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ELECTRONICALLY FILED BY

Superior Court of California,


LAW OFFICES OF GEORDAN GOEBEL County of Monterey
GEORDAN GOEBEL [State Bar #149513]
On 1/4/2017 2:15:06 PM
2 ASHLEY STANDER [State Bar #307562]
155 Granada Street, Suite M-2 By: Janet Nicholson, Deputy
3 Camarillo, CA 93010-7725
Phone:(805)482-7966
4 Fax: (805) 482-8879

5 Attorneys for Plaintiff,


STAT E FARM GENERAL INSURANCE COMPANY
6

8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF MONTEREY

9 UNLIMITED CIVIL CASE

10

11 STATE FARM GENERAL INSURANCE ) Case No.:16CV002381


COMPANY, )
12 ) THIRD AMENDED COMPLAINT
Plaintiff, ) FOR DAMAGES
13 )
vs. ) 1) Negligence
14 ) 2) Dangerous Condition of Public
CITY OF CARMEL-BY-THE-SEA; and DOES 1 ) Property
15 through 10, inclusive, ) 3) Inverse Condemnation
)
16 Defendants. )
11------------------------------ )
17

18 ALLEGATIONS COMMON TO ALL CAUSES OF ACTION

19 Plaintiff alleges:

20 1. Plaintiff is, and at all times herein mentioned was, a corporation organized and existing

21 under the laws of the State of Illinois, and authorized to transact business in the State of California as

22 a fire and casualty insurer.

23 2. Plaintiff is informed and believes, and on that basis alleges that, defendant, CITY OF

24 CARMEL-BY-THE-SEA ("the City") is a municipality located within the State of California.

25 3. The real property, for which plaintiff seeks to recover damages proximately caused thereto

26 by defendants, is located at Scenic Drive, 2"d House N. of Santa Lucia, Carmel, CA 93923 ("the

27 premises"). The premises is a single family residence located within the County of Monterey.

28 4. The true names and capacities, whether individual, corporate, associate or otherwise, of

THIRD AMENDED COMPLAINT


defendants, DOES 1-10, inclusive, are unknown to plaintiff, who therefore sues such defendants by

2 such fictitious names. Plaintiff is informed and believes, and thereupon alleges that, each of the

3 defendants designated herein as a DOE is negligently responsible or strictly liable in some manner

4 for the events and happenings herein referred to and negligently, or as a result of strict liability,

5 proximately caused plaintiffs damages as herein alleged.

6 5. Each fictitious defendant named herein is, and at all times relevant hereto was, the agent,

7 servant, employee, representative, assign or alter-ego of each other herein named defendant. Each

8 allegation in this complaint incorporates by reference the allegations made against all DOE

9 defendants.

10 6. Plaintiff is informed and believe, and thereon alleges that, defendant, the City, requires

11 permits to remove trees within the City limits, even trees on private property.

12 7. Plaintiff is informed and believe, and thereon alleges that, in or about September, 2015,

13 Tracy Hirt requested permission from the City to remove four large dead, decayed and diseased trees

14 from her property. A fifth tree, similarly decayed and diseased, was situated a few feet away from

15 the trees listed on the permit application. The City sent its city employee, the "Forester" to inspect

16 the trees and process Mr. Hirt's permit application.

17 8. On or about November 15, 2015, this last tree, despite being dead and decayed, which had

18 not been removed by the City, fell and damaged the premises. Plaintiffs insured was in no manner

19 responsible for this damage, and committed no act or omission to cause, contribute to, or

20 proximately initiate the damage as herein alleged. The large tree fell onto plaintiffs insured's

21 premises and property, significantly damaged and degraded the property, causing the losses and

22 damages as herein alleged. Tracy Hirt could not legally have removed the remaining tree herself, for

23 the reasons set forth in paragraph 6, above.

24 9. Plaintiff's insured duly made an insurance claim to plaintiff for these losses caused by the

25 actions and omissions ofDefendants, and each of them. Plaintiff was contractually obligated to pay

26 its insured's covered loss arising from the actions and omissions of Defendants as set forth above.

27 Plaintiff investigated the loss, verified its insured's claim, and the Defendants' liability therefor. In

28 accordance with the terms of its policy with its insured, plaintiff paid its insured's claim in the

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THIRD AMENDED COMPLAINT
amount of $64,792.40, to compensate plaintiffs insured for the damage to the premises and property.

2 As part of plaintiffs claim, plaintiff herein seeks recovery of its insured's $5,302.00 deductible, on

3 behalf of, and for the benefit of, plaintiffs insured. Plaintiff did not make payments to its insured as

4 a volunteer. As a result of such payments, plaintiff became and is now subrogated to all of the rights

5 of its insured for the amounts paid as damages under the policy of insurance, and is entitled to

6 enforce all the remedies available to its insured against the Defendants, and each of them.

7 FIRST CAUSE OF ACTION, NEGLIGENCE

8 [Cal. Gov. Code 815.2, 815.6, 818.6. Municipal Code 17.481

9 10. Plaintiff repeats and re-alleges the allegations contained in paragraphs numbered 1

10 through 9 of this complaint, and incorporates those allegations herein as though fully set forth hereat.

11 11. The City is, and at all relevant times was, a public entity.

12 12. The City owed plaintiff's insured, without limitation, the following mandatory duties:

13 (a) To protect the public health, safety, and welfare;

14 (b) To provide public works services, building inspection services, and public

15 health services;

16 (c) To consider and act on applications for tree trimming and tree removal;

17 13. The City was under a mandatory duty imposed by law, including its own enactments

18 under Carmel-by-the-Sea's Municipal Code ("City Code") 17.48, intended and designed to protect

19 against damage to private property due to unsafe conditions of its protected property, including the

20 tree at issue herein. As a direct and proximate result of the defendants' failure to exercise reasonable

21 diligence to discharge its mandatory duties, plaintiffs insured suffered property damage. As set

22 forth above, the City has actual notice of the unsafe condition.

23 14. Per the City Code, following the submittal of a permit application, the City Forester

24 shall:" Review all trees on the site and in the adjacent right-of-way" (City Code 17.48.060). The

25 tree at issue was only a few feet away from the trees that the City intended to remove. The tree was,

26 and had been, in a state of decay for a long period of time, including the point in time at which the

27 City came to the Premises to inspect the adjacent trees. On July 21, 2015, the City issued the tree

28 removal permit for the adjacent trees, following the City's Forester's inspection of the site.

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THIRD AMENDED COMPLAINT
15. The City failed to maintain, service, manage, supervise, inspect and/or remove the

2 subject tree with reasonable due care and/or in accordance with approved, accepted, and mandatory

3 specifications, conditions, surveys, reports, recommendations, regulations, plans, codes, ordinances,


4 statutes and law.

5 16. The City so negligently, wrongfully and defectively maintained, serviced, managed,

6 supervised, inspected and/or monitored the decaying trees that this negligent and wrongful conduct

7 proximately caused the subject tree to fall on plaintiffs insured's property, causing damage to the

8 premises and plaintiffs insured's property as herein alleged.

9 17. The burden on, and the cost to the City, to carry out its duties regarding the tree removal

I0 system were minimal. The risk of the tree falling and causing damage to the premises, in the event

11 that the City did not carry out the duties it owed plaintiffs insured, was very high. It was reasonably

12 foreseeable that the degree of harm from the tree falling would be significant. As a direct and

13 proximate cause of the City's failure to exercise reasonable diligence, plaintiffs insured suffered

14 damages as herein alleged.

15 18. Government Code 815.2, subdivision (a), provides: "A public entity is liable for injury

16 proximately caused by an act or omission of an employee of the public entity within the scope of his

17 employment if the act or omission would, apart from this section, have given rise to a cause of action

18 against that employee ... " Because the City's Municipal Code ("City Code") 17.48.060 sets forth a

19 mandatory duty regarding the trees within the City limits, the City breached its mandatory duty to

20 plaintiffs insured by not removing the dead tree, which fell on plaintiffs insured's property, causing

21 the loss at issue herein.

22 19. As set forth above, defendants, and each of them, breached their duty to plaintiff, by

23 causing, through act or omission, the property damage as herein alleged.

24 20. The tree fell and damaged plaintiffs insured's property, causing loss and damage thereto,

25 thereby causing Plaintiff to suffer damages in an amount of at least $64,792.40.

26 SECOND CAUSE OF ACTION, DANGEROUS CONDITION OF PUBLIC PROPERTY

27 [Cal. Gov. Code 835}

28 21. Plaintiff repeats and re-alleges the allegations contained in paragraphs numbered 9

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THIRD AMENDED COMPLAINT
through 20, of this complaint and incorporate those allegations herein as though fully set forth hereat.

2 22. At all times relevant hereto, the City asserted exclusive dominion and control over the

3 subject trees, by their policy of requiring permits prior to removal of trees within City limits.

4 23. The failure of the City to remove the dead tree directly and proximately led to the tree

5 falling on plaintiffs insureds' premises, as herein alleged. As set forth herein, the City had actual

6 knowledge of the peril of the dead tree, but took no action to allow the tree to be removed. The City

7 Forester had actual knowledge of the subject tree by virtue of his inspection for the permit process.

8 24. At all relevant times hereto, the City exclusively controlled the procedures for the

9 trimming, maintenance and/or removal of the trees. The City's failure to inspect and recommend

10 removal of the subject tree constituted a dangerous condition and substantial risk of injury to

11 adjacent property.

12 25. The dangerous condition was created by the City's negligent and wrongful failure to

13 allow the removal of the dead tree.

14 26. The City had actual and/or constructive notice of the dangerous condition in sufficient

15 time before the tree fell and damaged the property as set forth herein, to have taken reasonable

16 measures to protect against the danger as follows:

17 (a) The City had actual notice through notification in September, 2015 by Tracy

18 Hirt of the four dead or diseased trees on her property that required removal.

19 The City responded by sending their Forester to inspect the property. The City

20 reasonably should have discovered the condition of the fifth tree, and known

21 that it was dangerous rather than trivial; and

22 (b) The City had constructive notice of the dangerous condition of the subject

23 tree, in that the condition as above alleged, was of such an obvious nature that

24 both it and its dangerous character should have been discovered by the City in

25 the exercise of due care, and would have been discovered by a reasonably

26 adequate inspection system maintained and operated with due care.

27 27. The dangerous condition created by the City's failure to properly carry out its mandatory

28 duties to protect the City residents from known hazards, such as the subject dead tree, was a

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THIRD AMENDED COMPLAINT
reasonably foreseeable risk, which was the exact kind of injury plaintiffs insured suffered. The City

2 failed within a reasonable time to remedy the dangerous condition or to take steps necessary to

3 protect plaintiffs insured. Defendants could have mitigated the danger, but did not.

4 28. As a proximate and foreseeable result of the dangerous condition of the decayed tree left

5 standing, the premises and plaintiffs insured's personal property have been damaged in an amount

6 of at least $64,792.40. The dangerous condition ofthe unstable tree and the City's failure to protect

7 the public, including the premises, from the dangerous condition that it created, knew existed and

8 failed to adequately maintain and/or repair was a substantial factor in causing plaintiffs insured's

9 damages, and thereby causing plaintiffs insured's damages as herein alleged.

10 THIRD CAUSE OF ACTION, INVERSE CONDEMNATION [Cal. Const, art. I, 19)


11 29. Plaintiff repeats and realleges the allegations contained in paragraphs numbered 19

12 through 28, of this complaint and incorporate those allegations herein as though fully set forth hereat.

13 30. The City's exclusive control over the management, maintenance, alteration, repair,

14 construction or removal of trees is the proximate and direct cause of the damage to plaintiff's

15 property, as plaintiff's insured and neighbor, Tracy Hirt, was precluded from removing the diseased

16 tree herself by nature of the City's Historic Designation and exclusive control of the trees on the

17 property.

18 31. The City's negligent servicing, supervision, inspection, management and/or maintenance

19 ofthe decayed trees are the proximate and direct causes of the tree falling on plaintiffs insured's

20 property.

21 32. Defendants, and each ofthem, have damaged and taken plaintiff's insured's property,

22 entitling plaintiff to just compensation under Article I, Section 19 of the California Constitution.

23 33. Plaintiff has suffered a taking without any compensation, just or otherwise, in an amount

24 of at least $64,792.40.

25 34. Plaintiff is entitled to recover its costs, disbursements and expenses of suit, including

26 attorney fees and experts' fees, pursuant to CCP l 036.

27 ALL CAUSES OF ACTION

28 35. Plaintiff repeats andre-alleges the allegations contained in paragraphs numbered 1

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THIRD AMENDED COMPLAINT
_1(1. On or e~hout \larch 7. :21J I h. pla111tilr dul~ likd a c:laim \\ ith tlh.' (it~. Iwtil~ ing the City

pj' tlw damage tu the premises. and d'-manded pa: ment. ( )n June 2-L :2\1\ (l_ the City denied

4 Plaintilrs claim. Plainti!lhas dul: Cl\lllJlli'-'d vvith the provisions or<ro\ernmcnt Code Section

911.2. ct seq .. by timLIy submitting their cl~1im w the ( ity. Plain tilT has also complied \\ith
6 (im'--rnment CL)de Section945.h h: tiling ~uit \\;t:1111 si\: months ufthe Cit_:. s denial of their claim.

WI-!ERFFORI:. plainti!Tpra~s l(lrJuclgmcnt against dc!Cndants. and each ofthem as !'ollc1\\S:

10 alter NL'\ ember. 2() 1.:':

11 ") For costs or suit e\pert kL'S ~IIlLi attorneys ll'L'S incurred herein:

1:2 J. For such other and furthL~r relict' as this ('ourt 1nay dccn1.iust and proper.

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14 DAITD: January l 2017 LAW 01 TICLS OF GLORD.-\1\ GOFBFI.

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