Judge: Michael Small, Case: 18STCV06962, Date: 2025-04-17 Tentative Ruling

Inform the clerk if you submit on the tentative ruling. If moving and opposing parties submit, no appearance is necessary.

Case Number: 18STCV06962    Hearing Date: April 21, 2025    Dept: 57

Pending before the Court is the motion of Plaintiffs Douglas Urbanski and Diane Wilk (collectively, “the Plaintiffs”) to enforce the settlement agreement they entered into with Defendant Richard Dean Neely (“Neely”) in 2021 to resolve the Plaintiffs’ claims against Neely in this action (“the Settlement Agreement”).  Those claims arose from the condition and maintenance of eucalyptus trees on Neely's property that are located close to the boundary between Neely's property and the Plaintiffs' property (“the Trees”).  The Court has jurisdiction to enforce the Settlement Agreement pursuant to Code of Civil Procedure section 664.6.  

The Court is denying the Plaintiffs' motion to the extent it requests that the Court appoint Nickolas Araya and Kerry Norman as arborists to replace the licensed arborist designated in the Settlement Agreement, Arsen Margossian (“Margossian”).  It is undisputed that Margossian is no longer available to serve as the arborist.  Section 1 of the Settlement Agreement gives Neely, not the Plaintiffs, the right to designate a different licensed arborist with similar qualifications as Margossian in the event Margossian is unavailable.  Neely has exercised that right and designated a replacement licensed arborist, Steven Edwards (“Edwards”).

The Plaintiffs do not challenge Edwards's qualifications to serve as the replacement arborist under the Settlement Agreement.  The Plaintiffs do contend that Neely has waived his right to designate a replacement arborist under the Settlement Agreement because he delayed in designating Edwards after it was evident that Margossian no longer was available to serve as the arborist.  The Court disagrees with Plaintiffs.  Neely acted reasonably promptly in designating Edwards once it became known that Margossian was unavailable.  

Plaintiffs also contend that Neely waived his right under the Settlement Agreement to designate a replacement arborist in a second way.  This second way, Plaintiffs say, stems from Neely's actions and inactions that frustrated the efforts of Margossian to inspect the Trees and tree trimmers to trim them, both of which were supposed to have happened once a year per the settlement agreement.  Margossian last inspected the Trees from Neely's property in 2021; the Trees last were trimmed that year as well.  The evidentiary record indicates to the Court that Neely's actions and inactions reflect impediment of inspections and trimming in contravention of the Settlement Agreement, as Plaintiffs contend. In the Court's view, however, this evidence does not lead to the conclusion that Neely has waived his right to designate a replacement arborist. 

Under Section 1 of the Settlement Agreement, with Neely’s designation of Edwards as the replacement arborist, the Plaintiffs must retain Edwards to (A) conduct the required annual inspection of the Trees and to prepare a report recommending any trimming or maintenance in accordance with American National Standards Institute (“ANSI”) standards for pruning, and (B) to oversee any trimming or maintenance of the Trees by the person or entity that is to trim the trees (“the Tree Trimmer”).

To avoid any further delay in an arborist's inspection of the Trees, the Court is ordering that, once the Plaintiffs retain Edwards, Neely shall, pursuant to Section 4 of the Settlement Agreement, grant Edwards access to Neely’s property so that Edwards can conduct the annual inspection of the Trees for 2025 required by the Settlement Agreement within 30 days of the Court’s ruling on the Plaintiffs’ motion, unless extenuating circumstances preclude the inspection from happening within that timeframe. 

The Court is granting the Plaintiffs' motion to the extent that it requests that the Court deem TreeCareLA to be the Tree Trimmer under Section 3 of the Settlement Agreement, provided that TreeCareLA furnishes proof to the Plaintiffs and Neely at least five days before conducting any trimming and maintenance of the Trees that it is currently licensed and is bonded and insured in the amounts specified in Section 3 of the Settlement Agreement.  To furnish this proof, TreeCareLA shall update the document that was Exhibit 32 to the Plaintiffs’ motion to enforce the Settlement Agreement.  Under Section 2 of the Settlement Agreement, Neely has final approval of any work that the Tree Trimmer proposes in accordance with the arborist’s recommendations, but Neely cannot unreasonably withhold approval of that work.  Once TreeCareLA furnishes the proof required by Section 3 of the Settlement Agreement and Neely approves the work under Section 2, Neely shall, pursuant to Section 4 of the Settlement Agreement, promptly grant TreeCareLA access to his property so that it can perform the trimming and maintenance recommended by the arborist and in accordance with ANSI standards.

 The Court is setting a hearing for July 30, 2025 at 8:30 regarding the status of compliance with the Court's ruling on the Plaintiffs' motion.