Hello everybody. Long time readers of this column may remember the article I wrote for the June 2011 issue of AOA Magazine entitled “Genital Herpes and Apartment Buildings – You Better Disclose!” The point of that discussion was that sellers of apartment buildings who know of hidden defects inherent in their property must disclose those deficiencies the same way that persons with sexually transmitted diseases must disclose their contagious medical conditions to innocent new partners. In this month’s article, I will update both subjects.
Genital Herpes: The Law of Disclosure
As I reported in 2011, the California Court of Appeal that year upheld a $4,325,000 judgment in favor of a woman named Patricia and against her significant other named Thomas for compensatory and punitive damages after Thomas transmitted the herpes virus to her. The court’s breakdown was $1,575,000 for compensatory damages and $2.75 million dollars for punitive damages.
The critical facts were as follows: In 1975, Thomas learned that he had genital herpes. Thomas met Patricia in 2001 at a party at Tom’s home. In September 2003, the two met for a lunch date in the Palm Springs area and began a sexual relationship the following month.
Prior to having sex, Pat told Tom that she was free of disease. Tom (according to Pat) responded by telling her that he was “healthy like [she] was.” Several months into their relationship, Tom told Patricia that “it was okay to have sex with him.”
In fact, Thomas had experienced two outbreaks or so of herpes each year, including blistering lesions and scabs.
In early 2004, while enjoying a cozy co-ed bath, Tom told Pat that he had herpes for about 30 years, that he was then having an outbreak, and that they should not have sex (at least that evening). The next day, Thomas told Patricia that he was mistaken about having the outbreak, and that it was therefore okay to have sex. They indulged.
At some point Pat contracted the herpes virus and had her first outbreak in March 2004, although she did not realize it was herpes at the time.
In April 2004, Tom and Pat traveled to Spain and had sex most every night.
Later in April, Pat suffered a second outbreak, with further outbreaks in September and December 2004, as well as February 2005.
After Pat contracted herpes (and evidently being outraged with her lover), she sued Tom on the basis that she relied on his assurance that it was okay for her to have sex with him. Her Causes of Action included battery, intentional infliction of emotional distress, negligence, negligent infliction of emotional distress, fraud by concealment and fraud by misrepresentation.
Thomas’ primary defense arguments were (1) because Pat consented to sexual contact with him after he disclosed he had herpes on February 12, 2004, he could not be liable for transmission of herpes after that date, and (2) there was no substantial evidence that Pat contracted the disease from sexual contact that occurred before Thomas’ disclosure.
Following trial, the Superior Court entered judgment for Pat and against Tom. Thereafter, the Court of Appeal affirmed, holding that people who know or should know they have genital herpes generally have a duty to avoid sexual contact with unaffected persons, or alternatively to warn potential partners before sexual contact occurs.
Here is what Tom should have done to legally protect himself from that lawsuit: (1) he should have clearly advised Pat prior to their first sexual encounter that he had herpes, and (2) he should have advised Pat that even if he was asymptomatic, there was still a risk that he could transmit the disease to her. In other words, by making a full and fair disclosure (ideally in writing and countersigned by Pat acknowledging that she received the paper), Tom would have avoided liability. That would be particularly true if the document said, and Pat countersigned it, that she understood that she was engaging in sexual intimacy at her own risk and without any legal claim against Thomas.
Fast forwarding to January 2015, two women in the Los Angeles area, identified as Jane Doe 1 and Jane Doe 2, filed a lawsuit with the Los Angeles Superior Court against American film actor Jay Tavare alleging that they were both infected with herpes by the performer.
Their suit alleges fraud, sexual battery, negligent transmission of genital herpes, intentional infliction of emotional distress, and a violation of California’s Health & Safety Code.
In their court documents, both plaintiffs claim that they discussed with Mr. Tavare whether they or Mr. Tavare had a sexually transmitted disease before they had intercourse with him.
They also claimed that the actor intentionally concealed and suppressed the fact that he had herpes and that plaintiffs could be exposed to the disease.
Mr. Tavare maintains that he did not know he had the herpes virus before having sexual relations with either woman (both of whom, apparently, were his former girlfriends).
Mr. Tavare filed a Demurrer with the Court, which is like a motion seeking to dismiss the suit. In March 2016 Judge Michael Linfield denied that motion and allowed the case to proceed. It is pending still.
What should Mr. Tavare have done? Answer: If he did not know that he had the herpes virus, then there was, realistically, nothing he could have done. But if he did know, then he should have made the same written disclosure I suggested that Thomas should have done to avoid liability to Pat.
So how do Thomas’ failure, and Mr. Tavere’s potential failure, to disclose a known sexually transmittable disease pertain to owners of apartment buildings?
Apartment Buildings: The Law of Disclosure
Upon the sale of apartment buildings and other real property, the law of disclosure is similar to the disclosure requirements for someone who is infected with genital herpes. With respect to real estate, the California Court of Appeal succinctly laid down the law in 1963:
“It is now settled in California that where the seller knows of facts materially affecting the value or desirability of the property which are known or assessable only to him and also knows that such facts are not known to, or within the reach of the diligent attention and observation of the buyer, the seller is under a duty to disclose them to the buyer. Failure of the seller to fulfill such a duty of disclosure constitutes actual fraud.”
That 1963 case entitled Lingsch v. Savage remains the law as of 2016. Thus, sellers of apartment buildings should always disclose defects known to them but not apparent to the buyer. Lawyers routinely advise their clients to not only make such disclosures, but to make them in writing and receive a signature or initials from the buyer on the paperwork embodying the disclosure.
Lawyers recommend written disclosures so that buyers do not later forget that they were appropriately informed, or simply lie about the fact if they say they were not. Written disclosures also eliminate any uncertainty as to the nature and extent of what was disclosed.
The doctrine of caveat emptor (i.e., let the buyer beware) has been largely abandoned in California. Because so much money is usually involved with the sale of real estate, the present custom and practice is that real property disclosures are put in writing, rather than being suppressed or even verbally made. Indeed, if a seller were to testify that he made an important disclosure verbally to the buyer, and the buyer testifies (perhaps falsely) that the disclosure was not made, the jury is likely to believe the buyer on the basis that a prudent business person who made a disclosure would have done so in writing. Absent such a writing, the jury may conclude that the seller was fibbing if he testifies that he made a verbal disclosure.
I suspect that in the context of the relationships between Thomas and Pat and Mr. Tavare and his two women, Tom and Mr. Tavare would not have favored a written disclosure to the females, particularly if the men were just moments away from engaging in passionate intimacy with their partners.
On the other hand, I would wager that if Tom or Mr. Tavare were selling parcels of real estate with a non-apparent defect they knew about, they would have disclosed it in writing to the purchasers.
Contracts for the sale of apartment buildings typically provide that the buyer is purchasing the property “AS IS.” The question then becomes whether such a provision will protect the seller from liability for known defects which the seller nevertheless conceals from the buyer. In the Lingsch case, the court held that it would not, and made a memorable comment: If the seller knew that there was an unexploded bomb buried in the basement, the “as is” provision would not discharge him of his obligation to disclose the defect.
Whether it pertains to a contagious disease in one’s body or a concealed defect in one’s real property, California law is consistent. He who knows of the problem must make a full and truthful disclosure of it to the person with whom he deals if the problem is not known to or readily observable to the potential recipient. Failure to do so exposes the silent party to substantial compensatory and punitive damages.
Having to pay Pat in excess of $4 million because of his concealment, Tom would be well advised to present all of his new partners with a pen and paper before displaying anything else to her.
The case against Jay Tavare is still pending and no judicial determination has been made as to whether Mr. Tavare knew he had herpes prior to his sexual relations with the two women. But as to all future partners, Mr. Tavare would also be well advised to make a written disclosure of his contagious condition before indulging.
Without such disclosures, my recommendation to them would be to abstain from all further intimate encounters as there can be no perpetration without penetration.
Postscript: Resident Manager Laws
I am hopeful that AOA members based in the Southern California area will attend the AOA seminar I will be giving at the Long Beach Convention Center on Thursday, May 19, 2016 beginning at 1:15 p.m. My presentation will include an in-depth discussion of the new 2016 wage, hour and rent laws which pertain to apartment buildings throughout California, whether they be 16 or more units (in which a “responsible” person is required to live on site) or less than 16 units (which has no such requirement nor rent limitation).
For those members who will attend, I encourage you to read in advance the article I authored for the January 2016 issue of AOA Magazine. It can be found online at AOAUSA.com and will provide attendees with a solid foundation to understand the new resident manager laws.
Dale Alberstone is a prominent litigation and transactional real estate attorney who has specialized in real property law for the past 39 years. He has been appointed to periodically serve as a judge pro tem of the Los Angeles Superior Court and is a former arbitrator for the American Arbitration Association. He also testifies as an expert witness for and against other attorneys who have been accused of legal malpractice.
Mr. Alberstone has been awarded an AV rating from Martindale-Hubbell. An AV rating reflects an attorney who has reached the heights of professional excellence and is recognized for the highest levels of skill and integrity. You may Google “Dale S. Alberstone” for further background.
The foregoing article was authored in April 2016. It is intended as a general overview of the law and may not apply to the reader’s particular case. Readers are cautioned to consult an advisor of their own selection with respect to any particular situation.
Questions of a general nature are warmly invited. Address correspondence to Dale S. Alberstone, Esq., ALBERSTONE & ALBERSTONE, 1900 Avenue of the Stars, Suite 650, Los Angeles, California 90067. Phone: (310) 277-7300.