BISHOP v. HANES
Court of Appeals of California, First District, Division One.
Filed October 27, 2011.
The court made findings pursuant to section 15.52.060, subdivision (B) of the View Ordinance,5 and imposed 100 percent of the costs of restoration and replacement on defendants. On August 20, 2010, the court granted defendants' motion to tax the expert costs in the amount of $30,101.25, and the motion to tax other miscellaneous costs in the amount of $6,113.01. The court denied defendants' motions to tax the exhibits, court reporters' fees and mediation fees.
Defendants timely appealed from the judgment entered on May 26, 2010 after a court trial (A129018), and from the amended judgment and order awarding attorney's fees and costs filed on August 20, 2010 (A130062). This court ordered the appeals consolidated.III. DISCUSSION
A. The Bishops' Claims Were Not Barred by Res Judicata.
Defendants assert that all of the Bishops' current claims were barred by res judicata. "`[T]he doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy. It seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration.' (7 Witkin, Cal. Procedure [3d ed. 1985] Judgment, § 188, p. 621, italics in text.)" (Nakash v. Superior Court (1987) 196 Cal.App.3d 59, 67 (Nakash).) Defendants attack the trial court's ruling on their summary judgment motion on three grounds: (1) the prior lawsuit resulted in a final judgment on the merits; (2) both lawsuits arose out of the same "primary right"—the Bishops' asserted right to an unobstructed view over the Haneses' property—and since the prior lawsuit established that the Bishops' had no such right, the exception for an "ongoing relationship" does not apply; and (3) that the "injustice exception" to the application of res judicata "is inapplicable where . . . the only possible basis for its implementation is founded on a change in law following the original judgment." (Slater v. Blackwood (1975) 15 Cal.3d 791, 796.) We need not address the res judicata argument because this case presents the classic example of an ongoing dispute over a continuing nuisance to which the doctrine of res judicata does not apply.6 In Spaulding v. Cameron (1952) 38 Cal.2d 265, involving a neighbor dispute over a continuing nuisance consisting of mudflow onto the down slope neighbor's land from leveling operations on the up slope neighbor's land, our Supreme Court observed: "[I]t has been recognized that in doubtful cases the plaintiff should have an election to treat the nuisance as either permanent or not. [Citations.] If the defendant is not privileged to continue the nuisance and is able to abate it, he cannot complain if the plaintiff elects to bring successive actions as damages accrue until abatement takes place. [Citations.] On the other hand, if it appears improbable as a practical matter that the nuisance can or will be abated, the plaintiff should not be left to the troublesome remedy of successive actions. [Citations.]" (Id. at pp. 268-269. See also Nakash, supra, 196 Cal.App.3d 59, 69.) In our view, the trial court did not err in concluding that "[t]he doctrine of res judicata was not intended to apply to parties in an ongoing relationship, such as that between spouses, parents and children, or continuing business partners and fiduciaries, or (as here) neighbors, `where the courts have traditionally recognized the need for serial adjudication.' (See, e.g., Nakash[, supra] 196 Cal.App.3d [at p.] 69.)"
At oral argument, defendants maintained that their trees did not constitute a continuing nuisance because any injury to plaintiffs' views that had occurred since 2006 had been taken care of as a result of mediation. But there was expert testimony to the contrary. For example, consulting arborist and horticulturalist James MacNair made his first site visit to the Bishops' property in 2008 and then again in 2009, when he was also able to visit the Haneses property. In the course of preparing his report and making recommendations, he reviewed historical photographs, including those from 1991, 2001, and 2008. The photographs showed that in 1991, the Bishops had panoramic views. By 2001, the acacias were starting to interfere with the views. By 2008, the view loss was significant. He prepared a chart showing the extent of the view loss over the last 20 to 25 years and estimated that the Bishops had lost 80 to 90 percent of the view they once had from their living room.