Opinion
S239434
03-22-2017
MOALEM (MODY) v. GERARD (JULIA)
B268963 Second Appellate District, Div. 2
Petition for review granted; issues limited
The petition for review is granted. The issues to be briefed and argued are limited to the following:
(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 private nuisance actions? (See Tint v. Sanborn (1989) 211 Cal.App.3d 1225, and 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?
Votes: Cantil-Sakauye, C. J., Werdegar, Chin, Corrigan, Liu, Cuéllar, and Kruger, JJ.