MEDIATION STATEMENT

Rory Merry

517 Wood Street

Pacific Grove, CA 93950

E-mail: roryomerry@aol.com Phone: 510-849-2042

 

Plaintiff in Pro Per

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF MONTEREY

 
RORY MERRY,

Plaintiff

 

vs.

 

JOHN DILLON, SR.; MAUREEN DILLON; and UNKNOWN DOE

Defendants

 

 Case No.: 22CV002094

 

Judge: Vanessa W. Vallarta

Dept: 13

 

MEDIATION STATEMENT

 

Now comes Rory Merry and for his Mediation Statement says:

  1. Parties and General Background
  2. The Plaintiff is Rory Merry and is Pro Se. The Defendants are John Dillon Sr, Maureen Dillon their attorney Mr. Pinelli and Unknown DOES and other defendants unknown by the Plaintiff at this time.
  3. This case is about nuisance and negligent infliction of emotional distress. Defendants built a fence between their property and Plaintiff’s property. This fence unreasonably interferes with Plaintiff’s enjoyment of his property. Defendants have failed to correct the nuisance caused by the fence.
  4. Concise Statement of Facts
  5. Plaintiff owned, leased, occupied or controlled the property commonly known as 517 Wood Street, Pacific Grove, California.
  6. Defendants Dillons, constructed a fence between their property and Plaintiff’s property. Plaintiff has the following issues with the fence:
  7. The fence interfered with the plaintiff ’s use and enjoyment of his land.
  8. The fence is so close to Plaintiff’s building wall that it prohibits Plaintiff from maintaining the siding, such as painting and making repairs.
  • The fence acts as a barrier and collects leaves from the nearby trees between the fence and the side of the Plaintiff’s home.
  1. The fence is harmful to health.
  2. The fence is offensive to the senses.
  3. Through the fence, Dillons defendants unlawfully obstructed Plaintiff ’s free passage and use, in the customary manner.
  • The fence is both a danger and fire hazard to the plaintiff and his property.
  • Plaintiff did not consent to the defendants’ conduct.
  1. An ordinary person would be reasonably annoyed or disturbed by the defendants’ Dillons conduct.
  2. Defendants failed to issue a notice to Plaintiff as required under California Civil Code Section 841.
  3. Plaintiff severally informed Defendants of the problems associated with the fence, but the Defendants have taken no action to correct the problems.
  4. It follows; by acting or failing to act, Defendants created a condition and permitted a condition to exist that involved the following:
  5. conduct
  • Statement of Claims
  1. Private Nuisance
  2. Private Nuisance occurs when the plaintiff ’s use and enjoyment of his or her property are obstructed or interfered with because of the actions of another. This is the case here.
  3. Defendants Dillons have obstructed and interfered with Plaintiff’s use and enjoyment of his or her property by the erection of a fence, which was spitefully erected to prevent Plaintiff from accessing the side of this dwelling.

Particulars of spite

  1. Defendants’ spite is seen as follows:
  2. Dillon the defendant was called out by Plaintiff after he tried to abscond plaintiff ’s land by building fence so that an already existing setback was no longer two feet. Dillon wanted to use Plaintiff ’s cottage to prop up his dilapidated and leaning garage (or as defendants call it barn). Dillons sent Plaintiff an email claiming the setback was his property. The email stated “what are you going to do about your lateral sewer on my property?”, when in fact the lateral sewer is located in the setback has been in place for many years before Dillons purchased the property. The lateral sewer was replaced with a permit from the City of Pacific Grove before the Dillons purchased the property.
  3. There are nails in the garage wall protruding in two-foot setback between cottage and garage. They were shoulder high and Plaintiff was cut and drew blood having come in contact with the sharp nails. Emails were sent by Plaintiff Merry to Defendant Dillon to try and resolve the issue. The went unanswered. The foregoing is not the behavior of an individual who wants to solve the issue peacefully.
  • Defendants effectively closed off both end of the rear dwelling unit so that access was impossible since the setback between the fence and the side of the dwelling was 8 inches and at places reduced to 4 inches. This prevented the Plaintiff from all repair or maintenance work on his swelling. This behavior constitutes a Private Nuisance with intentional infliction of emotional distress.
  1. Defendants fail to consider that the inability to repair the dwelling siding would result in a substantial reduction to the sale price of the property at 517 Wood Street Pacific Grove.
  2. Defendants fail to consider that the feaces of wild animals between the siding and the fence and the impossible removal due to the 8” setback is a health hazard to the Plaintiff and any future purchaser.
  3. Late in the litigation a verbal offer was made, which would have the Plaintiff ask the Defendant to remove some of the fencing panels so repairs and clean up could be done. This was not an official written offer and was obviously not a practical solution. Besides, the offer came late in the litigation process after numerous court appearances including a demurrer. Plaintiff (who now had the means) at one point offered the defendant a settlement where they would jointly pay for the fence and the fence would be move back 2ft from the side of the building. The tree planted outside the window removed and a stipulation not to grow trees over 6ft high which is the legal fence height in Pacific Grove. The offer went unanswered and was after approximately two weeks withdrawn by the Plaintiff. The idea was that Defendant and Plaintiff would comply with the Good Neighbor Act. It is notable that the fact that the Plaintiff refused to pay for half the fence (no funds) originally does not relieve the defendant from his obligation under the Good Neighbor Act in any way or form, since the Defendant intended and did build the fence himself.
  • John Dillon lied to the Pacific Grove Police. On the day that the frosted perspex windows were pushed out and Dillon called the police, the responding officer informed Plaintiff that John Dillon has told him that he had been threatened by Plaintiff. Plaintiff never spoke to John Dillon on that day.
  1. The nuisance action has caused physical injury to the Plaintiff with respect to the nails in the garage wall into the setback caused by the Defendant’s negligence and or intentional infliction of physical injury and emotional distress.
  2. Intentional infliction of emotional distress
  3. Malevolence was the dominant motive for the building and placement of the fence.
  4. Without this motive, the fence would not have been built, located, and maintained in its present position.
  5. The privacy concern put forward by the Defense is spurious, and has no merit since a previously stated the defendants garden is overlooked by two story houses on either side of the defendants’ property and is hence overlooked by two multi story houses.
  6. With respect to the tree planted directly outside Plaintiff’s dwelling, The tree constitutes a spite fence under Civil Code Section 841.4, section 841.4. The Third District Court of Appeal’s decision in Wilson v. Handley (2002) 97 Cal.App.4th 1301, and Vanderpol v. Starr provides clarification on whether a row of tree(s) is a “structure in the nature of a fence” under Civil Code Section 841.4.1309. In making its ruling, the Wilson Court reviewed the history and purpose of spite fence statutes in the United States, and adopted a plain and common sense meaning of the term “structure” in section 841.4, defining the word as “something arranged in a definite pattern of organization.”
  7. Vanderpol v. Starr provides further clarification on whether a row of trees is a “structure in the nature of a fence” under Civil Code Section 841.4. The only tree along their shared property line was planted outside the window of the Plaintiff ’s dwellings.
  8. Further, under California Civil Code Section 841, if a cost is incurred by the construction or maintenance of a fence, the landowner taking action must give 30 days prior written notice to all affected adjoining landowners. The notice must include the following: A description of the nature of the problem facing the shared fence, the proposed solution for addressing the problem, the estimated construction or maintenance costs involved to address the problem, the proposed cost-sharing approach, and the proposed timeline for addressing the problem.
  9. Defendants failed, refused and neglected to follow the above requirements.
  10. Plaintiff asserts that there is not a fence in Pacific Grove that is not straight. Only Dillon’s with Plaintiff’s, which starts at 2ft setback (original short fence) then reduce the setback to 4 to 8 inches beside Plaintiff\s dwelling looking at a window almost half blocked by a fence while Plaintiff is in his bath.
  11. The window to the main living area is over half blocked by the fence. Plaintiff is unable to access, inspect, paint, or repair side of his dwelling unit.
  12. Animal faces has collected under the window between the fence and the side of Plaintiff’s dwelling unit.
  13. Leaves and other vegetation are trapped between the fence and Plaintiff’s dwelling unit made inaccessible by the closeness of the fence. Further, an eight-inch setback part of the fence is encroaching on Plaintiff’s property.
  14. Survey neglects to show Plaintiff’s dwelling unit and is drawn to deceive by omission.
  15. Fire danger from having wood fence close to Plaintiff’s dwelling unit is of grave concern in these days of wild fires. The Dillons have placed an open fire on the other side of fence. Egress by window impossible in the event of an emergency fire or earthquake.
  16. The Defense claims the placement of the fence is for privacy issues. Contrary to defendants’ assertions, the garden is overlooked by two story houses on either side.
  17. Dillon moved the fence closer the window making it easier for an individual looking out the window to see into the garden easier. An action which is in contradiction to his claim of fence placement for privacy
  18. The fence is a nuisance.
  19. As a direct and proximate cause of the erection of the fence, Plaintiff has suffered emotional distress caused by the deprivation of light and air; loss of property value, annoyance of the fence, and will suffer out of pocket expenses due to being physically unable to maintain the siding and foundation of his home. The fence unreasonably interferes with Plaintiff’s ability to enjoy the property.
  20. Weaknesses
  21. Defendants may get away with their blameworthy conduct. Notably, no matter what Dillon has already lost, his Home Owners Policy will be increased by the insurance State Farm to get their money back. Defendant has three houses.
  22. Pinelli will be paid by State Farm no matter the outcome. He may and may not get some or all costs.
  • Plaintiff’s demands
  1. Plaintiff ’s demands the following relief:
  2. The fence moved to at least 2 feet back from the property line.
  3. Assurance that the fence will not be moved closer Plaintiff’s property at 517 Wood Street Pacific Grove CA93950 and no trees taller than 6ft will be grown as a shielding or fence of any kind.
  4. There will be a Restrictive Covenant with respect to the location of any fence between 517 Wood Street and 516 Lobos Ave Pacific Grove 93950 as per any agreement.
  5. $20 a day for loss of enjoyment and intentional infliction of emotional distress. The number of days to be those that make up three years. One thousand and ninety-five days which equals $21,900
  6. Defense pays all their own legal fees.
  7. Defense pays any and all their own costs.
  8. The defense takes away nothing.
  9. If defendants does not comply with any term of the agreement all legal and other costs of litigation with respect this issue will be borne by the Dillons.

 

Dated: __________

 

______________________________

Rory Merry

 

 

 

 

 

 

CERTIFICATE OF SERVICE

I hereby certify that on _______ a copy of the foregoing document has been sent to the Defendants in the following address:

[ENTER DEFENDANT’S ADDRESS]

DATED: _____________

 

 

______________________________

Rory Merry

 

 

 

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