Law Suits: CA San Carlos Lawsuit

California San Carlos Update

Smoking suit fails in small claims
San Carlos resident argued homeowners’ association failed to keep smoke out of condo

11/27/2007
By Mark Abramson, MEDIANEWS STAFF
SAN CARLOS — A woman has lost a legal battle against her homeowners’ association over secondhand smoke from her neighbor’s condominium.
The San Mateo County small-claims court ruling was mailed to the plaintiff, Susie Parano, and the defendant, the Brittan Heights Condominium Association. It does not specify why Parano lost her small claims case, in which the resident sought $7,500 in homeowners’ association dues she wanted refunded because the association failed to take sufficient action to keep the smoke out of her unit.
Parano argued in court that the smoking by her downstairs neighbor, Oleg Gitin, is a nuisance and a health hazard and that the smoke gets into her unit through the ventilation system.
“My next step is to go after the neighbor,” Parano said Monday. “My argument will be that he continues to smoke inside his unit, which is not against the law. It is affecting my health and my property value.”
Parano said the situation has gotten sobad that she plans to leave the condo she has called home for 25 years, and rent it out.
Gitin could not be reached for comment Monday.
Brittan Heights homeowners’ association officials said the ruling did not surprise them. They contended that the association should not have been named in the suit because it has no authority to regulate Gitin’s behavior inside his condo.
“That doesn’t mean we are not sympathetic to the issue, and I think we will continue to pursue a proposed smoking ban
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in the community, probably on the balcony and patios,” said Ric Perez, branch manager for Massingham and Associates, which manages the complex.
Brittan Heights already prohibits smoking in its pool area, children’s play areas and in all outdoor areas within 36 feet of each unit.
Cece Cleary, the association president, has said she plans to propose a smoking ban on balconies and patios at an association board meeting on Wednesday.
American Lung Association officials said they have seen similar cases in which someone sued a neighbor over secondhand smoke, and the results have been mixed.
“I know that in one case the smoke was so bad that it set off the neighbor’s smoke alarm,” said Serena Chen, policy director for the American Lung Association’s Bay Area office in Emeryville.
“People really feel they have the right to do what they want to do in their own homes … but with smoking, it is not that easy,” Chen said.
San Carlos city officials have said they do not intend to pursue a smoking ban like that of neighboring Belmont, which will eventually prohibit smoking in apartments and condominiums in that city.
E-mail Mark Abramson at mabramson@dailynewsgroup.com.


Secondhand smoke prompts suit
San Carlos resident calls neighbor’s habit a health hazard

11/20/2007
By Mark Abramson, MEDIANEWS STAFF
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A San Mateo County small claims court commissioner on Monday heard a lawsuit filed by San Carlos resident Suzie Parano seeking $7,500 in damages because of secondhand smoke from her downstairs neighbor.

Parano argues that the cigarette smoke poses a health hazard and is a nuisance. Her suit targets the Brittan Heights Condominium Homeowners’ Association, which she claims did not do enough to rectify the situation. The dollar amount sought in the suit represents a portion of the homeowners’ association dues she paid between 2005 and 2007.

A decision in the case is expected within the next week.

Both Parano’s downstairs neighbor, Oleg Gitin, and the homeowners’ association have called the suit frivolous and say it stems from a years-long dispute between the two neighbors.

Gitin, 50, said the suit is retaliation, because several years ago Parano and her late husband, Joe Parano, got upset with him when he asked them to move a large American flag hanging from their balcony so that it wouldn’t block his patio view. The association board ruled in his favor in the matter, he said.

“It’s basically harassment,” Darwin Patnode, the vice president of the association’s board, said after Monday’s court hearing. “There were no complaints in the first few years (that Gitin lived below Parano).”

Parano, 55, says the suit is not retaliation, and that she wants Brittan Heights to enact a smoking ban like that of Belmont, which will prohibit smoking in multi-family units in that city beginning in about 14 months.

“My health is being jeopardized. This is not moving fast enough,” Parano told Small Claims Court Commissioner Stephanie Garratt.

“I think I have the right to breathe smoke-free air,” Parano said after the hearing.

The association has already banned smoking in front of the units and in some common areas of the complex, association president Cece Cleary said. She added that she wanted to see if San Carlos would enact a smoking ban before she proposed further action.

Since it looks like the city isn’t going to pursue such a ban, Cleary said she plans to ask the association at its Nov. 28 meeting to extend the complex’s smoking ban to balconies and patios.

“What we saw was that the city of San Carlos was reluctant to take it to the extent that Belmont did,” Cleary said.

Parano — who says smoke seeps into her home both through the floor and from the outside — said a patio and balcony ban could help, but that it is not a solution. She also contends that the smoking devalues her property, which she said she plans to leave in April and rent out because of the situation.

Homeowners’ association officials argued they have no power or responsibility to resolve the dispute and that Parano should have filed the suit against Gitin, not the association. They said they reached an agreement during mediation with Parano in April 2006 that called for Gitin to spend about $1,000 on an air filter and take other corrective action.

Gitin did begin using an air filter, but Parano says it didn’t help. In addition, the plaintiff says she was told by the American Lung Association after the mediation that there is no way to smoke-proof her condo.

“My husband and I were going to multiple board meetings and trying to resolve this issue. We thought we could resolve this at mediation, and nothing got done,” Parano said.

“Unfortunately, there just doesn’t seem to be any middle ground,” said Ric Perez, a branch manager for Massingham and Associates, which manages the complex.

E-mail Mark Abramson at mabramson@dailynewsgroup.com.

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