BISHOP v. HANES
Court of Appeals of California, First District, Division One.
Filed October 27, 2011.
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,'11 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." "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
1. 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.
2. 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.
3. 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."
4. 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."
5. 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."
6. 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.
7. 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.
8. 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."
9. 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.
10. 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.
11. 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."