff MILAN ZENCIRCI has suffered a 2 great loss and depreciation in her earnings and earning power, and will continue to suffer 3 such loss and depreciation for an indefinite time into the future, all to her great detriment 4 and loss. 5 55. As a further result of the negligence and/or gross negligence and/or recklessness involving 6 want of even scant care of Defendants LYNDA LAKE GARDENS HOMEOWNER’S 7 ASSOCIATION, DAVID ALVAREZ JR., GARY ERNST, MARYANNE DOBEL and 8 DOES 1 to 50, Plaintiff MILAN ZENCIRCI has been forced, and will for an indefinite 9 amount of time continue to be obligated to spend significant amounts of money in an effort 10 to cure herself of the injuries she has suffered. She has employed physicians, surgeons and 11 other health care professionals for examination, treatment and care, and incurred, and will 12 continue to incur costs related to medical care, durable medical goods and supplies, and 13 other medical expenses, the exact amount of which is currently unknown to Plaintiff. It is 14 possible that Plaintiff MILAN ZENCIRCI may never fully recover from the poisoning. 15 16 FOURTH CAUSE OF ACTION 17 (INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS) 18 MILAN ZENCIRCI, by and through her Guardian Ad Litem EDMOND ZENCIRCI, 19 EDMOND ZENCIRCI and MELISSA ZENCIRCI v. LYNDA LAKE GARDENS 20 HOMEOWNER’S ASSOCIATION, DAVID ALVAREZ JR., GARY ERNST, 21 MARYANNE DOBEL and DOES 1 to 50 22 56. Plaintiffs reallege and incorporate by reference each and every allegation of the above 23 paragraphs 1 through 55 inclusive, as though fully set forth herein. 24 57. Defendants’ conduct including, but not limited to placing the “No Swimming” sign in the 25 Zencirci’s yard as hereinbefore alleged was extreme and outrageous, especially given the 26 suffering Defendants, and each of them, knew Plaintiffs have endured as a result of the 27 injuries sustained by MILAN ZENCIRCI as herein before alleged. 28 ___________________________________ CAPUTO & VAN DER WALDE LLP 51 E. CAMPBELL AVENUE, SUITE 120 FIRST AMENDED COMPLAINT FOR DAMAGES PAGE 14 CAMPBELL, CA 95008 (408) 733-0100 1 58. The conduct of Defendants LYNDA LAKE GARDENS HOMEOWNER’S 2 ASSOCIATION, DAVID ALVAREZ JR., GARY ERNST, MARYANNE DOBEL and 3 DOES 1 to 50 was intentional and malicious and/or done with reckless disreg