BISHOP v. HANES
Court of Appeals of California, First District, Division One.
Filed October 27, 2011.
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.
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."