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FIRST AMENDED COMPLAINT
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Michael J. Aguirre, Esq., SBN 060402 Maria C. Severson, Esq., SBN 173967 AGUIRRE & SEVERSON, LLP 501 West Broadway, Suite 1050 San Diego, CA 92101 Telephone: (619) 876-5364 Facsimile: (619) 876-5368 Attorneys for Plaintiffs
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
ALINA CADENA, BRYAN MONAGHAN, CHARLES BUTLER, CHRISTOPHER PENMAN, DAVID FINNEY, DEANNA NAVARRO, DEANNA WALKER, DEBORAH ROWLEY, EDITH GUTIERREZ, GRACIELA HERNANDEZ, JORGE ALFONSO, LYNETTE NORMAN, MARCI GARCIA, MARICELA BARBA, MICHAEL GOMEZ, MICHEAL BOX, OLLIE SHEPHERD, PAMELA THOMAS, SHARON SUMLIN, STEPHANIE TEEL, THELMA GUTIERREZ, TONY TOSCA, AMANDA ALVARADO, BRENDAN MCINERNEY, CATHY GACUYA, DAVID PICONE, ELENA MARTINEZ, GABRIEL RUBI, JAENEEN JOHNSON, KARL BECKER, KEVIN JOHNSON, LORENZO TOVAR, SAHLAH Z. AHMAD CHASE, SHIRLEY SMITH, SONIA RAMIREZ, and TRACY TRYON, as individuals, on behalf of themselves and others similarly situated, Plaintiffs, v. CITY OF SAN DIEGO, a municipal corporation; RONALD VILLA, in his official capacity as Assistant Chief Operating Officer of the City of San Diego, and DOES 1 through 100, inclusive, Defendants.
Case No. 37-2019-00032076-CU-MC-CTL FIRST AMENDED CLASS ACTION COMPLAINT FOR: (1) Fraudulent Concealment of Injury (2) Intentional Infliction of Emotional Distress DEMAND FOR JURY TRIAL Complaint filed: June 21, 2019
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TABLE OF CONTENTS I. INTRODUCTION ..........................................................................................................3 II. JURISDICTION AND VENUE .....................................................................................6 III. COMPLIANCE WITH GOVERNMENT TORT CLAIMS ACT ..................................7 IV. PARTIES .................................................................................................................7 A. PLAINTIFFS ......................................................................................................7 B. DEFENDANTS ................................................................................................12 V. CLASS ACTION ..........................................................................................................13 VI. ALLEGATIONS COMMON TO ALL CAUSES OF ACTION ..................................14 A. CITY LEASED BUILDING AT 1010 SECOND AVENUE ...........................15 B. ASBESTOS KNOWN AT CITY LEASED BUILDING AT 1010 SECOND AVE ..................................................................................16 C. CITY MISINFORMS AND MISLEADS CITY EMPLOYEES ......................24 D. DANGER OF ASBESTOS AND TOXIC EXPOSURE TO CITY EMPLOYEES ..................................................................................26 E. CITY RELOCATES EMPLOYEES TO ADDITIONAL BUILDINGS KNOWN TO HAVE PROBLEMS WITH ASBESTOS AND OTHER TOXIC MATERIALS ..........................................27 FIRST CAUSE OF ACTION ...................................................................................................28 Intentional Infliction of Emotional Distress SECOND CAUSE OF ACTION ..............................................................................................30 Fraudulent Concealment of Injury Lab. Code § 3602(b)(2) PRAYER FOR RELIEF ............................................................................................................32
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FIRST AMENDED COMPLAINT
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I.
INTRODUCTION
1. Defendant City of San Diego (“City”) intentionally exposed and then fraudulently
concealed the extent of exposure to asbestos and other toxic materials to a class of an estimated
550 City employees at 1010 Second Ave, San Diego, California (“Executive Complex”). A high-
ranking City official admitted the City was aware of the employees’ complaints and weighed the
value of moving its employees out of the building against the cost of breaking the building lease.
As described in this Complaint, the City decided its employees’ health and safety was not worth
the cost of breaking the City’s lease for the Executive Complex.
2. The City was aware the Executive Complex would be undergoing massive
reconstruction that would disturb asbestos-containing material. The City knew of repeated and
continues complaints made by its employees about the harmful and extremely poor air quality in
the building. Yet, the City knowingly kept its employees in this hazardous building exposing
Plaintiffs to asbestos, mold and other toxins for a material amount of time, and now as a result,
City employees have developed a serious, genuine and reasonable fear of toxin-related cancer and
associated respiratory conditions.
3. The City employees who were exposed for a material amount of time to asbestos,
mold, and other toxic material at the Executive Complex are the same individuals who perform
many vital tasks needed to protect the City and keep its residents safe and its operations running.
The departments housed at Executive Complex included Fire Rescue, Office of Homeland
Security, Transportation and Storm Water, Engineering Operations, the City Auditor, the City
Treasurer, Development Service Department (DSD) Code Enforcement Division, Corporate
Partnerships and Development and Planning and Facilities among others.
4. When the City first entered into the lease agreement for the Executive Complex
building, the agreement explicitly noted the City was leasing a building that contained asbestos.
In early 2017, the City was notified by the Executive Complex’s owners that construction would
occur in the building around July 2017 and that construction would disturb asbestos and other
harmful materials in the building.
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5. The building owners also notified the City construction would impact City
employees located in the building. The building owners conducted an “Asbestos & Lead-Based
Paint Survey,” which showed the floors the City employees worked on contained asbestos-
containing material that would be disturbed as a result of the construction taking place at the City-
leased building.
6. Shortly after construction began, City employees began to experience the effects
of the building’s renovation, including various air quality problems, such as, a dramatic decline in
air quality and widespread dust throughout their work areas including employees’ offices,
computers, desks, breakroom and other property.
7. The City was aware the construction workers’ makeshift plastic tarps, surrounding
City employees work area to act as a barrier to the harmful construction-related materials, often
fell down, contained gaping holes, remained unrepaired for significant amounts of time, and were
generally ineffective in preventing the excessive amount of dust construction workers tracked into
the offices daily, during working hours, and every night.
8. Once construction began, City employees from various departments began to
suffer from various symptoms including respiratory problems, deep coughing fits, itchy/burning
throat and other bronchial and lung issues. Employees felt sluggish at work and had difficulty
sleeping at night as a result of respiratory issues. Employees were even forced to take days off
because they could not handle the building’s air conditions. The City was aware that even with
the use of air masks, employees experienced symptoms of pulmonary issues.
9. The City, as tenant, acknowledged in its lease with its landlord that the building
contains or is likely to contain materials which contain asbestos. The City knew that if any
alterations, additions or improvements to the premises were undertaken, the City was required to
ensure it was done in a manner that avoids disturbing any materials that contain asbestos. The
City, despite such knowledge, concealed this information from Plaintiffs and did not ensure that
work being performed in Plaintiffs’ work areas was done in a way so as to avoid disturbing
materials that contained asbestos.
/ / /
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10. The City knew its employees were being exposed to asbestos but failed to abate
the issue or warn and protect Plaintiffs from exposure and the known risks it presents. Instead, it
was not until the County of San Diego’s Air Pollution Control District reported its finding that
there was measurable asbestos within the building that presented a threat to the health of the
building’s occupants and visitors did the City remove its workers from the hazardous exposure
and release them from the building. The Air Pollution Control District detected harmful amounts
of asbestos on multiple floors of the building, in entry ways, alongside the sidewalk outside and
on levels of the building’s parking garage. Even before these reports, the City knew harmful
asbestos was in the building, that it was being disturbed, and that its employees were exposed.
11. The City intentionally did not tell its employees their exposure to asbestos and
other toxic materials presented a threat to their health. The City knew its employees had been
complaining about the air quality and presence of asbestos for seven months (July 2017 to
January 2018) and knew it did not remove its employees from the exposure to these toxins.
12. Evidence of the City’s knowing concealment was a series of employment meetings
wherein the City hired a well-cast group of professionals to misinform and mislead City
employees into believing the employees’ exposure to asbestos and other toxins did not present
any health risks. Among the City-hired professionals was a “chief toxicologist,” Dr. Stephen
Munday, who told Plaintiffs and other City employees they would not suffer “any harmful health
defects to an exposure of asbestos that occurred in this building,” and promised if “[he] has
concern that you guys are at risk for anything because of this exposure, [he] will come back to
you and tell you that.”
13. Defendant Ronald Villa, the City of San Diego’s Assistant Chief Operating
Officer, told City employees he heard every one of the employees’ complaints about Executive
Complex’s conditions and he just did not believe their complaints were worth resolving. During a
March 2018 City meeting, Defendant Villa revealed his knowledge of Plaintiffs’ exposure:
I hear you. I heard every single complaint that was brought because [the City’s Asset Manager] shared with me every single complaint. The reason why it took so long is there was no way for us to break the lease and we would have been held liable for all of that. Now, that is over a $1 million. Is that worth everybody’s whatever? Maybe, maybe not. The fact of the matter is there is a
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cost to that and we would have been in litigation over that.
14. During a follow up interview with Dr. Munday, he admitted as of September 10,
2018 (approximately six months after meeting where he told employees not to worry about their
exposure), contrary to the City’s representations, the City still had not provided a written report
on Executive Complex’s building conditions. The City-proffered doctor did not follow up on his
promise to obtain additional information from the City and report back to Plaintiffs. Accordingly,
Plaintiffs were still unaware of the threat of their exposure to asbestos at the Executive Complex.
In fact, as a result of the City’s fraudulent and knowing concealment, many employees are still
unaware of their level of exposure at Executive Complex.
15. After learning of the City’s fraudulent concealment, Bryan Monaghan, a City
employee exposed to asbestos, filed a government claim against the City on September 14, 2018,
on behalf of himself and all others similarly situated. Through representations from City officials
and hired doctors, the City has attempted to mislead the affected City employees to believe their
exposure at Executive Complex was minimal and would have no adverse effects.
16. Since the class claim was filed, it has been discovered the City directed some of
the same employees exposed to asbestos at Executive Complex to other City buildings with
known asbestos problems including locations, such as the Naval Training Center (NTC Building),
subjecting them to additional exposure to asbestos at those buildings.
17. City employees exposed to asbestos, mold, and other toxic materials will require
medical monitoring for the rest of their lives to continuously screen for cancer, and in the
unfortunate event an employee develops cancer, will require long-term medical treatment to
combat the disease. The City intentionally exposed its employees to deadly toxins, and then to
protect its own interests, fraudulently concealed the adverse health effects employees have and
will suffer from their exposure to asbestos.
II.
JURISDICTION AND VENUE
18. This Court has jurisdiction over the action because this is a civil action wherein the
matter in controversy, exclusive of interest and costs, exceeds the jurisdictional minimum of the
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Court.
19. The acts and omissions complained of in this action took place in the San Diego,
California. Venue is proper because the acts and/or omissions complained of took place, in whole
or in part, within the venue of this Court.
III.
COMPLIANCE WITH GOVERNMENT TORT CLAIMS ACT
20. Plaintiffs have complied with the requirements of the Government Tort Claims Act
as it relates to this action.
21. On September 14, 2018, within the period for filing a claim, Plaintiff Bryan
Monaghan filed a claim on behalf of the class of individuals who were exposed to asbestos and
toxins at 1010 Second Ave (Executive Complex).
22. As of the filing of this Complaint, the City has failed to respond to Plaintiffs’
claim in any way. This action is filed within the time set forth in Cal. Gov. Code section 945.6.
IV.
PARTIES
A. PLAINTIFFS
23. Plaintiff Alina Cadena is a resident of San Diego County, California, and has been
a City employee for thirty-four (34) years. Plaintiff worked in Development Services and was
assigned to the 19th Floor of the Executive Complex during the time of the building’s
construction.
24. Plaintiff Bryan Monaghan is a resident of San Diego County, California, and is a
City employee. Mr. Monaghan works in the Development Service Department’s (DSD) Code
Enforcement Division and was assigned to work on the 19th Floor of the Executive Complex
during the time of the building’s construction.
25. Plaintiff Charles Butler is a resident of San Diego County, California, and has been
a City employee for over fourteen (14) years. Plaintiff worked as a Code Compliance Officer for
the San Diego Fire Rescue Department was assigned to work on the 19th Floor of the Executive
Complex during the time of the building’s construction.
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26. Plaintiff Christopher Penman is a resident of San Diego County, California, and
has been a City employee for over nineteen (19) years. Mr. Penman worked in Development
Services and was assigned to the 19th Floor at the Executive Complex during the time of the
building’s construction.
27. Plaintiff David Finney is a resident of San Diego County, California, and has been
a City employee for nearly seven (7) years. Mr. Finney is a member of the DSD Code
Enforcement Division and was assigned to the 19th Floor of the Executive Complex during the
time of the building’s construction.
28. Plaintiff Deanna Navarro is a resident of San Diego County, California, and has
been a City employee for over thirty-four (34) years. Ms. Navarro was a Community Service
Officer with the San Diego Police Department for over 25 years. After, Ms. Navarro worked for
the Fire-Rescue Department as a Code Compliance Officer and was assigned to work on the 3rd
floor of the Executive Complex during the time of the building’s construction.
29. Plaintiff Deanna Walker is a resident of San Diego County, California, and has
been a City employee for nearly sixteen (16) years. Ms. Walker is a member of the DSD Code
Enforcement Division and was assigned to the 19th Floor of the Executive Complex during the
time of the building’s construction.
30. Plaintiff Deborah Rowley was an employee for the Defendant City for over six (6)
years. Ms. Rowley worked as a Combination Inspector for DSD Code Enforcement Division and
was assigned on the 19th Floor of the Executive Complex during the time of the building’s
construction.
31. Plaintiff Edith Gutierrez is a resident of San Diego County, California, and has
been a City employee for nearly twenty (20) years. Ms. Edith Gutierrez is a member of the
Planning Department and worked on the 6th, 11th and 12th Floors of the Executive Complex
during the time of the building’s construction.
32. Plaintiff Graciela Hernandez is a resident of San Diego County, California, and
has been a City employee for approximately five (5) years. Ms. Hernandez works in the Planning
Department and was assigned to the 12th Floor of the Executive Complex during the time of the
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building’s construction.
33. Plaintiff Jorge Alfonso is a resident of San Diego County, California, and is a City
employee. Mr. Alfonso is a Word Processing Operator for the DSD Code Enforcement Division
and was assigned to work on the 19th Floor of the Executive Complex during the time of the
building’s construction.
34. Plaintiff Lynette Norman is a resident of San Diego County, California, and has
worked for the City of San Diego for over twenty-one (21) years. Ms. Norman is a Zoning
Investigator for DSD Code Enforcement Division and was assigned to work on the 19th Floor of
the Executive Complex during the time of the building’s construction.
35. Plaintiff Marci Garcia is a resident of San Diego County, California, and has been
a City employee for Defendant for over thirty (30) years. Ms. Garcia was a Code Compliance
Officer for the Fire Rescue Department and was assigned to work on the 3rd Floor of the
Executive Complex during the time of the building’s construction.
36. Plaintiff Maricela Barba is a resident of San Diego County, California, and has
been a City employee for Defendant for over twenty-four (24) years. Ms. Barba was a part of the
Fire Rescue Department located on the 3rd and 4th Floor of the Executive Complex. Ms. Barba
was assigned to work in the Executive Complex during the time of the building’s construction.
37. Plaintiff Michael Gomez is a resident of San Diego County, California, and has
been a City employee for approximately six (6) years. Mr. Gomez works in the DSD Code
Enforcement Division and was assigned to work in the 19th Floor of the Executive Complex
during the time of the building’s construction.
38. Plaintiff Micheal Box is a resident of San Diego County, California, and is a City
employee for Defendant. Ms. Box is a Word Processing Operator for the DSD Code Enforcement
Division and was assigned to work on the 19th Floor of the Executive Complex during the time of
the building’s construction.
39. Plaintiff Ollie Shepherd is a resident of San Diego County, California, and is a
City employee. Mr. Shepherd works in the DSD Code Enforcement Division and was assigned to
work on the 19th Floor of the Executive Complex during the time of the building’s construction.
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40. Plaintiff Pamela Thomas is a resident of San Diego County, California, and has
been a City employee for approximately twenty-nine (29) years. Ms. Thomas has worked in the
Community Risk Reduction Division for the Fire Rescue Department and was assigned to work
on the 3rd and 4th Floors of the Executive Complex during the time of the building’s
construction.
41. Plaintiff Sharon Sumlin is a resident of San Diego County, California, and has
been a City employee for over twenty (20) years. Ms. Sumlin is a member of the Fire-Rescue
Department and was assigned to work on the 3rd Floor of the Executive Complex during the time
of the building’s construction.
42. Plaintiff Stephanie Teel is a resident of San Diego County, California, and has
been a City employee for three (3) years in August 2019. Ms. Teel worked in the Community
Risk Reduction Division in the Fire Rescue Department and was assigned to work on the 3rd and
4th Floors of the Executive Complex during the time of the building’s construction.
43. Plaintiff Thelma Gutierrez is a resident of San Diego County, California, and has
been a City employee for nineteen (19) years. Ms. Thelma Gutierrez worked as a member of the
DSD Code Enforcement Division and was assigned to work on the 19th Floor of the Executive
Complex during the time of the building’s construction.
44. Plaintiff Tony Tosca is a resident of San Diego County, California and has been a
City employee for the Fire-Rescue Department. Mr. Tosca was assigned to work on the 3rd and
4th Floors of the Executive Complex during the time of the building’s construction.
45. Plaintiff Amanda Alvarado is a resident of San Diego County, California, and has
been a City employee for thirty-one (31) years. Ms. Alvarado has worked in the Fire-Rescue
department and was assigned to work on the 3rd and 4th Floors of the Executive Complex during
the time of the building’s construction.
46. Plaintiff Brendan McInerney is a resident of San Diego County, California, and
has been a City employee for twenty-four (24) years. Mr. McInerney works for the Fire
Department. Mr. McInerney was assigned to work on the 3rd Floor of the Executive Complex
during the building’s construction.
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47. Plaintiff Cathy Gacuya is a resident of San Diego County, California, and has been
a City employee for fifteen (15) years. Ms. Gacuya works for the Fire-Rescue Department. Ms.
Gacuya was assigned to work on the 4th of the Executive Complex during the building’s
construction.
48. Plaintiff David Picone is a resident of San Diego County, California, and has been
a City employee for approximately twenty-one (21) years. Mr. Picone works for the Fire-Rescue
Department. Mr. Picone was assigned to work on the 4th Floor of the Executive Complex during
the building’s construction.
49. Plaintiff Elena Martinez is a resident of San Diego County, California, and has
been a City employee for five (5) years. Ms. Martinez worked for the Fire-Rescue Department
and currently works for the Sustainability Department. Ms. Martinez was assigned to work on the
4th Floor of the Executive Complex during the building’s construction.
50. Plaintiff Gabriel Rubi is a resident of San Diego County, California, and has been
a City employee for nineteen (19) years. Ms. Rubi worked for the Department of Information
Technology and currently works for the Sustainability Department. Ms. Rubi was assigned to
work on the 5th Floor of the Executive Complex during the building’s construction.
51. Plaintiff Jaeneen Johnson is a resident of San Diego County, California, and has
been a City employee for over seventeen (17) years. Ms. Johnson has worked for the Planning
Department, Retirement Services, Disability Services and Fire-Rescue. Ms. Johnson was assigned
to work on the 3rd and 4th Floors of the Executive Complex during the building’s construction.
52. Plaintiff Karl Becker is a resident of San Diego County, California, and has been a
City employee for thirty-six (36) years. Mr. Becker has worked for San Diego Fire. Mr. Becker
was assigned to work on the 4th Floor of the Executive Complex during the building’s
construction.
53. Plaintiff Kevin Johnson is a resident of San Diego County, California, and has
been a City employee for fifteen (15) years. Mr. Johnson has worked for multiple departments
including the Fire Department. Mr. Johnson worked on the 3rd and 4th Floors of the Executive
Complex during the building’s construction.
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54. Plaintiff Lorenzo Tovar is a resident of San Diego County, California, and has
been a City employee for two (2) years. Mr. Tovar worked for the DSD Code Enforcement
Division. Mr. Tovar was assigned to work on the 19th Floor of the Executive Complex during the
building’s construction.
55. Plaintiff Sahlah Z. Ahmad Chase is a resident of San Diego County, California,
and has worked for the City as a Payroll Specialist. Ms. Chase was assigned to work on the 5th
and 6th Floors of the Executive Complex during the building’s construction.
56. Plaintiff Shirley Smith is a resident of San Diego County, California, and has been
a City employee for ten (10) years. Ms. Smith worked for the Water Department, Engineering and
Capital Projects, Fire and Rescue, and currently works for Transportation/Storm Water. Ms.
Smith was assigned to work on the 4th
Floor of the Executive Complex during the building’s
construction.
57. Plaintiff Sonia Ramirez is a resident of San Diego County, California, and was a
City employee for twenty-one (21) years. Ms. Ramirez has worked for multiple departments
including the Water Department. Ms. Ramirez was assigned worked on the 19th
floor of the
Executive Complex during the building’s construction.
58. Plaintiff Tracy Tryon is a resident of San Diego County, California, and works for
DSD Code Enforcement. Mr. Tryon was assigned to work on the 19th Floor of the Executive
Complex during the building’s construction.
B. DEFENDANTS
59. Defendant City of San Diego is a municipal corporation of the State of California
and Plaintiffs’ employer.
60. Defendant Ronald Villa, at all relevant times herein, was the Assistant Chief
Operating Officer for the City of San Diego. He is named as Defendant in his official capacity.
61. Plaintiffs are informed and believe, and thereupon allege, that at all times relevant
and mentioned herein, Defendants and DOES 1 through 100, inclusive, and each of them, were
the agents, servants, employees, independent contractors, co-conspirators, retailers, distributors,
wholesalers, management companies, subsidiaries and/or joint ventures of the remaining
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Defendants, and each of them, and were at all times material hereto acting within the authorized
course, scope and purpose of said agency and employment, and/or that all of said acts were
subsequently performed with the knowledge, acquiescence, ratification and consent of the
respective principals, and the benefits thereof accepted by said principals.
62. The true names and/or capacities, whether individual, corporate, governmental,
associate, or otherwise, of Defendant DOES 1 through 100, inclusive, and each of them, are
unknown to Plaintiffs, who therefore sue said Defendants by such fictitious names. Plaintiffs are
informed and believe, and thereon allege, that each Defendant fictitiously named herein as a DOE
is legally responsible as alleged herein, for the events and damages hereinafter referred to, and
which legally caused the injuries and damages to Plaintiffs as hereinafter alleged. Plaintiffs will
seek leave of Court to amend this Complaint to insert the true names and/or capacities of such
fictitiously named Defendants when the, same have been ascertained.
V.
CLASS ACTION
63. Plaintiffs bring this action pursuant to California Code of Civil Procedure 382 on
behalf of all City employees who were working in the City leasehold at 1010 Second Avenue,
San Diego, California (also known as the “Executive Complex”) during the construction of that
property in and around 2017 to early 2018, the period during which the toxins and asbestos were
exposed.
64. Plaintiffs sue as representative parties on behalf of all members of the class of City
workers who worked at the Executive Complex during that construction period. The class is so
numerous that joinder of the estimated 550 City workers at Executive Complex would be
impracticable.
65. There is a well-developed community of interest, with fundamental questions of
law and fact common to the class including, but not limited to, (1) whether Defendants knew or
should have known of the asbestos and/or toxins and their exposure to the City workers during
the construction at Executive Complex; (2) whether Defendants made material misrepresentations
to or omitted material facts from the City employees as to the presence of those toxins in their
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workplace and the exposure during the construction process; (3) whether Defendants made
misrepresentations to or omitted material facts from the City workers as to the dangers to their
health from the exposed toxins; and (4) whether Defendants made misrepresentations to or
omitted material facts from the City employees as to the reporting to City employees.
66. The City employees at Executive Complex are an ascertainable class. There is a
well-defined community of interest in the questions of law and fact involved. A substantial
benefit both to the litigants and to the court will result because the claims will not have to be
litigated separately and conflicting rulings will be avoided.
67. The causes of action of the representative parties are typical of the claims of the
class, and the possible effects of exposure to asbestos are typical. The representative parties and
counsel will fairly and adequately protect the interests of the class. The common questions of law
and fact common to the class members predominate over any questions affecting only individual
members, and a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.
68. The knowledge and decisions of the City, and the City misrepresentations and
omissions identified in this operative complaint are common to all.
VI.
ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
69. This Claim is brought by Plaintiffs against the City of San Diego (City) because
the City knew asbestos, mold and other toxic materials would be disturbed during the Executive
Complex’s massive renovation. The City was aware it was forcing the employees to work in an
ongoing construction site with exposure to asbestos, mold and other toxic materials for a material
amount of time. Then, the City fraudulent concealed its employees’ harmful exposure to asbestos,
mold and other toxic materials at the City-leased building at 1010 Second Ave (Executive
Complex).
70. As a result of this deadly exposure, Plaintiffs have developed fear of mold and
asbestos-related illnesses, including cancer, asbestosis and mesothelioma. Some Plaintiffs have
already developed respiratory symptoms. Their fears are based upon reliable medical and
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scientific opinion. It is more likely than not the feared cancer will develop in the future due to the
City intentionally causing the employees to be exposed to toxins for a material amount of time at
the City-leased building at 1010 Second Ave.
71. The City presented a well-cast group of purported asbestos professionals with the
intent to fraudulently conceal and minimize the City’s responsibility for exposing its employees
to asbestos and other toxic materials, which occurred at 1010 Second Ave. During that meeting,
Plaintiffs were told “not [to] give this a second thought” and that they should not “be in any way
worried” about the harmful health defects to an exposure of asbestos that occurred in the
Executive Complex.
72. As discussed more fully below, through its hired doctor, the City represented
Plaintiffs should “take great comfort in the fact that…they did air monitoring and did not find
any level of concern.” The City, through its hired representative, promised Plaintiffs would be
told if there was any risk of injury: “I will make you a promise that if anything in that report
changes my opinion and I have a concern that you guys are at risk for anything because of this
exposure, I will come back to you and tell you that.” The City, through its hired representative,
advised he was “waiting for [the City] to provide that [final report] to me.” Defendant Ronald
Villa promised the City would post test results on the City’s website. No such report was ever
issued.
73. As the City intended, Plaintiffs were unaware of their harmful exposure to asbestos
at Executive Complex or that it presented a significant risk to their health. It was not until a
follow-up interview on September 10, 2018, with the City’s purported doctor, Dr. Stephen
Munday, that it was discovered the City fraudulently concealed its knowledge, and that the
promised final report was not issued, and postings were not made.
A. CITY LEASED BUILDING AT 1010 SECOND AVENUE
74. As of January 2017, approximately 550 City employees were working in a City-
leased space in the Executive Complex building, located at 1010 Second Avenue in downtown
San Diego near Horton Plaza, the courthouses, and the Gaslamp Quarter. The building is shown
here:
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75. The Executive Complex housed various City departments including Fire Rescue
(3rd and 4th Floor), City Auditor (5th Floor), Information Technology (5th and 15th Floor), City
Treasurer (6th Floor), Planning (Facilities) (6th, 11th and 12th Floors), Transportation &
Stormwater (8th Floor), Corporate Partnerships & Development (10th Floor), Boards and
Commission Directors (13th Floor), Public Works (14th Floor), and Office of Homeland Security
(15th Floor), Ethics Commission (15th Floor), and Code Enforcement (19th Floor), among
others.1
B. ASBESTOS KNOWN AT CITY LEASED BUILDING AT 1010 SECOND AVE
76. In or around August 2016, the San Diego County Air Pollution Control District
(Air Pollution Control District) received an application to change ownership of two emergency
diesel engines located at the Executive Complex to the new owner, Tower 180 Owner, LLC. As
part of the ownership application process, Air Pollution Control District staff provided
information to the Executive Complex real estate manager about asbestos notifications and the
asbestos regulations.
77. In or around June 28, 2017, H.M. Pitt Labs, Inc., on behalf of the building owners,
performed an “Asbestos & Lead-Based Paint Survey” at the Executive Complex to identify and
determine the presence of asbestos containing materials or lead containing building components
that will be disturbed in the Executive Complex’s planned demolition.
1 This list is not exhaustive. Additionally, many City employees were regularly forced to work on different floors of
the Executive Complex.
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78. H.M. Pitt Labs, Inc. detected asbestos greater than 1% in the fireproofing, floor
tile, floor tile mastic, plaster, thermal system insulation and cove base glue and classified these
materials as “asbestos containing material.” According to the Survey, asbestos containing
construction material was detected in the composite drywall/joint compound and wall texture
samples collected on nearly every floor of the Executive Complex.
79. In or around July 18, 2017, the Air Pollution Control District received an asbestos
project notification from Clauss Construction that it was removing 5,000 square feet of asbestos
containing fireproofing (friable) between August 1, 2017 and September 29, 2017.
80. On August 1, 2017, the City sent an e-mail to the employees in various
departments in the building with the subject line: “Executive Complex Tenant Improvement
Summary.” The e-mail was sent to both mayoral and non-mayoral departments explaining the
impacted departments included: Fire Rescue (3rd and 4th Floor), City Auditor (5th Floor),
Information Technology (5th and 15th Floor), City Treasurer (6th Floor), Planning (Facilities)
(6th, 11th and 12th Floors), Transportation & Stormwater (8th Floor), Corporate Partnerships &
Development (10th Floor), Planning (11th/12th Floors), Commission Directors (13th Floor),
Public Works (14th Floor), and Office of Homeland Security (15th Floor), Ethics Commission
(15th Floor) and Code Enforcement (19th Floor).
81. Any questions or concerns about the construction project were directed to contact
the Asset Manager of Real Estate Asset Department (“Asset Manager”) because that individual
was the City’s appointed liaison between the landlord, the City, and the City employees regarding
the ongoing construction.
82. As described more fully below, almost immediately after construction began,
various employees notified the Asset Manager of the poor air quality and excessive amounts of
dust in their workplace from the construction.
83. In or around July 17, 2017, a City employee from the 13th floor notified the Asset
Manager construction workers were soldering and welding outside of Suite 1300 causing a toxic
smell and smoke in the hallway that was entering his workplace.
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84. In or around August 21, 2017, a City employee from the Office of the City
Treasurer (6th Floor) informed the Asset Manager the plastic covering that were need to have a
barrier between the City workspace and construction supposed to keep dust out of the office kept
falling down.
85. In or around August 25, 2017, an employee from Fire-Rescue (3rd/4th Floor)
informed the City’s Asset Manager that many employees were suffering from bronchial and lung
issues, including deep coughing, problems swallowing, and itchy/burning throats because of the
air quality and amount of dust in the office.
86. From August 2017 to September 2017, a City employee from the Safety Program
repeatedly complained in writing to the City’s Asset Manager, detailing unsafe conditions during
the construction wherein the City workers were exposed to and not shielded from the construction
debris. The employee advised the City in writing of multiple hazards, including an issue on the
9th Floor wherein plastic barriers—intended to shield the employees from construction debris—
were repeatedly failing, falling down and remaining unrepaired for several weeks. This employee
also complained that insulation was “all over [his] desk and floor” and would continuously blow
into his work station.” The City failed to take adequate action in the face of this information.
87. In or around September 12, 2017, an employee from the City Engineering
Department notified several City officials of the dangers he was being forced to work in and the
unnecessary and extreme health risks he was being forced to assume in what was supposed to be a
low-risk office environment. He pleaded with City officials for protection:
This is the view from my cubicle. I can hear the crews tearing down the windows and walls and they are all wearing respiratory/protective masks because of the asbestos and other harmful chemicals being released during demolition. This lack of sealing could be letting all of that harmful material to drift into our offices. Can we please resolve[] this situation ASAP?
2
88. In or around September 21, 2017, a City employee from Transportation &
Stormwater (8th Floor) put the Asset Manager on notice in writing that there was an excessive
amount of construction dust and debris in the office and that the construction workers were
2 These e-mails were disclosed by the City of San Diego in response to the several Public Records Act requests made
to the City of San Diego.
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sloppy with the safety of the work site.
89. On September 25, 2017, an employee from the Office of the City Auditor (5th
Floor) informed the Asset Manager in writing there were still offices with a significant amount of
construction dust, and as soon as the air conditioning would start, the dust would kick up and
linger in the air that the employees were forced to inhale daily. The employee requested the Asset
Manager send a maintenance crew to repair large holes in the plastic tarps that were supposed to
act as barriers to protect the workers, and requested the large amount of construction dust in the
office be vacuumed. These pleas for help were ignored.
90. On November 13, 2017, an employee from the City’s Planning Department (6th
Floor) informed the Asset Manager a 6th floor employee was suffering from headaches because
of the construction related dust and debris in the office air and his office. The complaints were
ignored and nothing was done by Defendants to protect the Plaintiffs’ safety.
91. On December 11, 2017, a City employee from Corporate Partnership &
Development (10th Floor) complained in writing to the Asset Manager of the extremely poor air
quality many employees were forced to endure on the 10th floor, and how many employees on
the floor were suffering from coughing, itchy throats, and sneezing as a result. Again, the
complaints were ignored and nothing was done by Defendants to protect Plaintiffs’ safety.
92. On January 8, 2018, an employee from the Office of the City Auditor (5th Floor)
complained in writing to the Asset Manager: “The lobby has become unbearable to walk through.
I grew up with asthma, so I think I might be finding it particularly hard to breath. The workers
have been spraying a lot of chemical down there and I am worried that asbestos may be exposed
as well.”
93. On January 18, 2018, an employee from Fire-Rescue (3rd/4th Floor) complained
to the Asset Manager the plastic tarps were not attached properly and dust was still being blown
into the employee’s workplace. Again, the complaints were ignored and nothing was done by
Defendants to protect Plaintiffs’ safety.
94. Throughout this time, City employees complained numerous times to the City that
the City was not conducting the required air monitoring during construction times when the dust
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and debris blew and settled in employees’ workplace. Again, the complaints were ignored and
nothing was done by Defendants to protect Plaintiffs’ safety.
95. On January 18, 2018, an emergency notification was submitted to the County Air
Pollution Control District, stating that during active construction in the main lobby of the
building, asbestos fireproofing had been uncovered and would need to be removed between
January 22, 2018 and February 5, 2018.
96. On January 22, 2018, the Air Pollution Control District received a complaint there
was ongoing construction at the building, and there were headaches and nausea from welding
fumes. The very next day, on January 23, 2018, the Air Pollution Control District received an
additional complaint that construction was still ongoing at the building, and there was
construction debris on the sidewalk.
97. Three days later, on January 25, 2018, the Air Pollution Control District received
another complaint, this time stating there was asbestos dust in the lobby and several floors of the
building. The Air Pollution Control District obtained samples of the suspected asbestos in a
construction zone of the 19th floor of the Executive Complex. While there, the Air Pollution
Control District noticed “[a] poorly constructed polyvinyl sheeting containing with holes was all
that separated the construction zone and the occupied office space.” These were the same tarps
about which City employees repeatedly complained, and about which Defendants ignored. (As
shown in the pictures below)
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98. Additionally, the Air Pollution Control District found many of the windows that
would separate the interior construction and the outside air were absent. On January 25, 2018, the
Air Pollution Control District advised Rob Foster, the Project Manager for the construction at the
Executive Complex, of the seriousness of the asbestos exposure. The samples the Air Pollution
Control District took tested positive for asbestos. Samples taken from multiple floors all tested
positive for harmful levels of asbestos. One of the floors contained 65% amosite asbestos, which
is more harmful than chrysotile asbestos, particularly for mesothelioma.
99. The two tables below were disclosed to the Air Pollution Control District in
support of Executive Complex’s evacuation and abatement.
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100. The building was shut down over the January 27-28 weekend for the ostensible
purpose of the City addressing the asbestos exposure. On January 29, 2018, the Air Pollution
Control District found the asbestos in the building had not been removed or contained and posted
asbestos warning signs on every floor of the building. The Fourth Floor of the Building—which
hosts at least six groups of City employees—still had 20% chrysotile asbestos, revealing the
asbestos debris had not been removed or properly contained.
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101. In early February 2018, the City of San Diego was required to provide the Air
Pollution Control District with air and micro-vacuum samples. The District found the City’s
samples contained asbestos fibers inside the building that exceeded the Asbestos Hazard
Emergency Response Act’s (AHERA) limits for air clearances.
102. The Air Pollution Control District found harmful levels of asbestos on multiple
floors of the Executive Complex where Plaintiffs worked, in the entrance walkways of the
building where Plaintiffs were required to walk through to get to their buildings, and on levels of
the parking garage where Plaintiffs parked their cars. Defendants caused Plaintiffs to be exposed
to asbestos and other toxins while walking to their respective work spaces, in their work space,
and where they parked their garage.
103. The Air Pollution Control District then petitioned for an Abatement Order against
Tower 180, Owner, LLC for the asbestos exposure for the building located at 1010 Second Ave
(Executive Complex). In its petition, the District stated:
The District remains gravely concerned for the potential of repeated and ongoing exposure of the public to the harmful asbestos debris both inside and outside of the building. The building has been proven to contain dry, unconfined, regulated, friable asbestos that has been disturbed, spread about as debris, has also been found in the interior air of the building, and is contaminating many areas including the exterior of the building in public areas where there is a very high likelihood of public exposure. The building is undergoing a massive renovation and there is ongoing work in many areas, yet these areas are not fully enclosed and no sufficient effort has been made to prevent asbestos emissions and human exposure. Additionally, there are many floors where the windows have been completely removed and the wind is constantly disturbing the asbestos-containing debris and blowing it out of the building and around the interior. (emphasis added).
104. During the District’s Hearing Board meeting on March 08, 2018, related to the
Executive Complex, the Board found:
Based on testimony received and evidence provided, the Board finds there is immediate need for clear direction and discrete protection of the public with regards to the possibility of exposure to asbestos containing material created by the construction work. In addition, the Board finds the abatement necessary for the containment and elimination of potential chronic development of diseases related to asbestos exposure such as asbestosis and mesothelioma (emphasis added).
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C. CITY MISINFORMS AND MISLEADS CITY EMPLOYEES
105. After employees were evacuated, the City hosted several meetings purported to
inform employees about what occurred at the Executive Complex. In the meetings, the City
misinformed and misled City employees as to the extent of the asbestos exposure at the Executive
Complex. The City presented a purported environmental expert, a chief toxicologist, a risk
management specialist, and a worker’s compensation manager to discuss what occurred at the
Executive Complex
106. With regards to air samples taken after the building’s construction, Defendant
Ronald Villa specifically stated: “The air samples that came back were within tolerable levels.”
Defendant Villa admitted the City was aware as of January 25, 2018 that debris suspected to be
asbestos was identified.
107. George Katsikaris, who works for the City of San Diego as an environmental
services expert and asbestos and lead program inspector, told City employees that multiple
samples throughout the 1010 building were obtained. He stated:
KATSIKARIS: With the air that we sampled, With the exception of a couple areas, umm that are still under containment right now was clean. Everything was within tolerable levels, breathable air levels that would be just as safe as for a hospital or school. Anything that happed during that that time, there was no contamination, there was no asbestos in the air.
108. Dr. Stephen Munday was the next City presenter. He followed Mr. Katsikaris. Dr.
Munday is the director of the occupational medicine program at Sharp hospital in San Diego as
well as the chief toxicologist. Dr. Munday told City employees that he “regularly sees people with
asbestos exposure,” and “in those 30 plus years, [he] has never seen anyone get asbestos-related
disease from this type of exposure.” Dr. Munday then went on to state:
MUNDAY: A pile of asbestos that is just sitting there is not harmful to anybody. The only way it can hurt us is if it gets inhaled in sufficient quantity and gets inside of our body and causes scarring to occur. As I have said, I regularly see people who have been exposed to asbestos, I see people who have diseases related to asbestos. And in my 30 plus years, I have never ever seen any asbestos related disease from an exposure to a building like this and I don’t know any of my colleagues that I have worked with have seen it either. I would take great comfort in the fact that if I were working in this building, that they did air monitoring and they did not find any level of concern. ***
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But I feel really comfortable saying that if I worked in this building, if my family worked in this building, based on the information that I have, I would not give this a second thought and I wouldn’t be in any way worried that I was going to have any harmful health defects to an exposure of asbestos that occurred in this building. *** Everything I have seen so far makes me feel comfortable that there is not significant exposure. But I know that they are continuing to look at this to collect data and that the final report is not done yet is my understanding. I will tell you guys, I will make you a promise that if anything in that report changes my opinion and I have a concern that you guys are at risk for anything because of this exposure, I will come back to you and tell you that. CITY EMPLOYEE: Have you seen the testing results? MUNDAY: I saw the initial concern. The final report has not been done. I am waiting for them to provide that to me.
109. During a follow-up interview on 10 September 2018, Dr. Munday admitted the
City had not provided a report, he did not have any additional information, and had no intention
to report back to City employees in contradiction to what had been previous represented by his
earlier statements. The City intentionally and fraudulently lulled its employees into believing
there was no concern and no significant exposure to asbestos. Dr. Munday’s follow-up interview
in September 2018 caused City employees to become aware of the City’s concealment of the
extent of asbestos and toxin exposure at 1010 Second Avenue and the associated dangers to their
health.
110. Defendant Ronald Villa concluded the March 2, 2018, meeting by representing to
City employees:
VILLA: We will post the test results on the City’s website where on the uh Citynet where we have where there is an actually little click for Executive Complex. We we will post that um after we consult with our city attorneys. *** Whatever records we have we will put up will put up. So, I don’t have a problem with that. But we do need to consult with the city’s attorney because there has been litigation. It is not to hide behind the City attorneys’ office. We just need to be looking out for the liability of the City. CITY EMPLOYEE: Do you know um or was there a reason why it took so long to have everyone moved because we have been complaining since September. ANOTHER CITY EMPLOYEE: Since August. VILLA: I hear you. I heard every single complaint that was brought because [] shared with me every single complaint. The reason why it took so long is there
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was no way for us to break the lease and we would have been held liable for all of that. Now, that is over a $1 million dollars. Is that worth everybody’s whatever? Maybe, maybe not. The fact of the matter is there is a cost to that and we would have been in litigation over that.
D. DANGER OF ASBESTOS AND TOXIC EXPOSURE TO CITY EMPLOYEES
111. The City knew long-before the abatement in February 2018 its employees were
complaining of poor air quality and asbestos dust as a result of the construction. The City knew
the leased building at 1010 Second Avenue contained asbestos and was aware the building was
undergoing massive renovations that planned to disturb a large amount of asbestos in the
building. Most significantly, the City knew the County Air Pollution Control District’s findings
as to the harmful exposure and need for immediate evacuation. Despite this knowledge, the City
forced its employees to remain at the Executive Complex for a material amount of time, thereby,
exposing them to deadly asbestos and toxic dust.
112. Asbestos is the name given to six minerals that occur naturally in the environment
as bundles of fibers that can be separated into thin, durable threads for use in commercial and
industrial applications. The six known types of asbestos are: (1) chrysotile, (2) amosite, (3)
crocidolilte, (4) anthophyllite, (5) tremolite and (6) actinolite. All of the identified forms of
asbestos can cause asbestosis, malignant mesothelioma, lung cancer, ovarian cancer, laryngeal
cancer and the other serious diseases.
113. The County of San Diego Air Pollution Control District identified the asbestos
found at the Executive Complex was chrysotile and amosite. The District noted one of the floors
contained 65% amosite asbestos, another floor was found to contain 65% chrysolite asbestos
114. Asbestos is dangerous because when asbestos fibers are inhaled, they may get
trapped in the lungs and remain there indefinitely. Over time, these fibers can accumulate and
cause scarring and inflammation, which can affect breathing and lead to serious health conditions.
The U.S. Department of Health and Human Services (HHS), the U.S. Environmental Protection
Agency (EPA), and the International Agency for Research on Cancer (IARC) have all classified
asbestos as a known human carcinogen (i.e. a substance that causes cancer).
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115. According to IARC, there is sufficient evidence that asbestos causes
mesothelioma (a cancer of the thin membranes that line the chest and abdomen), and cancers of
the lung, larynx, and ovary. Mesothelioma is the most common form of cancer associated with
asbestos exposure. Asbestos exposure may also be linked to increased risks of cancers of the
stomach, pharynx, and colorectum.
116. Asbestos exposure may also increase the risk of asbestosis (an inflammatory
condition affecting the lungs that can cause shortness of breath, coughing, and permanent lung
damage) and other nonmalignant lung and pleural disorders, including pleural plaques (changes in
the membranes surrounding the lung), pleural thickening, and benign pleural effusions (abnormal
collections of fluid between the thin layers of tissue lining the lungs and the wall of the chest
cavity). Although pleural plaques are not precursors to lung cancer, evidence suggests that people
with pleural disease caused by exposure to asbestos may be at increased risk for lung cancer.
117. The County Air Pollution Control District found the exposure of asbestos at
Executive Complex presented a “grave” threat to the health of the building’s occupants and
visitors as well as the public at large. The Air Pollution Control District also identified many of
the same problems the City employees were complaining about. The City cannot claim ignorance:
this was not new information to the City. Indeed, from the express terms of the City’s lease, the
City knew asbestos and other toxins were in the building and that construction would be likely
disturb those dangerous toxins.
118. City employees housed at Executive Complex were exposed to asbestos, including
both chrysotile and amosite asbestos, while occupying the building at 1010 Second Ave and now
face the risks and fears associated with asbestos exposure. City employees were also exposed to
mold and other microbial species including, but not limited to, Cladosporium, Ganoderma and
other unidentified fungi.
E. CITY RELOCATES EMPLOYEES TO ADDITIONAL BUILDINGS KNOWN TO
HAVE PROBLEMS WITH ASBESTOS AND OTHER TOXIC MATERIALS
119. After being exposed to deadly toxins at the Executive Complex, the City
employees were relocated to various buildings in San Diego including 1970 B Street, 2580
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Kincaid Road and Building 89 of the old Naval Training Center (NTC). Before moving
employees to Building 89, the City was aware NTC had asbestos that was never fully resolved.
The City disregarded its knowledge of potential dangers at NTC and willfully and with a
conscious disregard for its employees’ health and safety, placed its employees, who were just
recently exposed to asbestos at the Executive Complex, into another building containing the same
dangers.
120. The City was well aware of the asbestos issues at NTC. City employees relocated
to NTC faced the same types of conditions they just left including environmental and breathing
conditions in NTC.
121. The City of San Diego Fire Department’s former Cancer Awareness and
Prevention Program (CAPP) manager, Kurtis Bennett, prepared a memorandum wherein he
explained employees’ concerns about environmental safety at NTC were not properly addressed.
The City employees first located to NTC were told it would only be a short solution until the City
could find more suitable arrangements. However, those hollow promises proved realized as the
City had no intention of moving the employees from these deadly conditions.
122. Instead, the City continued to expose its employees to asbestos and other deadly
toxins for a material time without minimizing the potential exposure to asbestos. In response to
the health complaints, the City directed employees to file “minor injury” reports.
FIRST CAUSE OF ACTION
(Intentional Infliction of Emotional Distress)
123. Plaintiffs incorporate by reference and reallege the previous paragraphs as though
set forth fully herein.
124. Defendants City and Ronald Villa’s conduct in directing and forcing its employees
to remain in an asbestos infested building at 1010 Second Ave was extreme and outrageous.
125. Defendant City had an obligation when it leased the building to ensure the building
was compliant with state and federal laws. As a public official and supervisor, Defendant Ronald
Villa also had an obligation to comply with state and federal law. As described above, Defendants
were aware Executive Complex contained asbestos when it leased the building and was put on
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notice there was going to be major construction at Executive Complex that would affect City
employees. Despite this knowledge, the City still forced an estimated 550 City employees to work
in a building knowing doing so would expose each of them to dangerous amounts of chrysotile
and amosite asbestos and other toxins.
126. Defendants City and Ronald Villa’s actions were undertaken with knowledge of
the employees’ presence and exposure to asbestos and toxins including harmful microbial species,
fungal bacteria, and mold. Defendants intentionally caused and/or acted with knowledge of a
substantial certainty that its employees would suffer severe emotional injury upon discovery of
the fact that the employees were working for a material amount of time in a building infested with
asbestos.
127. The toxic asbestos exposure that has resulted in their fear of cancer is caused by
conduct amounting to “oppression, fraud, or malice” as defined in California Civil Code section
3294.
128. Defendants acted with malice because they intended to cause Plaintiffs’ injuries or
because Defendants’ intentional concealment is despicable conduct that was done with a willful
and conscious disregarding of Plaintiffs’ safety and rights.
129. Defendants acted with oppression because by concealing the extent of Plaintiffs’
exposure to asbestos at the Executive Complex they engaged in despicable conduct that subjected
Plaintiffs to cruel and unjust hardship in conscious disregard of Plaintiffs’ safety and rights.
130. Defendants acted fraudulently because they made intentional misrepresentations
and concealed material facts known by Defendants related to the exposure of asbestos found by
the San Diego Air Pollution Control District with the intent to deprive Plaintiffs of their legal
rights.
131. Defendants City and Ronald Villa’s actions have proximately and actually caused
Plaintiffs to suffer severe emotional distress from the asbestos-related illnesses, including fear of
losing their children and families and fear of losing their lives. Plaintiffs also suffer from a
reasonable fear of developing cancer. After being exposed to asbestos for a material amount of
time and Defendants’ concealment of the extent of the exposure, Plaintiffs’ fear of cancer is
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FIRST AMENDED COMPLAINT
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serious, genuine and reasonable.
132. As a public entity and employer, the City owed its employees a duty to ensure they
were safe from harm and not exposed to dangerous and/or hazardous materials.
133. Defendant City’s actions of forcing its employees to stay in an asbestos infested
building was done with a willful and conscious disregard of Plaintiffs’ rights and safety.
Defendants acted with a conscious disregard of the seriousness of asbestos exposure because
there is an undisputed relationship between exposure to asbestos sufficient to cause asbestos-
related diseases including cancer and death. Norfolk & Western Ry. v. Ayers (2003) 538 U.S. 135,
154; see also Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 999.
134. Despite the common-knowledge of the serious health issues associated with
asbestos exposure, Defendant City deliberately failed to protect its employees when it determined
the health of its employees was not worth the costs of interfering with its lease of the Executive
Complex. As Defendant Ronald Villa told Plaintiffs: “The reason why it took so long is there was
no way for us to break the lease and we would have been held liable for all of that. Now, that is
over a $1 million dollars. Is that worth everybody’s whatever? Maybe, maybe not.”
SECOND CAUSE OF ACTION
(Fraudulent Concealment of Injury Lab. Code § 3602(b)(2))
135. Plaintiffs incorporate by reference and reallege the previous paragraphs as though
set forth fully herein.
136. Plaintiffs were injured when Defendant City exposed them to deadly asbestos for a
material amount of time while Plaintiffs worked at the Executive Complex, a City-leased
building.
137. Defendants City, Ronald Villa and Does 1 through 100 knew Plaintiffs had
suffered a work-related injury because Defendants were aware the Executive Complex was
undergoing massive renovation that would disturb asbestos on multiple floors of the building, and
were aware Plaintiffs were being exposed to asbestos dust and other harmful toxins during the
Executive Complex’s massive renovation. The City received numerous complaints in writing and
orally about the toxins and health problems resulting therefrom in the workplace, but did not alert
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FIRST AMENDED COMPLAINT
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the Plaintiffs of the dangers, and instead, kept them in a toxic environment for a material amount
of time. The City did so because it prioritized saving a little money over the health and safety of
Plaintiffs.
138. Defendant City, through its agents, employees and officials including Defendant
Ronald Villa, concealed knowledge and failed to disclose facts related to Plaintiffs’ injuries.
Defendant forced Plaintiffs to work in these conditions for a material amount of time while
construction was taking place at the Executive Complex. Defendants continued to conceal
Plaintiffs’ injuries by scheduling and hosting a series of meetings specifically for City employees
exposed to asbestos at the Executive Complex. During these meetings, Defendants concealed and
failed to disclose the extent of Plaintiffs’ exposure to asbestos and toxins including the level and
severity of asbestos found in the Executive Complex.
139. Defendants City and Ronald Villa failed to reveal the connection between the
asbestos exposure at the Executive Complex and the asbestos-related illnesses Plaintiffs now and
will suffer from including persistent respiratory problems, surgery, and fear of death and cancer.
140. To date, the City has failed to remedy or provide appropriate relief for its actions
of intentionally exposing City employees to dangerous amounts of asbestos, and then fraudulently
concealing the extent of Plaintiffs’ exposure to asbestos. These employees’ lives have forever
been changed as a result of the City’s actions. They now have to face the fear of suffering from
various lifelong asbestos-related diseases. Even more alarming, given the surreptitious nature of
asbestos and asbestos-related illnesses, City employees will require lifetime medical monitoring
to ensure their health is not affected by the asbestos to which the City exposed its employees.
141. Defendants City and Ronald Villa’s fraudulent concealment has aggravated
Plaintiffs’ injuries and some Plaintiffs still do not know the extent of exposure to asbestos they
suffered while working at the City-leased building.
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PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray judgment against all Defendants as follows:
1. For economic damages, including but not limited to, loss of income, medical costs
and personal property loss as a result of the asbestos and toxic exposure in the Executive
Complex;
2. For non-economic damages, including but not limited to, damages to compensate
for any highly unpleasant mental reactions, including fright, grief, shame humiliation,
embarrassment, anger, chagrin, disappointment or worry caused by Defendants’ outrageous acts
(Fletcher v. Western Nat’l Life Ins. Co. (1970) 10 Cal.App.3d 376, 397–98);
3. For punitive damages against Defendant Ronald Villa and individual Doe
Defendants as a result of Defendants’ oppressive, fraudulent and malicious conduct in an amount
to be determined at trial (Cal Civ. Code § 3294(a));
4. For compensable damages, including but not limited to, lifetime medical insurance
and medical monitoring for Plaintiffs with a serious, genuine and reasonable fear of cancer as a
result of Plaintiffs’ exposure to asbestos (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th
965, 999);
5. For attorney fees and costs pursuant to Cal. Gov. Code section 1021.5 and any
other relevant statute; and
6. For all other relief the Court determines is warranted.
AGUIRRE & SEVERSON, LLP Dated: October 21, 2019 /s/ Michael Aguirre Michael J. Aguirre Attorneys for Plaintiffs /s/ Maria Severson Maria C. Severson Attorneys for Plaintiffs
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