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REAL PROPERTY, Trespass/Nuisance, Damage Real Property

SETTLEMENT RESULT: $8,000 to plaintiffs for damages. The court entered judgment in favor of plaintiffs ordering defendants to abate the nuisance by removing hazardous trees and replacing their retaining wall, and awarding plaintiffs $8,000. Plaintiffs were also awarded their costs of suit.

CASE: Kennedy v. Daniels. DOCKET NUMBER: CISCV-176241

SETTLEMENT DATE: November 8, 2013

ATTORNEYS:Plaintiffs- Barri Kaplan Bonapart (Bonapart & Associates, Sausalito)
Defendant- Edward W. Newman (Capitola, CA)

EXPERTS: John Wallace, Principal Engineering Geologist, Cotton, Shires and Associates Inc., Los Gatos, CA;
Richard Fuller, General Contractor, Sunstone Construction Inc., Campbell, CA;
Ray Mortiz, Forester and Tree Risk Assessor, Urban Forestry Associates Inc., San Rafael, CA

FACTS & CONTENTIONS: Plaintiffs Joyce and Edward Kennedy owned property down slope from defendants Jennifer and Mark Daniels' property. There were two trees located near the common boundary that reportedly posed a danger to plaintiffs and their property. Plaintiffs had attempted to have defendants remediate the failing retaining wall and remove the hazardous trees, but defendants failed and refused all attempts at resolution, forcing plaintiffs to file suit. Plaintiffs sought injunctive relief and compensatory damages for the annoyance and discomfort caused by the nuisance.

EXPERT TESTIMONY: Plaintiff expert John M. Wallace testified as to the current condition of defendants' retaining wall and its lack of engineering for its intended purpose. Wallace also testified as to plaintiffs' soil conditions and the proper design criteria and engineering requirements for a replacement wall. Plaintiff expert Richard L. Fuller testified as to the current condition of the materials and condition of the retaining wall. Fuller also testified as to the cost to remove and replace the retaining wall with a properly designed and engineered structure. Plaintiff expert Ray Moritz testified as to the health and stability of the trees that were the subject of this action. Moritz also testified as to the need to remove the trees.

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