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Ellen Rony v. Paolo Costa

October 26, 2012

ELLEN RONY, PLAINTIFF AND RESPONDENT,
v.
PAOLO COSTA, DEFENDANT AND APPELLANT. ELLEN RONY, PLAINTIFF AND APPELLANT,
v.
PAOLO COSTA, DEFENDANT AND APPELLANT.



Trial Court: Marin County Superior Court Trial Judge: Honorable Andrew E. Sweet Super. Ct. No. CIV086032

The opinion of the court was delivered by: Banke, J.

CERTIFIED FOR PUBLICATION

(Marin County )

(Marin County Super. Ct. No. CIV086032)

To make way for an outdoor pizza oven in his back yard, defendant and appellant Paolo Costa hired a day laborer to remove overhanging tree limbs from nearby trees, one of which was a Monterey cypress growing on his neighbor's, plaintiff and respondent Ellen Rony's, property. However, the laborer not only trimmed limbs overhanging Costa's property, he also lopped off portions of the cypress solely on Rony's property. Distressed by the shearing of her tree, Rony sued Costa, but not the laborer, for wrongful injuries to timber. 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, which authorizes a fee award against an "unlicensed person who causes injury or damage to another person as a result of providing goods or performing services for which a license is required." (Code Civ. Proc., § 1029.8, subd. (a).)*fn1

Both parties have appealed. Costa contends the trial court had no basis to include $15,000 in its damages award for loss of the tree's aesthetic value. He also contends section 1029.8 is inapplicable and the attorney fee award should be reversed. Rony, in turn, maintains the fee award is too low. We affirm the damages award, but conclude section 1029.8 is inapplicable and reverse the award of attorney fees.

Factual and Procedural Background

Rony has lived on property in Tiburon since 1979. Two towering Monterey cypress trees mark its northwest and northeast corners. According to Rony, the trees were "tall and magnificent" and "the major landscaping feature" of her yard. Over the past 30 years, she has periodically had the trees professionally trimmed to enhance their appearance. The tree in the northeast corner, with a height of between 50 and 80 feet and a trunk diameter of just over three feet, provided her yard with shade.

In 2000, Costa and his family moved onto the property just behind, and north of, Rony. A fence separates the two parcels. In 2008, Costa decided to install an outdoor pizza oven in the southeast corner of his yard. To clear a path for the smoke and heat that might emanate from the oven, Costa paid Carlos Guifarro, a day laborer whom Costa was "sure" was unlicensed, no more than $500 to cut tree branches extending over the area. Guifarro cut branches from an oak tree growing in Costa's yard. He also cut branches from the large cypress growing in the northeast corner of Rony's yard.

On the evening of April 30, 2008, Rony returned home from work and, from her kitchen, noticed a change in the lighting in her backyard. She made no investigation that evening. The next morning, however, a buzzing chainsaw awoke her. She followed the sound, and found a ladder leading from the Costa property, over the fence, and up into the cypress tree on her property. Guifarro was sitting in the tree "hacking away" at it with a chainsaw. Rony confronted Guifarro and accused him of trespassing. All told, Guifarro had made 32 cuts along the north side of the tree and had denuded three vertical limbs of their branches and growth. The cuts left stubs, were not of "professional" quality, and did not promote the health of the tree.

Rony's expert, Raymond Moritz, described the cypress tree as now "very odd looking, being only one-sided and having so much dead material, spars exposed . . . very unaesthetic." Moreover, because of the nature of cypress trees, the uncut side of the tree would continue to grow while the other did not. Moritz believed the cypress had become a "hazard tree" in need of removal. Costa's expert, John Lichter, disputed the tree was a hazard, but agreed it had been "aesthetically compromised" and Guifarro's pruning was nothing Lichter would ever do or approve of.

Rony, herself, testified the cuts were "harsh, brutish, improper, and ugly" and she no longer enjoyed the aesthetics 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 a tree. Rony was concerned about all the remaining foliage being on the tree's south side and that the tree might fall southward onto her home. She wanted to replace it, but could not afford the cost.

On December 9, 2008, Rony filed a verified complaint against Costa and his wife, alleging they were liable for Guifarro's tree cutting and should pay enhanced damages under Civil Code section 3346*fn2 and Code of Civil Procedure section 733*fn3 (both of which punish wrongful injuries to trees). Rony eventually dismissed Costa's wife, and a four-day bench trial commenced on November 13, 2009.

During trial, the parties' experts offered two different appraisals of Rony's monetary damages. Rony's expert Moritz, believing Rony needed to replace the cypress, appraised damages using the "replacement method within the cost-of-cure method." He priced a 28-feet-tall, 108-inch "box" replacement tree at $21,266, then added the cost of tree removal, stump grinding, planting, irrigation, and 10 years of maintenance to arrive at an "unfactored, uncompounded value" of $37,483. Following the eighth edition of the Guide for Plant Appraisal, he then compounded this number over the 10 years he expected the replacement tree would need before it could play ...


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