Opinion
A149402 A150395
05-08-2018
FIRUZE HARIRI, Plaintiff and Appellant, v. EDWIN HENRY CLOCK 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. CIV 1402371)
Plaintiff Firuze Hariri (Hariri) brought suit against her neighbors Edwin and Nancy Clock (the Clocks), alleging that the landscaping on their property unreasonably obstructed the views from her property in violation of the Tiburon Municipal Code and in breach of a 1983 agreement resolving a previous dispute between the parties. After a bench trial, the trial court agreed and issued an injunction requiring the Clocks to trim or remove various vegetation planted on their property and on an adjacent right-of-way owned by the Town of Tiburon (the Town). After judgment, Hariri sought to recover her expert witness fees on the basis the Clocks had failed to obtain a "more favorable" judgment than her settlement offer under Code of Civil Procedure section 998, as well as the costs of an unsuccessful court ordered mediation which she argued was reasonably necessary to the conduct of the litigation. The trial entered an order taxing costs and denying Hariri's requests. The Clocks appeal the judgment, and Hariri appeals the trial court's order taxing costs. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts as described appear to be undisputed, except where indicated.
In 1979, Hariri's family acquired the property at 163 Avenida Miraflores in the Town, and she has owned it in whole or in part since 1982. At the time of her family's acquisition, the property had mostly unobstructed views to the south and southeast of San Francisco, Belvedere Island, Alcatraz Island, Richardson Bay, the Marin Peninsula and the Golden Gate Bridge.
In 1980, the Clocks purchased the property at 150 Avenida Miraflores, across the street from Hariri, and shortly thereafter sought approval from the Town for a significant addition to their home. Hariri and several other neighbors, concerned that the proposed addition would adversely impact their views, appealed the Town's approval of the Clocks' proposal. The parties resolved their dispute in a written agreement in March of 1983 (the 1983 Agreement), according to which the Clocks agreed to lower the roofline of their proposed addition by three feet in exchange for Hariri and the other neighbors withdrawing their appeal. The 1983 Agreement also provided that "[s]ubject to approval of a landscape plan by the Town of Tiburon . . . [the Clocks] will not install or maintain any additional landscaping which would further impair any marine views form [sic] the real property located at 163 and 165 Avenida Miraflores, Tiburon, California."
Over the following years, Hariri complained that certain vegetation on the Clocks' property came to obstruct her views. In 1984, after the Clocks planted vegetation along the top of a berm on their property running along Avenida Miraflores, Hariri's brother complained in a letter to the Town, and the Clocks removed certain plants and moved others so as to resolve the issue. Twice more in 1989, Hariri contacted the Town regarding vegetation on the Clocks' property, and the disputes were resolved.
In 2010, Hariri complained in person several times to Nancy Clock that vegetation on the Clocks' property was again obstructing her views. Hariri followed up with an email, offering to have the vegetation trimmed at her expense, but Nancy Clock declined her offer. A further series of emails in 2013 and 2014 did not resolve the parties' disagreements, and on April 1, 2014, Hariri's counsel sent a letter to the Clocks enclosing an arborist's report regarding the view obstruction and proposing mediation to resolve the dispute. The Clocks did not agree to mediation. On May 7, 2014, Hariri's counsel offered to submit the dispute to binding arbitration. Again, the Clocks did not accept the offer.
On June 20, 2014, Hariri filed the present action against the Clocks. Hariri alleged that various trees and other vegetation on the Clocks' property including a eugenia hedge near the Clocks' residence and myoporum planted on the berm unreasonably obstructed her views. She also alleged that various of the Clocks' trees, including an Italian stone pine, melaleuca, cotoneaster and privet, were planted on a Town right-of-way adjacent to the Clocks' property without the required permit. The operative complaint alleged five claims: (1) violation of Town of Tiburon Municipal Code chapter 15 based on the vegetation's "unreasonable obstruction" of Hariri's views; (2) violation of Town of Tiburon Municipal Code chapter 15A based on the planting of trees on Town property without a permit; (3) nuisance based on the aforementioned violations of the Tiburon Municipal Code; (4) declaratory relief; and (5) breach of the 1983 Agreement. Shortly after the action was filed, the trial court referred the parties to mediation, which was unsuccessful.
On August 5, 2015, Hariri made a settlement offer to the Clocks pursuant to Code of Civil Procedure section 998 (998 offer). The 998 offer was a permanent mandatory injunction requiring the Clocks to: (1) lower all existing plants along the berm to a maximum elevation of a half-foot above the berm's ridge line; (2) remove the first five of nine eugenia plants and not replant or construct anything in their place; and (3) not object to or in any way interfere with any agreements between Hariri and the Town to remove or prune the trees located on Town property. The 998 offer also provided that "[e]ach side shall bear their own attorney fees and costs for the underlying action," and that "[i]f it is necessary to take action to enforce this judgment, then the prevailing party shall be awarded their reasonable attorney fees and costs, including expert fees." The Clocks declined the offer.
A bench trial, including a visit by the trial court to the site, took place from January 26 through 29, 2016. The trial court rendered a proposed statement of decision on April 18. On May 2, the Clocks filed objections to the proposed statement of decision and requested a hearing. Hariri filed a response on May 25. And at a June 8 hearing on the proposed statement of decision, the court granted the Clocks time to submit additional briefing on matters raised at the hearing. The case was deemed under submission on June 24 when Hariri filed her response to the Clocks' June 22 closing brief.
The trial court issued its final statement of decision on July 18, 2016. The court first found that the Italian stone pine planted on Town property and the eugenia hedge unreasonably obstructed Hariri's views in violation of the Tiburon Municipal Code. The trial court also concluded that "the Italian Stone Pine, one Melaleuca shrub, the Cottoneaster and the Privet were planted by the Defendants on land belonging to the Town of Tiburon without a permit" in violation of Tiburon Municipal Code chapter 15A, and that these violations "constitute[d] public nuisances and are subject to abatement." With respect to Hariri's claim for breach of the 1983 Agreement, the trial court found "the language to be a clear continuing contractual obligation of the Defendants to maintain their landscaping in such a manner that the landscaping would not further impair their neighbors' views, views that were already being impaired by the substantial addition to the Defendants' home. This is a considerably more stringent obligation than the unreasonable obstruction language of the ordinance. Essentially, the Defendants made their deal to obtain their neighbors['] agreement to withdraw their appeal of the building permit. The court will not rewrite this contractual obligation now to make it less stringent." The trial court concluded that the 1983 Agreement prevented the Clocks from growing any vegetation that exceeded the height of the berm.
The trial court issued a permanent mandatory injunction requiring the Clocks to remove all the plantings on the property of the Town, remove the "portion of [the] Eugenia hedge blocking the view of the City of San Francisco skyline," and to "[m]aintain, either by trimming or removal, all other landscaping so that it does not exceed the elevation of the berm." The trial court also found Hariri entitled to her costs as the prevailing party under Tiburon Municipal Code chapters 15A-10 and 15-13.
After judgment was entered, Hariri filed a motion for $32,540.50 in expert fees as part of her costs under Code of Civil Procedure section 998, because the Clocks failed to obtain a judgment "more favorable" than her 998 offer. The Clocks filed a motion to tax Hariri's costs, arguing that the costs of the unsuccessful mediation were not "reasonably necessary to the conduct of the litigation" under Code of Civil Procedure section 1033.5, subdivision (c)(2). The trial court denied Hariri's request for expert fees, explaining that it was "unable to say based upon a comparison of the offer with the terms of the judgment that the judgment was less favorable to Defendants than the offer." The trial court also granted the Clocks' motion as to the mediation fees, finding that they were "not 'incurred in the case.' " The Clocks appeal from the judgment, and Hariri appeals the order taxing costs. We ordered the appeals consolidated.
DISCUSSION
The Clocks' Appeal (No. A149402)
On appeal, the Clocks argue that: (1) the trial court erred by disregarding the terms of the 1983 Agreement; (2) Hariri's claims regarding the eugenia hedge were barred by the statute of limitations; (3) Hariri's claims regarding the eugenia hedge were barred by the doctrine of laches; (4) the trial court's finding of a public nuisance was not supported by substantial evidence and basing that finding on a violation of the Tiburon Municipal Code was error; (5) the trial court abused its discretion in granting injunctive relief; and (6) the trial court abused its discretion in excluding two of the Clocks' proffered exhibits. We will consider each argument in turn. I. The Trial Court Did Not Disregard the 1983 Agreement
The Clocks' first argument is that the trial court erred in interpreting the 1983 Agreement, by requiring that the myoporum planted on the berm be trimmed lower than the height specified in a landscape plan allegedly approved by the Town. We disagree.
In relevant part, the 1983 Agreement provides: "6. Subject to approval of a landscape plan by the Town of Tiburon (Condition No. 3 of Staff Recommendation approved by the Tiburon Board of Adjustments and Review on February 3, 1983), Mr. and Mrs. Clock will not install or maintain any additional landscaping which would further impair any marine views form [sic] the real property located at 163 and 165 Avenida Miraflores, Tiburon, California."
At trial, an architectural drawing labeled "landscape plan" was introduced into evidence, depicting various vegetation on the Clocks' property. The landscape plan indicates that the myoporum will be "8 ft. high max," with a handwritten note indicating "hedge no higher than 6'." The plan is dated "April 83" and contains a note "[s]ee Memo from N. Clock, dated 6/17/83." The first page of the plans was stamped "[a]pproved" by the Town.
The landscape plan is labeled as page 12 of a larger set of plans. Edwin Clock was shown and testified about joint exhibit 20, which is only the landscape plan. Later, defendants' exhibit H, consisting of all twelve pages, was entered into evidence with the stipulation that the pages were not stapled or bound together as a set, but appear as separate sheets in that order in the Town's microfiche.
The parties dispute whether this stamp means that the plans, and in particular page 12, were actually approved by the Town.
The Clocks argued below that the 1983 Agreement incorporated the heights set forth on the landscape plan, and that the trial court could not order the myoporum to be trimmed lower than the plan required. In rejecting this argument, the trial court found:
"The court views the issues of whether or not the landscaping plan was approved or not approved by the Town of Tiburon, and whether the plan was followed at the initial installation or not, as being relatively unimportant.
"The court considers the language to be a clear and continuing contractual obligation of the Defendants to maintain their landscaping in such a manner that the landscaping would not further impair their neighbors' views, views that were already being impaired by the substantial addition to the Defendants' home. This is a considerably more stringent obligation than the unreasonable obstruction language of the ordinance. Essentially, the Defendants made their deal to obtain their neighbors agreement to withdraw their appeal of the building permit. The court will not rewrite this contractual obligation now to make it less stringent.
"Having reviewed photographs taken before the addition was completed, the court agrees with the Plaintiff's position than any planting or landscaping whatsoever that is higher than the berm does, in fact, constitute a further impairment of Plaintiff's marine views and is in violation of the contract between the parties."
The trial court went on to order the Clocks to "maintain, either by trimming or removal, all other landscaping so that it does not exceed the height of the berm."
On appeal, the Clocks argue that the landscape plan "set out the benchmark against which the terms 'additional' and 'further' must be measured," while Hariri argues that the terms "additional" and "further" should be measured against the view obstruction caused by the addition itself. We agree with Hariri, and read "[s]ubject to approval of a landscape plan" as a separate condition to the Clocks adding landscaping to their property, in addition to the requirement that any such landscaping not "further impair any marine views" from Hariri's property. (See Merriam-Webster Online Dictionary <https://www.merriamwebster.com/dictionary/subject%20to> [as of May 1, 2018] ["subject to" means "dependent on something else to happen or be true"]; Fireman's Fund Ins. Co. v. Superior Court (1997) 65 Cal.App.4th 1205, 1212 [we interpret contractual language according to its "plain meaning or the meaning a layperson would ordinarily attach to it"].) The Clocks would have us read "[s]ubject to approval of a landscape plan" as "except as permitted by a landscape plan." (See Merriam-Webster Online Dictionary <https://www.merriam-webster.com/dictionary/except> [as of May 1, 2018] ["except" means "with the exclusion or exception of"].)
More importantly, the Clocks' argument that "additional" and "further" should be read in reference to the landscape plan fails because the undisputed evidence shows that the landscape plan did not yet exist at the time the 1983 Agreement was executed on March 15, 1983. The landscape plan itself is dated "April 83"; Edwin Clock testified that it was prepared by the architect Rene Cardinaux in April of 1983; and it was not approved by the Town until June of 1983. Given that the landscape plan did not exist at the time the 1983 Agreement was executed, the parties could not have intended to incorporate any specific heights or provisions of that plan by reference. (See Gilbert Street Developers, LLC v. La Quinta Homes, LLC (2009) 174 Cal.App.4th 1185, 1194 ["Most basically, what is being incorporated must actually exist at the time of the incorporation, so the parties can know exactly what they are incorporating"]; DVD Copy Control Assn., Inc. v. Kaleidescape, Inc. (2009) 176 Cal.App.4th 697, 713 ["The general rule is that the terms of an extrinsic document may be incorporated by reference in a contract so long as . . . the terms of the incorporated document are known or easily available to the contracting parties"].) The trial court did not err in finding that the 1983 Agreement required the myoporum be trimmed to the height of the berm. II. Hariri's Claims Regarding the Eugenia Hedge Are Not Barred by the Statute of Limitations
On reply, the Clocks concede that at the time of the execution of the 1983 Agreement, the landscape plan was "then non-existent."
The Clocks' next argument is that the evidence showed that the eugenia hedge had been in place since 1993, so that Hariri's private nuisance claim was barred by the applicable three year statute of limitations. Hariri responds that this defense has been waived, because it was not raised in the Clocks' answer, at trial, or in the Clocks' objections to the trial court's statement of decision.
"There are two ways to properly plead a statute of limitations [defense]: (1) allege facts showing that the action is barred, and indicating that the lateness of the action is being urged as a defense and (2) plead the specific section and subdivision." (Martin v. Van Bergen (2012) 209 Cal.App.4th 84, 91.)
The Clocks did not allege the statute of limitations defense or any facts supporting that defense in their answer. However, at the close of Hariri's case, counsel for the Clocks made an oral motion to amend the answer, to assert a statute of limitations defense with respect to the breach of contract claim:
"MR. CORDOVA: Another housekeeping item, your Honor. [¶] . . . [¶] I would like to amend our answer to the complaint to add a defense based on the statute of limitations. I sincerely did not anticipate and I believe that the proof has proven me wrong. There is now a claim for breach of contract, which our position is that breach occurred 33 years ago, and I would like to assert a defense.
"THE COURT: Do you wish to oppose the motion to amend the answer?
"MS. BONAPART: I think he misses the argument that's been made. I don't think it's necessary, but I'm not going to oppose it.
"THE COURT: There's liberality in California of amendments to pleadings even at trial. The motion is granted. You may amend the answer to include a statute of limitations affirmative defense.
"MR. CORDOVA: It's Code of Civil Procedure 337.1 and 3. Thank you."
On reply, and in response to Hariri's waiver argument, the Clocks argue that they raised their statute of limitations defense in their closing brief after trial, where they argued: "The landscaping at issue has been in place for over 33 years. . . . More importantly, any claim that the landscaping fails to conform to the 1983 agreement is time barred. Such a claim would amount to a claim of breach of the written agreement. Claims for breach of written contract must be brought within four years of the breach. C.C.P. § 337. Thus, this claim is both factually unsupported and legally barred."
Clearly, both the Clocks' oral amendment of their answer and the argument in their closing brief relate only to Hariri's breach of contract claim, not her claim for private nuisance. Code of Civil Procedure section 337, cited by the Clocks' counsel, provides a four year statute of limitations for contract claims. (Code Civ. Proc., § 337.) The Clocks' answer did not allege that the eugenia had been in place since 1993, or any other facts supporting their statute of limitations defense to the private nuisance claim, nor did they anywhere cite to the relevant statute setting forth the three year statute of limitation for private nuisance (Code Civ. Proc., § 338, subd. (b)). Since the Clocks failed to raise their statute of limitations defense before the trial court, they cannot raise it on appeal. (See Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 997 [statute of limitations defense forfeited by failure to raise it at trial]; County of Los Angeles v. Commission on State Mandates (2007) 150 Cal.App.4th 898, 912 ["Forfeiture of a time-bar defense transpires by the failure to raise the applicable statute of limitations in the answer"].) III. Hariri's Claims Regarding the Eugenia Hedge Are Not Barred by the Doctrine of Laches
In addition, as Hariri argues, the view obstruction caused by the eugenia hedge was a continuing nuisance because its impact varies over time, as discussed further in section III, and the obstruction can be abated at any time, in a reasonable manner and for reasonable cost by pruning the hedge. (See 6 Miller & Starr, Cal. Real Estate (4th ed. 2015) § 19:41, pp. 19-171-172.) As such, Hariri was entitled to bring successive actions for damages until the nuisance was abated, and the Clocks' statute of limitations defense would fail. (See id.; Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 869.)
On reply, the Clocks argue that they raised their statute of limitations defense by providing citation to the entirety of various other pleadings, including their closing brief and objections to the proposed statement of decision. Certain of these pleadings do contain assertions, without citation to the record or mention of the statute of limitations for nuisance, that the eugenia has been in place since 1993. Plainly these stray assertions, in pleadings filed long after trial, are insufficient to avoid forfeiture. (See O'Neil v. Spillane (1975) 45 Cal.App.3d 147, 156 ["It is blackletter law that the defense of the statute of limitations is a personal privilege which must be affirmatively invoked in the lower court by appropriate pleading (if the defense appears on the face of the complaint, it must be raised by demurrer; otherwise it must be specially pleaded in the answer) or is waived"].)
The Clocks next argue that Hariri's claims regarding the eugenia are barred by the doctrine of laches, again based on their assertion that the eugenia hedge has been in place since 1993. This defense was pled in the Clocks' answer, but the trial court rejected it, finding that Hariri "did not unnecessarily delay in bringing this action." "Generally, a trial court's laches ruling will be sustained on appeal if there is substantial evidence to support the ruling." (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 67; see Martin v. Santa Clara Unified School Dist. (2002) 102 Cal.App.4th 241, 249.) And there is.
There is a split of authority as to whether a finding that laches does not apply is reviewed for abuse of discretion or substantial evidence. (See In re Marriage of Fogarty & Rasbeary (2000) 78 Cal.App.4th 1353, 1364 [noting the split of authority and concluding that abuse of discretion is the appropriate standard]; see also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2017) ¶ 8:101, pp. 8-64-65.) We need not resolve the question here, as we would necessarily affirm under the more lenient abuse of discretion standard.
"Laches is based on the principle that those who neglect their rights may be barred, in equity, from obtaining relief." (City of Oakland v. Oakland Police & Fire Retirement System (2014) 224 Cal.App.4th 210, 248.) "A defendant must demonstrate three elements to successfully assert a laches defense: (1) delay in asserting a right or a claim; (2) the delay was not reasonable or excusable; and (3) prejudice." (Magic Kitchen LLC v. Good Things Internat., Ltd. (2007) 153 Cal.App.4th 1144, 1157.)
The Clocks assert that the eugenia was in place since 1993, and that Hariri waited until 2014 "before raising a single word of concern." However, there was evidence that the eugenia hedge did not obstruct Hariri's views in a consistent way over the time period from 1993 until 2014. For example, Hariri testified that for many years in that timeframe, the Clocks adhered to the 1983 Agreement and her views were largely unobstructed. She also testified—and the Clocks' own evidence also showed—that the Clocks would trim their vegetation, including around the time of the unsuccessful mediation and the trial court's site visit. Obviously, the eugenia hedge continued to grow throughout the relevant timeframe. In addition, the record shows that Hariri made numerous attempts to resolve her dispute with the Clocks, informally and through arbitration and mediation, in the period starting in 2010 and leading up to the filing of this lawsuit in 2014. Because the view obstruction presented by the eugenia changed over time, and because Hariri made various formal and informal efforts to resolve the issue, substantial evidence supports the trial court's conclusion that under the facts and circumstances of this case Hariri did not unreasonably delay in asserting her claim against the Clocks. IV. The Trial Court Did Not Err in Finding a Public Nuisance Based On Violation of the Tiburon Municipal Code
The Clocks next offer a very brief argument that the trial court's finding of a public nuisance based on violations of the Tiburon Municipal Code was an error of law.
In their opening brief, the Clocks also briefly articulate an argument that there was no evidence to support a finding of private nuisance, because there was not substantial evidence of substantial and unreasonable interference with Hariri's use of her land, and because Hariri consented to the Clocks' landscaping through the landscape plan submitted in connection with the 1983 Agreement. Hariri's complaint relies exclusively on a theory of public nuisance based on violation of the Tiburon Municipal Code, and the trial court in its statement of decision found that "[t]he violations of the Tiburon ordinances noted above constitute public nuisances and are subject to abatement as set forth in Town of Tiburon Ordinance § 15A-10." In any event, the Clocks' argument that substantial evidence does not support a finding of private nuisance because their own expert opined that any view obstruction was minimal is patently meritless. It fails for the additional reason that "when the trial judge views the premises and a record of what he saw has not been made a part of the transcript on appeal, an appellate court must assume that the evidence acquired by such view is sufficient to sustain the finding in question." (South Santa Clara Valley Water Conservation Dist. v. Johnson (1964) 231 Cal.App.2d 388, 399.) And for the reasons given in section I, supra, we do not agree that Hariri consented to the obstruction of her views at issue through the 1983 Agreement or the associated landscaping plan.
Chapter 15 of the Tiburon Municipal Code, governing "View and Sunlight Obstruction from Trees," provides in relevant part: "Because the maintenance of views and sunlight benefits the general welfare of the entire town, any unreasonable obstruction of views or sunlight from the primary living area or active use area shall also constitute a public nuisance." (Tiburon Mun. Code, ch. 15-4(b).) Similarly, Chapter 15A, regulating "Trees," provides: "In addition to all other remedies available under this Code or state law, any violation of this chapter shall be subject to abatement as a public nuisance. All costs relating to the enforcement of this chapter shall be borne by and recoverable from the person in violation thereof." (Tiburon Mun. Code, ch. 15A-10.) The Clocks argue that a finding of a public nuisance, where, as they argue here, only one person was affected, conflicts with the definition of a public nuisance in the Civil Code, which provides that "[a] public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons," and that "[e]very nuisance not included in the definition [of public nuisance] is private." (Civ. Code, §§ 3480, 3481.)
A similar issue was presented to us in Kucera v. Lizza (1997) 59 Cal.App.4th 1141 (Kucera). There, the owners of an apartment building brought suit under chapter 15 of the Tiburon Municipal Code to compel restoration of their views, which were being blocked by eight Monterey pine trees owned by the defendants. (Kucera, at pp. 1143-1144.) The trial court found chapter 15 void because it was preempted by state law governing the creation of servitudes and land burdens, and as an arbitrary and unreasonable exercise of the police power. (Kucera, at p. 1143.) On appeal, we first held that chapter 15 was a valid exercise of the police power, and then considered the parties' arguments regarding whether the Town of Tiburon could properly declare unreasonable obstruction of views and sunlight by trees a public nuisance (Kucera, at pp. 1149-1150), but found it unnecessary to reach the issue: "Nuisance and abatement are alternative avenues to finding the ordinance valid and private persons entitled to seek its enforcement. Neither question is necessary to reach. We have already declared the ordinance valid under the general police power . . . and the ordinance itself undisputedly confers standing on private persons, like the Kuceras, who claim an unreasonable obstruction and have exhausted prescribed, less formal dispute resolution processes." (Id. at pp. 1150-1151.)
Under Kucera, we likewise conclude that it is unnecessary to reach the Clocks' argument here. The trial court found that certain of the Clocks' vegetation unreasonably obstructed Hariri's views in violation of chapter 15, and that certain other vegetation was planted on land belonging to the Town in violation of chapter 15A, and ordered that vegetation removed under Tiburon Municipal Code chapter 15A-10. Nothing in the trial court's order depended on a finding that the vegetation constituted a public nuisance, and Hariri was entitled to the relief she obtained under the Tiburon Municipal Code irrespective of that determination. V. The Trial Court Did Not Abuse Its Discretion in Issuing an Injunction
The Clocks next argue that the trial court abused its discretion in issuing an injunction because there was no evidence to support a finding of a substantial and unreasonable public nuisance, and because they allege that their neighbors' views were also a "subject of the Court's injunction," rendering it overbroad. The Clocks mischaracterize the record. Although the trial court did state that "[i]n most, but not all, respects, the court finds that under the Ordinance the Defendants do not unreasonably obstruct the Plaintiff's views," the Clocks omit the next sentence of the trial court's decision: "Nevertheless, some of the landscaping does unreasonably obstruct the Plaintiff's views, particularly the Eugenia . . . and the Italian Stone Pine." Accordingly, the trial court's injunctive relief ordered the Clocks to remove the Eugenia and the Italian stone pine, in addition to other vegetation planted on land belonging to the Town. There was nothing overbroad about the injunctive relief ordered by the trial court.
In support of their argument that their neighbors' views were the subject of the trial court's injunction, the Clocks cite to a single sentence in the statement of decision and the judgment finding that "[t]he Defendants must continue in the future to maintain their property so that their landscaping does not unreasonably obstruct their neighbors' views and/or plant on the land belonging to the Town of Tiburon without a permit." Far from rendering the injunction overly broad, this condition merely restates the Clocks' obligation not to unreasonably obstruct the views of their neighbors, including Hariri, under the Tiburon Municipal Code. There was no abuse of discretion. VI. The Trial Court Did Not Abuse Its Discretion In Excluding Defendants' Exhibits E & F
Finally, the Clocks argue that the trial court abused its discretion in excluding from evidence two drawings (defendants' exhibits E & F) of a proposed new gate for their residence dating from 1993.
A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Claims of evidentiary error are reviewed for prejudice applying the "miscarriage of justice" or "reasonably probable" harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836. Under the Watson harmless error standard, it is the Clocks' burden to show that it is reasonably probable that they would have received a more favorable result at trial had the alleged error not occurred. (Id. at p. 836; see Code Civ. Proc. § 475.) They have not.
Exhibits E and F are drawings of a proposed new gate and window in front of the Clocks' residence, dated from July of 1993 and submitted to the Town of Tiburon. Exhibit F contains two initials "F.H." in the lower right hand corner. Nancy Clock testified that in order to secure approval from the Town for the project, the Clocks were required to circulate these drawings to their neighbors, and that one of the sets of initials "F.H." on exhibit F represents Hariri's approval. The Clocks argue that the drawings show that the eugenia was in place as of 1993 and that Hariri's initials on the sketch were "crucial" to their argument that she acquiesced in the planting of the eugenia hedge.
Although these exhibits were not initially part of the record on appeal, we granted the Clocks' motion to augment the record to include them and several other of the Clocks' trial exhibits.
Even assuming that the trial court erred in declining to admit exhibits E and F, the Clocks have failed to demonstrate prejudice. The trial court in no way relied on or discussed the date that the eugenia was planted, and there was already other evidence in the record that the eugenia dated to 1993, including an actual photograph of the front of the Clock residence dating from July of 1993 and the testimony of Edwin Clock. Exhibit F is an architectural drawing detailing a proposed new gate and window for the Clock residence, and depicts the eugenia hedge, if at all, as a single vague outline and in no detail. The fact that Hariri allegedly initialed this drawing in the context of approving the Clocks' addition of a gate and window in 1993 is of extremely limited relevance to the trial court's determination, more than twenty years later, based on the entire record including a visit to the site, that the hedge had grown to obstruct Hariri's views and to violate the Tiburon Municipal Code. In sum, the Clocks have failed to demonstrate any "reasonabl[e] probab[ility]" that but for the exclusion of exhibits E and F the result at trial would have been any different. (People v. Watson, supra, 46 Cal.2d at p. 836.)
Hariri's Appeal (No. A150395)
On appeal from the trial court's order taxing costs, Hariri argues that: (1) she was entitled to her expert witness fees under Code of Civil Procedure section 998 because the Clocks failed to obtain a judgment "more favorable" than her settlement offer; and (2) the trial court erred in declining to award her mediation fees as costs. I. The Clocks Did Not Fail to Obtain a More Favorable Judgment Under Code of Civil Procedure Section 998
Code of Civil Procedure section 998 establishes a procedure to shift certain costs if a party fails to accept a reasonable settlement offer before trial, and to that end, provides that "[i]f an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award," the trial court may, in its discretion, "require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses" incurred in preparation for trial. (Code Civ. Proc., § 998, subd. (d).) Where an offer to compromise under section 998 contains nonmonetary terms or conditions, they must be sufficiently certain and capable of valuation to allow the court to determine whether the judgment is more favorable than the offer. (Barella v. Exchange Bank (2000) 84 Cal.App.4th 793, 801; Valentino v. Elliott Sav-On Gas, Inc. (1988) 201 Cal.App.3d 692, 697-698.)
Ascertaining the terms of an offer, including the determination whether the offer is sufficiently specific and certain for purposes of section 998, is a question involving the interpretation of a writing, and we independently interpret a writing if the interpretation does not turn on the credibility of extrinsic evidence. (Winet v. Price (1992) 4 Cal.App.4th 1159, 1166; see Elite Show Services, Inc. v. Staffpro, Inc. (2004) 119 Cal.App.4th 263, 268.)
In its order taxing costs, the trial court denied Hariri's request for her expert witness fees, explaining that it was "unable to say based upon a comparison of the offer with the terms of the judgment that the judgment was less favorable to Defendants than the offer." We review the trial court's determination of whether the judgment is more favorable than the 998 offer for an abuse of discretion. (See Chinn v. KMR Property Management (2008) 166 Cal.App.4th 175, 196, disapproved on another ground in DeSaulles v. Community Hospital of Monterey Peninsula (2016) 62 Cal.4th 1140, 1158; Arias v. Katella Townhouse Homeowners Assn., Inc. (2005) 127 Cal.App.4th 847, 854.)
On appeal, Hariri argues that the judgment is not "more favorable" to the Clocks than the 998 offer with respect to each of three categories of landscaping: (1) the vegetation along the berm running along Avenida Miraflores; (2) the eugenia hedge at the front of the Clock residence; and (3) the various trees and vegetation planted by the Clocks on land belonging to the Town. With respect to these three categories, the 998 offer and the judgment provide:
Both the 998 offer and the judgment attached as "Exhibit A" the same detailed architectural drawing of the Clocks' property, depicting the landscaping at issue.
The 998 offer also provided that "[e]ach side shall bear their own attorney fees and costs for the underlying action," and that "[i]f it is necessary to take action to enforce this judgment, then the prevailing party shall be awarded their reasonable attorney fees and costs, including expert fees."
With respect to the vegetation along the berm and on the land owned by the Town, we agree with Hariri that the judgment is not "more favorable" to the Clocks than the 998 offer. Both the 998 offer and the judgment cover all the vegetation along the berm, with the only difference being that the vegetation is permitted to rise a half-foot higher than the berm itself under the terms of the 998 offer, but not under the judgment. Similarly, both the 998 offer and the judgment cover all the vegetation planted on the right-of-way owned by the Town. However, the 998 offer only requires the Clocks not to "object to or in any way interfere" with any agreements between Hariri and the Town to remove or prune the vegetation, whereas the judgment requires the Clocks to affirmatively remove all of the plantings themselves, presumably at their own expense.
However, we are unable to say whether the judgment is not more favorable to the Clocks with respect to the eugenia hedge. There are a total of nine eugenia plants near the front of the Clock residence, labeled as 7-1 through 7-9 on exhibit A attached to both the 998 offer and the judgment. The 998 offer requires the Clocks to completely remove five of these plants, whereas the judgment only requires them to partially remove four of the plants, only as necessary to unobstruct the view of the San Francisco skyline. Thus the judgment is arguably "more favorable" to the Clocks with respect to the eugenia hedge, because it requires that fewer plants be trimmed, and only as necessary to preserve Hariri's views of San Francisco. In light of this, we cannot hold that the trial court abused its discretion in declining to award Hariri her expert witness fees. Moreover, even if the judgment were clearly not more favorable, section 998 still leaves the decision as to whether to award expert fees to the trial court's discretion. (Code Civ. Proc., § 998, subd. (d).) II. The Trial Court Did Not Abuse Its Discretion in Declining to Award Hariri Her Mediation Costs
Anticipating this argument in her opening brief, Hariri responds that the eugenia is a "single hedge comprised of several multi-stem plantings" and that "both the Offer and judgment require removal of approximately half of the hedge (e.g., the portion blocking the view of San Francisco)," although Hariri does not provide any citations to the record in support of this assertion. In any event, this argument only highlights the difficulty in valuating and comparing the modifications to the eugenia hedge required by the 998 offer and the judgment, and thus confirms our conclusion that it is unclear whether the 998 offer or the judgment is "more favorable" to the Clocks as a whole.
Because we find that the trial court did not abuse its discretion in declining to award Hariri her expert witness fees, we need not reach the Clocks' additional arguments that the provisions of the 998 offer regarding attorney fees rendered the offer incapable of valuation, and that the 998 offer was conditional because there is no evidence that they own their residence as community property. For the same reason, Hariri's motion for judicial notice of two recorded documents regarding the ownership of the Clocks' property is denied.
Code of Civil Procedure section 1033.5, subdivision (c)(4), authorizes the trial court to exercise its discretion to award mediation costs, so long as they are "reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation." (Code Civ. Proc. § 1033.5, subds. (c)(2) & (c)(4); see Gibson v. Bobroff (1996) 49 Cal.App.4th 1202, 1209 (Gibson).) Whether a cost is "reasonably necessary to the conduct of the litigation" is a question of fact for the trial court, whose decision will be reviewed for abuse of discretion. (Applegate v. St. Francis Lutheran Church (1994) 23 Cal.App.4th 361, 363-364; Lubetzky v. Friedman (1991) 228 Cal.App.3d 35, 39.)
The trial court denied Hariri's request for her mediation costs, finding that they were not " 'incurred in the case.' " On appeal, Hariri argues that the mediation costs were in fact incurred in the case because the parties stipulated to mediation at the case management conference, that stipulation became part of the court's case management order, and because the Tiburon Municipal Code required Hariri to "propose mediation as a timely means to settle the obstruction dispute" as a prerequisite to litigation. (Tiburon Mun. Code, ch. 15-9, subd. (b)(1).) We find no abuse of discretion in the trial court's conclusion. Even if the mediation was ordered by the trial court based on the parties' stipulation, Gibson holds only that a trial court has discretion to award mediation fees as costs where mediation is "court-ordered," not that any failure to do so is an abuse of discretion. (Gibson, supra, 49 Cal.App.4th at p. 1209 ["when an unsuccessful mediation has been court-ordered, reasonably necessary expenses incident thereto may, in the sound discretion of the trial court, be awarded after trial to a prevailing party"].) Nor has Hariri provided any authority for the proposition that simply because she was required to attempt mediation before bringing her claim under the Tiburon Municipal Code, the trial court necessarily abused its discretion in finding that mediation not "reasonably necessary to the conduct of the litigation." (Code Civ. Proc. § 1033.5, subd. (c)(2).)
The case management conference was not reported and the case management order is not in the record. Instead, the register of actions indicates only that the "parties agree to mediation," and were then referred to mediation by the trial court. --------
DISPOSITION
The judgment and the order taxing costs are affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Miller, J.