Opinion
A129018 & A130062
10-27-2011
LLOYD BISHOP et al, Plaintiffs and Respondents, v. ERNEST HANES et al, Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. RG 09443093)
I. INTRODUCTION
This appeal stems from a long-standing dispute between adjoining neighbors over a view obstruction. When plaintiffs Lloyd and Phyllis Bishop bought their house in the Oakland Hills in 1964, they had unobstructed views from their property of the San Francisco Bay and the surrounding visual environment. For 20 years, until the defendants, Dr. and Mrs. Hanes, bought the property directly below the Bishops' property in 1984, the Bishops were able to work amicably with their down slope neighbors to preserve their views. However, the defendants allowed the trees and vegetation to grow and, over time, obstruct the views from the Bishops' property. In 2001, the Bishops filed an unsuccessful lawsuit against the Haneses based on an easement and Oakland's View Ordinance (hereafter "the View Ordinance"), seeking injunctive relief. Following amendments to the View Ordinance in 2004 and 2006, the Bishops and the Haneses engaged in failed mediation leading to a second lawsuit alleging a continuing nuisance and again seeking injunctive and other relief. This time, the Bishops' lawsuit was successful. The Haneses appeal, claiming that the Bishops' second lawsuit was barred by res judicata, that applying the amended View Ordinance to them violates their due process rights, and that the remedy, including the award of litigation costs and attorney's fees to plaintiffs, as well as all of the costs incurred to restore the Bishops' views, is unjust and unauthorized. We reject all of defendants' contentions because we find that res judicata does not bar the Bishops' second lawsuit, application of the amended View Ordinance to the Haneses does not violate their due process rights, the costs and attorney's fees are reasonable, and substantial evidence supports the court's order imposing all of the costs of view restoration on the Haneses. Therefore, we affirm the judgment and postjudgment orders.
II. FACTUAL and PROCEDURAL BACKGROUND
A. The Parties and Their Properties.
The plaintiffs in this case are Lloyd Bishop and his wife, Phyllis Bishop ("The Bishops"). They have owned the real property at 6807 Wilton Drive in Oakland since 1964. The defendants in this case are Dr. Ernest Hanes and his wife, Okhoo Hanes ("The Haneses"). They bought the real property at 6817 Wilton Drive, downhill and adjacent to the Bishop's property, from the Aldriches in 1984. One of the reasons they purchased the property was that the trees and vegetation gave the property a "Tahoe look" and a "sense of serenity," providing a visual and noise buffer.
At the time of trial in 2009, Lloyd Bishop was 87 and Phyllis Bishop was 93 and they had moved from their home on Wilton Drive to an assisted care facility in downtown Oakland, but they still visited their home in the hills regularly.
Before the Bishops bought their property, their parcel and the Haneses' parcel were both part of one, larger parcel owned by Lynn and Bernice Aldrich ("The Aldriches"). At the time they bought the property, the Bishops negotiated for and obtained a covenant running with both parcels of land to protect their panoramic views of the San Francisco Bay, Peninsula, and skyline, downtown Oakland, the Oakland Estuary, the island city of Alameda, Yerba Buena Island, the Golden Gate and Bay Bridges and the Marin Headlands. The covenant limited the height of structures that could be built on the downhill parcel. The covenant was recorded against both parcels on the same day as the grant deed.
B. The Genesis of the Dispute.
Between 1964 and 1986, the Bishops were able to amicably resolve view obstruction issues with their downhill neighbors, including the Haneses. Whenever trees or vegetation began to encroach upon the Bishops' views, the Bishops' neighbors would allow them to enter their land to cut and trim the trees and vegetation. However, by 1987, the relationship between the Bishops and the Haneses had become strained. The Haneses felt that the Bishops had a cavalier attitude towards the Haneses' property and privacy rights, entering their property at will to cut down trees and vegetation, leaving the cutting debris in the Haneses' yard, and allowing their workmen to use and block the Haneses' driveway in order to gain access to the rear of the Bishops' lot.
In 1990, the Haneses moved away from the Bay Area and rented out the house. Between 1990 and 1994, the Haneses gave the Bishops permission to cut trees on their property under a property manager's supervision. However, when Mrs. Hanes visited the property periodically, she discovered that the trees had been "crew cut" and "the yard was a mess." At that point, the Haneses forbade the Bishops to cut trees on their property and subsequently erected a six-foot chain link fence to prevent the Bishops and their workmen from "[using the property] like it was a public thoroughfare." The Bishops felt that the fence obstructed their view. And, the trees and vegetation continued to grow unabated. After numerous failed attempts to resolve the view dispute by mediation in the late 1990's through 2001, the Bishops sought legal counsel to restore and protect their views.
Except for a brief period in 1998, the Haneses have not lived in the house since 1990. The house remains a rental, although the Haneses intend to return to live in it someday.
C. The First Action and Trial.
In 2001, the Bishops filed a lawsuit against the Haneses seeking injunctive relief to have the fence removed or lowered, and the trees and vegetation cut. Alternatively, the Bishops asked for monetary damages. Their action was based on the elevation requirements of the 1964 agreement between the Bishops and the Aldriches, the Haneses' predecessors in interest. In addition, the Bishops sought injunctive relief to require the Haneses to trim or remove certain trees and vegetation so as to restore and preserve the views previously enjoyed by the Bishops, based on Oakland's then extant View Ordinance. (Oakland Mun. Code, tit. 15, §§ 15.52.010 et. seq.)
After a two-day trial in January 2003, at which seven witnesses testified, the court found for defendants and against the plaintiffs on their view claims. In its statement of decision, the court ruled that the September 1964 view agreement between the Bishops and the Aldriches did not bind the Haneses because the Haneses did not have constructive notice of any restrictions placed on their property by the agreement between the Bishops and the Aldriches. The court also ruled that the Oakland View Ordinance protected views from obstruction by " '[t]rees or vegetation' " only in that view corridor " 'designated on the site development map of the North Oakland Hills Area Specific Plan' " [hereafter NOHASP], and that "[t]he residential parcels owned by the Plaintiffs and the Defendants are outside the parameters of the site development map of the [NOHASP]." Therefore, "[t]he Oakland View Ordinance does not apply."
The Bishops did not appeal. Instead, they sought to have the Oakland City Council (City Council) clarify the scope of the View Ordinance. Their efforts were successful. In 2004, the View Ordinance was amended "to clarify that the private right to reconciliation and arbitration established by the View Ordinance, OMC section 15.52, applies throughout the City of Oakland and further clarifies that the provisions of OMC section 15.52.040 regarding protected view corridors applies only to limited public views in specific locations in the NOHASP." In 2006, the View Ordinance was again amended "to clarify that the View Ordinance applies to all trees at issue on the tree owner's property, both those planted by the tree owner as well as trees allowed to sprout as a result of natural regeneration."
D. The Current Action and Trial.
By letter dated May 29, 2007, the Bishops' new counsel contacted the Haneses and invited them to "work with the Bishops, either through direct negotiations or through mediation, to attempt to resolve your differences once and for all so that each of you may put this matter to rest." In July 2007, the Haneses' attorney responded that the demand had been forwarded to the Haneses' insurer and they were awaiting word about their coverage.
In December 2007, the Bishops again sent a demand for alternative dispute resolution under the View Ordinance. Mediation finally took place in June 2008. As a result of mediation, in September 2008 the Haneses agreed to the removal of 26 or 27 acacia trees located directly in front of the Bishops' deck, and the topping of some other trees located above the Haneses' driveway. The work was completed in October of 2008. According to the Haneses, they fulfilled every aspect of the mediation agreement. The Bishops did not dispute this. However, according to the Bishops, these measures did not restore their views and no further agreement could be reached. The Bishops filed the present action on March 24, 2009.
Plaintiffs' First Amended Complaint contains two causes of action, one for nuisance and one for declaratory relief. Both causes of actions sought view restoration pursuant to the View Ordinance as amended in 2004 and 2006. Defendants answered, asserting a variety of affirmative defenses, including res judicata. The Haneses moved for summary judgment in August of 2009 alleging, inter alia, that the new lawsuit was barred by res judicata, and that application of the amended View Ordinance to them was retroactive and prohibited. The court denied the motion on November 17, 2009, ruling that the bar of res judicata did not apply, and the amended View Ordinance was not retrospective in its application to defendants.
A court trial commenced December 7, 2009 and concluded January 7, 2010. The court conducted a site inspection on December 17, 2009. The court issued a proposed statement of decision on March 22, 2010. Following submission of objections and responses by both parties, the court issued its final Statement of Decision on May 10, 2010.
E. The Court's Statement of Decision.
As relevant here, the court found that from their 1964 purchase of the property, and for approximately the next 20 years, the plaintiffs enjoyed "a panoramic view looking out into a westerly direction over Oakland, the Oakland Estuary, the island of Alameda, the San Francisco Bay, the San Francisco city skyline, the Golden Gate and Bay Bridges, Yerba Buena and Treasure Islands, and the Marin Headlands." The Bishops' view is one of " 'high-value,' " given the landmarks in view and the viewing points from the Bishops' living room, study, dining room, master bedroom, lanai, and deck. All the experts, including defendants' landscape architect, agreed with this assessment. The view is "significantly diminished by trees located on the Hanes property" in that "the most valued features and landmarks are almost completely obstructed by Defendants' trees."
To a lesser extent, the Bishops' views were also obstructed by trees located on the City of Oakland's property. However, the court found that these trees did not significantly affect its findings on liability or remedy because Oakland Arboricultural Inspector Mitch Thomson testified that "the City would take steps to minimize or eliminate the City trees' view obstruction once obstructing trees on the Hanes property were removed," and because "the Hanes actively prevented the City from taking steps to mitigate or remove the same City trees obstructions upon which they now rely."
The court's site inspection confirmed that the Haneses' trees substantially obstructed the Bishops' views of San Francisco, the Bay, the Marin Headlands, Oakland, Alameda and other landmarks from various perspectives on the Bishops' property, including the living room, study, dining room, master bedroom, lanai, and deck.
The inspection also confirmed that the trees in question might provide some subjective benefit to defendants. However, the court did not accept defendants' testimony that they enjoyed the visual screening their trees provide, because defendants do not live at the their property, no testimony was offered as to whether the tenants similarly valued the screening, and the expert testimony was that "the trees at issue offered little objective screening of defendants' home from any other feature." This opinion was confirmed by photographic evidence. In addition, defendants' own expert concurred that the sense of privacy was largely "in the minds of [the] Defendants," and that other plants would perform a better job of benefitting the defendants' property "from an objective landscape architecture standpoint." The court also gave little credence to testimony that birds might enjoy the trees at issue, because the testimony was vague and, because the trees were non-native, they "not only do not attract wildlife particularly well, they preclude the growth of other plants nearby that might themselves attract wildlife."
The court also found that while the trees do provide some erosion control, the uncontradicted expert testimony from a geotechnical engineer, which the court stated it accepted, established that the trees at issue "do not materially contribute to slope stability, and that removal and replacement would have no impact on the issues of erosion or stability, provided the work was performed correctly." The court also noted that despite defendants' asserted concerns about slope stability, they had never retained the services of a geotechnical or soils engineer to evaluate their concerns.
The court also found that the trees provided no energy conservation or climate control benefits and, as stated by the defendants' own expert, were mostly "non-native, grow very quickly, are messy, unattractive, contain a toxin which can inhibit other plant growth, and, in general are not optimal for a residential setting." In addition, the trees had no significant economic value, were highly flammable and of poor specimen quality. Finally, acacias were listed by the City of Oakland (City) "as an undesirable species that should not be planted." For all of these reasons, the court concluded that the trees at issue "provide almost no benefit to the Hanes and impose a substantial detriment on the Bishops" and therefore, "[o]n balance, the benefits the trees provide Defendants are significantly outweighed by the burdens they impose on the Hanes[sic]."
We assume, from the entire tenor of the court's statement of decision, that the court meant to state "the Bishops" and not "the Hanes."
Accordingly, the court adopted the recommendations made by plaintiffs' consulting arborist and horticulturist "which are that the trees and vegetation in question be removed with the tree stumps left in place and treated chemically to inhibit regrowth[; and] that the trees be replaced with shrubs that can provide screening and erosion control without creating a view obstruction." Specifically, the expert arborist recommended the immediate removal of all the blackwood acacia trees, the smaller of two Monterey pines, a redwood, and two plums. He also recommended the removal of the larger Monterey pine in three to five years due to its age and the potential structural hazard it presented, as well because of its view obstruction. The court did not follow this recommendation, finding instead that the second Monterey pine should be removed now rather than later, to avoid the possibility of further litigation. The court noted that the defendants' expert recommended a similar plan. The court concluded: "In short, due to the poor condition, undesirable species, and inappropriate plant material, the experts are in accord that the offending trees and vegetation should be removed and replaced with more suitable plant material, such as non-flammable, native shrubs, which will not become view obstructions at maturity. [¶] The experts agreed that the recommended proposal—removal and replacement—would be the most effective way to proceed and . . . is ultimately a benefit to both properties."
Relying on Echevarrieta v. City of Rancho Palos Verdes (2001) 86 Cal.App.4th 472 (Echevarrieta), the court expressly rejected defendants' claims that application of the amended View Ordinance to them was retroactive and violated their due process rights.
F. Remedies.
1. Permanent Injunction
On May 26, 2010, the court entered judgment for the plaintiffs, finding that "defendants' trees in their present condition violate Chapter 15.52 of the Oakland Municipal Code (Oakland View Ordinance), and constitute a nuisance," and issued a permanent mandatory injunction abating the nuisance. Defendants were ordered, at their own cost, to (1) retain the services of a licensed and certified arborist to remove the specified trees and vegetation which have grown into "the view corridor," as defined in the judgment, and chemically treat the stumps to prevent regrowth; and (2) retain the services of licensed professional to replace the trees and vegetation with native, non-flammable plants whose mature height would not encroach on the view corridor. The injunction further ordered that (3) no existing or future vegetation be allowed to grow into the view corridor, except as specifically provided; and that (4) plaintiffs, as the prevailing parties, recover their attorney's fees and all costs of litigation.
2. Attorney's Fees
Pursuant to section 15.52.070 of the View Ordinance, the court designated plaintiffs the prevailing party and awarded them reasonable attorney's fees and costs. The court judgment granted plaintiffs $202,144.17.
Oakland Municipal Code of Ordinances, Title 15, Chapter 15.52, section 15.52.070 provides: "Each party shall pay his or her own costs and attorneys fees except in the case where the dispute goes to trial or judicial arbitration. In the event that an action under this chapter is resolved after trial or judicial arbitration in municipal or Superior Court, the prevailing party shall be entitled to reasonable attorney's fees and costs of suit."
3. Costs
The court made findings pursuant to section 15.52.060, subdivision (B) of the View Ordinance, and imposed 100 percent of the costs of restoration and replacement on defendants. On August 20, 2010, the court granted defendants' motion to tax the expert costs in the amount of $30,101.25, and the motion to tax other miscellaneous costs in the amount of $6,113.01. The court denied defendants' motions to tax the exhibits, court reporters' fees and mediation fees.
Oakland Municipal Code of Ordinances, Title 15, Chapter 15.52, section 15.52.060 provides: "The cost of all restorative actions, replacement plantings, and arbitration shall be apportioned between the view claimant and the tree owner as follows:
"A. The view claimant and tree owner shall each pay fifty (50) percent of such costs in those cases involving any tree planted or allowed to sprout as a result of natural regeneration by the tree owner subsequent to the effective date of this chapter (August 5, 1980).
"B. The tree owner shall pay one hundred (100) percent of such costs in those cases where:
"1. The tree owner has refused to participate in good faith in the initial reconciliation or voluntary arbitration processes (Section 15.52.090B) and where the view claimant has prevailed at trial or judicial arbitration; or
"2. In any subsequent dispute between the same parties, to restore any view obstructed by the same tree or trees or any of the plantings substituted for the original offending tree or trees described in subsection A of this section.
"3. The tree owner plants a tree(s) against the expressed, written objection of the view claimant and the same tree(s) later become subject of a view claim.
"C. In all other cases, the view claimant shall pay one hundred (100) percent of such costs."
Defendants timely appealed from the judgment entered on May 26, 2010 after a court trial (A129018), and from the amended judgment and order awarding attorney's fees and costs filed on August 20, 2010 (A130062). This court ordered the appeals consolidated.
III. DISCUSSION
A. The Bishops' Claims Were Not Barred by Res Judicata.
Defendants assert that all of the Bishops' current claims were barred by res judicata. " '[T]he doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy. It seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration.' (7 Witkin, Cal. Procedure [3d ed. 1985] Judgment, § 188, p. 621, italics in text.)" (Nakash v. Superior Court (1987) 196 Cal.App.3d 59, 67 (Nakash).) Defendants attack the trial court's ruling on their summary judgment motion on three grounds: (1) the prior lawsuit resulted in a final judgment on the merits; (2) both lawsuits arose out of the same "primary right"—the Bishops' asserted right to an unobstructed view over the Haneses' property—and since the prior lawsuit established that the Bishops' had no such right, the exception for an "ongoing relationship" does not apply; and (3) that the "injustice exception" to the application of res judicata "is inapplicable where . . . the only possible basis for its implementation is founded on a change in law following the original judgment." (Slater v. Blackwood (1975) 15 Cal.3d 791, 796.)
We need not address the res judicata argument because this case presents the classic example of an ongoing dispute over a continuing nuisance to which the doctrine of res judicata does not apply. In Spaulding v. Cameron (1952) 38 Cal.2d 265, involving a neighbor dispute over a continuing nuisance consisting of mudflow onto the down slope neighbor's land from leveling operations on the up slope neighbor's land, our Supreme Court observed: "[I]t has been recognized that in doubtful cases the plaintiff should have an election to treat the nuisance as either permanent or not. [Citations.] If the defendant is not privileged to continue the nuisance and is able to abate it, he cannot complain if the plaintiff elects to bring successive actions as damages accrue until abatement takes place. [Citations.] On the other hand, if it appears improbable as a practical matter that the nuisance can or will be abated, the plaintiff should not be left to the troublesome remedy of successive actions. [Citations.]" (Id. at pp. 268-269. See also Nakash, supra, 196 Cal.App.3d 59, 69.) In our view, the trial court did not err in concluding that "[t]he doctrine of res judicata was not intended to apply to parties in an ongoing relationship, such as that between spouses, parents and children, or continuing business partners and fiduciaries, or (as here) neighbors, 'where the courts have traditionally recognized the need for serial adjudication.' (See, e.g., Nakash[, supra] 196 Cal.App.3d [at p.] 69.)"
Because of the posture of the litigation, res judicata was not controlling. Judge Baranco concluded the ordinance in effect at that time did not apply and ruled in favor of defendants. This decision was not appealed and became final. Subsequently the Oakland City Council corrected or clarified the View Ordinance to include all residents of the Oakland Hills within the protection of the ordinance. By 2004 the ordinance had been changed to allow all Oakland residents to enjoy the benefits of the revised ordinance. The View Corridor was identified correctly as the Public View Corridor, compatible with the map under the revised legislation. The revised ordinance applied to the parties and all other similarly situated Oakland residents so that they would have a protected view. The parties then proceeded on the claim of a right to a view based on the changed ordinance. This new ordinance, further modified in 2006, was the basis for the litigation before Judge Tigar and created a right that did not exist when the matter was litigated before Judge Baranco.
At oral argument, defendants maintained that their trees did not constitute a continuing nuisance because any injury to plaintiffs' views that had occurred since 2006 had been taken care of as a result of mediation. But there was expert testimony to the contrary. For example, consulting arborist and horticulturalist James MacNair made his first site visit to the Bishops' property in 2008 and then again in 2009, when he was also able to visit the Haneses property. In the course of preparing his report and making recommendations, he reviewed historical photographs, including those from 1991, 2001, and 2008. The photographs showed that in 1991, the Bishops had panoramic views. By 2001, the acacias were starting to interfere with the views. By 2008, the view loss was significant. He prepared a chart showing the extent of the view loss over the last 20 to 25 years and estimated that the Bishops had lost 80 to 90 percent of the view they once had from their living room.
Most tellingly, MacNair testified that on his second visit in 2009, he observed that part of the acacia stand had been removed, and that the balance had been topped. However, from the perspective of the Bishops' property, there was no change in the obstruction from 2008 because "when you top the acacia, there is almost immediate response of rapid regrowth . . . and so it goes into an active growth phase, and that's what happened. So the density of the grove was not much different in terms of the foliage mass. There were fewer stems, and they had been brought down a bit, but in terms of the view obstruction, it really wasn't effective." He opined that "you can expect a minimum of three to four feet of growth a year from those trees after a topping cut." As for the Monterey pine, it was not as fast-growing as an acacia, but MacNair nevertheless observed that the branches had been growing fairly rapidly below the pruning cut. Substantial evidence supports the view that even with periodic cutting and topping, the Haneses' trees continually grew and obstructed the Bishops' views from at least 2006 to the present, and that the cutting and topping undertaken in response to mediation had not solved the problem. In our view, the trial court did not abuse its discretion in concluding that the trees constituted a continuing nuisance to which the doctrine of res judicata did not apply.
Application of Oakland's Amended View Ordinance to Defendants Does Not Violate Defendants' Substantive or Procedural Due Process Rights.
Defendants argue that application of the amended View Ordinance to them "constitutes an impermissible retroactive application of the law" that "effects a 'taking' of the Hanes property." We disagree, because the law, as applied to them, is prospective in application and, even if it were retroactive, it would not constitute a taking or otherwise violate due process, as explained in Echevarrieta, supra, 86 Cal.App.4th 472.
"A statute has retrospective effect when it substantially changes the legal consequences of past events." (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243 (Western).) In this case, the amended ordinance was applied to view obstructions that postdated the 2004 and 2006 amendments: the Bishops did not request reconciliation and mediation under the ordinance until 2007. The fact that existing trees may or may not have obstructed the Bishops' views before 2004 does not mean that the ordinance is retrospective in its application. "A statute does not operate retrospectively simply because its application depends on facts or conditions existing before its enactment." (Ibid.)
Moreover, both amendments were accompanied by clear legislative statements that it was the intent of the City Council to clarify that the View Ordinance always applied throughout Oakland, and to all trees, sprouted or planted. "[A] statute that merely clarifies, rather than changes, existing law does not operate retrospectively even if applied to transactions predating its enactment. . . . Our consideration of the surrounding circumstances can indicate that the Legislature made material changes in statutory language in an effort only to clarify a statute's true meaning. [Citations.] Such a legislative act has no retrospective effect because the true meaning of the statute remains the same. [Citations.] [¶] One such circumstance is when . . . . [¶] ' "[T]he amendment was enacted soon after controversies arose as to the interpretation of the original act, . . ." ' [¶] Even so, a legislative declaration of an existing statute's meaning is neither binding nor conclusive in construing the statute. Ultimately, the interpretation of a statute is an exercise of the judicial power the Constitution assigns to the courts. [Citations.] Nevertheless, the Legislature's expressed views on the prior import of its statutes are entitled to due consideration, and we cannot disregard them." (Western, supra, 15 Cal.4th 232, 243-244.)
In this case, shortly after the first lawsuit between the parties resulted in a judicial opinion that the View Ordinance only applied to trees planted in certain areas of Oakland, excluding the parties' properties, the City Council amended the statute, admittedly at the Bishops' instigation. In doing so, the City Council expressly stated that its intent was to "clarify that the private right to reconciliation and arbitration established by the View Ordinance applies throughout the City of Oakland; [and] . . . [¶] . . . to clarify that the View Ordinance applies to all trees at issue on the tree owner's property, both those planted by the tree owner as well as trees allowed to sprout as a result of natural regeneration." Although this expression of intent is not binding on us, defendants do not tender any reason why we should refuse to give it credence. In the absence of any such reasons, we see no basis for disregarding the City Council's stated legislative intent.
In any event, even if the amendments changed, rather than clarified the View Ordinance, the City Council's declarations of intent reflected a "purpose to achieve a retrospective change. . . . '[W]e must give effect to this intention unless there is some constitutional objection thereto.' " (Western, supra, 15 Cal.4th at p. 244.)
Defendants object that retrospective application of the amended View Ordinance to them constitutes a "taking" and denies them due process. The same contention was rejected on strikingly similar facts in Echevarrieta, supra, 86 Cal.App.4th 472. In that case, the City of Rancho Palos Verdes enacted a view protection ordinance that prohibited residents from permitting vegetation to grow beyond certain height limitations if it would significantly impair another resident's view. (Id. at p. 475.) If existing vegetation already exceeded the height limitation and impaired a view, the ordinance required the view owner to first attempt informal resolution of the matter with the vegetation owner. If that failed, the view owner could apply to the view restoration committee (VRC) for a view restoration permit. (Ibid.) After a hearing, the VRC could order the removal or replacement of vegetation, at the view owner's expense. Any interested party could appeal to the City Council of Rancho Palos Verdes. In Echevarrieta, the permit seeker had views of the Pacific Ocean and Catalina Island which were obstructed by the down slope neighbor's trees. (Id. at pp. 475-476.) After multiple hearings before the VRC, the down slope neighbor was required to remove some trees and trim others, and the view permit seeker was required to plant shrubs between his property and his neighbor's to mitigate his neighbor's privacy concerns. (Ibid.) After the City Council of Rancho Palos Verdes rejected the down slope neighbor's appeal, he unsuccessfully sued the City of Rancho Palos Verdes. (Id. at pp. 476-477.)
On appeal, the down slope neighbor argued that the ordinance violated the takings clauses of the Fifth Amendment to the federal Constitution, and article 1, section 19 of the California Constitution. (Echevarrieta, supra, 86 Cal.App.4th at pp. 479-480.) He also argued that retroactive application of the ordinance deprived him of due process. (Id. at p. 482.) The Court of Appeal rejected both arguments. With respect to the takings clause contention, the Echevarrieta court ruled that the imposition of limitations on the height of preexisting foliage was a legitimate exercise of the police power which did not rise to the level of a taking under well-established precedent. (Id. at pp. 479-481.) With respect to the due process contention that retroactive application of the ordinance amounts to irrational and arbitrary action, the court held that the ordinance was not irrational or arbitrary because "there is no automatic retroactive reach of the ordinance. Homeowners are allowed to keep foliage at the height it existed on the effective date of the Ordinance. It is only when another homeowner applies for a view restoration permit that the inquiry begins whether the foliage must be trimmed to a lower height. . . . [¶] In addition, there is no showing that the ordinance was applied in an arbitrary or irrational manner. [Citation.] The ordinance requires first resort to informal dispute resolution and provides for noticed hearings and rights of appeal. [Plaintiff] and the City Council duly followed all the required steps." (Id. at p. 482.)
In our view, Echevarrieta is dispositive of defendants' takings clause argument. Oakland's View Ordinance, too, is a proper exercise of the police power. Furthermore, we are not persuaded by defendant's arguments that the differences between the Oakland and Rancho Palos Verdes ordinances render Echevarrieta inapposite on the due process issue. Both ordinances operate retrospectively in the same way: Homeowners are allowed to keep their vegetation at preexisting heights, unless a neighbor complains that his or her views are obstructed. At that point, both ordinances encourage informal mediation to resolve the conflict. Under the Rancho Palos Verdes ordinance, if mediation fails to resolve the conflict, hearings and appeals ensue. Under the Oakland ordinance, if mediation fails, the ordinance creates a private cause of action, and places "the burden of proving the alleged view obstruction and the suitability of the proposed restorative actions" on the view claimant. (Oakland Mun. Code of Ord., tit. 15, ch. 15.52, § 15.52.090, subd. (C).) Ultimately, a judge decides, based on enumerated statutory factors, and, as this case demonstrates, the losing party may appeal. The Oakland ordinance provides fair notice and procedural protections that are comparable, if not identical to, the ones provided by the Rancho Palos Verdes ordinance. Defendants have not demonstrated that the Ordinance is arbitrary or irrational in application. Their due process rights were not violated.
B. The Remedy Fashioned by the Court Did Not Constitute An Abuse of Discretion.
Defendants argue that the remedy fashioned by the court is unfair and unauthorized because the court did not properly consider that the trees on the City property would block the Bishops' views even if the Haneses' trees were removed. They characterize the court's reliance on the "breezy assurance[s]" of city arborist Mitch Thomson as "suspect, at best." As we understand defendants' argument, the Haneses appear to attack the court's issuance of a permanent mandatory injunction ordering the removal of their offending trees and replacement with conforming vegetation, on the ground that the court should have rejected Mr. Thomson's testimony.
We review the court's decision to grant a permanent injunction for abuse of discretion. "A reviewing court will exercise its independent judgment when it is required to interpret and apply a statute where the underlying facts are not in dispute. [Citation.] [¶] However, to the extent the trial court had to review the evidence to resolve disputed factual issues, and draw inferences from the presented facts, an appellate court will review such factual findings under a substantial evidence standard. Our power in this regard 'begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact. [Citations.] [¶] When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.' [Citation.]" (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912.)
Substantial evidence supports the trial court's findings in support of the issuance of the injunction. Arboriculture inspector Mitch Thomson testified that he had worked for the City in that capacity for almost 21 years and had helped resolve "hundreds" of view disputes in that time. In response to a view claim from the Bishops requesting some relief from a view obstruction on City land, Thomson did a field investigation of a City lot near the Bishops' property. To Thomson, it was "[p]retty clear . . . that there is an obstruction from their home to the bay, and acacia trees on our undeveloped lot seemed to be the main culprit, and you have the Haneses' property in between the Bishops' view and our property, so both [the Haneses' and the City's trees] need to be dealt with to do some view restoration." High-value views of water and San Francisco from main living areas of the Bishops' house were being obstructed. The obstruction came from a fairly dense clump of "small brushy acacia[s]" on the City's lot. The solution that made sense to him was to first clear out this group of acacias "as a phase one[,] because you can get a fairly good idea of what [view] is going to be available, but you won't know for sure until that brushy material is gone. . . . [¶] I proposed a phase two where we come back and we evaluate once the small material is gone and see do any other trees need to be removed. Maybe some of the larger trees on the city lot just need some limbs removed off the bottom and we see under the trees or maybe there is just a selective tree here and there that would be removed because . . . we're looking for a compromise and a balance."
In all, he identified 21 "smaller non-protected size trees" in this clump that he believed it would be "reasonable to remove." He also identified a clump of trees that were to remain on a steep bank next to the road to help with surface erosion. There were also a number of quite large Monterey pines, cypress trees and other trees, including some acacias, that would remain. But, in Thomson's view, the removal of the acacia clump he had identified would "absolutely" have made a difference to the Bishops' views even with the remaining trees on the slope. However, Mrs. Hanes objected to the removal of the acacia trees on City land and, as a result, the project had to be put "on hold to see if we could resolve that issue."
Mr. Thomson testified that eucalyptus, Monterey pines, and acacia trees under nine inches in diameter, four and one-half feet off the ground, were not protected and could be removed without first obtaining a permit.
Mr. Thomson did not endorse the view, espoused by defendants, that the City's trees and the Haneses' trees were redundant view obstructions. Mr. Thomson testified that he had no opinion "in terms of what view would be provided if only the acacias on the Haneses' property were removed," because his evaluation was for the City's acacia trees. Further, when asked if it would "be correct that you can't determine what view would be provided until the city's acacias are cut and the Haneses' acacias are cut because one is redundant of the other," Thomson replied: "I would say that I couldn't tell the full extent, but you can see small gaps between everybody's trees to give you a hint of daylight through and down to the Bay, so you do get some idea of what might pop open."
Defendants also argue that Mr. Thomson had no expertise with respect to the Open Space Conservation and Recreation (OSCAR) element of the general plan and was mistaken when he testified that the City lot at issue was not subject to OSCAR. Mr. Thomson acknowledged that he was not assigned to deal with OSCAR. However, he had researched the zoning designation of the lot at issue and had confirmed with the zoning manager, that the lot was zoned R30-S10 or residential with some building restrictions, and that "anything that is considered a park or open space always has the 'OS' designation in front of it." He agreed that if it were open space, it would be exempt from a private view claim.
Mr. Thomson testified that "the S-10 has the word 'scenic' in it, and maybe that's a misunderstanding. All it means is if you are going to build on that property, there are some requirements of height and setback for the building on that property since this is a scenic corridor, and height limits are going to be lower, and the building is going to be designed and constructed such that you are trying to minimize the impact to the public as they travel that road and try to preserve the views they can for the public."
Defendants presented no evidence at trial to contradict or refute Mr. Thomson's testimony. Their belated attempt to bring evidence before this court to suggest that "S-10 is an open-space scenic route designation, indicating that the affected properties are subject to [OSCAR]" cannot cure that defect in the trial evidence.
Dr. Hanes did testify to his belief that "the way our property sits . . . it is open land, it's an S10, it's part of the OSCAR plan. . . ." However, the court struck that testimony. Furthermore, the court told defendants' counsel that if Mr. Thomson was wrong about the ordinance, he should tell the court during closing arguments and show the court a copy of the ordinance at that time. Counsel did not do so.
Defendants request that we take judicial notice of copies of zoning maps for the City of Oakland, and excerpts from the Oakland General Plan concerning the OSCAR, along with an a chart entitled "Addendum to City of Oakland General Plan and Zoning Map dated May 6, 2010." We decline to do so because the documents were not presented to the trial court and reference in part post trial dates.
Defendants also disagree with Mr. Thomson's opinion that the acacia trees on City property could be removed without public notice and comment. However, the trial court prevented Mr. Thomson from testifying about the legal advice given him by the City Attorney's Office about public notice and posting. Defendants presented no evidence on this point either. Moreover, whether or not removal of the City's trees was subject to public notice and comment has no bearing on the critical question before the trial court: whether defendants' acacia trees constituted a view obstruction and continuing nuisance, the City's acacia trees notwithstanding. Mr. Thomson's testimony constitutes substantial evidence in support of the finding that the City was and is prepared to remove or substantially thin the trees on its property that might also be obstructing the Bishops' views. Moreover, the court's own site visit confirmed, and provided substantial evidence for, the court's conclusion that "defendants' trees present a substantial obstruction to Plaintiffs' views from various perspectives on Plaintiffs' property." (Wade v. Campbell (1962) 200 Cal.App.2d 54, 62 [trial court's site visit is evidence that can be used to support findings].) No abuse of discretion appears.
Defendants also assert that the court's order unfairly punished them for exercising their right under the ordinance to protest "the City's decision to remove the grove of acacias at the end of their driveway. . . that provided shade and seclusion to their property." Defendants' criticism is not well taken. In a footnote, the court noted the irony in defendants' claim that the City's trees, and not defendants', were "to blame for the loss of any significant views by the Bishops," when "some of the City's efforts to manage the tree growth on the City's own property were stopped by the Hanes." This footnote is not evidence of judicial misconduct.
Finally, defendants contend that the court erred in "saddling" the Haneses with 100 percent of the costs of remediation for two reasons: (1) because the ordinance, as they interpret it, requires the view claimant to have prevailed in the prior lawsuit, before they can be found liable for 100 percent of the cost of view restoration; and (2) the Bishops could not have anticipated "that a judge might, in the future, ignore the doctrine of res judicata and find that the Bishops were entitled to bring successive lawsuits on the their view claims." We reject these arguments for the following reasons.
As noted, the View Ordinance provides in relevant part that "[t]he tree owner shall pay one hundred (100) percent of [the cost of all restorative actions and replacement plantings] in those cases where: [¶] 1. The tree owner has refused to participate in good faith in the initial reconciliation or voluntary arbitration processes . . . and where the view claimant has prevailed at trial or judicial arbitration; or [¶] 2. In any subsequent dispute between the same parties, to restore any view obstructed by the same tree or trees or any of the plantings substituted for the original offending tree or trees described in subsection A of this section." [I.e., "those cases involving any tree planted or allowed to sprout as a result of natural regeneration by the tree owner subsequent to the effective date of this chapter (August 5, 1980)."] (Oakland Mun. Code of Ord., tit. 15, § 15.52.060, subds. (A), (B)(1) & (2).)
The court made several factual findings in support of its conclusion that defendants' had refused to participate in good faith in the initial reconciliation or voluntary arbitration. The court found: "First, the Hanes delayed unreasonably in attempting to resolve this view dispute. Second, at no time have the Hanes tried to determine what steps, reasonable or otherwise, would restore all or part of the Bishops' views. Third, and perhaps as partial motivation for the previous facts, the evidence suggests that the Hanes are motivated by personal animus. For example, in his testimony, Dr. Hanes called the Bishops 'the face of evil,'[] and in letters to the City of Oakland the Hanes called the Bishops 'neighbors from hell.' . . . Fourth, the Hanes actively frustrated the City of Oakland's efforts to help both parties resolve their dispute without court action. Fifth, some of the Hanes' testimony regarding how much they like trees . . . was directly contradicted by their prior actions. The Hanes removed trees on the northern edge of their property, without doing any replanting and leaving only unattractive stumps. The court can only conclude that the Hanes' apparent disquiet at the prospect that other of their trees might be removed is, to some extent, feigned. Sixth, and perhaps most strikingly, the parties' experts actually agreed on the appropriate remedy in this case. The court is left to wonder whether so much litigation was necessary."
Actually, Dr. Hanes testified, referring to the Bishops: "You know, villainy has many faces, and I think self-righteousness is probably the most beguiling and deceiving of all."
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"Bad faith" is an "amorphous concept," but it has been defined in this District as " ' "[t]he opposite of 'good faith,' generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake . . . , but by some interested or sinister motive[,] . . . not simply bad judgment or negligence, but rather . . . the conscious doing of a wrong because of dishonest purpose or moral obliquity; . . . it contemplates a state of mind affirmatively operating with furtive design or ill will. [Citation.]" [Citations.]' " (Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 100.) We review the court's finding of bad faith for substantial evidence. (Id. at p. 99.)
Defendants take issue with "the court's factual assertion that the Hanes had refused to cooperate in the reconciliation progress." In fact, the court made no such assertion. The court did state that the Haneses had "delayed unreasonably in attempting to resolve this view dispute." As to this factual assertion, defendants argue only that "the merits of the claim of delay are questionable," and that the court failed to take into account Dr. Hanes' Hawaii residency and patient load. (AOB 56, & fn. 17)~ But the court was aware of these facts from Dr. Hanes' testimony. Defendants also take issue with the court's finding that they never tried to determine what steps, reasonable or otherwise, would restore all or part of the Bishops' view. Defendants claim they could not have known the court would "ignore the doctrine of res judicata," and the fact that the Haneses did engage in mediation with the Bishops in September of 2008, and did agree to remove some trees and top others, although that agreement did not restore the Bishops' views. Substantial evidence supports the court's conclusion that the Haneses had not participated in good faith, exhibited by two years of foot dragging, ineffectual efforts to reach a realistic resolution of the conflict, failure to work with the City of Oakland, and the expert testimony, even accounting for Dr. Hanes' scheduling problems, and defendants' belief in the merits of their res judicata defense.
C. The Court Did Not Err in Awarding Attorney's Fees.
As noted above, section 15.52.70 of the View Ordinance calls for each party to pay his or her own costs and attorney's fees, unless the dispute goes to trial or judicial arbitration, in which case the prevailing party is entitled to reasonable attorney's fees and costs of suit. Defendants do not challenge the reasonableness of the attorney's fees award, or the fee-shifting provision of the View Ordinance. In their opening brief, they argue only that "if this Court reverses the judgment, it must reverse the award of attorney's fees as well. In their reply brief, they argue: "The Bishops do not even attempt to defend the court's assertion that it was appropriate to shift fees because the Hanes had prevailed in the previous lawsuit. See CT 890." However, the court made no such assertion. Furthermore, since we find no error, we will affirm the judgment and the award of attorney's fees.
IV. CONCLUSION
The doctrine of res judicata does not apply to defeat plaintiffs' action. Defendants' due process rights are not violated by application of the amended View Ordinance to them. The court's remedy is not unjust or unauthorized. The court did not err in awarding attorney's fees and costs.
V. DISPOSITION
The judgment is affirmed.
Marchiano, P.J. We concur: Margulies, J. Dondero, J.