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City of Pasadena v. Superior Court (Mercury Casualty Company)

California Court of Appeals, Second District, Third Division

August 14, 2014

CITY OF PASADENA, Petitioner,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent MERCURY CASUALTY COMPANY, Real Party in Interest.

ORIGINAL PROCEEDINGS in mandate. Los Angeles County Super. Ct. No. BC491467 Joseph R. Kalin, Judge.

Page 1229

[Copyrighted Material Omitted]

Page 1230

COUNSEL

Richards, Watson & Gershon, Robert C. Ceccon, Saskia T. Asamura; Michelle Beal Bagneris, City Attorney, and Lesley Cheung, Deputy City Attorney for Petitioner.

No appearance for Respondent.

Law Offices of Robert A. Stutman and Timothy E. Cary for Real Party in Interest.

Page 1231

OPINION

CROSKEY, Acting P. J.

During a windstorm in late November 2011, a tree owned by the City of Pasadena (City) fell on the residence of James O’Halloran. As a result of the damage caused to the house, the insurer Mercury Casualty Company (Mercury) paid benefits to O’Halloran pursuant to his homeowner’s insurance policy. Mercury then sued the City for inverse condemnation and nuisance based on the damages caused by the tree.

The City now seeks a writ of mandate challenging the trial court’s order denying summary adjudication with respect to these causes of action. The City argues that summary adjudication should have been granted because (1) the subject tree was not a work of public improvement such that the City may be held liable for inverse condemnation, and (2) Mercury failed to submit any evidence that the City was negligent such that the City may be held liable for nuisance. We disagree and deny the writ.

FACTUAL AND PROCEDURAL BACKGROUND

More than 5, 000 trees in the City were damaged by the windstorm that struck the City on November 30, 2011, including the tree that fell on O’Halloran’s residence. The residence experienced extensive damage for which Mercury paid $293, 000 in benefits to O’Halloran.

On September 4, 2012, apparently after being assigned O’Halloran’s claims against the City, Mercury filed suit against the City for inverse condemnation and private nuisance alleging that the City was liable for the damages to O’Halloran’s house because it owned the subject tree.[1] On October 25, 2013, the City moved for summary adjudication of each cause of action on the grounds that (1) “a tree is not a work of public improvement that is the proper subject of an inverse condemnation action, ” ...


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