Rony v. Costa
No. A128836 (1st Dist., Div. 1)
2012 DJDAR 14945
October 26, 2012
Defendant neighbor never saw it coming. He hired someone to trim some overhanging growth from a neighbor’s yard to create space for smoke and heat to emanate from a grill he installed in his yard. Instead, the helper went into plaintiff’s yard, up into the tree with a chainsaw, and went to town. The plaintiff neighbor sued, claiming the cuts had harmed the old cypress tree and its aesthetics, removed shade, possibly made it a hazard that could fall, and made the tree less of a prominent feature in her yard. She sought costs to replace the tree with a comparable old cypress, among other damages. The trial and appellate court found in plaintiff’s favor.
The Court of Appeal noted damages for tortious injury to property are measured by standard tort damages under Civil Code section 3333 (compensation for all detriment proximately caused). That can be the lesser of diminution in value or costs to repair. Restoration can only exceed diminution in value if there are personal reasons (which typically applies to loss of a personal residence). The Court also noted compensation could be attributed to loss of aesthetics and functionality. Because the tree trimmer had gone onto plaintiff’s property to cut extensively, and had misshapened the tree, the Court found substantial evidence to support the award.
The Court, however, reversed the attorney fee award based on Code of Civil Procedure section 1029.8, because that section only applies if the defendant performed a service without a required license, and, here, the defendant was the neighbor, not the unlicensed tree trimmer. In the end, the Court approved damages of $22,530 for the tree, which was doubled to $45,060 under Civil Code section 3346 (which allows enhanced damages for wrongful injuries to trees). When mixed with costs and attorneys fees to go through an appeal, the tree trimming ended up being an extremely expensive mistake for defendant neighbor.
Prepared by John Reaves