Opinion
A155815
11-07-2019
RUTH BONNIE GLASER, as Trustee, etc. et al., Plaintiffs, Cross-Defendants and Appellants, v. KIRK MITCHEL, Defendant, Cross-Complainant and Appellant.
ORDER MODIFYING OPINION; AND ORDER DENYING REQUEST FOR REHEARING
[NO CHANGE IN JUDGMENT] BY THE COURT:
It is ordered that the opinion filed herein on November 7, 2019, be modified as follows:
On page 7, in the Disposition, footnote 4, should be added following the sentence "The parties to bear their own costs." The footnote should read:
Mitchel filed a petition for rehearing or modification of the opinion, expressing concern that the failure to award him costs on appeal might prevent him from claiming attorney fees on appeal, to which he may be entitled under the Views Ordinance, when the case returns to superior court. That is not a valid concern. (See Cal. Rules of Court, rule 8.278(d)(2),)
The petition for rehearing filed by Mitchel on November 20, 2019, is hereby DENIED.
This modification and orders contained herein effect no change in the judgment. Dated: __________
/s/_________
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RG15774344)
In this dispute between neighbors living in the Berkeley Hills, plaintiffs Bonnie Glaser (via her living trust) and her son William Glaser (via a separate family trust) (collectively the Glasers), who live in a house located above that of defendant Kirk Mitchel, appeal from a judgment awarding damages and prevailing party attorney's fees and costs against them, following a bench trial on the Glasers' claim under Berkeley Municipal Code (the Views Ordinance, or the Ordinance) (Berkeley Mun. Code, §§ 12.45.010-12.45.080) together with Mitchel's cross-claims for tort recovery. Mitchel cross-appeals from the fee award. We shall affirm.
All further references to statutes, regulations or ordinances shall refer to the Berkeley Municipal Code, unless otherwise specifically stated.
I. BACKGROUND
The purpose of the Views Ordinance is to "[s]et forth a procedure for the resolution of disputes between private property owners relating to the resolution of sunlight or views lost due to tree growth." (§ 12.45.010, subd. (A).) Among the various objectives of the Ordinance is "preserv[ing] and promot[ing] the aesthetic and practical benefits which trees provide for individuals and the entire community," "discourag[ing] ill-considered harm to or destruction of trees," and "restor[ing] access to light and views from the surrounding locale." (§ 12.45.010, subd. (B).) Mediation is mandated under the Views Ordinance, but if that fails an aggrieved party may pursue arbitral or judicial resolution. (§ 12.45.030, subd. (A)(3)-(5).)
To state a " '[t]ree claim' " under the Ordinance, the complaining party must set forth in writing "[t]he nature and extent of the alleged obstruction" with corroborating evidence, "[t]he location of all trees alleged to cause the obstruction," and "[a]ny mitigating actions proposed by the parties involved to resolve the tree claim." (§ 12.45.020, subd. (A)(13).) "In resolving the tree dispute, the tree mediator, tree arbitrator or court shall consider the benefits and burdens derived from the alleged obstruction within the framework of the objectives of [the Ordinance] . . . in determining what restorative actions, if any, are appropriate." The complainant bears the burden of proof. (§ 12.45.040.)
The tree claim at issue here arises out of a view obstruction created by trees on Mitchel's property. The alleged obstruction arose gradually, with the growth of the trees over the course of the years Bonnie Glaser has lived in the house since she and her then husband, Donald, bought it in 1964. According to Mrs. Glaser, in 1964, she and Donald enjoyed spectacular views from every east-facing window in her home, including views of the San Francisco skyline, the Golden Gate Bridge, the Bay Bridge, the Bay, and the Berkeley shore.
William Glaser, who was born in 1965, grew up in the house, moved out as a young adult, and then moved back in 2007, when he acquired an ownership interest in it. Bonnie Glaser testified at trial that she did not contact the prior owner of Mitchel's home about the issue of tree obstruction, before Mitchel bought the home, because she was " 'too busy.' " William Glaser first approached Mitchel about the issue in 2012 during a party. A dispute ensued, and after a failed mediation, the Glasers brought suit. Mitchel cross-complained for invasion of privacy and trespass based on, among other things, various investigative activities undertaken by the Glasers' experts in the course of the litigation.
The case proceeded to a bench trial, and Mitchel prevailed in all respects. In addition to defeating the Glasers' affirmative claim on a successful motion for judgment under Code of Civil Procedure section 631.8, Mitchel prevailed on several of his cross-claims. The resulting damages award in his favor is included in the judgment. As the prevailing party, Mitchel recovered attorney's fees of $255,782.25 and costs of $31,089.70 under a prevailing party provision in the Ordinance (§ 12.45.050, subd. (B)(1)), as well as approximately $39,200.54 in expert witness fees under Code of Civil Procedure section 998.
The trial court rendered two statements of decision, one addressing the tree obstruction claim alleged in the Glasers' operative third amended complaint, and one addressing the tort claims alleged in Mitchel's cross-complaint and the fees and costs issues.
As pertinent here, the court ruled that 1) the Glasers are barred by laches from asserting their tree obstruction claim under the Views Ordinance because Bonnie Glaser testified that obstructive trees on Mitchel's property first became a serious problem 30 years ago, and yet she failed to take any steps to rectify the situation until 2012; and 2) even if the Glasers could assert their tree obstruction claim, it fails on the merits because, after considering all of the evidence bearing on benefits versus burdens, they failed to bear their burden of proof in showing that there is an appropriate restorative remedy. "At best," the court concluded, "the evidence showed that it would be prudent for . . . Mitchel to trim his trees a bit, and perhaps to remove his tulip poplar for his own safety (though the evidence reflected that removing this tree alone would not help [the Glasers'] view)."
As to the cross claim, the trial court found 1) an invasion of privacy based on William Glaser's surreptitious recording of Mitchel at a mediation session and 2) an invasion of privacy and a trespass based on the conduct of the Glasers' retained experts in surreptitiously taking photographs of Mitchel's property by using a ladder to look over a fence and sending a pre-programmed drone flying over Mitchel's property. The court found that all parties to the mediation had a reasonable expectation of privacy, that William Glaser admitted making an unconsented recording of the mediation session, and that the secret recording was illegal. And as to the surreptitious photo-taking, the court found that Mitchel had a reasonable expectation of privacy in his yard and that the unconsented photo-taking was " 'highly offensive to a reasonable person,' " that Mr. Mitchel was harmed, and that Mr. Glaser's authorization of the intrusions was the substantial factor in causing the harm.
During a mediation session prior to the filing of this action, William Glaser surreptitiously recorded the mediation session in violation of Penal Code section 632. He admitted to doing so. In a small claims action filed against him by the mediator and mediation company, the Marin County Superior Court Small Claims Division adjudicated this issue, and found Mr. Glaser liable for it, and ordered him to pay each complainant $5,000 plus costs (for a total judgment of $10,573). At trial, Mr. Glaser confirmed these events and testified that neither Mitchel nor his counsel knew of, or gave him permission, to record the session.
Finally, as for attorney's fees, the court awarded Mitchel most of his claimed fees, but for lack of detail in the billing records appears to have declined to award him recovery for any time claimed for his lead attorney's support personnel, as billed by an associate, a law clerk, and a paralegal.
II. DISCUSSION
On appeal, the Glasers argue that the trial court 1) failed to conduct the required weighing of benefits and burdens under the Views Ordinance, 2) erroneously applied the doctrine of laches, and 3) on the cross-complaint, erroneously held the Glasers liable for the conduct of their experts and consultants. On cross-appeal, Mitchel argues that 1) the prevailing party fee provision in the Views Ordinance mandates an award of 100 percent of the attorney's fees he incurred, 2) the court abused its discretion in eliminating his law clerk, associate and paralegal time via lodestar reduction, and 3) most of the eliminated time was incurred following his offer of compromise under Code of Civil Procedure section 998 and therefore he was entitled to recover that time as "costs" under that statute.
Turning first to the appeal, we need not address the laches issue because, on the merits, the trial court's rejection of the Glasers' claim is supported by substantial evidence. It is evident from the trial court's statement of decision that it undertook the weighing of burdens and benefits that is required by the Ordinance. Though its weighing analysis is stated in general terms, the court quite clearly rejected the Glasers' claim only after doing the requisite balancing of interests. Detailed findings of fact are not required in a statement of decision. (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 983 [" 'Ultimate facts are distinguished from evidentiary facts and from legal conclusions.' [Citation.] Thus, a court is not expected to make findings with regard to 'detailed evidentiary facts or to make minute findings as to individual items of evidence.' "].)
The Glasers argue that the trial court refused to recognize the full scope of the relief available under the Ordinance by rejecting out of hand their request for restoration of the pristine sight lines that originally came with the home, without consideration of all of the evidence supporting their proposed remedy. On its face, the Glasers contend, the Views Ordinance authorizes relief designed to restore all views enjoyed by the complainant "during the time" he or she "has occupied the property" (§ 12.45.030, subd. (A)(1)), which in this case goes all the way back to 1964. We see nothing in the record indicating that the trial court ignored any of the Glasers' evidence. Quite to the contrary, "[a]fter considering all" of their evidence, the court simply determined that the Glasers had not borne their burden of proving entitlement to the relief they requested.
Taking a slightly different tack, the Glasers argue that the court's balancing analysis was flawed because it did not consider remedies short of restoration of their original views. The main problem with this version of their argument is that, to state a " '[t]ree claim' " under the Ordinance, complainants must specify the "mitigating actions" they propose. (§ 12.45.020, subd. (A)(13)(c).) The tree claim at issue here, as stated by the Glasers themselves in their operative complaint, sought "restorative action, including trimming, thinning, topping, and removal of trees for the purpose of restoring [their] views to the views that [they] enjoyed when they first purchased the Glaser property in 1964." While the Glasers now contend other remedies "Short of the Entire Restoration of [their] 1964 View" should have been considered, in accord with their trial expert's testimony at trial, that was not their pleaded claim. The litigation strategy they pursued, as the trial court explained, was an all-or-nothing approach. We cannot fault the court for weighing the claim as pleaded, and nothing more.
Nor did the Glasers move to amend the operative complaint to conform to the proof at trial, and on that basis, urge the court to grant the more limited form of relief suggested by their expert's testimony. --------
With respect to the invasion of privacy and trespass claims asserted in Mitchel's cross-complaint, we note that the Glasers do not contest some of what the trial court found. They say nothing about the invasion of privacy findings insofar as the court relied on the surreptitious mediation recording; any error in that aspect of the invasion of privacy findings is therefore waived. For purposes of this appeal, that leaves only the findings supporting tort liability for unconsented photo-taking of Mitchel's yard. Here, we note that, as a legal matter, a client may be held liable for tortious conduct by experts and consultants in litigation under Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736 (Slesinger), so long as the offending conduct is known by the client (id. at pp. 768-771), which the trial court found was the case here. Upon a review of the record, we conclude that substantial evidence supports the court's determinations of liability on these tort claims.
The thrust of the Glasers' attack on the findings supporting tort liability for the unconsented photo-taking is that there is "not a shred of evidence" to show that the alleged torts were intentional or that William Glaser, who apparently oversaw the experts' and consultants' activities, was aware of any illegality in what they did or planned to do. These are all fact-bound matters of intent that the trial court resolved in Mitchel's favor based on circumstantial evidence. (See Slesinger, supra, 155 Cal.App.4th at p. 769 [appellant SSI "overlook[ed] circumstantial evidence from which it may be inferred that SSI knew of Sands' illegal conduct, or at the very least acted with deliberate indifference to whether it was legal"].) There is no basis for reversal. Substantial evidence supports the court's findings.
Finally, as to the attorney's fees issues raised in Mitchel's cross-appeal, the Ordinance mandates an award of "reasonable" fees to prevailing parties. The term "reasonable"—which is typical of fee-shifting measures—gave the court discretion to discount claimed fees and costs that the court deemed to be excessive or inadequately documented. The trial court found Mitchel's fee application to be wanting in some respects, noting that "[t]he Court has no information about who the associate was," and that, "[l]ikewise, the Court has no information for time billed by an unidentified person labeled in the billing records as 'asst.' ". We see no basis to second-guess the court's exercise of discretion in its evaluation of the adequacy of these records, in its lodestar analysis, or its refusal to consider supplemental evidence offered by Mitchel to shore up his documented fees. As to Mitchel's Code of Civil Procedure section 998 argument, the Glasers correctly point out that "section 998 does not grant greater rights to attorney's fees than those provided by the underlying statute. Section 998 instead merely expands the group of those who are treated as prevailing parties and who therefore may be entitled to attorney's fees as prevailing parties under the relevant statute." (Mangano v. Verity, Inc. (2008) 167 Cal.App.4th 944, 951.)
III. DISPOSITION
Affirmed. The parties to bear their own costs.
/s/_________
STREETER, J. We concur: /s/_________
POLLAK, P.J. /s/_________
BROWN, J.