BISHOP v. HANES
Court of Appeals of California, First District, Division One.
Filed October 27, 2011.
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.
Margulies, J. and Dondero, J., concurs.
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."