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Serena Arvayo and her attorney discuss the cross-claim filed in a lawsuit that called her son Ezekiel’s playing a “nuisance.” (Screengrab via KNTV)
A California mother of a boy with autism said she “felt sick” when her former neighbor sued to have the child’s “disgusting” backyard playing declared a nuisance. The mom is now fighting back with a lawsuit of her own.
Serena Arvayo lived with her son, Ezekiel, known as “Zeek,” along with her father and his wife in a San Jose apartment owned by Marc Goubert. But Arvayo said she had to move out and away from family, because their next door neighbor began harassing them about Zeek’s backyard playing.
Zeek is an 11-year old boy who has autism and is nonverbal, but can produce sounds known as “vocal stimming.” According to his mother, Zeek also has attention-deficit/hyperactivity disorder (ADHD) as well as sensory challenges and communication difficulties. As a result, Zeek requires 24-hour supervision.
In a March 1 court filing, Arvayo detailed a disturbing interaction in May of 2022 between herself and her neighbor, identified as “Janine” Chu Lu.
Arvayo said that as she and Ezekiel were about to go to the park, Lu approached them, introduced herself, and “began to list out her complaints with Ezekiel.”
According to Arvayo, Lu asked Arvayo not to allow Zeek to play in the backyard or to let him go outdoors for even brief periods of time.
“Shocked, Serena began to explain that Ezekiel was a young child who suffered from a severe form of autism and was completely nonverbal,” the filing recounted. “As such, the noises Janine was complaining about were Ezekiel’s attempt to communicate emotions and were uncontrollable.”
The Arvayo family alleged that “[i]nstead of being understanding, Janine asked Serena, directly in front of Ezekiel, if there was a cure for his condition.”
The claim continued to say that, “Janine’s offensive and callous comments were deeply hurtful, offensive, and upsetting to Serena and Ezekiel given that they were said for the sole purpose of causing humiliation and shame and targeted towards his disability.”
Arvayo said she exchanged phone numbers with her complaining neighbor and invited her to call if there were ever a specific problem requiring attention. According to the filing, instead of calling Arvayo directly, Lu opted to message the landlord just days later to report that Ezekiel was “playing in the background by himself and making strange noises, and no adults [were] with him.”
“It is so disgusting!” Lu allegedly added in her message.
The cross-complaint said that during the same month, Arvayo and Ezekiel had no choice but to move out of the apartment in order to preserve their emotional well-being. Their move resulted in increased expenses for all involved, they said.
Arvayo said now that and her son are living separately from their other relatives, they only visit Ezekiel’s grandparents occasionally on weekends for a few hours at a time. However, according to the mother, relations between her family and Lu got worse last December when Lu filed a lawsuit asking the court to award her monetary damages for Zeek’s “nuisance” behavior.
In her lawsuit, Lu said the child was “left in the backyard almost daily to wail and scream for hours, often without adult supervision,” and that the Arvayos have constant parties with “amplified music and noise that often go into the late night and early morning hours.”
Lu said she also spoken to the landlord about the disruptive tenants, but that Goubert has “taken no action,” and instead “has ‘gas lighted’ Plaintiff by claiming that Plaintiff is over exaggerating the nuisance and is overly sensitive.”
Lu noted that other neighbors have also been disturbed by the Arvayo’s behavior and that the “neighborhood at large” is suffering not only disruption, but also diminished property value as a result.
Lu brought claims for nuisance and negligence and alleged that Zeek’s behavior which was “permitted and ratified” by his mother and grandfather,” is “indecent and offensive to the senses, has caused emotional distress, and interferes with the free use and quiet enjoyment of the real property of Plaintiff and her neighbors.” The plaintiff requested unspecified damages.
On March 1, the Arvayos and their landlord filed a cross-complaint against Lu.
“Serena is a single mother who has dedicated her life to caring for her son, Ezekiel, given his condition and needs,” explained the filing.
The cross-claim said that Ezekiel was never left unsupervised and that any time an adult was not physically present with him, the adult was watching the child through large kitchen windows.
As far as wild parties, the Arvayos said that “occasionally,” they host family gatherings in their home “to celebrate holidays or watch sporting events,” but that the gatherings were always on weekends during daylight hours and were often entirely indoors.
“While children were allowed to play in the backyard, no excessive noise was ever made, and the gatherings usually concluded by approximately 8:00 p.m.” said the complaint.
In an email to Law&Crime Friday, Arvayo said she felt sick when she learned about the claim calling her son a nuisance. She said she felt her son was a victim of discrimination.
“[H]e did not choose to be born with a profound disability,” Arvayo said, “It’s not his fault he cannot speak, and the sounds he makes are his only way of communicating, joy, pain, sadness, and the like.”
She added that she has received no other complaints and that the family has tried to be respectful and considerate to those around them.
“The isolation and anxiety we face every day of worrying about the judgment from others is already difficult enough, and to add such an insult by filing a lawsuit against us a week before Christmas, just added an extreme amount of stress to myself and my family,” she said. “We want peace and awareness and to be a voice for the entire special needs community.”
Attorney Missy M. Cornejo, one of the attorneys on Arvayo’s legal team, called the lawsuit against her clients “outrageous and appalling.”
In an email to Law&Crime, Cornejo elaborated:
This lawsuit is outrageous and inhumane. Zeek, along with any other child with a disability, are human beings that deserve the same level of respect and freedom as others. Seeing this happen in our profession is reprehensible and something that should not be tolerated. The lawsuit demonstrates a lack of compassion, lack of empathy, and lack of civility at its most basic level. Can you imagine a world in which a child with a disability can be declared a nuisance for playing in his grandparents’ backyard? It is appalling.
Law&Crime reached out to Lu’s lawyer, but did not receive a response.
You can read the full cross-complaint here.
