Legal Question in Real Estate Law in California
Tree fallen on car
Thank you in advance for any help you may give me�
I rent a townhouse. On 12/01/07 a tree split in half vertically & fell on my car, @ $3k damage. The tree was in the common area of the complex and fell for apparently no reason. My neighbor, who is on the Board of Directors for the HOA, told me to report it to my insurance co. Me, no comp. ins. After speaking to my landlord, she said to get estimates and mail them to the property management company (PMC) used by the HOA. I mailed four estimates and 30 photos to PMC�they sent them to the HOA's ins. co. who denied the claim. After reviewing tree care reports they deemed it an ''Act of God'', but no wind that day. A week earlier 5 trees fell in the complex. If the tree is planted/owned/cared for by the HOA are they liable for my loss? If I can sue the HOA, who do I serve papers to? All the members on the Board? My landlord? Or the property mgmt co? ALL OF THEM?
Then, @ 1/15/08--ALL the trees in the complex were trimmed EXTREMELY. Prior to 12/1/07 trees had not been trimmed for @18-24 months.
The HOA�s PMC has never called/sent a letter to me or my landlord.
Does it matter if I am a tenant or a homeowner? Their tree-my car! Where is the justice. I am going crazy! Do I have a case?
1 Answer from Attorneys
Re: Tree fallen on car
The "act of God" characterization by the insurance company might stand up in court, or it might not. In order to win, you would, I think, have to plead and prove negligence - the "their tree-my car" argument doesn't by itself got you a judgment.
Further, evidence of remedial action (such as trimming the trees) taken by the defendant after the incident is NOT ADMISSIBLE to prove that defendant's negligence contributed to the incident. This is a public-policy codified into the Evidence Code (section 1151) to encourage defendants to take remedial measures.
Your case might be a good one to take to Small Claims Court.
Your landlord might be liable, but it might be wise to preserve good relations there and sue the HOA, which is at least as likely to be liable. Whoever serves the papers for you should try serving an HOAofficer and ask at the time if they are authorized to accept service of process, and if not, who is.
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