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REAL PROPERTY, Property Damage – Trespass/Nuisance
PERSONAL PROPERTY, Conversion – Property Damage
NEGLIGENCE: Other

SETTLEMENT RESULT: $25,000 paid to plaintiffs by defendant Nocera and $25,000 paid to plaintiffs by Donado, for a total of $50,000.

CASE: Arthur Miner, Imelda Miner and Gayle Miner v. Daniel Nocera and Juan Donado, individually and d/b/a Donado Tree Services, MSC09-02959

SETTLEMENT DATE: July 12, 2010

ATTORNEYS: Plaintiffs- Barri Kaplan Bonapart (Bonapart & Associates, Sausalito)
Cross-defendants: David W. Chen (Valerian, Patterson & Stratman, Alameda)
Defendant/cross-complainant (Nocera): Michael C. Douglass (Wilson, Elser, Moskowitz, Edelman & Dicker, San Francisco)
Defendants/cross-defendants (Donado and Donado Tree Services): Laura Flynn (Low, Ball & Lynch, San Francisco)

EXPERTS: Plaintiffs: Scott Traverso, certified arborist, Traverso Tree Service, Walnut Creek

FACTS & CONTENTIONS:Defendant Nocera hired a tree trimming service, Donado Tree Services, and authorized it to go onto the Miners’ property without permission in order to trim eight pine trees that were shedding needles onto his property. The trimming removed 50 to 75 percent of the total foliage and branches, and removed 100 percent of the branches on the south side of the trees. Additionally, the trees were pruned during the wrong time of year, exposing them to an attack by beetles. The trees were all dead within nine months, and the Miners were forced to remove them entirely to prevent injury to persons or property in case of tree failure.

The Miners sued Nocera and Juan Donado, individually and d/b/a Donado Tree Services, alleging wrongful injury and cutting of trees, negligence, trespass and conversion. A certified arborist appraised the value of the trees prior to damage at $28,220. Plaintiffs sought damages for the value of the loss, general damages for personal discomfort and annoyance, and damages for diminution in value and loss of use and enjoyment of their property and trees. They sought treble damages under the provisions of Cal. Civ. Code 3346(a) and Cal. Civ. Proc. Code 733 and double damages under Cal. Civ. Code 3346. The plaintiffs additionally sought prejudgment interest and the costs of suit.

ADDITIONAL INFORMATION: Defendant Nocera filed a cross-complaint for indemnity against Donado and for negligence against the Miners and Donado. Nocera agreed to dismiss with prejudice the claim against Donado and the Miners.

The insurance carrier for defendant Donado was Colony Insurance, claims adjuster John Peters.

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