California Supreme Court Watch

Mar 27, 2017
#17-96 Moalem v. Gerard, S239434. (B268963; nonpublished opinion; Los Angeles County Superior Court; BC583236.)

#17-96 Moalem v. Gerard, S239434. (B268963; nonpublished opinion; Los Angeles County Superior Court; BC583236.) Petition for review after the Court of Appeal affirmed the judgment in a civil action. The court limited review to the following issues: (1) Is negligent or intentional action a necessary element of a cause of action for abatement of a natural condition-private nuisance based on a failure or omission to act and, if so, should tree encroachment cases be exempted from this rule? (2) Assuming negligence is required, can negligence be demonstrated under the circumstances of this case? Does it matter that defendant owned both parcels of land when the tree was maturing? (3) Who should bear the expense of tree removal when it is infeasible to remove only the encroaching parts of an otherwise healthy tree that overhangs a neighbor’s premises? Should the tree owner be compensated for the loss of an otherwise healthy tree that is found to create a nuisance? (4) When, if ever, is it proper for a defendant to raise the issue of comparative negligence in a private nuisance action? (See Tint v. Sanborn (1989) 211 Cal.App.3d 1225; Kafka v. Bozio (1923) 191 Cal. 746, 748.) Is the fact that part of the subject tree was encroaching on the property before plaintiffs purchased it a relevant consideration?

Review granted/issues limited: 3/22/2017

See Court of Appeal opinion.