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.