Facts

The plaintiffs are residents of the Pine Mountain Club, which located near Frazier Park. The plaintiffs purchased a home within the community in 1993 and moved into the home in 1994. The homeowners are governed by recorded CC&R's as well as Association rules.

On Jan. 18, 2010, a large Ponderosa Pine tree on the plaintiffs' property was blown over by high winds. The tree crashed through the Plaintiffs' house and killed their 21-year-old son who was sleeping in the master bedroom. The tree blew over because 60 to 65 percent of the root ball was rotten and could no longer support the tree.

The plaintiffs' son was single and a seasonal fire fighter for the Forest Service.

The plaintiffs sued for wrongful death.

PLAINTIFF'S CONTENTIONS:
The plaintiffs contended that a homeowner in Pine Mountain without written permission could remove no tree. The plaintiffs also contended that they had requested permission from the defendant's Environmental Control Committee (ECC) and Environmental Control Offer (ECO) to remove the tree on several occasions during the prior 10 years but had been refused.

The plaintiffs claimed that the ECC came to the property in 2004 or 2005 and advised them, on site (orally), that the tree could not be removed, as it appeared to be healthy. They further claimed to have made requests to the ECO to remove the tree but he also told them, on site, that it could not be removed because it appeared to be healthy. The plaintiffs called witnesses to testify that they heard the request to the ECO.

The Plaintiffs claimed they made another request when they had plans for an addition to house drawn up but were refused permission.

The Plaintiffs asserted that the tree had been exhibiting signs of decline for about five years and that the ECC or ECO should have properly inspected the tree and should have allowed them to remove it because it about 10 feet from the house, had beetle infestation and was leaning.

The Plaintiffs' arborist testified that the tree was in decline for about five years and was heavily infested with beetles. The Plaintiffs' expert conceded that if the tree had been trimmed it would have lasted another year.

It was asserted that because the Association was negligent for not allowing the Plaintiffs to remove the tree and that the Association placed priority on the environment over the safety of residents.

The plaintiffs asked the jury to award $5 million.

DEFENDANT'S CONTENTIONS:
The defense contended that the CC&R's required the homeowners to maintain and care for all trees on the property and that the homeowner was required to retain all experts to maintain and care for the trees. The evidence showed that the Plaintiffs never maintained or cared for any of the trees on their property in the 16 years they had lived there. Their own friend, who was a tree trimmer, testified that he saw no evidence of any trimming and the Plaintiffs' arborist expert testified that the only maintenance he saw was evidence of removal of some trees; he saw no evidence of trimming.

Additionally, the Association contended that the ECC never visited the Plaintiffs' property and it was against the ECC procedures to give oral advice on site. Decisions as to requests for tree removal were never made on site were only discussed at a meeting later in the day. All decisions of the ECC would be in writing in minutes and in a letter to the homeowner. Two committee members testified they were not on the Plaintiffs' property. Additionally, there were no minutes evidencing any visit to the Plaintiffs' property and no letters to the Plaintiffs regarding the subject tree.

The ECO testified that he does not inspect privately owned property for anything other than violations of the Association rules. If he sees a dead tree, he will send a letter to the homeowner to remove it within 30 days because it presents a fire hazard. He testified that if a request is made to him to remove a Monument Tree (large pine trees) he will refer that decision to the ECC even though he has the authority to grant or refuse permission. The ECO testified he had no recollection of ever being asked to remove the subject tree but that if he had, he would never have said no; he would have referred the decision to the ECC.

The Plaintiffs friend, a tree trimmer, testified that he had advised the Plaintiffs in 2007 that they needed to trim the canopy of the tree because it would act like a sail in the wind and could blow the tree over. The canopy of the tree was never trimmed. The same tree trimmer gave the Plaintiffs an estimate to remove the tree in 2007 but they never contacted him to do the job. Although the only penalty for removing a tree without permission was a $500 fine, the Plaintiffs were unaware of the existence of any fine until late August 2009, yet they never removed the tree.

According to the defense arborist, the tree's roots were 60-65 percent dead and rotted, but there was no above ground evidence of root rot. The tree canopy was full and healthy and root rot is evidence by the tree dying from the top down. There was minor beetle infestation in some dead limbs but that is a natural cycle. If the tree had been in decline, the beetles would have infested the truck of the tree and there was no evidence of any beetle infestation.

The defense contended that the Association was not negligent and that even if it had been, the negligence was not a substantial cause of the death of the Plaintiffs' son.

Settlement Discussions

The plaintiffs' last demand, about one year before trial, was $1.3 million. The defendants served CCP 998 offers to compromise of $12,500 to each of the plaintiffs. The defense made a high-low offer during deliberations of $75,000 - $750,000, which was rejected. Mediation was held in May 2011 with Gary Fields. The plaintiffs demand was $2.5 million and no progress was made.

Damages

The plaintiffs claimed non-economic damages for the wrongful death of their son.

Result

Defense verdict.

Other Information

FILING DATE: May 5, 2010.

Deliberation

4.5 hours

Poll

11-1 (that the Defendant was negligent), 11-1 (that the negligence was not a substantial cause)

Length

five days