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A specialist in arborial arbitration:
Local attorney is one of few legal tree law experts

Marin Independent Journal, January 14, 2002
By Keri Brenner, IJ Reporter

Barri Kaplan Bonapart's legal specialty is something Marin holds dear: trees.

"Trees can be a lightning rod for whatever else is going on," said the Corte Madera attorney, a legal tree law specialist and one of only a few nationally recognized experts in the field.

"I'm constantly trying to see what's going on beneath the surface to see if we can heal it," said Bonapart, of the law firm, Bonapart & Associates. "If you can get to - pardon the pun - the root cause, the tree issues can sometimes be resolved by themselves."

In the decade or so since she has taken tree-related cases, 40-year-old Bonapart, a resident of Mill Valley, increasingly has been called upon to speak before various arborist, land-use and government groups about the surprisingly complex issues raised by trees.

Last year, for example, Bonapart spoke to the California Oak Mortality Task Force --the multi-county group addressing sudden oak death syndrome-- on the type of hazards and liabilities caused by sick or dead trees.

Such education is vital so officials can take preventive action before people or property are injured or ruined --as when rangers at China Camp State park in October closed all the park's 30 campsites to remove 80 diseased and weakened trees.

Ray Moritz, an arborist and urban forester with Moritz Arboricultural Consulting in Mill Valley, said property owners can be liable for tree-related damages if they noticed the tree was sick or weakened and took no action. He often is called in --sometimes with or by Bonapart-- to establish the prior condition of a tree after an accident or injury has occurred.

"One reason I enjoy working with Barri is that she immediately understood what kind of problems forensic experts face and how to work with them," said Moritz, a member of the oak mortality task force's education committee.

"It's not right to expect homeowners and casual observers to see a problem that only tree experts could discern," Moritz added. "Where the question arises is whether a reasonable person would have recognized the hazard and taken the necessary steps."

Beyond the hazards and liability questions, trees present a full range of other issues, Bonapart said. Those include the rights of tree owners when branches or roots are encroaching on a neighbor's property or blocking views, or whether damages from trees are an "act of God" or someone is responsible. Complex property tax or insurance implications can be involved.

"When I was first approached to represent someone in a tree-related case, I thought, 'How hard could it be?'" said Bonapart, who previously worked in commercial litigation for San Francisco law firms Brobeck, Phleger & Harrison and Fabris, Burgess & Ring. "I quickly found there was a lot of complexity --such as how do you determine ownership of a tree and how do you determine what a tree is worth?"

According to Bonapart, "the tree-related statutes span six codes, and the case law goes back to the turn of the century."

Bonapart took her first tree-related case in 1990 as a favor to a family friend whose neighbor had done some overzealous tree trimming. After digging in such esoteric matters as tree appraisals and counting tree rings, she succeeded in winning $100,000 in a combined arbitration award and insurance settlement. Even more important, Bonapart's new direction --and a new professional association-- was established.

"We discovered we worked well together," said Moritz, who was a consultant on the same case. Since then, Bonapart estimates that her tree-related work has grown to 80 percent of her business.

In 1997, she was brought in by San Rafael attorney Colin Claxton as co-counsel on a case against PG&E in connection with a 1996 Cloverdale fire. The plaintiffs are two property owners in Sonoma and Napa who bought land to build their dream houses overlooking a sylvan forest --only to have a fire turn the forest into a charred moonscape, Bonapart said. At issues: whether Pacific Gas & Electric failed to trim trees, allowing them to rub power lines and spark the blaze.

A trial in the high-profile case is expected by early summer.

Bonapart also is representing a 22-year-old worker whose arm was severed in an accident on a tree-removal job in San Francisco, and she has successfully mediated tree-related disputes between next-door neighbors. She tries for mediation if at all possible.

"Typical lawyering, too often, is about who has the louder, tougher, heavier-hitting lawyer, or which side is willing to spend more to beat the other side to the ground," Bonapart said.

"It's not hard to file a lawsuit," she added. "What's hard is to keep out of an adversarial situation and come up with a creative solution."

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