Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendant 1227 Formosa, LLC 

RESPONDING PARTY: Plaintiff Roxanna McBryde 

 

BACKGROUND 

This case involves a dispute between neighbors over the removal of a 15 foot hedge separating their respective properties.  Plaintiff is the owner of a home located at 1221 Formosa Avenue (“Plaintiff’s Property”).  (Undisputed Material Fact “UMF” No. 1.)  Defendant 1227 Formosa, LLC, a commercial developer, bought the property next door to Plaintiff’s (Defendant’s Property).  (UMF Nos. 2-3.)   

Defendant hired a surveying firm (GeoWorks Engineering and Surveying Inc.) to perform a survey of the property line separating the two properties.  (UMF Nos. 5-6.)  The survey showed that the 15 feet hedge was located on Defendant’s Property.  (UMF No. 8.)  In reliance on this survey, Defendant’s contractor removed the 15 foot hedge.  (UMF No. 9.)      

Plaintiff also hired a surveying firm (Surveying & Drafting Services Inc. or “SDSI”) to perform a survey of the property line separating the two properties.  (UMF No. 10.)  SDSI’s survey verified that GeoWorks’ survey was accurate.  (UMF No. 14, 18.)  GeoWorks performed a second survey, which concluded that the property line was the same as SDSI’s survey, given that both surveys were overlapping within less than 3/8 of an inch of each other, which is well within the permitted tolerance.  (UMF No. 16, 19.)   

Ofer Shapiro conducted the survey on behalf of SDSI, and he attests as follows: “I informed [GeoWorks] that I was not disputing the accuracy of the [] survey [of Defendant’s Property] as I believe it is accurate with respect to the tolerance as it relates to the property line.  I informed [GeoWorks] that they should use [GeoWorks’] tags as to the property line because I was not disputing their accuracy, as I believe they are indeed accurate in accordance with the tolerance … I also informed [Plaintiff] there was no dispute with respect to the location of the property line between [Plaintiff’s Property] and [Defendant’s Property].”  (UMF Nos. 11, 18.) 

While Plaintiff does not dispute the location of the property line, she disputes that the 15 foot hedge was located on Defendant’s property.  Plaintiff has submitted the declaration of a licensed surveyor who attests the hedge was located on Plaintiff’s property.  (Sobecki Decl. ¶ 7.)  Plaintiff also disputes that Defendant relied on a survey to remove the hedge.  According to Plaintiff, the document on which Defendant claims it relied is not a topographical survey but a condominium map.  It “does not show things such as hedges or trees or fences and thus it provides no indication whatsoever as to whether the removed hedge in question was or was not located on either [Defendant’s or Plaintiff’s property] and could not be relied upon for such a determination.”  (Sobeck Decl. ¶10.)     

This hearing is on Defendant’s motion for summary judgment or in the alternative for summary adjudication.  Defendant argues that Plaintiff’s claim for injury to real property fails because (1) Defendant did not trespass onto Plaintiff’s property to remove the hedge, as the hedge was on Defendant’s property, and (2) Plaintiff cannot prove she was harmed by the removal of the 15 foot hedge.  Defendant also argues that Plaintiff is barred from recovering double or treble damages pursuant to Civ. Code §3346(b) because Defendant relied on a survey.   

LEGAL STANDARD     

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial.  (Aguilar v. Atlantic Ritchfield Co. (2001) 25 Cal.4th 826, 843.)  Code Civ. Proc. §437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Minor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)  “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”  (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67).   

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element or to establish a defense.  (Code Civ. Proc. §437c(p)(2); Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.)  Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)  

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.  To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)  

EVIDENTIARY OBJECTIONS 

The Court sustains Evidentiary Objection Nos. 1-11 to the Declaration of Roxanna McBryde, Evidentiary Objection Nos. 1-2 to the Declaration of David Serber, and Evidentiary Objection Nos. 1-3 to the Declaration of Frank J. Sobecki.  Otherwise, all other evidentiary objections are overruled. 

DISCUSSION 

Injury to Real Property 

Plaintiff’s lone cause of action is for injury to real property.  To establish this claim, Plaintiff must prove that: (1) Plaintiff owned the property; (2) Defendant intentionally, recklessly and/or negligently entered Plaintiff’s property and cut down the hedge located on the property, (3) Plaintiff did not give permission to Defendant to cut down the hedge, (4) Plaintiff was harmed, and (5) Defendant’s conduct was a substantial factor in causing Plaintiff’s harm.  (CACI 2002.)  

Here, there is a disputed issue as to whether the hedge was located on Defendant’s or Plaintiff’s property, and therefore, whether Defendant trespassed into Plaintiff’s property to cut the hedge.  Defendant has submitted a surveyor’s declaration that the hedge was located on its property (UMF No. 8), while Plaintiff has submitted a competing declaration from her surveyor attesting the hedge was located on her property (Sobecki Decl. ¶ 8.)  Therefore, there is a disputed issue as to the second element of Plaintiff’s claim.   

Defendant’s citation to Scholes v. Lambirth Trucking Co. (2020) 8 Cal. 5th 1094 is unavailing.  There, a landowner brought an action against a neighbor for damages pursuant to Civ. Code § 3346, in connection with a fire started on the neighbor’s property that burned trees on the landowner’s property.  (Id. at 1099.)  The Supreme Court held that any actionable harm under Code Civ. Proc. § 733 and Civ. Code § 3346 “must involve or at least occur in connection with a trespass.”  The Supreme Court went further to hold that not just any common law trespass would support an action under the statutes.  Rather, both statutes “address [] situations where a personally intentionally enters the land in question … to cause direct, intentional injury to timber, trees or underwood.”  (Id. at 1110.)  The Supreme Court concluded that section 3346 is not applicable to injuries to timber, trees, or underwood from negligently spread fires.  (Id. at 1117.)  This case does not involve negligently spread fires.  Here, there is a disputed issue as to whether Defendant entered Plaintiff’s property to remove a hedge that was on Plaintiff’s property.     

Defendant’s citation to Russell v. Man (2020) 58 Cal.App.5th 530 is also unavailing.  There, unlike here, the defendant was not alleged to have crossed the boundary line to cut the trees on the plaintiff’s property.  Rather, construction workers injured the tree’s roots while on the defendant’s property.  On these facts, the Court concluded treble damages for wrongful cutting of timber under Civ. Code, § 3346, as construed with Code Civ. Proc., § 733, were not available.  (Id. at 536-537.)  Here, there is a disputed issue as to whether Defendant crossed the boundary line to remove a hedge that was allegedly on Plaintiff’s property.   

Notwithstanding, Defendant claims summary judgment should still be granted because Plaintiff cannot prove she was harmed.  According to Defendant, Plaintiff cannot establish she has been harmed because (1) she would have to cut a portion of the driveway located on her property in order for any replacement hedge to be located solely on her property; (2) she did not plant the hedge that was removed, and (3) she never spent any money to plant the hedge that was removed.  These arguments are meritless.   

The fact that Plaintiff will have to remove a portion of her driveway to accommodate the planting of a new hedge actually supports her claim that she will incur significant remedial costs to replace the hedge.  As for the fact that she did not plant the hedge or spend any money to plant the hedge, that is irrelevant.  As the owner of the property where the hedge allegedly sits, Plaintiff is entitled to recover costs for its removal.   

The measure of damages for tortious injury to property, including trees, “is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.” (Civ. Code, § 3333; see Rony v. Costa (2012) 210 Cal.App.4th 746, 754;  Heninger v. Dunn (1980) 101 Cal.App.3d 858, 861.)  “Such damages are generally determined as the difference between the value of the property before and after the injury.” (Rony, 210 Cal.App.4th at 754; see Rest.2d Torts, § 929, com. f, p. 547 (“[f]or the destruction of or damage to … mature timber trees that have a market value or a value distinguishable from the value of the land, the owner can, at his election, recover for the loss or diminution of the value of the thing injured or destroyed …”).) 

But “[d]iminution in market value … is not an absolute limitation; several other theories are available to fix appropriate compensation for the plaintiff’s loss.” (Heninger v. Dunn, 101 Cal.App.3d at 862.) “‘There is no fixed, inflexible rule for determining the measure of damages for injury to, or destruction of, property; whatever formula is most appropriate to compensate the injured party for the loss sustained in the particular case, will be adopted.’” (Id.; see 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, §§ 1727–1728, 1732–1733.)   

For instance, one alternative measure of damages is the cost of restoring the property to its condition prior to the injury, and a plaintiff may recover these costs even if they exceed diminution in value if there is a personal reason for restoration.  (Heninger v. Dunn, 101 Cal.App.3d at 862; see Kelly v. CB&I Constructors, Inc. (2009) 179 Cal.App.4th at 442, 450; People v. Southern Pacific Co. (1983) 139 Cal.App.3d 627, 635.) 

Further, when calculating diminished value, the finder of fact may account for lost aesthetics and functionality.  (See Heninger v. Dunn, 101 Cal.App.3d at 865 (“If restoration of the land to a reasonable approximation of its former condition is impossible or impracticable, the landowner may recover the value of the trees or shrubbery, either as timber or for their aesthetic qualities … .” (italics added)); Hassoldt v. Patrick Media Group, Inc. (2000) 84 Cal.App.4th 153, 168 (same); Baker v. Pierce (1950) 100 Cal.App.2d 224, 227 (damages evidence allowed to show harm to trees “grown for their ornamental and shade value in connection with the motel property”); cf. Metz v. Soares (2006) 142 Cal.App.4th 1250, 1257 (damages for loss of use possible).) 

Here, Plaintiff attests she will have to pay for professionals to replace the hedge.  (McBryde Decl. ¶ 10.)  Plaintiff has also testified that removal of a long standing privacy screen (provided by the hedge) has adversely affected her enjoyment of her home.  (McBryde Decl. ¶ 12.)  Without the hedge, she now has to look at a brick wall and the construction of a multi-story condominium complex next door.  (Ibid.)  Residents of the condominium will also have an unobstructed view into her property, which could have been shielded by the hedge.  (Ibid.)  Plaintiff has further testified regarding the impact of the loss of the hedge on the aesthetic value of her home and that the loss has diminished the value of her property.  (Ibid.)  The diminution in value is supported by the declaration of David Serber, a licensed appraiser, who estimates the diminution to be $100,000.   (Serber Decl. ¶¶ 6-9.) 

In sum, because there are disputed issues of material fact, the Court denies the motion for summary judgment.   

Double Damages 

Civ. Code §3346(b) states: “The measure of damages to be assessed against a defendant for any trespass committed while acting in reliance upon a survey of boundary lines which improperly fixes the location of a boundary line, shall be the actual detriment incurred if both of the following conditions exist: (1) The trespass was committed by a defendant who either himself procured or whose principal, lessor or immediate predecessor in title procured the survey to be made, and (2) The survey was made by a person licensed under the laws of the State to practice land surveying.”   

Here, Defendant claims it relied on the survey obtained from GeoWorks, a licensed surveyor, to remove the hedge.  (UMF Nos. 8, 9; Holt Decl. ¶ 2.)  GeoWork’s survey allegedly showed that the 15 foot hedge was located on Defendant’s Property.  (UMF No. 8.)  In reliance on the survey, Defendant’s contractor removed the 15 foot hedge.  (UMF No. 9.)  Accordingly, Defendant argues that pursuant to Civ. Code §3346(b), Plaintiff can only recover actual damages. 

Plaintiff argues Civ. Code §3346(b) is not applicable because Defendant is contending its survey properly fixed the boundary line, while §3346(b) requires Defendant to have relied on a “survey of boundary lines which improperly fixes the location of a boundary line.”  Plaintiff’s argument is misguided.  There is a dispute as to whether Defendant’s survey (which allegedly shows that the hedge was on Defendant’s property) is correct.  Assuming it is incorrect, as Plaintiff argues, Defendant is entitled to rely on §3346(b) to limit the amount of damages if it can show it relied on the survey.   

However, Plaintiff has raised a disputed issue as to whether Defendant actually relied on GeoWork’s survey.  Plaintiff’s surveyor attests the document on which Defendant claims it relied is not a topographical survey but a condominium map.  It “does not show things such as hedges or trees or fences and thus it provides no indication whatsoever as to whether the removed hedge in question was or was not located on either [Defendant’s or Plaintiff’s property] and could not be relied upon for such a determination.”  (Sobeck Decl. ¶10.)   

Because there is a disputed issue as to whether Defendant actually relied on GeoWork’s survey, the Court denies Defendant’s motion for summary adjudication of Plaintiff’s claim for double damages.        

Treble Damages 

To prevail on a claim for treble damages under Civ. Code §3346, Plaintiff must prove by clear and convincing evidence that Defendant was willful and malicious in removing the 15-foot hedge.  (See Roche v. Cassia (1957) 154 Cal.App.2d 785, 788; Crofoot Lumber Inc. v. Ford (1961) 191 Cal.App.2d 238, 246; Caldwell v. Walker (1963) 211 Cal.App.2d 758, 762.)  The intent required is the intent to vex, harass, annoy or injure the plaintiff.  (Salazar v. Matejcek (2016) 245 Cal.App.4th 634, 646.)   

Defendant argues that Plaintiff cannot prove by clear and convincing evidence that it cut the hedge with the intent to vex, harass or annoy Plaintiff.  The Court agrees.  Plaintiff has not presented any evidence that Defendant acted with the requisite intent to support a claim for treble damages.   

This is unlike the cases in which treble damages have been upheld.  For example, in Salazar v. Matejcek, the court of appeal affirmed an award of treble damages noting that the defendant/appellant had pulled plaintiffs’ property records from the assessor’s office before he made multiple attempts to purchase their parcel, suggesting he was familiar with the property’s boundary lines even before he purchased his own parcel.  (Id. at 646.)  In spite of this familiarity, he elected to forgo obtaining a formal survey before destroying an estimated 225 trees to build the road and clear the surrounding area to house his water storage devices.  (Id.)  The evidence also suggests that visible boundary markers were present at the site.  (Id.)  The court of appeal concluded these facts supported a finding that the defendant acted with deliberate indifference to the rights of the plaintiffs and affirmed an award of treble damages.  (Id.)  Unlike in Salazar, there is no showing of similar willful or malicious conduct on the part of Defendant.  At best, and accepting Plaintiff’s position, the facts show Defendant was likely reckless in using a survey which did not show the location of trees or hedges.         

Good Faith Reliance on Surveyor 

Defendant asks this Court to adjudicate its Twelfth Affirmative Defense of “Good Faith and Reliance on Surveyor” in its favor.  However, because as stated above, there is a disputed issue as whether Defendant actually relied on the survey, the Court denies this motion for summary adjudication.   

CONCLUSION 

Based on the foregoing, the Court DENIES IN PART and GRANTS IN PART Defendant’s motion for summary judgment or, in the alternative, for summary adjudication.    

IT IS SO ORDERED. 

 

DATED: February 23, 2023 ___________________________ 

Edward B. Moreton, Jr.  

Judge of the Superior Court