Rony v. Costa
| Citation | 210 Cal.App.4th 746,148 Cal.Rptr.3d 642 |
| Decision Date | 26 October 2012 |
| Docket Number | Nos. A128596,A128836.,s. A128596 |
| Parties | Ellen RONY, Plaintiff and Respondent, v. Paolo COSTA, Defendant and Appellant. Ellen Rony, Plaintiff and Respondent, v. Paolo Costa, Defendant and Appellant. |
| Court | California Court of Appeals |
OPINION TEXT STARTS HERE
See 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 229.
Dorothy F. Waldrup, New Orleans, Bruce W. Blakely, Mill Valley, and Rifkind Law Group, Leonard Arlan Rifkind, Greenbrae, for Plaintiff Ellen Rony.
McNamara, Ney, Beatty, Slattery, Borges & Ambacher, Christopher T. Lustig and R. Dewey Wheeler, Walnut Creek, for Defendant Paolo Costa.
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 underCode 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).) 1
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.
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 33462 and Code of Civil Procedure section 7333 (). 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 the same role as the damaged cypress. Choosing 5 percent as the compounding interest rate, Moritz calculated the “total compounded appraised unfactored loss” at $59,428.
Costa's expert Lichter believed that in this case, where no tree as large as the one damaged could be bought, the “trunk formula method” outlined in the ninth edition of the Guide for Plant Appraisal should apply. Under this method, Lichter started with the $1,000 cost to install the largest Monterey cypress tree commonly available, a 24–inch box tree. Next, he calculated a “base” value for the damaged tree of approximately $79,000 by comparing the size and cost of the 24–inch box tree with the size of the damaged tree. He then discounted the base value to $20,000 by multiplying it by three percentages: one for the kind of species (50%), one for the tree's condition before damage (69%), and one for the tree's location (73%).4 He next multiplied the discounted base value by 30 percent, the percentage of canopy Guifarro had removed. Finally, he added $1,530, the cost of further pruning to remove dead and diseased wood, top heavy limbs for balance, and make the most of the tree's compromised aesthetics. All told, Lichter's damages appraisal was $7,530.
The trial court filed its statement of decision on February 22, 2010. It first found Costa vicariously liable for the damage Guifarro inflicted on Rony's cypress. It next found Rony's “damages are measured by the analysis of defendant's expert witness John Lichter in the amount of $7,530.” “This conclusion,” reasoned the court, “is based on the Court's evaluation of plaintiff's expert claim that the tree must be removed and replaced against Mr. Lichter's more compelling testimony that the tree does not have to be removed but that plaintiff should be compensated in the amount equal to the value of the tree multiplied by the percentage of the tree removed by Guifarro.” But, continued the court, this amount “does not fully compensate plaintiff for all the detriment proximately caused by defendant's trespass because she is left with a tree that is less of a prominent feature in her yard with less character and some diminished amount of shade.” It therefore awarded an additional $15,000 in actual damages for a total of $22,530. The court then doubled Rony's actual damages under Civil Code section 3346, denied additional damages for discomfort and annoyance, and awarded total damages to Rony of $45,060.5 Judgment was entered in Rony's favor on March 25, 2010, and Costa filed a notice of appeal on May 18, 2010.
Rony subsequently filed a motion for attorney's fees under section 1029.8, which permits an award of fees in suits against certain unlicensed persons who cause injury by performing services for which a license is required. She had not alleged any entitlement to attorney fees in her complaint, and first requested fees in her October 26, 2009 trial brief. Costa opposed the motion on the grounds section 1029.8 was inapplicable and Rony's fee request was excessive. The trial court granted Rony's motion, reduced the fees sought by 20 percent because of the simplicity of the case and the fact she had already been awarded double damages, and awarded her $50,148 in attorney fees. Costa filed a notice of appeal from the fee award on June 18, 2010. Rony also appealed, claiming she was entitled to all the fees she had requested. On July 28, 2010, we consolidated the merits and attorney fees appeals.
Costa first takes issue with the trial court's calculation of actual damages. He contends the trial court, having adopted Lichter's methodology and appraisal amount of $7,530, erred in awarding Rony an additional $15,000.
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