Legal Question in Real Estate Law in California

Re: Crazy neighbor

if this is so important to you and you are still timely as toyour appellate rights --- get an attorneyl.

Re: Crazy neighbor

Why do you need research? Can't you just take photos showing the plants and explain the situation when your case is re-tried in Superior Court?

Re: Crazy neighbor

You need to approach your "appeal" knowing that it is really a complete re-trial. Both you and the neighbor will present fresh cases to a new judge. The procedures will be a lot more formal.

If you will be representing yourself in court, you need to be prepared to deal with three interrelated sets of courtroom issues: (1) facts; (2) law; and (3) procedural rules.

As to the facts, you need to be prepared to present admissible evidence (not hearsay) to prove the necessary matters to establish your claim or to refute her claims. I take it you are the defendant. If so, the burden of proof is on the other side, and you have only to refute successfully one of the essential elements of her case.

As to the law, you need to be able to argue the elements of trespass. Basically, if plants are rooted on one side of the property line and their branches or roots cross the boundary, that is a trespass. California decisions give you the right to abate the trespass by pruning or otherwise removing the trespassing parts of the plants, but you must not do so in a negligent manner.........the definition or significance of this phrase was not further explained by the court that set forth this principle, but it is generally understood to mean that you must avoid killing the plant or (if it is a tree) pruning it in such a way that it may fall over in a windstorm (and so forth).

I am a farmer when I'm not practicing law, and I have some practical experience in the control of unwanted plants. Most herbicides are designed to kill the entire plant.........there aren't many situations in which one wants to kill just part of a weed. Pruning is used for that purpose. If pruning doesn't work, you could consider physical barriers, mulch, goats and bunnies. Live steam, infrared lamps and flame throwers are also used (no kidding) for weed control where chemicals that would kill the entire plant are impractical or forbidden. You could also consider plants that compete with the invading species for water, light or nutrients.

Look up "trespass to land" on a law site for the basic elements of this tort.

Now, the third area, court procedure: If you are the defendant and have not filed a counter-claim, you can only use the trespass issue defensively and cannot expect damages or any other kind of affirmative relief. You should consider adding a counterclaim for trespass, if you haven't already.

I would be pleased to provide you with consulting and/or to represent you, but remember that paying an attorney for a month of research (probabl excessive, anyway) or even a lot less is going to be pretty expensive. If you wish, e-mail or phone me for some free pre-representation conceptual discussions.