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TORTS, Nuisance Endangerment

VERDICT: Defendant was ordered to remove 27 of her 45 blue gum eucalyptus trees which the Court deemed hazardous and a nuisance. Plaintiffs were declared the prevailing parties, entitled to recover costs of suit. Judge was Michael B. Dufficy. The judgement was upheld on appeal.

CASE: Way and Mindel v. Wolff, Case No. CV 064953

TRIAL LENGTH: 5 Days

VERDICT DATE: Trial Court Judgment- May 5, 2009
Appellate Court Decision- March 30, 2010
Contempt Orders- September 9, 2010 and November 9, 2010 (Fines of $20,000 imposed on Defendant)

ATTORNEYS:Plaintiffs – Barri Kaplan Bonapart (Bonapart & Associates, Sausalito)
Defendant: Peter Brekhus (Brekhus Law Partners, Greenbrae)
Ian A. Fraser-Thompson (Cesari, Werner & Moriarti, San Francisco)

EXPERTS: Plaintiff: Raymond Mortiz, urban forester and fire ecologist, San Rafael
Defendant: Kenneth Allen, consulting arborist, San Francsico

FACTS & CONTENTIONS: Plaintiffs and Defendant are next door neighbors in Larkspur, CA.  Defendant’s property contained 45 Eucalyptus trees on about a third of an acre. Due to failure to maintain her property, Defendant’s trees regularly dropped branches and debris, endangering neighboring children and property.  Even whole tree failures were known to occur.  In addition, Wolff's trees were designated a “pyrophitic tree” under section 12.16.080 of the Larkspur Municipal Code, the planting of which constituted a hazard because the parties lived in a “high- fire hazard zone.” Finally, separate and apart from the danger, the trees shed extensive amounts of debris onto Plaintiffs’ properties, requiring constant cleanup.

Plaintiffs offered to pay $50,000 for costs of removal and replacement of the trees, but Defendant refused. Plaintiffs also proposed a solution in which no removal would be required, if Defendant would agree to perform regular maintenance on her trees, which she also refused. After tolerating the danger for some time, Plaintiffs filed suit.

Plaintiffs sought permanent injunctive relief having dismissed all compensatory and punitive damage claims. The only relief they sought was abatement of the debris nuisance and removal/pruning of the dangerous trees.

ADDITIONAL INFORMATION: After a 5 day trial, Judge Dufficy ordered Wolff to remove 27 of her blue gum eucalyptus trees, with removal costs split equally between the parties, and Plaintiffs entitled to recover costs of suit.

Wolff filed an appeal challenging the sufficiency of evidence to support the conclusion and the remedy of a permanent injunction calling for the removal of more than half of her trees. She also claimed that the court issued erroneous evidentiary rulings to her prejudice.

The First Appellate District Court upheld Judge Dufficy’s judgment in its entirety on March 30, 2010. The California Supreme Court denied Wolff’s petition for writ of certiorari. There were a series of post-appeal motions leading to a finding of contempt and sanctions until Defendant complied with the judgment. Wolff was ordered to comply with the judgment by a given deadline and to pay sanctions to the plaintiffs of $1,000 per day of violation, totaling $20,000. She was also ordered to pay the difference between the actual cost of removal and the plaintiffs' share of the lowest bid by a contractor not used by the plaintiff.

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