{"id":949,"date":"2016-04-25T14:43:46","date_gmt":"2016-04-25T21:43:46","guid":{"rendered":"http:\/\/fiduciarydutiesblog.com\/?p=949"},"modified":"2016-04-25T21:57:02","modified_gmt":"2016-04-25T21:57:02","slug":"salazar-v-matejcek-treble-damages-for-removal-of-trees-under-california-law","status":"publish","type":"post","link":"https:\/\/fresnolawyerblog.com\/?p=949","title":{"rendered":"Salazar v. Matejcek – Treble Damages for Removal of Trees Under California Law"},"content":{"rendered":"

Civil Code section 3346 authorizes an award of treble damages for \u201cwrongful injuries to timber, trees, or underwood upon the land of another, or removal thereof.\u201d\u00a0 The defendant in the recent case of Salazar v. Matejcek<\/strong> (Mar. 10, 2016) 245 Cal.App.4th 63 learned that this statute can support very substantial damages.<\/p>\n

The dispute concerned \u201ca 10-acre piece of rural property near Covelo, California. The property was completely undeveloped except for a small cabin.\u201d\u00a0 The defendant was not able to obtain an adequate source of water.\u00a0 According to the court, he \u201cdestroy[ed] an estimated 225 trees to build the road and clear the surrounding area to house his water storage devices.\u201d<\/p>\n

Argued the defendant \u201cthe trial court failed to consider that the area to be restored was approximately two-thirds of one acre out of the 10-acre parcel.\u201d<\/p>\n

Stated the court, \u201cUnder the circumstances of this case, we find a holistic approach to be reasonable.\u00a0 Plaintiffs had never sought to develop any portion of their parcel.\u201d<\/p>\n

\"Fresno<\/a><\/p>\n

And what of the damages?<\/strong>\u00a0 \u201cAt trial, Mr. Salazar testified he is saddened by the damage done to his property and he remains nervous about visiting it \u2026 Mr. Salazar testified that if he did receive an award of damages, he would use the money to restore the trees defendant had removed.\u201d<\/p>\n

Comment<\/strong> \u2013 Time will tell.\u00a0 I\u2019ll bet the money goes right into plaintiff\u2019s pocket.<\/p>\n

\u201cMrs. Salazar testified that the dispute with defendant has affected her physically and mentally.\u00a0 She has felt powerless and belittled. She has anxiety and her sleep has been affected.\u00a0 She does not enjoy going to the property anymore and feels as though the land was violated.\u201d<\/p>\n

How to calculate damages?<\/strong>\u00a0 \u201cSuch damages are generally determined as the difference between the value of the property before and after the injury.\u00a0 But diminution in market value is not an absolute limitation; several other theories are available to fix appropriate compensation for the plaintiff’s loss \u2026<\/p>\n

\u201cOne such alternative measure of damages is the cost of restoring the property to its condition prior to the injury, and a plaintiff may recover these costs even if they exceed diminution in value if there is a \u2018personal reason\u2019 for restoration.\u201d<\/p>\n

\u201cAt trial an arborist named John Phillips testified for plaintiffs.\u00a0 He prepared a tree replacement plan designed to remedy the effects of defendant’s encroachment.\u00a0 He estimated that 225 trees will need to be planted to restore the property \u2026 Phillips estimated the total tree remediation cost would be $67,500.<\/p>\n

\u201cThe court accordingly trebled the $67,500 award of compensatory damages for tree removal pursuant to Civil Code section 3346 and Code of Civil Procedure section 733, resulting in an award of $202,500 \u2026 The total judgment awarded, including costs, is $262,987.\u201d<\/p>\n

Ouch<\/strong>.\u00a0 The damages to this parcel of undeveloped property, out in the middle of nowhere, greatly exceed the total value of the property.\u00a0 Seems like a windfall to me.<\/p>\n

One more point of pleading<\/strong>.\u00a0 A generic defense interposing the statute of limitations does not set forth a valid defense.\u00a0 Explained the court, \u201cdefendant filed a general denial that includes a broadly worded affirmative defense asserting all of plaintiffs’ claims \u2018are barred by all applicable statutes of limitation contained in Code of Civil Procedure sections 312 to 366.3.\u2019\u201d<\/p>\n

Explained the court, defendant \u201cfailed to articulate any specific statute of limitations argument in his denial or in his pretrial statement \u2026 There are two ways to properly plead a statute of limitations: (1) allege facts showing that the action is barred, and indicating that the lateness of the action is being urged as a defense and (2) plead the specific section and subdivision.\u201d<\/p>\n

\u201cHere [the defendant] did neither \u2026 Raising the defense in the trial brief is [in]sufficient.\u00a0 The failure to properly plead the statute of limitations waives the defense.\u201d<\/p>\n

Comment<\/strong>: Sounds like piling on.<\/p>\n

Salazar v. Matejcek<\/strong> (Mar. 10, 2016) 245 Cal.App.4th 63<\/p>\n","protected":false},"excerpt":{"rendered":"

Civil Code section 3346 authorizes an award of treble damages for \u201cwrongful injuries to timber, trees, or underwood upon the land of another, or removal thereof.\u201d\u00a0 The defendant in the recent case of Salazar v. Matejcek (Mar. 10, 2016) 245 Cal.App.4th 63 learned that this statute can support very substantial damages. The dispute concerned \u201ca […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3,8],"tags":[],"class_list":["post-949","post","type-post","status-publish","format-standard","hentry","category-case-law","category-real-property"],"_links":{"self":[{"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/posts\/949"}],"collection":[{"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=949"}],"version-history":[{"count":1,"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/posts\/949\/revisions"}],"predecessor-version":[{"id":950,"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/posts\/949\/revisions\/950"}],"wp:attachment":[{"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=949"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=949"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=949"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}