Kahn v. Price
(2021) 69 Cal.App.5th 223.
Court of Appeals of California, First District, Division Three
September 22, 2021
No. A159536. No. A160057
Summary by Jillian M. Wright Esq.:
A court found that a tree’s obstruction of neighbor’s view constituted a “continuous nuisance” which has no statute of limitations. A tree obstructing a view is a continuous nuisance, rather than a permanent one, because the tree is a nuisance that could be abated with trimming or cutting. Additionally, a plaintiff is under no obligation to produce physical evidence of the unobstructed views before the tree growth.
TAKEAWAY: If an association’s governing documents have view requirements with which an owner fails to comply, then the association may not be barred by statutes of limitation from bringing a claim for breach of the governing documents. On the other hand, an association should not dismiss an owner’s complaint about obstructed views based on the statute of limitation alone.
***End Summary***
LINDA KAHN, Plaintiff and Respondent,
v.
KATHERINE PRICE et al., Defendants and Appellants.
LINDA KAHN, Plaintiff and Respondent,
v.
KATHERINE PRICE et al., Defendants and Appellants;
WILLIAM S. WEISBERG et al., Objectors and Appellants.
Bonapart & Associates, Barri Kaplan Bonapart; Bien & Summers and Eilliot L. Bien for Plaintiff and Respondent.
226*226 [CERTIFIED FOR PARTIAL PUBLICATION[*]]
OPINION
PETROU, J.—
This lawsuit concerns the parties’ long-standing dispute concerning the presence of a Monterey pine tree (the tree) growing in the rear yard of the property owned by defendants and appellants Katherine and Richard Price (the Prices). The tree obstructs plaintiff and respondent Linda Kahn’s views of the San Francisco Bay and Marin County from the main level of her residence.
Kahn sought declaratory and injunctive relief available under the San Francisco Tree Dispute Resolution Ordinance (Ordinance; S.F. Pub. Works Code, art. 16.1, § 820 et seq.[1]), which creates “rights in favor of private property owners” to restore their “views lost due to tree growth” on adjoining property. (Id., §§ 821, subd. (a)(1), 827.) Following a bench trial, the court 227*227 entered an amended judgment in favor of Kahn, declaring her right to the restoration of the views that “are now obstructed by the Monterey pine tree” and directing the tree’s removal. The court also granted Kahn’s request for Code of Civil Procedure[2] section 128.5 sanctions in the sum of $47,345.30, payable by the Prices and their trial counsel, William S. Weisberg, and the law firm of Weisberg & Miller, jointly and severally.
We see no merit to the Prices’ arguments that the lawsuit was barred by the statute of limitations, that dismissal is required for Kahn’s failure to comply with the Ordinance’s prelitigation procedures, or that the trial court erred in directing the tree’s removal. We also see no merit to the challenge by the Prices and their trial counsel to the award of sanctions against them. Accordingly, we affirm the amended judgment.[3]
FACTUAL AND PROCEDURAL BACKGROUND
We set forth the underlying facts as found by the trial court and taken in part from its statement of decision. We present additional facts in our discussion of the issues.
A. Background
Kahn purchased a multistory residence in San Francisco in 1976.[4] At the time, the residence had unobstructed views from the primary living areas 228*228 located on the north side of the home on the main level as well as unobstructed views from the north-facing rooms on the second and third floors. The residence’s northerly and northwesterly views—of the San Francisco cityscape and Bay, the Golden Gate Bridge, Angel Island, and southern Marin County—remained unobstructed by any other vegetation or the tree until 2011.
In or about 1998, the Prices’ predecessors in interest (prior owners) purchased the multistory residence on property that is downslope from and abuts Kahn’s property. The properties are separated by a structure (a retaining wall topped by a lattice fence) located 10 to 12 feet above ground level on the Kahn property; the tree is located at “the very rear” of the Prices’ backyard and is adjacent to the retaining wall.
When Kahn replaced the lattice fence atop the retaining wall in 2001, she saw the origins of the tree that likely had been growing from a “volunteer seedling” since approximately 1999. The tree appeared “hedge-like” and was “well below the height of the lattice fence.” By 2007, the tree was beginning to grow above the lattice fence but did not obstruct Kahn’s views. However, by 2011 the tree was visible above the lattice fence at which time Kahn advised the prior owners that the tree was eclipsing her views. Kahn offered to pay for the removal of the tree, but instead the prior owners trimmed the tree.
In 2012, when Kahn learned the prior owners had sold the property to the Prices, Kahn contacted the Prices in writing and in person. The Prices, who were then living in Hong Kong and only visiting the San Francisco property occasionally, assured Kahn they would consult with their landscape architects about the tree.
“In late 2016, when it appeared informal resolution was unlikely,” Kahn began the Ordinance’s prelitigation procedures[5] by serving the Prices with a tree claim in early 2017[6] and the parties engaged in private mediation (in lieu 229*229 of community board mediation under the Ordinance) in June 2017. When private mediation failed in late 2017, and the Prices declined to participate in arbitration, Kahn filed this lawsuit in early 2018 seeking declaratory and injunctive relief.
B. Trial Proceeding
At a bench trial held in June 2019, the court heard the testimony of the Prices, Kahn, Kahn’s relative, Kahn’s friend, and an immediate neighbor of Kahn and the Prices. The court also heard testimony of Kahn’s expert consulting arborist and the Prices’ expert consulting arborist, expert aerial photographer, expert geotechnical engineer, and real estate appraiser. The court considered extensive documentation including the parties’ written communications and photographs taken at various times and from various locations within and without the parties’ properties. Lastly, the court conducted an onsite inspection of the parties’ properties on June 19, at which time the parties and counsel were present.[7]
The court found that since the purchase of her home in 1976 Kahn had “enjoyed” views (from all floors) of “the San Francisco cityscape, the Bay, the Golden Gate bridge, southern Marin County, and Angel Island” until 2011 when the tree began obstructing and ultimately “eclipsed” the views; but for the tree, Kahn’s residence would still have those unobstructed views. Under the heading, “Historic Evidence of Views,” the court specifically found: “Kahn, her [relative] and [her friend], both of whom regularly visited the Kahn home, testified to the northerly views over San Francisco, San Francisco Bay, southern Marin County, and Angel Island. The views were a principal factor in the Kahns’ decision to purchase the property. The testimony and historic photographs establish that, when the Kahns purchased their home, the `views,’ as defined in [Ordinance] Section 822(n), from the garden, terrace, dining room, and kitchen dining area—north facing rooms located on the main level—were unobstructed. Nor was the view obstructed from any of the north facing rooms on the upper two levels of the Kahn home. (Kahn home’s historic views). The evidence also establishes that the northerly and northwesterly views of the San Francisco cityscape, the Bay, the Golden Gate 230*230 bridge, southern Marin County, and Angel Island remained unobstructed by the tree or any other vegetation until at least 2011.”
The trial court also considered the burdens and benefits of the tree pursuant to the Ordinance’s enumerated criteria and based upon the “testimonial and documentary evidence,” the court’s “personal inspection of the parties’ respective properties,” and “the written and oral arguments of counsel.”
Regarding the tree’s burdens, the court found that “the Kahn home had unobstructed views from the Golden Gate to Angel Island and, but for the tree, would still have that view. There are landmarks, vistas and other unique features, including the San Francisco Bay, Angel Island, and portions of southern Marin County which would be visible from the first level of the Kahn home, in the dining room and the kitchen, as well as from the patio and rear garden, but are partially or completely eclipsed by the tree’s growth from 2011 to the present.” The court found credible the photographic methodology used by Kahn’s arborist who documented “the tree’s effect and estimated the obstructions to be 50-60% from the dining room, 90% from the kitchen table, 20-30% from the rear patio, and 30-40% of [the view] from the rear yard looking north to northeast.”
The court’s own observations during the site visit corroborated the arborist’s testimony. The court also found it was “only the tree—and not other factors—which obstruct the view and create the burdens listed in the Ordinance.” In sum, the court found “overwhelming” evidence that: “the tree’s rapid growth in both height and breadth obstructs the views of landmarks and vistas that could once be seen”; “[t]he degree of obstruction makes that burden significant and substantial”; and “there are no other factors contributing to the burden.”[8]
Discussing the tree’s benefits, the trial court specifically found that “the tree’s vigor in this context and location is not a benefit.” In so concluding, the 231*231 court explained that “Kahn raised concerns about the tree when it was young. Had [the Prices or their predecessors in interest] heeded her warning, when the tree was small, a skilled arborist … could have advised on pruning that would have maintained the unique features of the Monterey pine while limiting its intrusion on the Kahn home’s historic views. Instead the tree’s owners ignored her requests, while the tree grew rapidly. Then in a belated effort to ameliorate the complaint, the tree was subjected to repeated topping and trimming. The unfortunate result is the tree no longer has the visual qualities of a Monterey pine…. If the tree survives, unaffected by the beetles and pine-pitch canker, true to the species, it will become a very large stature tree…. [I]f the tree is pruned to mitigate the view-related burdens, given its growth-pattern, the effects of that pruning will be fleeting— demanding frequent attention. [The parties’ immediate neighbor] testified that the tree obstructs the views of the Golden Gate Bridge and surrounding waters from his home. Even when the tree is pruned in a manner which improves—but does not restore—those views, due to rapid growth, the view obstruction recurs within a very short period of time.”
In evaluating the tree’s “aesthetics, a trait in the eye of the beholder,” the trial court found, “[u]nderstandably, that the Prices insisted that the tree’s role in their yard, and, indeed in their decision to purchase the home, is paramount. They extol its virtues in shading their yard, providing a backdrop for their landscaping and assuring privacy for their family. While the court does not seek to substitute its artistic opinion for that of the homeowners, there are objective factors which cannot be ignored. The other landscaping in the Prices’ yard is dwarfed by the tree. While the other trees and plants are all proportional to one another, the looming Monterey pine is disproportionate to all the surrounding vegetation and looms ominously. The tree is located at the very rear of their yard and atop a steep slope, adjacent to the retaining wall and Kahn’s lattice fence. [The Prices’ arborist] testified that, given [the tree’s] distance from the Prices’ home, it does not provide shade to either the home or the outdoor areas where the family would be dining or socializing….”
On the issue of “soil stability provided by the tree,” the trial court found not credible the testimony of Prices’ geotechnical engineer who opined, “without any data, testing, or explanation—that removal of the tree would result in a `landslide’ affecting multiple properties.” Nor did the witness “distinguish whether the `landslide’ would occur regardless whether the stump and roots were removed at the time the tree is felled, or if they were allowed to remain. [Kahn’s arborist] testified that leaving the roots and stump to decompose—while planting woody vegetation which could take root while the [tree’s] roots decayed—would assure soil stability. Planting along the entire length of the retaining wall would provide additional stability as it is unlikely that the tree’s roots extend to the western edge of the yard.” The 232*232 court found no evidence that soil stability had been an issue during the decades predating the tree, and, no evidence that the retaining wall’s stability depended on the tree. The court also found that, if the tree’s roots contributed to the soil stability, it was at most a minor benefit and one which could be secured by leaving them in place after the tree was removed and added plantings.
The trial court did find the tree provided some visual screening for the yard and the children’s bedrooms in the Prices’ home, allowing for “minimal privacy,” but “any benefit of this screening is minor and insignificant.” In so concluding, the court found unpersuasive the Prices’ contention that the tree was critical to provide privacy from the Kahn residence. “The Price yard and living spaces are not visible from the main floor of the Kahn home, not because of the tree, but because of the difference in elevation and the retaining wall and fence separating the Kahn home and the Prices’ home. To the extent, the tree blocks views of the Prices’ home, it does so from only a portion of the upper floors of the Kahn home and therefore does not provide the `privacy’ the Prices’ claim to be essential. To the extent the Prices’ claimed need for privacy is sincere—rather than merely a justification for retaining the tree—the site visit provided evidence of the visibility of the Prices’ yard and children’s bedrooms from neighbors to the east, west, and south. The site inspection also demonstrated that the interior of the Prices’ home is visible on many sides.” “Neighbors in many homes—much closer than the Kahn home—can peer into the Price property, and yet the Prices have not installed window coverings to provide the privacy they claim to value.” The court’s own observations were “corroborated” by Kahn’s arborist’s “room-by-room analysis,” documented by photography from the yard and interior of the Prices’ home.
Having determined the tree’s burdens were “overwhelming” and “the benefits the tree confers to be minimal,” the court therefore concluded Kahn had met her burden of proving “the burdens posed by the tree outweighed the benefits and that restorative action is required.” In deciding the appropriate type of restorative action, the court evaluated the Ordinance’s “[a]ppropriate [r]estorative [a]ctions” of (i) no action, (ii) trimming, (iii) thinning, (iv) delayed trimming or thinning, (v) topping, or (vi) tree removal with possible replacement plantings. (Ord., § 824, subd. (c)(1).) The court explained its reasons for finding that the first five actions were not feasible and the sole action that best achieved the Ordinance’s objectives was removal of the tree, which we will later discuss in the analysis.
233*233 The court also explained its decisions regarding the apportionment of costs between the parties. (Ord., § 825.)[9] As to costs for the restorative action of tree removal, the court found the tree was not present before September 28, 1988, the effective date of the Ordinance. Consequently, the court directed that the cost of tree removal (the court-ordered restorative action) was to be paid “in equal proportion by the parties.” As to litigation costs, the trial court found Kahn and the Prices were to pay their own attorney’s fees pursuant to Ordinance section 825, subdivision (b), but Kahn as the prevailing party was entitled to her costs as defined in the Code of Civil Procedure.
The trial court entered judgment on December 2, 2019, later amended on February 28, 2020, in favor of Kahn “on both the cause of action for declaratory relief and the cause of action for injunctive relief” under the Ordinance. The court declared Kahn was entitled to restoration of her obstructed views, and to that end, the Prices were directed to remove the tree “so that the stump is cut to grade and the roots remain intact” and the stump was to “be treated to ensure that it will not re-sprout.” The parties were to follow specific procedures in hiring a licensed, bonded, and insured tree-care company to perform and complete the tree removal. The Prices were directed to pay the tree removal company and provide Kahn with a copy of the paid invoice and proof of payment; within five court days of receipt of the paid invoice, Kahn was to pay one-half of the amount paid to the tree removal company as evidenced by the paid invoice. The Prices were granted the right to “plant replacements at their option and expense,” with the proviso that they “select species which, at maturity, will not interfere with the Kahn home’s historic views.” The amended judgment also included provisions awarding Kahn (1) $69,150.65 as costs (§ 1032 [prevailing party costs]; Ord., § 825, subd. (b) [court costs allocated at court’s discretion]), (2) $41,182.50 as attorney fees and expert fees (§ 2033.420 [expenses incurred in proving matters which a party to whom a request for admission was directed failed to admit]), and (3) $47,345.30 as section 128.5 sanctions, payable jointly and 234*234 severally by the Prices and their trial counsel William S. Weisberg and the law firm of Weisberg & Miller.
Appellants’ timely appeal ensued.[10]
DISCUSSION
I. Trial Court’s Rulings on Statute of Limitations, Ordinance’s Prelitigation Procedures, and Laches
A. Relevant Facts
Before trial, the Prices sought to bifurcate the trial with phase one regarding their affirmative defense that the lawsuit was time-barred. While conceding the Ordinance contained no statute of limitations, the Prices asserted the applicable Code of Civil Procedure statute of limitations was three years for either a claim in the nature of a permanent nuisance or liability created by statute (§ 338, subds. (a), (b)), for which there were no exceptions. In opposition, Kahn argued, among other things, that her action sought abatement of a continuing nuisance for which no statute of limitations was applicable. The trial court denied the bifurcation motion, informing the parties it would consider the statute of limitations issue at the conclusion of Kahn’s case-in-chief as allowed under section 631.8.[11]
At the close of Kahn’s case, the Prices filed a section 631.8 motion for judgment on two grounds: (1) Kahn had failed to comply with the Ordinance’s prelitigation procedural requirement of filing a tree claim that included “physical (i.e. visual) evidence” showing the existence of an unobstructed view from the main level of the residence before the growth of the tree, and the purported defect had not been remedied by the photographic and expert testimony presented by Kahn; and (2) the lawsuit was time-barred under section 338, subdivision (a).
The trial court denied the motion, specifically finding that Kahn had complied with the Ordinance’s procedures and her tree claim was sufficient to meet the Ordinance’s requirements. The court also found that, because the 235*235 Ordinance required Kahn to comply with prelitigation procedures before filing her lawsuit, “under any reading of the statute of limitations,” “the complaint could not be filed until the prerequisites to litigation had been satisfied.” In its statement of decision, the court stated it had denied the section 631.8 motion for “the reasons stated on the record”; “[t]he Ordinance does not contain a statute of limitations”; and “[a]fter considering the pre-filing history, [the court] determined independently that Kahn met all pre-filing conditions and filed this case timely.”
Prior to trial the Prices also sought to have the court rule on their contention that the lawsuit was barred by laches, which the court said it would also consider at the close of Kahn’s case pursuant to a section 631.8 motion for judgment. However, in their section 631.8 motion the Prices did not seek dismissal based on laches. Instead, at the conclusion of the case in its statement of decision the court found the lawsuit was not barred by laches based on a lack of evidence to support the defense. The court initially found Kahn had not delayed in asserting her rights. “In 2011, after a period of rapid growth, the tree significantly encroached into Kahn’s view and she contacted [the former property owners], and offered to pay to remove the tree. Instead [the former owners] trimmed the tree. When Kahn learned that the Prices purchased the property, she contacted them in writing and in person—the procedures the Ordinance mandates as prerequisites to initiating a civil action. [Ord., section] 823. The Prices’ responses to Kahn’s requests justified her reasonable belief that, as neighbors, they could resolve the issue amicably and informally. The Prices, who were living in Hong Kong, and only visiting the … property occasionally, assured her that they would consult with their landscape architects. In late 2016 when it appeared informal resolution was unlikely, Kahn acted expeditiously, serving a tree claim in early 2017 and then engaging in mediation. When the mediation failed in late 2017, and the Prices declined arbitration, Kahn filed this case in early 2018. Kahn did not delay; she proceeded precisely as required by the Ordinance. There is no evidence that Kahn `acquiesced’ in the view obstruction. To the contrary, the Prices complain that she was insistent, persistent, and even aggressive in her efforts to remove the view obstruction. Nor is there evidence that the time from the Prices’ ownership to trial was due to delay caused by Kahn or that it prejudiced the Prices. To the contrary, it is Kahn who has been affected as her view has been obstructed as these proceedings are prolonged.”
B. Analysis
1. Statute of Limitations
We undertake an independent examination when reviewing whether a lawsuit is time-barred by any applicable statute of limitations. (William L. 236*236 Lyon & Associates, Inc. v. Superior Court (2012) 204 Cal.App.4th 1294, 1304 [139 Cal.Rptr.3d 670].) Moreover, “[i]f the decision of [the trial] court is correct on any theory of law applicable to the case, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the … court reached its conclusion.” (Estate of Beard (1999) 71 Cal.App.4th 753, 776 [84 Cal.Rptr.2d 276], original italics.) Having made our de novo review, we conclude the action was timely filed albeit for a reason different from those given by the trial court.[12]
While the Prices recognize the Ordinance does not provide for a statute of limitations, they contend the lawsuit is nonetheless time-barred by various statute of limitations provided for in the Code of Civil Procedure. However, we need not address these arguments as this lawsuit “meets the crucial test” for an action to abate a continuing nuisance for which any statute of limitations is inapplicable. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1197-1198 [151 Cal.Rptr.3d 827, 292 P.3d 871] (Aryeh).)[13] The Prices’ arguments challenging the application of the continuous nuisance doctrine are unavailing.
We initially reject the Prices’ argument that the continuous nuisance doctrine does not apply because “courts have generally declined to apply continuous accrual” rules to statutory causes of action. The Ordinance does not contain a statute of limitations and is otherwise silent as to an accrual date for a lawsuit after prelitigation procedures fail. In the analogous context of statutes, such silence “triggers a presumption in favor of permitting settled common law accrual rules to apply. `As a general rule, “[u]nless expressly provided, statutes should not be interpreted to alter the common law, and should be construed to avoid conflict with common law rules. [Citation.] `A statute will be construed in light of common law decisions, unless its language “`clearly and unequivocally discloses an intention to depart from, alter, or abrogate the common-law rule concerning the particular subject matter….’ [Citations.]” [Citation.]'”‘ [Citation.]” (Aryeh, supra, 55 Cal.4th at p. 1193; see Carson Harbor Village, Ltd. v. City of Carson Mobilehome Park Rental Review Bd. (1999) 70 Cal.App.4th 281, 290 [82 Cal.Rptr.2d 569] 237*237 [“[w]e interpret ordinances by the same rules applicable to statutes”].) We thus may assume, in the absence of any specific provision in the Ordinance, that San Francisco intended the application of “the usual judicial rules governing accrual” to apply to a lawsuit filed under the Ordinance. (Aryeh, supra, at p. 1193.) In other words, the Ordinance is governed by common law accrual rules to the same extent as a statute. (Aryeh, at p. 1196.)
We also reject the Prices’ arguments that the continuous nuisance doctrine cannot apply because they did not create a nuisance by having a tree on their property, California law does not impose nuisance liability for simple tree view obstruction, and the complaint does not allege a cause of action for nuisance. It is true that under California law a landowner has no common law right to an unobstructed view over adjoining property and therefore nuisance liability does not lie for a view obstruction as a matter of common law. (Eisen v. Tavangarian (2019) 36 Cal.App.5th 626, 635 [248 Cal.Rptr.3d 744].) However, at issue is a property owner’s legal right to pursue a private action under the Ordinance, which was enacted under San Francisco’s police power to resolve tree view obstruction disputes between adjoining landowners. (See Kucera v. Lizza (1997) 59 Cal.App.4th 1141, 1148-1149 [69 Cal.Rptr.2d 582] [Town of Tiburon View and Sunlight Obstruction from Trees Ordinance upheld as a proper exercise of police power; “`[l]ocal government may … protect views….'” “through the regulation of tree planting or growth”].)
The Ordinance specifically allows a complaining property owner to seek an abatement (“restoration”) of a tree view “obstruction,” which falls within Civil Code section 3479’s broad definition of a “nuisance,” i.e., “an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.”[14] We do not look at the label of the cause of 238*238 action (violation of the Ordinance) or the failure to mention nuisance in the complaint, “but to the nature of the obligation allegedly breached.” (Aryeh, supra, 55 Cal.4th at p. 1200.) Here, a tree owner’s obligation under the Ordinance is based on a “nuisance theory” for “direct injury to [the complaining party’s] property,” i.e., view obstruction caused by a growing tree on adjoining property. (Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1136 [281 Cal.Rptr. 827] (Mangini).)
We also reject the Prices’ contention that the continuous nuisance doctrine does not apply because the tree view obstruction was not a “continuing” nuisance, but rather “permanent” in nature. “Where a nuisance is of such character that it will presumably continue indefinitely it is considered permanent, and the limitations period runs from the time the nuisance is created. [Citations.] On the other hand, if the nuisance may be discontinued at any time it is considered continuing in character. [Citations.]” (Phillips v. City of Pasadena (1945) 27 Cal.2d 104, 107 [162 P.2d 625] (Phillips); see id. at p. 108 [where it appeared from complaint’s allegations that locked gate could be removed at any time, the appellate court could not say, as a matter of law, that the locked gate constituted permanent nuisance; “[i]f the nuisance was in fact continuing in character, the claim was filed within time”].)
We have no difficulty in concluding that in this case the tree view obstruction constituted a continuous nuisance—”an encroachment which [is] not willful but unintentional, and which is abatable,” as the law presumes such an encroachment will not be permanently maintained. (Kafka v. Bozio (1923) 191 Cal. 746, 751 [218 P. 753]; see Madani v. Rabinowitz (2020) 45 Cal.App.5th 602, 608-609 [258 Cal.Rptr.3d 939] [“the `”crucial test of the permanency of a … nuisance is whether the … nuisance can be discontinued or abated”‘”; “[u]nder this test, sometimes referred to as the `abatability test’ [citation], a … nuisance is continuing if it `can be remedied at a reasonable cost by reasonable means'”].) As the trial court found, even though the former owners had pruned the tree, the tree continually grew and by 2011 had substantially obstructed Kahn’s views. The court specifically took note of the testimony of Kahn’s arborist, as well as other percipient witnesses, that even after the latest pruning in February 2019 there was no change in the obstructed views from the first level of Kahn’s residence; and as explained by the arborist, “`from the first level, [the pruning] opened up sky, none of the distant views.'”
Nor do we see any merit to the Prices’ related assertion that the lawsuit is barred because the “wrongdoing, causation and injury arising from view obstruction were complete no later than 2011.” “That is because the 239*239 `continuing’ nature of the nuisance refers to the continuing damage caused by the offensive condition, not to the acts causing the offensive condition to occur.” (Mangini, supra, 230 Cal.App.3d at p. 1147.) “Every repetition of a continuous nuisance is a separate wrong for which the person injured may bring successive actions … until the nuisance is abated, even though an action based on the original wrong may be barred.” (Phillips, supra, 27 Cal.2d at pp. 107-108; see also Civ. Code, § 3483 [“[e]very successive owner of property who neglects to abate a continuing nuisance upon, or in the use of, such property, created by the former owner, is liable therefor in the same manner as the one who first created it”].)
Lastly, we are not persuaded by the Prices’ argument that the application of the continuous nuisance doctrine will lead to inequitable results. Because the Ordinance is not “meant to replace the peaceful, sensible, and just resolution of differences between neighbors acting in good faith” (Ord., § 821, subd. (c)), its apportionment of costs appears to provide sufficient motivation for reasonable adjoining property owners to resolve their disputes without litigation. If a delay in bringing an action to restore obstructed views unreasonably impacts the rights of the tree owner, as the Prices contend, the court can handle that circumstance under the equitable doctrine of laches.[15] As we have noted, the trial court rejected the Prices’ request to dismiss the lawsuit based on laches, and they have not challenged that ruling on this appeal.
In sum, we conclude Kahn’s lawsuit was timely filed as the continuous nuisance doctrine rendered any statute of limitations inapplicable. In light of our determination, we do not address the parties’ other contentions.
240*240 2. Ordinance’s Prelitigation Procedures
In order to pursue either binding arbitration or a court action, a complaining party must prepare a written “tree claim,” and serve the tree claim on the tree owner. (Ord., § 823, subd. (c).) Ordinance section 822, subdivision (j) defines a “tree claim” as follows: “`Tree claim’ shall mean the written basis for arbitration or court action under the provisions of this Article which includes the following: (1) The nature and extent of the alleged obstruction, including pertinent and corroborating physical evidence. Evidence may include, but is not limited to, photographic prints, negatives, or slides. Such evidence must show absence of the obstruction at any documentable time during the tenure of the complaining party. Evidence to show the date of acquisition must be included. (2) The location of all trees alleged to cause the obstruction, the address of the property upon which the trees are located, and the present tree owner’s name and address. (3) Any mitigating actions proposed by the parties involved to resolve the tree claim. (4) The failure of personal communication between the complaining party and the tree owner to resolve the alleged obstruction as set forth in Section 823(a) of this Article. The complaining party must provide physical evidence that written attempts at reconciliation have been made and failed. Evidence may include, but is not limited to, copies of and receipts for certified or registered mail correspondence.”
The Prices contend dismissal of the lawsuit is required because Kahn’s prelitigation tree claim failed to include (1) “pertinent and corroborating physical evidence” in the nature of visual images showing an absence of an obstructed view from the main level of her residence before the growth of the tree, (2) “[e]vidence to show the date of acquisition” of the property by the property owner, and (3) “physical evidence that written attempts at reconciliation have been made and failed.” The latter two categories of evidence were satisfied by the trial court’s admission of grant deeds showing Kahn had acquired the property in 1976 and continued to own the property and written correspondence showing “attempts at reconciliation have been made and failed.”
As to the argument that the Ordinance requires a prelitigation tree claim to include corroborating physical evidence in the form of visual images showing no obstruction before the growth of the tree, nowhere does the Ordinance provide that the court is without jurisdiction to adjudicate a tree claim and must dismiss the action if the prelitigation tree claim fails to include such evidence. While the Ordinance requires the parties participate in prelitigation procedures before pursuing either binding arbitration or litigation, and a tree owner would be entitled to a stay of the action to compel compliance if a complaining party had not complied with the prelitigation procedures (see 241*241 McMillin Albany LLC v. Superior Court (2018) 4 Cal.5th 241, 255-256, 259 [227 Cal.Rptr.3d 191, 408 P.3d 797]), that does not mean that the trial court must dismiss a tree action if the prelitigation tree claim fails to include physical evidence of the absence of the obstruction before the growth of the tree.
Simply put, the Ordinance does not contain a clear intent “to limit the fundamental jurisdiction of the courts” to adjudicate only in those cases where the complaining party’s prelitigation tree claim includes pertinent and corroborating evidence of the absence of an obstruction before the growth of the tree. (Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 808 [249 Cal.Rptr.3d 548, 444 P.3d 688], italics added.) If there were an intent to “withdraw a class of cases from state court jurisdiction, we expect” [the Ordinance would] make that intention clear. (Ibid.) Instead, the Ordinance “makes no reference to the jurisdiction of the courts, nor does it otherwise speak to the courts’ power to decide a particular category of cases.” (Quigley, at p. 808.) Thus, we reject the Prices’ argument that the trial court was required to dismiss the action for Kahn’s failure to attach to her prelitigation tree claim visual images of the absence of the obstruction from the main level of her residence before the growth of the tree.
In the alternative, the Prices argue that dismissal is still required because Kahn did not “fill the physical evidence gap” at trial as she presented only testimonial evidence regarding there being an unobstructed view before the growth of the tree. We see no merit to this argument. At trial, the court must determine both “[t]he existence of landmarks, vistas, or other unique features which cannot be seen because of growth of trees since the acquisition of the property” (Ord., § 824, subd. (a)(4)), and the degree to which the “alleged obstruction interferes with [the] view … by means of a measuring instrument or photography” (id., § 824, subd. (a)(5)); and, further, “[t]he extent of … view available and documentable as present at any time during the tenure of the complaining party is the limit of restorative action which may be required” (id., § 824 (c)(6)). However, these provisions do not impose a specific evidentiary requirement on the complaining party to produce visual images of the absence of obstruction before the growth of the tree, as the Prices suggest.
Moreover, even assuming the need for photographic evidence, the trial court’s findings based on the above enumerated criteria—that Kahn had enjoyed unobstructed views from the main level of her home before the growth of the tree—is supported by both Kahn’s testimonial evidence and her arborist’s testimony regarding the absence of the obstruction before the growth of the tree based on an evaluation of the available historic photographs taken from the second level of the residence and the current partial 242*242 view obstructions from the main level of the residence. (See fn. 8, ante.) The trial court, as the trier of fact, could properly combine the arborist’s testimony with its own onsite observations and the testimonial evidence of Kahn and her witnesses regarding the absence of the obstruction before the growth of the tree, “`thus weaving a cloth of truth out of selected available material.'” (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67-68 [107 Cal.Rptr. 45, 507 P.2d 653].)
In sum, we conclude the trial court was not required to dismiss the action predicated on Kahn’s failure to include in her prelitigation tree claim visual images of unobstructed views from the main level of her residence before the growth of the tree. Given this conclusion, we need not address the Prices’ additional evidentiary arguments.
II., III.[*]
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DISPOSITION
Case No. A159536. The appeal from the judgment, filed December 2, 2019, is dismissed.
Case No. A160057. The appeals from the orders, filed February 25, 2020, and February 26, 2020, are dismissed. The amended judgment, filed February 26, 2020, is affirmed.
Plaintiff and respondent Linda Kahn is awarded costs on appeals in case No. A159536 and case No. A160057.
Fujisaki, Acting P. J., and Chou, J.,[†] concurred.
[*] Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of the following portions of the Discussion: part II. (Trial Court’s Order Directing Tree Removal) and part III. (Trial Court’s Imposition of Section 128.5 Sanctions).
[1] On December 1, 2020, we granted the Prices’ request to take judicial notice of the Ordinance. San Francisco Tree Dispute Resolution Ordinance sections are hereafter referred to as “Ordinance section….”
[2] All undesignated statutory references are to the Code of Civil Procedure.
[3] The Prices filed a notice of appeal from a judgment filed December 2, 2019 (case No. A159536) and an amended notice of appeal from an amended judgment filed February 26, 2020, as well as separate February 25, 2020 orders awarding costs, attorney and expert fees, and sanctions in favor of Kahn (incorporated in the amended judgment), and a separate February 26, 2020 order denying their motion for sanctions against Kahn and her trial counsel (case No. A160057). William S. Weisberg and the firm of Weisberg & Miller are named as additional appellants in the amended notice of appeal filed in case No. A160057. On the court’s own motion, we consolidated the appeals in case No. A159536 and case No. A160057 for purposes of oral argument and disposition.
The appeal from the February 26, 2020 order denying the Prices’ motion for sanctions against Kahn and her trial counsel is dismissed as no appeal lies from that order. (Wells Properties v. Popkin (1992) 9 Cal.App.4th 1053, 1055 [11 Cal.Rptr.2d 845] [“denial of a motion for sanctions is not a judgment and is therefore not appealable” (original italics)].) The appeals from the December 2, 2019 judgment and the February 25, 2020 orders awarding costs, attorney and expert fees, and sanctions in favor of Kahn, are dismissed as superseded by the appeal from the February 26, 2020 amended judgment. The issues raised on the dismissed appeals from the December 2, 2019 judgment and the February 25, 2020 orders are considered on the appeal from the February 26, 2020 amended judgment. (§ 906.)
[4] Kahn originally purchased the residence together with her late husband Paul Kahn in 1976. At the time of this litigation the residence was owned by Kahn, individually and as trustee of the Survivor’s Trust under the Paul and Linda Kahn Trust, dated November 7, 1995.
[5] Ordinance section 823 requires the parties to participate in prelitigation procedures of “initial reconciliation” (written and if possible, in person notice of dispute) and “Community Board” mediation. (Id., subds. (a), (b).) If the initial reconciliation fails and Community Board mediation is not elected or fails, “the complaining party must prepare a tree claim as defined in Section 822 (j), and provide a copy to the tree owner in order to pursue either binding arbitration or litigation. This process constitutes the filing of a tree claim.” (Id., subd. (c).) “In those cases where initial reconciliation fails and binding arbitration is not elected, civil action may be pursued by the complaining party for resolution of the sunlight access or view tree claim under the provisions of the Ordinance. The litigant must state in the complaint that arbitration was offered and not accepted.” (Id., subd. (d).)
[6] The tree claim consisted of Kahn’s trial counsel’s letter entitled “Tree Claim by the Owner [At Specified Address].” In the body of the letter counsel explained the nature of the dispute as known and understood by Kahn. Kahn’s counsel attached to her letter a copy of the Ordinance and a copy of a January 22, 2017 five-page report prepared by Kahn’s expert arborist who testified at trial.
[7] After the onsite inspection counsel put on the record that during the site inspection the participants viewed the Prices’ property from the three “levels” at the back of the house and the “outdoors,” and viewed Kahn’s property from the three levels of the house and the backyard. The court specifically remarked that the “photographs” did not really “portray the circumstances given the difference in altitude between [the homes] and the relationship of the trees to the houses and the topography.”
[8] In 2017 the tree had an overall height of approximately 25 feet, but by the time of the June 2019 trial the tree was approaching approximately 30 to 32 feet in overall height and was approximately 10 to 12 feet above the lattice fence that sat atop the retaining wall separating the properties. Kahn’s arborist testified that other counties had ordinances that classified the Monterey pine tree as “undesirable,” because it was a fast growing, large stature tree, growing over three feet per year and reaching heights of 35 to 40 feet. At trial, Kahn’s arborist described the tree’s “current condition[ ]” as follows: When you were standing on the main level of Kahn’s residence, “you have at least 3 … to 5 feet above the fence before you start to have an obstruction of the Bay and distant hills” from the main level of Kahn’s residence. Based on photographs of the tree taken from the second level of Kahn’s residence in February 2019, “the current views of the pine in that location, you can juxtaposition yourself below to show that,” at least in the 1970s, there was no view obstruction on the main level of Kahn’s residence.
[9] Ordinance section 825, entitled “APPORTIONMENT OF COSTS,” “[a]dded by Ord. 445-88, App. 9/28/88,” provides in pertinent part: “(b) Costs of Litigation. The complaining party shall pay 100 percent of both parties’ reasonable attorneys’ fees in the event that his or her claim is finally denied, or no action is ordered pursuant to Section 824(c). In all other cases the complaining party and the tree owner shall each pay his or her attorney’s fees. Court costs shall be allocated to the parties at the court’s discretion. (c) Costs of Restorative Actions. At any time during the procedure specified in this ordinance the parties may agree between themselves as to the allocation of the costs of the restorative action. If such an agreement is not reached, the following shall apply: (1) As to trees planted prior to the effective date of this ordinance the complaining party shall pay 100 percent of the costs of the initial restorative action. The complaining party shall pay the cost of subsequent restorative action as a result of the recurrence of the same obstruction. (2) As to trees planted subsequent to the effective date of this chapter [sic] the tree owner and the complaining party shall each be responsible for 50 percent of the costs of restorative action and subsequent recurrence of the same obstruction.” (Original boldface.)
[10] While the Prices seek reversal of the amended judgment in its entirety, they do not specifically challenge the directive that the parties are to share the costs of tree removal. Nor do the Prices present any substantive arguments challenging the award of costs, attorney fees, and expert fees payable to Kahn.
[11] Section 631.8, provides in pertinent part, that “[a]fter a party has completed his presentation of evidence in a trial by the court, the other party, without waiving his right to offer evidence in support of his defense or in rebuttal in the event the motion is not granted, may move for a judgment.” (Id., subd. (a).)
[12] Accordingly, we do not separately address the Prices’ contention that the trial court made two “prejudicial errors of law” when it ruled that no statute of limitations applied because the Ordinance did not mention a limitations period, and Kahn filed this case timely because her delay in filing was due to her need to satisfy the Ordinance’s prelitigation procedures.
[13] We reject the Prices’ argument that Kahn “forfeited any right to rely” on the continuous nuisance doctrine by failing to properly raise the issue in the trial court. As we have noted, during the course of litigating the pretrial motion for bifurcation, Kahn’s opposition included a discussion that the continuous nuisance doctrine rendered any statute of limitations inapplicable. When the Prices later renewed their statute of limitations argument in support of their section 631.8 motion, Kahn chose not to submit additional written opposition, but her counsel argued, among other things, that any statute of limitations was rendered inapplicable by the continuous nuisance doctrine.
[14] The Civil Code also distinguishes between a public and private nuisance. A public nuisance is defined as “one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” (Civ. Code, § 3480.) A private nuisance is defined as “[e]very nuisance not included in the definition of the last section.” (Id., § 3481.) The statutory definitions incorporate “the fundamental principle that a private nuisance is a civil wrong based on disturbance of rights in land while a public nuisance is not dependent upon a disturbance of rights in land but upon an interference with the rights of the community at large.” (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 124 [99 Cal.Rptr. 350] (Venuto).) While a public nuisance may be abated by any public body or officer authorized thereto by law, a private person may maintain an action for a public nuisance, if it is specifically injurious to himself, but not otherwise. (Civ. Code, §§ 3493, 3494.) If the nuisance may be considered both “private as well as a public one,” “there is no requirement that the plaintiff suffer damage different in kind from that suffered by the general public and he `does not lose his rights as a landowner merely because others suffer damage of the same kind, or even of the same degreen….'” (Venuto, supra, at p. 124.) Here, the Ordinance is silent as to whether the tree view obstruction is to be considered either a public or private nuisance. Because this appeal does not require us to decide whether a lawsuit under the Ordinance is one in the nature of a public or private nuisance, we do not further address the issue.
[15] As the record shows, the parties and the trial court proceeded on the basis that a lawsuit filed under the Ordinance could be defended against by laches. In the absence of any arguments to the contrary in the appellate briefs, we proceed on the same assumption. In any event, we note in passing that if the lawsuit were considered a claim to abate a private nuisance (see Venuto, supra, 22 Cal.App.3d at p. 124 [“`[t]he essence of a private nuisance is an interference with the use and enjoyment of land'”]), it can be defended against by laches (see Felsenthal v. Warring (1919) 40 Cal.App. 119, 129 [180 P. 67]). If the lawsuit were considered a claim to abate a public nuisance, concededly, as a general rule, it could not be defended against by either laches or the statute of limitations. (See City of Turlock v. Bristow (1930) 103 Cal.App. 750, 756 [284 P. 962]; Civ. Code, § 3490 [“[n]o lapse of time can legalize a public nuisance, amounting to an actual obstruction of public right”].) Albeit, under certain particular circumstances it has been held that laches may prohibit a public nuisance abatement cause of action where, after a “weighing process,” the court has determined that the “injustice to be avoided was sufficient to counterbalance the effect of the defense upon a public interest.” (City and County of San Francisco v. Pacello (1978) 85 Cal.App.3d 637, 646 [149 Cal.Rptr. 705] [appellate court concluded that under the particular circumstances therein the city and county’s action to abate an alleged public nuisance was barred by laches].)
[*] See footnote, ante, page 223.
[†] Judge of the San Mateo Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.