Bonapart & Associates Law and Mediation: Practical Solutions for an Impractical World

Verdicts and Settlements

TORTS, Trespass/Nuisance: Other
Property Damage

RESULT:$10,000 paid to Plaintiffs for property damage, $10,000 for discomfort and annoyance, and $13,700 was awarded in statutory costs. Defendant was also ordered to remove the large tree causing property damage. Judge was Carol L. Mittlesteadt.

CASE: Hoffman v. Hitt, No. CIV 483736


VERDICT DATE: July 2, 2010

ATTORNEYS: Plaintiff – Barri Kaplan Bonapart (Bonapart & Associates, Sausalito).
Defendant: Thomas N. Lippe and Jen Naegele (Lippe Gaffney Wagner LLP, San Francisco).

EXPERTS: Plaintiff: Ray Morneau, arborist, Mountain View (650) 964-7664.
Tom McCalmont, solar analysis expert, McCalmont Engineering, Los Altos (888) 622-3647.
Defendant: Raymond Moritz, arborist, San Rafael (415) 381-2339

FACTS & CONTENTIONS: Plaintiffs and Defendant own adjacent homes in Menlo Park, CA.  After about ten years, Plaintiffs began to notice that the Defendant’s tree roots were causing damage to their walkway, fence, brick stairway and parts of their home. Additionally, Defendant’s trees and vegetation grew to such a height and density as to block a large portion of the sunlight which Plaintiffs had previously enjoyed, in violation of the Menlo Park Solar Ordinance. Because of the increased shading to their home, Plaintiffs experienced an increase in utility bills, an increase to their carbon footprint, and the growth of moss. Plaintiffs offered to pay for the cost of removing the tree, but Defendant refused.

The Hoffmans sued Hitt, seeking a declaration that Hitt’s trees and vegetation constituted an ongoing nuisance as well as a spite fence, and Injunctive relief requiring Hitt to comply with the Menlo Park Municipal Code and its Solar Ordinance. The Hoffmans also sought compensatory damages, punitive damages and general damages.

ADDITIONAL INFORMATION: After an eight-day trial Judge Mittlesteadt found that the Defendant’s tree had to be removed as the ongoing source of damage to the Hoffman property. However, the Menlo Park city attorney testified that the Menlo Park Solar Ordinance was “ineffective, confusing, and difficult to implement,” and Judge Mittlesteadt reluctantly declined to enforce its provisions, stating, “The court whole-heartedly understands why the City of Menlo Park has chosen not to enforce its Solar Access Ordinance as regarding vegetation, and only faults the city for allowing this ordinance to remain on its books. Such has, definitely in this case and possibly in other cases, resulted in citizens of the City of Menlo Park being misled. The court understands how Mr. Hoffman, particularly with his legal training and experience, believed that the Solar Access Ordinance applied to afford him protection.”


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