Legal Question in Real Estate Law in California

Private Nuisance Still a Nuisance After Court

My neighbor's trees' roots are destroying my property and I won $5,000 in small claims court to repair the damages. Part of the damages I won in court included the cost to grind out the very visible invading roots on my property.

However, an arborist said that removing these roots (50% of the root system on my property) will likely kill the 30-ft trees and/or make them unstable. If they fall over, they will damage my roof (just 8 feet away). I've pointed this out to my neighbor, who still refuses to remove his trees. My questions are this:

1) Am I liable for these trees should they die or fall over on my roof if I cut the roots, EVEN THOUGH I won the right to do so in small claims court?

2) Can I take my neighbor back to court (Civil Court this time) and sue for an injunction to remove the trees, or does this violate Res Judicata in the Civil Code of Procedures stating that I can't re-sue for the same private nuisance?

Please help, I am at my wit's end.


Asked on 10/21/03, 2:00 pm

2 Answers from Attorneys
Michael Olden Law Offices of Michael A. Olden

Re: Private Nuisance Still a Nuisance After Court

This is one of the simplest questions I never had to answer and the same time one of the most technical. I am not sure of the answer. Normally, when you sue, that's it. If you receive an award for damages everything you sue for is taking care of in that award. No second byte of the Apple. The problem issue received information after the award which you should have gotten before. Without researching this point I am inclined to say, after practicing real estate law for 30 years, that it is your problem now. I wouldn't expect your neighbor to be a good agreeable or cooperative if you of a $5000 judgment against him. More importantly, when all the $5000 be used in this situation. If it wouldn't you might logically think that the remainder would guard against future damage if it occurs. I had a similar problem but very cooperative neighbors and learned that any work done on one-half of the tree makes the tree unstable and subject to riding, falling, or causing some damage. Too bad more people didn't understand that before they took their own action. As to whether your insurance would cover any damage to your property of the tree fell as a result of your own doing, I would suggest you get hold of your insurance broker and asked him, if possible off the record and confidentially. Not sure insurance company because you don't want to alert them to a potential problem in the future. If you wish to consult with me you may call at 925 -- 945 -- 6000. I am in the San Francisco Bay Area.

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Answered on 10/21/03, 2:14 pm
Mitchell Roth MW Roth, Professional Law Corporation

Re: Private Nuisance Still a Nuisance After Court

Something doesn't sound right. Small claims court can only award monetary damages. The damages awarded do not determine anything about your rights vis-a-vis the trees, except that they are a private nuisance and are causing you damage compensable with $5,000 in damages.

It is res judicata that the trees are a private nuisance. You can go to Superior Court and seek an injunction if injunctive relief would be appropriate. The defendant may well claim that you have been compensated in damages and therefore your remedy is complete. The defendant may be right.

Your problem is created because you sought a remedy without adequate legal representation.

Good luck.

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Answered on 10/21/03, 2:15 pm


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