Moalem v. Gerard

Filed 12/1/16 Moalem v. Gerard CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
MODY MOALEM et al.,
Plaintiffs and Respondents,
v.
JULIA GERARD,
Defendant and Appellant.
B268963
(Los Angeles County
Super. Ct. No. BC583236)
APPEAL from a judgment of the Superior Court of Los Angeles County.
Barbara Scheper, Judge. Affirmed.
Steven W. O’Reilly for Defendant and Appellant.
Kathryn M. Davis for Plaintiffs and Respondents.
* * * * * *

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The trial court ordered that one neighbor remove the tree that had
grown, at an angle, over her adjoining neighbor’s property. The losing
neighbor appeals, arguing that her tree does not constitute a private
nuisance. We conclude there was no error and affirm.
FACTS AND PROCEDURAL BACKGROUND
In the early 1990’s, defendant Julia Gerard (defendant) owed two
adjoining parcels of land on North Harper Avenue in Los Angeles. At that
time, she planted a weeping willow tree on the 515 North Harper parcel, near
its border with the 519 North Harper parcel. The tree had a “natural lean,”
and over the next few decades grew at an angle and overhung the adjoining
519 North Harper parcel. Although trees rarely grow straight and can be
groomed to do so, defendant took no efforts to prevent the willow tree from
growing at an angle. In 2014, plaintiffs Mody Moalem and Orit Moalem
(plaintiffs) bought the 519 North Harper parcel. The City of Los Angeles
approved their plans to build a two-story house on the parcel, but the
weeping willow tree was in the way.
Plaintiffs sued defendant to remove the tree from their property.
Specifically, they alleged that the tree constituted a private nuisance because
it was “so maintained by [d]efendant that its trunk and main branches [were]
permitted to encroach on [their] property.” They sought a court order to
abate the nuisance.
The trial court conducted a bench trial, and ruled for the plaintiffs.
The court found that defendant had “created a condition or permitted a
condition to exist that obstructed [plaintiffs’] free use of [their] property” by
“allow[ing]” the tree to grow at an angle “for many, many years.” The court
further concluded that the tree “is clearly interfering with the plaintiffs’ use
of the property,” and that this interference was both “unreasonable” and
“substantial[].” Because trimming the tree to eliminate the encroachment
would kill the tree, the court ordered defendant to remove the tree within 30
days.
Following entry of judgment, defendant filed this timely appeal.

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DISCUSSION
A person may sue civilly to abate a private nuisance. (Civ. Code,
§§ 3479 [defining “nuisance”], 3481 [defining “private nuisance”], 3501
[authorizing remedy for abatement suit].) To prevail, he must at a minimum
prove (1) the defendant “interfere[ed] with his use and enjoyment of his
property,” (2) the interference is “substantial,” and (3) the interference is
“unreasonable.” (Mendez v. Rancho Valencia Resort Partners, LLC (2016)
3 Cal.App.5th 248, 262-263; San Diego Gas & Electric Co. v. Superior Court
(1996) 13 Cal.4th 893, 937-938; CACI Nos. 2021 & 2022.)
There appears to be an additional element in most private nuisance
claims—namely, that the defendant acted intentionally or negligently in
creating the interference or allowing it to persist. Although some cases
suggest no such showing is required (City of Pasadena v. Superior Court
(2014) 228 Cal.App.4th 1228, 1236; Mattos v. Mattos (1958) 162 Cal.App.2d
41, 42-43; Calder v. City etc. of San Francisco (1942) 50 Cal.App.2d 837, 839),
the weight of authority indicates that it is, particularly where the factual
gravamen of the nuisance claim is an act or omission on the part of the
encroacher. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920; Lussier
v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 104-106; El
Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337,
1349; Rest.2d Torts, § 822 & coms. a & b; CACI No. 2021.) But cases on both
sides of this split acknowledge that no showing of negligence is required
when the interference stems from the overgrowth of trees. (Lussier, at p. 102,
fn. 5; City of Pasadena, at p. 1236-1237; Mattos, at pp. 42-43; Bonde v. Bishop
(1952) 112 Cal.App.2d 1, 5-6.)
Defendant argues that the trial court’s ruling was incorrect because
there was insufficient proof that she acted negligently. This argument lacks
merit for several reasons. To begin, plaintiffs’ private nuisance claim is
based on the overgrowth of defendant’s tree. As noted above, no showing of
negligence is required in such cases. Even if we construed plaintiffs’ private
nuisance claim to rest on defendant’s negligent maintenance of the tree,
substantial evidence supports the trial court’s finding of negligence. (See
Coffey v. Shiomoto (2015) 60 Cal.4th 1198, 1217 [reviewing factual findings
for substantial evidence].) The evidence showed that trees often grow at an

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angle, that people can groom them to grow straight, and that defendant failed
to groom the weeping willow tree in such a manner. Such a negligent failure
to act can support a negligence-based private nuisance claim. (See Jones
v. Deeter (1984) 152 Cal.App.3d 798, 805 [failure to trim and/or prune trees
can be basis for negligence liability]; accord, Birke v. Oakwood Worldwide
(2009) 169 Cal.App.4th 1540, 1552 [nuisance liability may be predicated on
omissions].)
In response, defendant argues that (1) the tree was healthy and well-
maintained, and (2) she owed no duty to plaintiffs to prevent the tree’s
encroachment because they did not buy the property until 2014 and, at that
time, could have seen that the tree was already overgrown. These arguments
lack merit. Whether defendant was negligent in tending to the tree’s health
says nothing about whether she was negligent in allowing it to grow at an
angle (and thereby encroach the neighboring parcel). And defendant’s second
argument that plaintiffs cannot sue because they bought the property after
the nuisance existed is indistinguishable from the argument that plaintiffs
“came to the nuisance.” However, “coming to a nuisance” has not been a
defense to a nuisance action in nearly a century. (E.g., Fendley v. Anaheim
(1930) 110 Cal.App. 731, 735-736.)
DISPOSITION
The judgment is affirmed. Plaintiffs are entitled to their costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ

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