Who is liable for falling trees?

Recently, I addressed a question posed by a reader who asked who is responsible for damage caused by a tree branch falling from an adjacent yard and crashing through the roof of their house, narrowly missing their child. The article addressed the answer to that question with the assumption that it was a tree owned or maintained by a municipality. This week, I will address trees owned by individual, non-governmental owners.

The reader’s inquiry involved a neighbor’s tree overhanging their property. State law provides that the owner of a tree whose branches overhang an adjoining landowner’s property is liable for damages caused by the overhanging branches. Therefore, if your neighbor’s tree drops a branch and causes injury to a vehicle, person, or structure, they are liable to you for the damages caused.

In general, you are legally allowed to take it upon yourself to cut off any tree branch that overhangs your property from the point where it crosses the boundary. Courts have ruled that shade and debris cast by a neighboring branch, blocking light, clogging gutters, deteriorating a roof, etc., can constitute a nuisance, thereby making the tree owner liable for any and all damages caused. The recovery of damages is generally proportional to the extent of the injuries. Indeed, in the 1952 case of Grandona v. Lovdal, the Supreme Court of California ruled and reasoned as follows: “Trees whose branches extend over the land of another are not nuisances, except to the extent to which the branches overhang the adjoining land. To that extent they are nuisances, and the person over whose land they extend may cut them off, or have his action for damages and an abatement of the nuisance against the owner or occupant of the land on which they grow; but he may not cut down the tree, neither can he cut the branches thereof beyond the extent to which they overhang his soil.”

However, there is a a major caveat: some jurisdictions, like Sausalito, have specific tree ordinances that may prohibit this kind of self-help. Before altering a tree, it is advisable to look into any such tree ordinance in effect. Additionally, even when no local ordinance exists, it would be beneficial to first talk to your neighbors before altering a tree rooted on their property; people can get very wound up over trees and it’s never wise to create unnecessarily hostile relationships with your neighbors.

If you have suffered harm from your neighbor’s trees but the neighbor will not consent to altering the tree, you can file an “action for abatement” requesting the court to order your neighbor to remove the trees or to allow you to cut the branches back to your neighbor’s property line. In Bonde v. Bishop, again in 1952, the California Court of Appeals reasoned with respect to an action by a tree owner against his neighbor who cut back the branches: “The finding that the tree in question was a constant menace to the property of the defendants is sustained by the testimony to the effect that in the past large branches had fallen on the roof and porch of defendants’ house, one of such branches tearing a hole in the roof; that the leaves filled the gutters, and littered the porch and lawn. Clearly, under the testimony appearing in the record here and the findings of the trial court, this tree was ‘an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.’”

In this case, where a tree with previous, known rot damage fell on a house and punched through the roof into a child’s bedroom, there is likely have a strong case for holding your neighbor liable for negligence as well. Actions in negligence hold property owners responsible for failing to take reasonable care to prevent foreseeable damage to others as a result of dangerous conditions on their property. If one is successful in proving that a neighbor negligently maintained their property, one would have the right to recover both economic losses (property damage, cost for clean-up, medical expenses, etc) and non-economic damages such as pain, disfigurement, emotional distress, anxiety, and, in the child’s case, treatment for what sounds like Post Traumatic Stress Disorder.

Homeowner’s insurance covers economic losses caused by falling trees, so you should open a claim with them. They will later seek reimbursement from the neighbor’s insurance.

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You don’t need to put up with a hostile working environment

Today’s question comes from Geraldine T. in Berkeley:

“After reading your article on unlawful harassment two weeks ago, I have a couple of questions. I work in a warehouse and I don’t want to be a “narc,” but I don’t think I should have to put up with the offensive sexual type behavior going on here. One female worker and the male warehouse foreman have known each other for years and they say all sorts of sexual stuff to each other and laugh, all the time. For example, the foreman might say “where do you want me to stack these poles,” and the female worker might answer, “you know where you can put that pole baby, anytime, just don’t let your girl find out.” I don’t need, or want, to hear this crap at work. I am fairly religious and it makes me so uncomfortable that some days I don’t even want to go to work. Whenever I say anything like “I don’t need to hear that kind of talk,” they look at me with disgust and tell me to mind my own business. With Christmas coming, I need this job to buy gifts for my kids and pay the rent. What can I do?”

Geraldine, you shouldn’t have to choose between a workplace free of sexual harassment and your job. This happens all too often. The type of unlawful behavior you describe is known as “hostile environment” sexual harassment and can involve various forms of verbal and physical conduct of a sexual nature that have either the purpose or effect of creating a hostile or offensive working environment. The conduct need not be directed towards you — your awareness and objection is enough. As such, the foreman would be considered to be harassing you, but not his female friend because she participates in the conduct and therefore does not appear to find the conduct “unwanted.” 

A “hostile environment” case requires proof of three elements: (1) an employee subjected to unwanted conduct; (2) such conduct being based on sex; and (3) harassment “so severe or pervasive” as to “alter the conditions of the victim’s employment.” In cases like yours where there has been no direct impact on your work assignments or conditions, the law would require a “commensurately higher showing that the sexually harassing conduct was pervasive and destructive of the working environment”; that is, it has to be so bad that a reasonable person in your position would find it intolerable and detrimental to their working environment.

To hold an employer accountable, the employer must have had actual or constructive knowledge of the conduct and have failed to remedy it. Examples of actual knowledge include personal observation or another employee’s report. Constructive notice is found when the conduct is so prevalent that a reasonably aware employer would know about it. In cases like yours where a supervisor is involved in the conduct, the supervisor’s knowledge is imputed to the employer. 

I suggest that you look at your employee handbook to see if they have a process for reporting such conduct and follow that process. Don’t worry if it requires you to bring it up with your direct manager; you can skip that. I always suggest that a person in your situation file a WRITTEN complaint with their manager’s manager and human resources or, If there is no human resources department, then with the owner. Once in receipt of your complaint, the company is legally obligated to conduct a reasonable, good faith investigation and take “prompt and sufficient remedial measures” to put an end to the harassment. You may also file a complaint with the Department of Fair Employment and Housing at their website: dfeh.ca.gov.

Many people in your situation choose to make anonymous complaints because they are afraid of retaliation. However, there are good reasons not to complain anonymously, though. First, the law prohibits retaliation, including comments, altered job assignments, bogus discipline, or termination, against an employee who has made a good-faith complaint. Second, since your foreman and his friend already know your feelings towards their conduct, they will probably guess who reported them and possibly take actions against you, which the company can claim not to constitute retaliation because the complainant did not reveal their identity. As such, it is best to let them know up front.

Finally, I suggest that you speak to an Employment Trial Lawyer, who usually works on a contingency (taking a percentage of any recovery), for further advice. My firm believes in giving the employer an opportunity to “do the right thing” and avoid a lawsuit if possible, so our employment law team often counsels employees in effectively communicating with their employer to obtain a harassment-free workplace. If these efforts fail, the employer’s insufficient response can serve to strengthen a later lawsuit.

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New state laws expand workplace protections against sexual harassment

Ava G from The Haight asks: “I heard that there were some new laws on sexual harassment. As a member of a women’s empowerment group I was wondering if you could summarize them so we can discuss them at our next monthly meeting.”

Ava, the #MeToo movement started, and continues to run strong, in California. Over the next several weeks I will report on many of the new, progressive, laws extending important protections to California workers. As you have heard, the California Legislature and Governor Newsom have acted decisively in broadening California’s workplace protections in the areas of sexual harassment. As the owner of a law firm which has represented employees (only) in cases of harassment and discrimination over the last 25 years, I can say confidently that these new laws provide much needed additional protection for workers in California.

Former Gov. Jerry Brown signed two important measures into law on Sept. 30, 2018. Senate Bill 1300, propounded by Senator Jackson and codified as Government Code Section 12923, added a host of new employee protections. The law, with certain exceptions, prohibits an employer from conditioning continued employment, or incentives like raises or bonuses, on the execution of a release of a claim or right under the Fair Employment and Housing Act (FEHA), a nondisparagement agreement (an agreement that prevents the employee from disclosing truthful facts that may be negative), or other document that denies the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment. The law further provides that any such agreement or document containing such a clause is unenforceable. In addition, SB 1300 extends the previous FEHA requirement that employers protect their employees from sexual harassment by non-employees to require protection from all forms of harassment on the basis of membership in a protected class, race, age, disability, sexual orientation, gender identification, etc.

SB 820, propounded by Senator Leyva and now codified in the California Civil Code Section 1001, renders unlawful any settlement agreement including a confidentiality provision that prevents the disclosure of factual information pertaining to civil or administrative complaints of sexual assault, sexual harassment, or workplace harassment or discrimination based on sex. The law provides that any such provision in a settlement agreement entered into on or after Jan. 1, 2019 is unenforceable. The law does permit a provision, however, that would safeguard, at the claimant’s request, the claimant’s identity and any facts that could lead one to discover the claimant’s identity (except in matters involving a government agency or public official), as well as a provision that prevents the disclosure of the amount paid to settle the claim, at the request of either party.

On Oct. 10, Gov. Newsom signed into law Assembly Bill 9, propounded by Assembly Member Reyes, which extends the time for an employee to file a complaint with the Department of Fair Employment and Housing, a prerequisite for the employee to file a lawsuit or, at the employee’s request, for the Department to conduct an investigation and prosecution of the claim within the administrative system. Until now, employees have been required to file a charge of discrimination or harassment (retaliation or other unlawful conduct) with the Department of Fair Employment and Housing within one year in order to preserve their right to sue their employer for unlawful harassment or discrimination. AB 9 amends Government Code section 12960 to extend the time that an employee has to file a complaint of discrimination and harassment by two years. Now aggrieved employees have up to three years to file a claim and initiate legal action. Moreover, certain additional extensions of time may be granted if the conduct is discovered after the expiration of the three-year period or the aggrieved party finds out the true identity of the unlawful actor.

Although these periods have been extended, it is always best to act promptly when dealing with these matters as documents disappear, memories “fade,” witnesses change jobs and frequently move, making the accumulation of evidence more difficult. It is also important to note that AB 9 is a prospective law, meaning that it does not revive claims which have already expired. As always, it is advisable to consult an experienced sexual harassment attorney to ensure the best outcomes in prosecuting your claims.

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Most gift cards come without expiration dates

This question comes from Kim M. in Pacific Heights, who asks:

Q: “I want to get my daughter a gift card for the holiday, but I have heard that they have fees and expiration dates that can result in the card losing most or all of its value. What is the law regarding these gift cards?”

A: Gift cards can be good for the retailer and the receiver. The receiver can take advantage of the Cyber Monday and Black Friday sales to get more for his or her money, and the retailers get cash upfront without reducing inventory. These cards used to be more of a benefit for retailers, but the California Legislature, in combination with certain consumer-rights groups, has enacted legislation designed to protect consumers.

California Civil Code Section 1749.5 contains the bulk of the law regarding gift certificates and gift cards. Section 1749.5 makes it illegal to sell a gift certificate that contains an expiration date. Likewise, it provides a prohibition against service fees, including any fee for dormancy (unless it has been dormant for more than 24 months, the fee is clearly stated in 10-point type on the card, the fee is no more than $1 per month and the remaining value of the card is $5 or less each time the fee is assessed).

Any gift certificate sold after Jan. 1, 1997, is redeemable in cash for its cash value or subject to replacement with a new gift certificate at no cost to the purchaser or holder, and any gift certificate with a cash value of $10 or less is redeemable in cash for its cash value.

There are certain exceptions to the no-expiration rule. Namely, gift certificates issued pursuant to an awards, loyalty or promotional program without any money or other thing being given in exchange for value, gift certificates donated or sold below face value at a volume discount to employers or nonprofits for fundraising purposes and certificates for perishable food products. Certificates of this type must have the expiration date in capital letters printed on the front.

One issue with gift cards that are not redeemed is the company may go bankrupt. This has happened in the past, leaving countless individuals with gift cards with no value beyond that of the plastic in their hands. California law states that the value of a gift card is held in trust by the issuer such that when and if the issuer goes bankrupt, the gift card value is not considered part of the bankrupt entity’s estate but is considered the holder’s property.

Civil Code Section 1749.6 states that an issuer of a gift certificate who is bankrupt shall continue to honor a gift certificate issued prior to the date of the bankruptcy filing on the grounds that the value of the gift certificate constitutes trust property of the beneficiary (holder). Under certain limited circumstances, gift certificates with an expiration date can be rendered valueless, but the money therefore does not go to the retailer it escheats — i.e. it reverts back to the state’s general fund if it is uncollected property.

Before purchasing gift cards or gift certificates, ask the vendor about their redemption policy. For a gift card that can be used by many non-affiliated vendors, ask for expiration dates and any relevant fees. In addition, ask about where the unused portion of the value can be redeemed and how that amount can be redeemed. This is also important for “single seller” cards, many of which can be purchased at an unaffiliated location.

So, Kim, this is probably more than you were asking for, but there it is. Unless the certificate meets these exceptions above, it can not be subject to an expiration date and your daughter should be able to benefit from your generosity.

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