Judge: Kimberly Knill, Case: 30-2022-01245443-CU-PO-CJC, Date: 2023-07-21 Tentative Ruling

Plaintiff Patricia Chang’s Motion for Summary Adjudication

Plaintiff Patricia Chang’s Motion for Summary Adjudication is DENIED.

Defendants’ objections to the declarations of Kevin Connelly and Patricia Chang are overruled as immaterial to the Court’s decision. Plaintiff’s objections to the declarations of Harvey Kreitenberg, Kevin J. Price, and Carl Mellinger are overruled for the same reasons. The parties’ objections are preserved for appeal. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 526.)

Plaintiff moves for summary adjudication of the second cause of action for private nuisance in the First Amended Complaint.

The elements of private nuisance include the following:

“First, the plaintiff must prove an interference with his use and enjoyment of its property. Second, the invasion of the plaintiff's interest in the use and enjoyment of the land must be substantial, i.e., it caused the plaintiff to suffer substantial actual damage. Third, the interference with the protected interest must not only be substantial, it must also be unreasonable, i.e., it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land.” (Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1176.)

Element three in CACI 2021 “Private Nuisance—Essential Factual Elements” requires the defendant’s conduct was either (1) intentional and unreasonable, or (2) unintentional but negligent/reckless.

“Where injury is allegedly caused by a natural condition, the imposition of liability on a nuisance theory, as a practical matter, requires a finding that there was negligence in dealing with it.” Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 102 (Lussier).)  However, footnote 5 notes a “unique line of cases” holding nuisance liability for encroachment of tree branches and roots may be imposed “in the absence of wrongful conduct.” (Id. at p. 102, fn. 5.)  Footnote 5 concludes, “as a matter of historical tradition, courts have simply treated trees growing on or near borders as unique conditions and provided adjoining landowners with absolute protection from damage that arises from their natural encroachment.”  (Ibid.)

The cases set out in footnote 5 are unpersuasive. As Lussier points out, “None of these cases clearly reveals the origin of the rule it applies, although its roots undoubtedly go back to the English common law. The later cases rely without discussion on the earlier ones, and the earliest one provides no ratio decidendi. None acknowledges the common law rule of immunity for natural conditions or discusses the distinction between natural and artificial conditions. Rather, these issues are either ignored or overlooked.” (Lussier, supra, 206 Cal.App.3d at p. 102, fn. 5 (cleaned up).)

In the absence of recent case authority imposing strict liability for nuisance based on tree root intrusion, the court will follow the general rule that nuisance liability for a natural condition requires a finding of negligence or recklessness. (See CACI 2021; Lussier, supra, 206 Cal.App.3d at p. 102.) This is consistent with the rule that, “the elements of substantial damage and unreasonableness necessary to making out a claim of private nuisance are questions of fact that are determined by considering all of the circumstances of the case.” (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 263–264.)

Plaintiff contends defendants were made aware of the root intrusion on her property in June 2021 when the parties discussed a plumber’s report showing a small root intrusion on plaintiff’s property and plaintiff asked defendants to take preventative action. (Plaintiff’s Facts 9-13; Defendants’ Additional Facts 60, 62.) Plaintiff also points out defendants had a prior sewer line clog on their own property caused by tree roots. (Plaintiff’s Facts 4-5.) However, defendants contend plaintiff failed to install a two-way clean-out in the garage, obtain hydro-jet services or apply a root treatment prior to the incident. (Defendants’ Additional Facts 15-18.) Plaintiff testified she did not remember whether she asked defendants to cut down their trees at the June 2021 meeting, and she did not offer to help pay to remove the trees. (Defendants’ Additional Fact 48.)

There is a triable issue as to defendants’ negligence or recklessness regarding the tree root intrusion and whether defendants’ conduct was unreasonable. There are factual disputes as to whether defendants acted reasonably or with negligence/recklessness based on the information available to them prior to the November 2021 incident.

Defendants to give notice.