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In Neighbors' Dispute, Lawyers Seek to Undo Judge's Finding That Racism Was Motivating Factor

What started with a Burlingame couple suing over a damaged retaining wall has resulted in a judicial finding they're "more likely than not" racist toward their Chinese immigrant neighbors.

Gregory and Deborah Cosko sued their neighbors in February 2015 claiming that a construction crew working on the driveway next door damaged their retaining wall to the point it had to be replaced.

Those claims eventually settled.

But the Coskos’ neighbors, Jane Liao and Jason Zhang, filed counterclaims of their own. Liao and Zhang alleged the Coskos set up a camera on the fence between the two houses to monitor them and their contractors. The camera, they claim, scared off the contractors, and they assert that the Coskos further sent a series of harassing emails—both to them and to city officials.

San Mateo County Judge V. Raymond Swope last year sided with Liao and Zhang on their counterclaims, awarding them $88,400 in economic damages for the construction delay, $100,000 in additional noneconomic damages for emotional distress and $250,000 in punitive damages. The judge also barred the Coskos from recording or photographing their neighbors’ property going forward or walking on the narrow gravel strip between the two addresses.

After bench proceedings that spanned eight trial days from March to October 2017, Swope, in a statement of decision issued in July 2018, found that Deborah Cosko, in particular, was “resentful, rancorous and malevolent” toward her neighbors during trial.

“Her hostility was palpable,” Swope wrote. Swope concluded that “the Coskos’ hostile behavior is more likely than not a product of racism toward these Chinese immigrants.”

The judge found that when considered together, the Coskos' "spying" on their neighbors' yard and sending emails and complaints to the city were "a course of conduct that was unconscionable and outrageous, and would offend any average member of the community."

The judge highlighted Liao’s testimony that the Coskos’ conduct was “like an octopus with all the legs going everywhere in her life.” The judge further noted there was evidence in the record that the Coskos offered to buy the Liao and Zhang property shortly after their neighbors purchased it. The judge, however, did not point to any explicitly racist language from the Coskos.

"In a civilized and decent society, such conduct is inconsistent with being a good neighbor," the judge wrote. "Good neighbors do not harass and videotape their other neighbors, and drive off their contractors. At a construction site, good neighbors do not complain about paint brushes cast upon on their side of the fence. Good neighbors do not complain about water bottles thrown from the other side of the fence onto their property. Good neighbors simply retrieve these items and throw them away. Good neighbors do not send harassing e-mails and letters to the city on matters that are easily resolvable."

The Coskos’ lawyers, Brian Hannon and Stephanie Southwick at Greenfield Draa & Harrington in San Jose, who signed onto the case post-trial, are asking Swope to roll back portions of his decision dealing with the purported “hostile behavior,” or alternatively seal the decision or “redact the objectionable portions.” They claim that there is no evidentiary support for the judge's finding that racism was a motivating factor for the Coskos. No one, including opposing counsel, they argue, raised the specter of racism in the case before the judge's final decision. The Coskos' lawyers point out the judge didn't raise the issue in his prior tentative ruling, delivered orally at a February 2018 hearing in the case, and said their clients never had a chance to defend themselves from the claim.

“Wrongfully labeling a person as a ‘racist’ is intolerable, especially when it is a court of law that is doing so,” the Coskos’ lawyers wrote. “Here, even though neither Mr. Cosko nor Mrs. Cosko is a ‘racist,’ the opprobrium that almost surely will result from being falsely labeled as such will cause them untold harm, including irreparable damage to their reputation and livelihood.”

The Coskos' filing notes that Gregory Cosko is the president and CEO of Hathaway Dinwiddie Construction Co., a large San Francisco-based construction firm. Cosko, whose company has worked on recent high-profile projects, including The Exchange in Mission Bay and the Salesforce Tower, was named one of the San Francisco Business Journal's "Most Admired CEOs" in 2016.

"In view of the Court's unsupported finding that Mr. Cosko is a 'racist,' it is not an exaggeration to state that the company's present as well as future clients may be very reluctant — to say the least — to retain Hathaway Dinwiddie whose chief executive officer in the eyes of the law is a 'racist,'" wrote his lawyers. “It also is not an exaggeration to state that Mr. Cosko's employment status could very well be adversely affected should this Court refuse to act,” they continued.

In an emailed statement, Southwick said: "Because this is a pending matter, I refer you to the pleadings filed by my office which set forth my clients’ position."

Teresa Li, the lawyer representing Liao and Zhang, filed court papers Tuesday opposing the motion to seal or modify Swope's decision. Li wrote there was "substantial evidence to justify the racism finding." In particular, Li pointed to evidence that the Coskos offered to buy the house as soon as they learned the race of the new buyers and Deborah Cosko continued to complain to the city even after learning that her neighbors had the appropriate permits in hand for their construction project.

"If the Coskos were merely concerned about Liao’s permit situation, her complaint should have stopped after being informed that Liao’s project had the proper permit," Li wrote. "The reason that she did not stop again shows her conduct is racially motivated. Liao and Zhang’s counsel argued this during her closing."

Li declined to comment beyond the court filings.

A hearing on the Coskos' motion is scheduled for Feb. 4.