Judge: Michael E. Whitaker, Case: 24SMCV02089, Date: 2025-02-07 Tentative Ruling

Case Number: 24SMCV02089    Hearing Date: February 7, 2025    Dept: 207

TENTATIVE RULING

Plaintiff Peter Jarowey, Trustee of the Jarowey and Kaplan Family Trust (“Plaintiff”) requests for default judgment against Defendant Elena Hakimipour (“Defendant”) in the amount of $201,776.39, which is composed of special / punitive damages in the amount of $200,000 and costs in the amount of $1,776.39. 

A.    Damages

            Plaintiff’s Complaint alleges a single cause of action for trespass, stemming from allegations that Defendant’s agents trespassed onto Plaintiff’s property and removed several large trees therefrom.  Defendant was personally served with a copy of the summons and complaint on August 12, 2024.   Default was entered against Defendant on September 24, 2024, and the Doe defendants were dismissed on December 17, 2024.

            Plaintiff’s Complaint seeks $50,000 in special damages plus tremble damages.  (Complaint at ¶ 1.)  

            Code of Civil Procedure section 733 provides “Any person who cuts down or carries off any wood or underwood, tree, or timber, or girdles or otherwise injures any tree or timber on the land of another person […] is liable to the owner of such land […] for treble the amount of damages which may be assessed therefor, in a civil action, in any Court having jurisdiction.

            In support of Plaintiff’s request, Plaintiff has provided the Declaration of Peter Jarowey, which provides:

4. On or about April 6, 2024, Hakimipour, her agents, and workers hired by Hakimipour, wrongfully and unlawfully entered and trespassed on my Property without my consent and thereon damaged my Property by significantly cutting numerous trees owned by me and located solely on my Property and not overhanging on Hakimipour's Property, including without limitation cutting off the top of said trees by 6 to 10 feet.

5. On or about April 6, 2024, I took the above photograph showing the trees that Hakimipour and her agents cut. In this photograph you can see the 6 to 10 feet that was cut off the top of trees in my backyard which served as a barrier to the neighboring homes and blocked the view of the tall apartment building. Additionally, please find attached as Exhibit A, true and correct copies of additional photographs I took of my backyard and the trees, showing the damage Hakimipour caused to my trees and the privacy of my backyard.

6. The trees Hakimipour cut down were strategically positioned to block visibility into my home and yard, offering privacy and security to myself and my family. The cutting of these trees has significantly infringed upon my and my family's privacy, leaving my home exposed to neighboring properties and passersby.

7. Prior to Hakimipour cutting the trees, the adjacent house and apartment building could not see into my backyard or home, and I could not see those buildings from my backyard and home. Now, due to the cutting of the trees, the apartments and adjacent house can see in, and I can see them. My privacy rights were infringed upon by Hakimipour and her agents because about 2 blocks away from my home is a seven (7) story building, whose occupants can now look into my backyard. The occupants’ view from said building was previously obstructed by the trees that were on my Property.

8. On April 6, 2024, when I saw Hakimipour’s worker cutting the trees, I asked him who instructed him to the cut the trees, and he indicated that the property owner, Hakimipour, instructed him to do so.

9. On or about April 6, 2024, I contacted Hakimipour via phone call and text message to inquire about the purpose of cutting the trees and assess how we could repair the damage. Hakimipour was nonresponsive and overly aggressive towards me. Shortly thereafter, Mr. David Rashti contacted me. Mr. Rashti advised me that he was Hakimipour’s husband and that I was to no longer contact Hakimipour directly regarding this issue, and that they would not be taking any remedial measures to rectify the situation. Mr. Rashti was also extremely aggressive and hostile towards me and my wife.

10. Mr. Rashti and Hakimipour could not provide any legitimate reason for cutting the trees.

11. When I explained to Mr. Rashti the damage to my trees and the impact the cutting of my trees had on mine and my family’s privacy, Mr. Rashti ignored my sentiments and in fact responded with “and what.” It was clearly apparent that Mr. Rashti and Hakimipour had no interest in any efforts to remedy the situation and had no interest in a mutual resolution.

12. Following these unresolved conversations, I contacted my Landscaper, Pacific Outdoor Living, who provided an estimate to replace these trees so I could recover some of the privacy to my backyard. Pacific Outdoor Living quoted me between $40,000 to $50,000 to replace the tress cut by Hakimipour with 12-foot trees. A true and correct copy of the estimate dated April 24, 2024, from Pacific Outdoor Living is attached hereto as Exhibit B.

13. I am informed and believe that the trees that originally existed on my property were estimated to be 16 to 17 feet tall, but due to their age and maturity, the tallest trees they could be replaced with are 12-foot trees.

14. The trees, on my property, cut by Hakimipour and her agents were valuable to me and my family for privacy, shade, and ornamentation, and my Property has been diminished in value by the acts of Hakimipour and her agents.

15. As a direct result of Hakimipour’s actions, the value of the Property has been diminished. Based on consultations with arborists and other relevant experts, the cutting of the trees has reduced the Property’s market value and the cost to replace the trees or mitigate the damage is estimated over $50,000.00.

16. Hakimipour’s actions in cutting down the trees was deliberate, willful, and without justification. To my knowledge, there was no necessity, utility easement, or other lawful reason for Hakimipour’s actions. The trees being cut was purely for Hakimipour’s own purposes, without consideration of the impact on my property or privacy rights.

17. Pursuant to California law, including but not limited to Civil Code §3346(a) and Code of Civil Procedure §733, I respectfully request the Court to award treble damages. The unauthorized and intentional cutting of my trees constitutes a wrongful act under these statutes, entitling me to three times the amount of actual damages.

18. As a direct, foreseeable, and proximate result of the conduct by Hakimipour and her agents, I have suffered and continue to suffer damages in the following amounts and request the following relief:

a. Reimbursement for the cost of replacing the trees – in the amount of $50,000.00;

b. Treble damages as authorized by California law for the willful and malicious destruction of my property – in the amount of $150,000.00;

c. Litigation costs in the amount of $1,776.39 for bringing forth this action; and d. Such other relief as the Court may deem just and proper.

(Jarowey Decl. ¶¶ 4-18.)

            Thus, Plaintiff has demonstrated that Defendant deliberately instructed his agents to trespass on to Plaintiff’s property, to cut and remove the tops of Plaintiff’s trees, and that Plaintiff’s actual damage totals $50,000.  Further, because Plaintiff has demonstrated that the conduct was deliberate, Plaintiff is entitled to treble damages, or $150,000.

            However, Plaintiff has not provided authority for the proposition that the treble damages to which Plaintiff is entitled is additive to the compensatory damages, effectively entitling Plaintiff to quadruple damages. 

            As such, the Court finds that Plaintiff is entitled to $150,000 in damages, not $200,000. (See Code Civ. Proc., § 580, subd. (a) [“The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint”]; Levine v. Smith (2006) 145 Cal.App.4th 1131, 1136-1137 [“when recovering damages in a default judgment, the plaintiff is limited to the damages specified in the complaint”].) 

B.    Costs

            Plaintiff also requests $1,776.39 in costs composed of $1,089.89 in filing fees and $686.50 in process server fees. (CIV-100.)  Plaintiff’s request for costs is granted as Plaintiff is the prevailing party in this action. (Code Civ. Proc., § 1032, subd. (a)(4).)

CONCLUSION

            Plaintiff’s request for default judgment is granted in part.  Plaintiff is entitled to judgment in the amount of $151,776.39, representing $50,000 in actual damages, trebled to $150,000, plus $1,776.39 in costs. 

            The Court shall enter the Default Judgment in conformance with the ruling unless Plaintiff objects. 

Dated:  February 7, 2025                            ________________________________

                                                                        Michael E. Whitaker

                                                                        Judge of the Superior Court