In Rony v. Costa, 210 Cal. App. 4th 746 (2012), Paolo Costa hired an unlicensed day laborer to remove tree limbs from his neighbor’s Monterey cypress that were overhanging onto his property. While property owners are generally permitted to cut branches encroaching onto their property, the laborer hired by Costa went a step further and also snipped off portions of the cypress located solely on the neighbor’s property. The result left the cypress looking “like half a tree.”
The neighbor, Ellen Rony, sued Costa for wrongful injury to timber. A trial court awarded Rony $22,530 in actual damages, which consisted of $7,530 for the diminished market value of the tree and $15,000 for lost aesthetic value. The trial court then doubled the actual damages to $45,060 under a statutory double-damages provision for injury to timber, and awarded attorneys’ fees under Cal. Civ. Proc. Code §1029.8, which authorizes a fee award against any “unlicensed person who causes injury or damage . . . performing services for which a license is required.”
Costa appealed the trial court award, arguing that there was no basis for the aesthetic value damages and that attorneys’ fees under Cal. Civ. Proc. Code §1029.8 were inapplicable.
The appellate court affirmed the trial court award for the lost aesthetic value, finding that diminution in market value is not an absolute limit on damages. It stated, “[W]hen considering the diminished value of an injured tree, the finder of fact may account for lost aesthetics and functionality.”
However, the attorneys’ fees award was reversed because the appellate court held that Cal. Civ. Proc .Code. §1029.8 applies only to those who perform applicable unlicensed services, not those who simply use unlicensed workers. While the trial court had relied on general respondeat superior (a common-law doctrine that generally holds an employer liable for the damages caused by the acts of an employee within the scope of employment), the appellate court found that attorneys’ fees under Cal. Civ. Proc. Code §1029.8 were costs, rather than damages, for which Costa was not vicariously liable.
The bottom line is that property owners must be careful when trimming or hiring workers to trim overhanging tree branches. Should harm occur on the neighbor’s side of the property line, lost aesthetic value may be awarded, and the total damages could end up being surprisingly high. Such risks can be reduced by hiring licensed and experienced workers and consulting with tree owners about the work to be performed prior to its completion.