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Rony v. Costa

Rony v. Costa

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Published by Sandy Rierson
Cal Ct App - Oct. 26, 2012
Cal Ct App - Oct. 26, 2012

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Published by: Sandy Rierson on Jun 06, 2013
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OFFICIAL REPORTS, CALIFORNIA 2CALIFORNIA OFFICIAL REPORTS9443 SPRINGBORO PIKEMIAMISBURG, OH 45342-4425
 
1 of 50 DOCUMENTS
ELLEN RONY, Plaintiff and Respondent, v. PAOLO COSTA, Defendant andAppellant. ELLEN RONY, Plaintiff and Appellant, v. PAOLO COSTA, Defendantand Appellant.A128596, A128836COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT,DIVISION ONE
 210 Cal. App. 4th 746 
;
148 Cal. Rptr. 3d 642
;
2012 Cal. App. LEXIS 1122
October 26, 2012, Opinion FiledPRIOR-HISTORY:
Superior Court of Marin County, No. CIV086032,Andrew E. Sweet, Judge.
HEADNOTES-1
CALIFORNIA OFFICIAL REPORTS HEADNOTES
(3) Damages § 14--Measure of Damages--Injuries toProperty--Trees--Lost Aesthetics andFunctionality.
--The trial court's award of an additionalamount for loss of aesthetics from damage to a cypresstree was supported by substantial evidence. The owner'stestimony, corroborated by photographs and the experts'testimony, demonstrated that while a contractor hired byher neighbor might have cut just 30 percent of thecypress, he drastically reduced the tree's aesthetics andcompromised its ability to provide shade. A trunformula method described by the neighbor's expert mighthave accounted for a tree's placement and condition in autilitarian sense, but the expert did not testify that themethod fully accounted for the intangible, but very real,loss in aesthetic pleasure to the owner. Thus, the trialcourt could have rationally concluded a further awardwas necessary to compensate the owner for thewell-established aesthetic loss.[Levy et al., Cal. Torts (2012) ch. 52, § 52.34; Cal.Forms of Pleading and Practice (2012) ch. 177, Damages,§ 177.47; 6 Witkin, Summary of Cal. Law (10th ed.2005) Torts, § 1727 et seq.; 7 Witkin, Cal. Procedure (5thed. 2008) Judgment, § 229.]
COUNSEL:
McNamara, Ney, Beatty, Slattery, Borges &Ambacher, Christopher T. Lustig and R. Dewey Wheelerfor Defendant and Appellant.Dorothy F. Waldrup, Bruce W. Blakely; Rifkind LawGroup and Leonard Arlan Rifkind for Plaintiff andRespondent and for Plaintiff and Appellant.
JUDGES:
Opinion by Banke, J., with Marchiano, P. J.,and Dondero, J., concurring.
OPINION BY:
Banke, J.
OPINIONBANKE, J.
--To make way for an outdoor pizzaoven in his backyard, defendant and appellant PaoloCosta hired a day laborer to remove overhanging treelimbs from nearby trees, one of which was a Montereycypress growing on his neighbor's, plaintiff andrespondent Ellen Rony's, property. However, the laborernot only trimmed limbs overhanging Costa's property, healso lopped off portions of the cypress solely on Rony'sPage 1
 
property. Distressed by the shearing of her tree, Ronysued Costa, but not the laborer, for wrongful injuries totimber. Following a bench trial, Rony was awarded$22,530 in actual damages, which the court doubled to$45,060 under a statutory double-damages provision.The trial court also awarded Rony attorney fees under
Code of Civil Procedure section 1029.8 
, whichauthorizes a fee award against an "unlicensed person whocauses injury or damage to another person as a result of providing goods or performing services for which alicense is required." (
Code Civ. Proc., § 1029.8, subd.(a)
.)
1
1 All further statutory references are to the Codeof Civil Procedure unless otherwise indicated.Both parties have appealed. Costa contends the trialcourt had no basis to include $15,000 in its damagesaward for loss of the tree's aesthetic value. He alsocontends
section 1029.8 
is inapplicable and the attorneyfee award should be reversed. Rony, in turn, maintainsthe fee award is too low. We affirm the damages award,but conclude
section 1029.8 
is inapplicable and reversethe award of attorney fees.
F
ACTUAL AND
P
ROCEDURAL
B
ACKGROUND
Rony has lived on property in Tiburon since 1979.Two towering Monterey cypress trees mark its northwestand northeast corners. According to Rony, the trees were"tall and magnificent" and "the major landscapingfeature" of her yard. Over the past 30 years, she hasperiodically had the trees professionally trimmed toenhance their appearance. The tree in the northeastcorner, with a height of between 50 and 80 feet and atrunk diameter of just over three feet, provided her yardwith shade.In 2000, Costa and his family moved onto theproperty just behind, and north of, Rony. A fenceseparates the two parcels. In 2008, Costa decided toinstall an outdoor pizza oven in the southeast corner of his yard. To clear a path for the smoke and heat thatmight emanate from the oven, Costa paid CarlosGuifarro, a day laborer whom Costa was "sure" wasunlicensed, no more than $500 to cut tree branchesextending over the area. Guifarro cut branches from anoak tree growing in Costa's yard. He also cut branchesfrom the large cypress growing in the northeast corner of Rony's yard.On the evening of April 30, 2008, Rony returnedhome from work and, from her kitchen, noticed a changein the lighting in her backyard. She made no investigationthat evening. The next morning, however, a buzzingchain saw awoke her. She followed the sound, and founda ladder leading from the Costa property, over the fence,and up into the cypress tree on her property. Guifarro wassitting in the tree "hacking away" at it with a chain saw.Rony confronted Guifarro and accused him otrespassing. All told, Guifarro had made 32 cuts along thenorth side of the tree and had denuded three verticallimbs of their branches and growth. The cuts left stubs,were not of "professional" quality, and did not promotethe health of the tree.Rony's expert, Raymond Moritz, described thecypress tree as now "very odd looking, being onlyone-sided and having so much dead material, sparsexposed ... very unaesthetic." Moreover, because of thenature of cypress trees, the uncut side of the tree wouldcontinue to grow while the other would not. Moritzbelieved the cypress had become a "hazard tree" in needof removal. Costa's expert, John Lichter, disputed the treewas a hazard, but agreed it had been "aestheticallycompromised" and Guifarro's pruning was nothingLichter would ever do or approve of.Rony, herself, testified the cuts were "harsh, brutish,improper, and ugly" and she no longer enjoyed theaesthetics of the tree, which had previously offered shade,character, and beauty. One photograph, trial exhibit No.6, shows the cypress, from one angle, looking like half atree. Rony was concerned about all the remaining foliagebeing on the tree's south side and that the tree might fallsouthward onto her home. She wanted to replace it, butcould not afford the cost.On December 9, 2008, Rony filed a verifiedcomplaint against Costa and his wife, alleging they wereliable for Guifarro's tree cutting and should pay enhanceddamages under
Civil Code section 334
2
and
Code of Civil Procedure section 733
3
(both of which punishwrongful injuries to trees). Rony eventually dismissedCosta's wife, and a four-day bench trial commenced onNovember 13, 2009.2
Civil Code section 3346, subdivision (a)
provides: "For wrongful injuries to timber, trees,or underwood upon the land of another, orremoval thereof, the measure of damages is threetimes such sum as would compensate for thePage 2

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