Kahn v. Price ( 2021 )

Filed 9/22/21
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
LINDA KAHN,
Plaintiff and Respondent, A159536
v.
KATHERINE PRICE et al., (City and County of San Francisco
Super. Ct. No. CGC18564579)
Defendants and
Appellants.
LINDA KAHN,
A160057
Plaintiff and Respondent,
v. (City and County of San Francisco
Super. Ct. No. CGC18564579)
KATHERINE PRICE et al.,
Defendants and
Appellants;
WILLIAM S. WEISBERG et
al.,
* 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: Section II (Trial Court’s Order
Directing Tree Removal) and Section III (Trial Court’s Imposition of
Section 128.5 Sanctions).
1
Objectors and Appellants.
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 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
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
removal. The court also granted Kahn’s request for Code of Civil
Procedure2 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
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 [“denial of motion for sanctions is not a
judgment and is therefore not appealable”; italics in original].) 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
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 multi-story residence in San Francisco in
1976.4 At the time, the residence had unobstructed views from the
primary living areas 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 multi-story residence on property that is down
slope 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
February 25, 2020 orders are considered on the appeal from the
February 26, 2020 amended judgment. (Code Civ. Proc., § 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.
4
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 procedures5 by
serving the Prices with a tree claim in early 20176 and the parties
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., subd. (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.
5
engaged in private mediation (in lieu 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 on-site 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
7 After the on-site 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.”
6
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 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
7
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
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
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 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
the 1970s, there was no view obstruction on the main level of Kahn’s
residence.
9
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 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
10
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.
11
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.
The court also explained its decisions regarding the
apportionment of costs between the parties. (Ord., § 825.9) As to costs
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
12
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
percent of the costs of restorative action and subsequent recurrence of
the same obstruction.” (Bolded language in original.)
13
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
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
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.
14
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 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.”
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).)
15
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
16
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. Lyon & Associates, Inc. v. Superior Court
(2012) 204 Cal.App.4th 1294, 1304.) 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; italics in original.) 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.
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.
17
Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1197-1198
(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 [“[w]e interpret ordinances by the same rules applicable to
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.
18
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. (Id. 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.) 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 [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
19
the comfortable enjoyment of life or property.”14 We do not look at the
label of the cause of 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 (Mangini).)
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 an interference 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
(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 degree.’ ” (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.
20
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. [Citation.] 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 (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; see Madani v.
Rabinowitz (2020) 45 Cal.App.5th 602, 608-609 [“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
21
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 ‘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
22
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.
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
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). 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; 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 [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].)
23
section 822, subdivision (j) (§ 822(j)) defines a “tree claim” as follows: A
“ ‘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
24
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 McMillin Albany LLC v. Superior Court (2018) 4 Cal.5th 241, 255-
256, 259), 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 (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
25
of the courts, nor does it otherwise speak to the courts’ power to decide
a particular category of cases.” (Id. at pp. 808-809.) 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
26
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 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 on-site
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.)
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. Trial Court’s Order Directing Tree Removal
Ordinance section 824, subdivision (c), describes the restorative
action that may be ordered by a court: “(1) Restorative actions may
include written directions as to appropriate timing of trimming,
thinning, topping, or removal. Such restorative actions are to apply
only to current parties to the agreement. . . .[¶] Possible restorative
actions may include (i) no action, (ii) trimming, (iii) thinning, (iv)
delayed trimming or thinning, (v) topping, or (vi) removal with possible
replacement plantings. [¶] (2) Restorative actions shall be limited to
the trimming and/or thinning of branches where possible and practical.
Trimming or thinning may be on a delayed basis, providing time for the
top of the tree to grow above the point where it obstructs sunlight or
view. [¶] (3) When trimming and/or thinning of branches is not a
27
feasible solution, the impact on the health of the tree shall be
considered before topping is required. [¶] . . . [¶] (6) The 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. [¶] . . . [¶] (8) A tree which has been the subject of
restorative action under the terms of this ordinance is exempted from
other property owners’ claims for a period of five years from the date of
the filing of a tree claim.”
In its statement of decision, the trial court explained how the
tree’s removal was the only reasonable solution given that the following
options were not feasible: (1) leaving the tree in the Prices’ exclusive
control for them to have trimmed as they deemed appropriate would
not work as the evidence demonstrated their hostility and indifference;
(2) allowing the Prices to prune the tree to its February 2019 height
would in no way restore the previously unobstructed views; and (3)
allowing the tree’s height to be “gradually reduced . . . to the level of
the [top of the] Prices’ home” could destroy the tree according to both
arborists. In addition, to maximize the chances of the tree’s survival,
the reduction of the tree could not be done at one time but could take
“as long as eight years – depending on the tree’s response – before it
could be reduced to the desired height and breadth,” and the parties’
“fractious history” would make it unlikely they would agree to “the
desired height for each pruning cycle.” Also, a progressive reduction of
the tree’s height would result in its growth being “redirected laterally,”
and “[w]hile the vertical obstruction would remain in place for as long
as eight years, during that same time the lateral obstruction would
actually increase, further diminishing Kahn’s views.” Nor would
28
progressive pruning “achieve either side’s objectives. It would take
years to restore any semblance of the Kahn home’s historic views. And
were that objective achieved, the Prices would lose what they claim to
value about the tree: both its current aesthetic appearance and the
partial screening of the upper floors of the Kahn home.” The court also
considered the potential impact on neighboring properties as “[a]mong
the Ordinance’s purposes is the promotion of ‘the aesthetic and
practical benefits’ provided by trees to ‘the entire community’ ” and a
grant of restorative action would “limit other neighbors’ ability to seek
restorative action . . . ‘for a period of five years.’ ”
The court concluded that “[t]rimming the tree to the height of the
[top of the] Prices’ home pose[d] insurmountable hurdles. To avoid
cutting the tree so drastically as to threaten its survival, according to
the experts, the pruning would have to occur over many years. And
even that may contribute to the death of the tree. These parties who
have been unable to communicate, much less agree, would be forced
into decision-making at least annually. The [neighbors] would be
precluded from seeking relief if the topping of the tree results in lateral
growth that is more intrusive on their views. And if this method
succeeds, while the views may ultimately be restored, the tree would be
unrecognizable as a Monterey pine.”
Thus, the court found that the only option to “best achieve[] the
Ordinance’s objectives” was the tree’s removal. While noting the
Ordinance’s purpose was “ ‘[t]o discourage ill-considered harm to, or
destruction of, trees . . . .,’ ” the court found removal would promote “
‘the aesthetic and practical benefits which trees provide for individuals
and the entire community,” in that the tree had “limited aesthetic
29
value, which would be diminished by the trimming necessary to restore
even a portion of the historic views,” the tree did not benefit the “
‘entire community,’ ” and to the extent it benefited the Prices it did so
by unreasonably burdening Kahn and a neighbor.
The court also found the tree’s removal was appropriate “because
it will provide finality to the parties. The alternative – trimming and
topping – would have assured constant strife, with untold expense to
the parties. The Ordinance is not intended ‘to replace the peaceful,
sensible, and just resolution of differences between neighbors acting in
good faith.’ . . . But where, as here, seven years have been consumed by
discord between the parties, judicial intervention is required. Removal
of the tree will end this dispute. [¶] [The court] considered whether to
order replacement plantings as part of the ‘restorative action.’ Because
the plantings would benefit the Prices, and presumably not be visible to
Kahn, [the court left the] decision to the Prices, as the parties have
demonstrated an inability to confer, much less to agree, on anything
horticultural.”
Despite the Prices’ attempt to couch their argument in terms of
legal error, we review the court’s decision for an abuse of discretion. “It
is the general rule in this state that while the right to injunctive relief
under proper circumstances is well established, its issuance is largely
discretionary with the court and depends upon a consideration of all
the equities between the parties. No hard and fast rule can be adopted
which will fit all cases and hence each must be determined upon its
own peculiar facts.” (Pahl v. Ribero (1961) 193 Cal.App.2d 154, 161.)
“The discretion was the trial judge’s, not ours; and we can only
interfere if we find that under all the evidence, viewed most favorably
30
in support of the trial court’s action, no judge could reasonable have
made the order that he did.” (Newbauer v. Newbauer (1949) 95
Cal.App.2d 36, 40.)
A statement of decision “need do no more than state the grounds
upon which the judgment rests, without necessarily specifying the
particular evidence considered by the trial court in reaching its
decision. [Citations.] ‘[A] trial court rendering a statement of decision
under . . . [Code of Civil Procedure] section 632 is required to state only
ultimate rather than evidentiary facts because findings of ultimate
facts necessarily include findings on all intermediate evidentiary facts
necessary to sustain them.’ ” (Muzquiz v. City of Emeryville (2000) 79
Cal.App.4th 1106, 1125.) Further, while the expert arborists’
testimony could not be arbitrarily or unreasonably disregarded, the
court was free to draw inferences and conclusions at odds with that
testimony. (See Ortzman v. Van Der Waal (1952) 114 Cal.App.2d 167,
170-172 [“expert testimony,” even if uncontradicted, does not “exclude
consideration of other facts which are pertinent to the issue involved”].)
Hence, the Prices’ assertion that the trial court had to expressly reject
or make credibility findings as to the testimony of the expert arborists
is without basis.
We also see no merit to the Prices’ arguments that tree removal
was barred because “[a] tree must be given a feasible chance to survive
if its owners so desire – and they do so desire in this case,” and the
Ordinance “decrees delayed pruning of trees over time to fulfill the
interests of both property owners and their neighbors seeking view
restoration.” The Ordinance’s primary purpose is to create a
mechanism to adjudicate the rights of any property owner “who wishes
31
to alter or remove a tree on the property of another which creates an
obstruction to his or her access to sunlight or view.” (Id., §§ 821, subd.
(a)(1); 822, subd. (b).) Kahn’s views from the main level of her
residence remained continuously obstructed even after the trimming
and thinning of the tree on a “delayed basis” (i.e. periodic pruning) done
by the Prices. Thus it was clear that such periodic pruning would not
be a feasible solution as it would never restore the obstructed views.
Also, we see no merit to the Prices’ complaints that the trial court
improperly considered the testimony of an immediate neighbor who
testified at trial. The Ordinance does not preclude the court’s
consideration of an immediate neighbor’s interest and, indeed, the
provisions concerning “[c]ommunity [b]oard [m]ediation” specifically
state that the “[p]arties should be encouraged to give notice to
immediate neighbors and solicit input.” (Ord., § 832, subd. (b).) Of
course, the bar on another claim for restorative action regarding the
same tree for a period of five years made it especially important to
consider any particular restorative action as it might affect an
immediate neighbor.
In sum, the Prices have simply presented “ ‘a state of facts, a
consideration of which, for the purpose of judicial action, merely affords
an opportunity for a difference of opinion. An appellate tribunal is
neither authorized nor warranted in substituting its judgment for the
judgment of the trial judge.’ ” (Estate of Gilkison (1998) 65 Cal.App.4th
1443, 1449.) The Prices’ “elaborate factual presentation is but an
attempt to reargue on appeal those factual issues decided adversely to
[them] at the trial level, contrary to established precepts of appellate
review. As such, it is doomed to fail.” (Hasson v. Ford Motor Co. (1982)
32
32 Cal.3d 388, 398-399 (Hasson).) Because we find no abuse of
discretion in this case, we must uphold the court’s decision to remove
the tree.
III. Trial Court’s Imposition of Section 128.5 Sanctions
A. Relevant Facts
1. Background
After the parties completed their trial presentations, the court
verbally provided a tentative decision from the bench largely in favor of
Kahn on the substantive issues, but leaving open the question of the
appropriate remedy. At that point, the parties agreed to mediation
with another judge. The parties engaged in judicial mediation on July
11 and agreed to reconvene September 13 to report their progress to
the trial court.
In the interim, the Prices, by their trial counsel William S.
Weisberg (Weisberg) of Weisberg & Miller (hereafter also collectively
referred to as appellants), filed a motion to dismiss or for judgment on
the pleadings regarding Kahn’s lack of standing to pursue her lawsuit
(standing motion) because her San Francisco residence was not her
“primary residence.” The motion’s factual predicate was Kahn’s
recorded 2008 Florida declaration of domicile in which she declared
that, as of January 2008, her domicile and legal residence was in
Florida. It was also asserted that she had a bank loan, secured by a
deed of trust, which required her San Francisco residence to be her
“primary residence.” Because Kahn could only have one “primary
residence,” the Prices opined that once the Bank learned about Kahn’s
Florida declaration it would foreclose on the San Francisco residence,
making the Bank the owner and the only one with standing to assert a
33
tree claim under the Ordinance. The Prices’ memorandum of points
and authority included a footnote that Weisberg had served a copy of
the standing motion on the Bank because it had “an interest in . . .
knowing what misrepresentations were made by [Kahn],” and for the
Bank’s “possible action relating to the factual basis put forth in this
[m]otion.”
Kahn opposed the standing motion, taking particular note of the
fact that Weisberg had served the standing motion papers on the Bank,
a stranger to this litigation in order to interfere with Kahn’s personal
and financial affairs. Kahn also filed a declaration explaining that she
had received a line of credit with the Bank in 2010 secured by a deed of
trust. She asserted that in an annual certification that the San
Francisco residence was her primary residence, she truthfully certified
she “ ‘[c]urrently’ ” lived in the property, she had not been “ ‘absent
from the property due to mental and/or physical illness for more than
twelve (12) months,’ ” and she had not “ ‘sold the property or conveyed
title to the property.’ ” Kahn further advised the court and the Prices
that the mediation would not proceed and she would prepare and serve
a “ ‘safe harbor’ ” motion for sanctions under sections 125.8 and 125.7
for the filing of a frivolous standing motion.
At the October 7 hearing on the standing motion, counsel for the
Bank appeared via Court Call. Before the hearing, counsel sent an
email to the court stating that the Bank “is the investor on a reverse
mortgage loan on the property of [Kahn]. Counsel for [the Prices] has
contacted us and asked we attend as there are some issues re: how [the
bank might] respond to certain arguments [the Prices] may be
advancing as to the standing of the borrower, specifically the
34
implications of taxation and residency.” Kahn’s counsel advised the
court she had no prior knowledge that Weisberg had actually contacted
the Bank or its counsel.
The trial court denied the standing motion. After taking judicial
notice of the Bank’s deed of trust and Kahn’s Florida declaration of
domicile, the court rejected any contention that those documents would
permit a finding, as a matter of law, that Kahn did not have standing
to sue because the San Francisco property was not her primary
residence. More significantly and dispositive, the court found that “the
sole prerequisite for a complaining party to bring suit under the
Ordinance” was status as the property owner, and, at the time of filing
the complaint and at the time of trial “Kahn was, and currently is, the
property owner with standing.”
The court further noted the Prices did not dispute that Kahn’s
“recorded grant deed – admitted into evidence – identified [her] as the
owner of the [San Francisco] property. They . . . rely on a provision of
[the Bank’s] deed of trust which they contend is in default because
Kahn’s domicile is Florida and therefore the [San Francisco] property is
not her principal residence as required by the deed of trust. The Prices
proceed from the alleged deed of trust default to the proposition that
the lien holder, [the Bank], is the property owner and therefore the only
party with standing to assert claims under the Ordinance.” However,
the court found the Prices had not offered any legal authority for their
“novel legal theory that a lien holder with a potential, but unasserted,
default claim is the property owner.”
Kahn then filed a motion for sanctions under sections 128.5 and
128.7 based on the filing of the standing motion itself and appellants’
35
serving the Bank in order to “harm . . . Kahn’s relationship with her
lender and interfere with her finances. If there was any doubt about
that, [the Prices] strongly signaled in their motion that they hoped [the
Bank] would foreclose on . . . Kahn as a result of [the Prices’ standing
motion]. . . . [S]uch actions would arguably be tortious in another
context, but by using the process of the Court as the vehicle for their . .
. interference, [the Prices] have cloaked their conduct in the litigation
privilege. That gambit may save them from a claim for damages, but it
shall not save them from sanctions.”
Kahn asserted that, even at the time she filed her motion for
sanctions, her counsel did not know “the lengths” to which appellants
had gone to try and hurt her. “Out of the blue, on November 6, 2019, . .
. Kahn received a Notice from [her loan service provider]. . . advising
she was ‘at risk of foreclosure’ for not satisfying the occupancy
requirements [of the loan]. When [Kahn’s counsel] contacted [the loan
service provider] . . . it was revealed that on September 20, 2019, just
five days prior to the hearing on the Standing Motion, a ‘William
Weisberg’ telephoned [the loan service provider] and advised them that
[Kahn’s residence] was ‘vacant.’! . . . As the Court knows, this was a
false statement and it could only be intended to disrupt . . . Kahn’s
home ownership and her life.” (Bolding and italics in original.) The
Prices opposed the sanctions motion and filed their own motion for
sanctions against Kahn and her trial counsel for filing a frivolous
sanctions motion.
On December 17, 2019, the trial court held a hearing on the
parties’ competing sanctions motions. In response to questions from
the court, Weisberg stated he had not spoken with the Bank’s counsel,
36
but had contacted the Bank’s loan service provider and its counsel and
had sent the loan service provider a copy of the standing motion. The
court found the standing motion misrepresented the facts of Kahn’s
occupancy of her San Francisco residence and allowed Kahn to amend
her sanctions motion to add Weisberg’s newly-reported conduct with
Kahn’s loan service provider and counsel as further grounds for an
award of sanctions.
Accordingly, three days later, Kahn filed and served an amended
motion for sanctions under section 128.5. In support of the amended
motion, Kahn’s counsel submitted a copy of Weisberg’s September 20,
2019 email to counsel for the loan service provider. The email included
three attachments pertaining to the standing motion: (1) the Prices’
memorandum points and authorities; (2) their request for judicial
notice; and (3) Kahn’s “declaration.” In the September 20, 2019 email,
Weisberg stated, in pertinent part (bolding and italics in original):
“I am attaching the relevant pleadings which we discussed.
“In summary, in 2010 . . . Kahn (Plaintiff in our action) took out a
massive reverse mortgage . . . with [the Bank]. (Attached to our
Request for Judicial Notice[.])
“The law and the Security Agreement at paragraph 5 reads:
‘Borrower [i.e. Plaintiff] shall at all times occupy, establish, and use the
Property as the Borrower’s principal residence. . . . Borrower shall
also be in default if Borrower, during the loan application
process, gave materially false or inaccurate information or
statements to the Lender (or failed to provide Lender with any
material information) in connection with the loan evidenced by
the Loan Agreement, including, but not limited to,
representations concerning Borrower’s occupancy of the
Property as a principal residence.’
37
“The Borrower, however, certified and recorded in the State of
Florida that in 2008 (2 years before this loan) and by her testimony,
continuing until the present that; I was formerly a legal resident San
Francisco, CA and I resided [past tense] at [a specified San
Francisco address]. However, I changed my domicile to and am since
2d day of Jan., 2008, reside at [specified address in Florida][.] She
went on to certify that ‘I have no intention to further return to my
former domicile and intend to remain in [specified city in Florida][.]’
[¶] . . . [¶]
“It appears evident to us that the Borrower here provided false
and inaccurate information to the lender from the inception of this loan
(and to your client, the [loan service provider] since 2012) with respect
to her primary residence. It is obvious to us that one cannot claim
principal or primary residence in Florida to avoid California State tax
obligations and claim principal or primary residence during the same
period in California to obtain this loan.
“It is telling that the opposition presented by the Plaintiff to our
motion, which is heavy on procedural objections and hyperbole, never
refutes the facts above. Her declaration suggests that she fills out a
form provided to her by [the loan service provider] which simply asks
her if she ‘currently lives in the property’, and while she admittedly
visits the property annually she believes (subjectively) that this
satisfies the ‘primary residency requirement’ of the loan to your client’s
and [the Bank’s] satisfactions. She never indicates that you or [the
Bank] have ever been provided with the certification of her Florida
primary residency requirement.
“I would suspect that your client has an interest in these facts.
Not only because it is our belief that the right to call the note has been
triggered and is incurable, but the action taken by the Plaintiff
(requesting the removal of a tree on our clients’ downhill [sic] property)
will, in the opinion of our geotechnical engineers would [sic] greatly
destabilize the hillside or backyard of the Plaintiff’s (borrowers’ [sic])
property and resulting in great damage – not only to the secured
property of the Borrower but to our Clients as well. If that issue is of
interest to you I would be pleased to offer to present [sic].”
38
Kahn’s counsel also submitted a December 18, 2019 letter from
the loan service provider’s Correspondence Department sent in
response to communications sent by Kahn’s counsel on November 11,
November 19, November 25, and December 13, 2019. The letter stated,
in pertinent part, as follows:
“. . . As you may know, the referenced loan is a California Senior
Equity Reserve Mortgage Platinum (‘Platinum’) Loan. Under Platinum
terms if the property ceases to be the principal residence of the
borrower, the loan becomes immediately due and payable.
“[The loan service provider] received a telephone call from
William Weisberg on September 20, 2019 who advised that the
property was a residence of Ms. Kahn, but not her primary residence.
[The loan service provider] began the default process at that time to
ensure that required timelines were met and to investigate the claim
he made. [The loan service provider] had not sent any notices prior to
this notification as the request for certification of occupancy is sent
annually.
“[The loan service provider] attempted contact with Ms. Kahn on
September 23, 2019 via telephone. Someone answered, but hung up
when the representative was providing required disclosures. [The loan
service provider] then attempted to contact [Kahn’s relative], who is
listed as an authorized alternate contact, and left a voice mail message.
[The loan service provider] did not receive return calls. As a result [the
loan service provider] sought and obtained approval from the lender to
proceed to call the loan due and payable.
“On October 23, 2019 [the loan service provider] mailed the
enclosed reverse Mortgage Due and Payable Notice to Ms. Kahn via
regular and certified mail. [The loan service provider] also requested
an inspection of the property in an attempt to determine occupancy. A
copy of the property inspection invoice is enclosed.
“Upon receipt of your fax dated November 8, 2019 [the loan
service provider] initiated the process to rescind the due and payable
action. The due and payable process was immediately placed on hold.
Notification was provided to the [loan service provider] Occupancy
39
Department who then requested additional documentation to fully
establish Ms. Kahn’s continued occupancy of the property as her
primary residence.
“When [the loan service provider][sic] the signed occupancy
certification and the utilities bills, the due and payable action was
stopped and the loan status changed to Active. [The loan service
provider] regrets the confusion created by this situation.”
Appellants opposed the amended motion for sanctions.
2. Order Granting Section 128.5 Sanctions
The trial court granted Kahn’s amended motion for section 128.5
sanctions. In pertinent part, the court stated it did not have to rely on
the request for sanctions under section 128.7 for the filing of a frivolous
standing motion “to afford Kahn her well-deserved relief” because it
was granting Kahn’s request for sanctions under section 128.5,
subdivision (a), based on appellants’ “ ‘action or tactics,’ ” which the
court found were “ ‘made in bad faith,’ ” and were “ ‘frivolous or solely
intended to cause unnecessary delay.’ ”
The court went on to note that while its denial of the standing
motion was “sufficient to justify a sanctions award to compensate Kahn
for the cost of opposing the specious motion,” “the evidence of
Weisberg’s conduct vis a vis [the Bank and loan service provider]
compels a harsher remedy. [¶] Not only did Weisberg misrepresent
Kahn’s occupancy to her lender and its loan service provider, but
without a factual or legal basis, he urged the lender to call the note and
argued that the default was ‘incurable.’ As if that were not sufficient,
Weisberg misrepresented the geotechnical engineering evidence which
[the court] heard at trial. There was no credible evidence that the
remedy [the court] ordered – if implemented as advised by the experts –
40
would ‘greatly destabilize the hillside or backyard of [Kahn’s property] .
. . and result[ ] in great damage – not only to the secured property of
[Kahn] but to [the Prices].’ Frustrated by the outcome of the trial over
the removal of a lone Monterey pine tree, [appellants] sought to trigger
a mortgage default and possibly foreclosure proceedings on the home
Kahn occupied since the 1970s, and all because she invoked a San
Francisco ordinance to get a judicial determination of her rights.”
The court specifically found that “the motivation for filing the
standing motion was to delay the finality of the judgment and to
improve the Prices’ settlement bargaining position. [The court did not]
know the details of the mediation, but filing the motion on September
3, ten days before the resumption of the mediation allows the inference
that [appellants’] intent was to retaliate against Kahn in the misguided
hope that she would settle on their terms to avoid damaging her
relationship with her lender. As is evident from Weisberg’s call which
he confirmed in the September 20 email, when their effort at
intimidation failed, the Prices sought to punish Kahn by encouraging
the lender to declare a default, and – for a limited time – they
succeeded. [Appellants’] . . . relentless pursuit of their objective to
thwart the court’s ruling and Kahn’s rights is evident from a brief
review of the chronology.
“On September 3 – with the mediation to resume on September
13 – [the Prices] served the standing motion on [the Bank], a nonparty
with no interest in the case, and included the Bank on the proof of
service, presumably to signal their intent to Kahn. Not content with
putting the Bank on notice, Weisberg contacted [the Bank’s] legal
counsel . . . requested and secured his appearance at the hearing.
41
“When it appeared [the] Bank . . . would not do his bidding,
Weisberg contacted . . . [the loan service provider] and its counsel, by
phone and with the September 20 email (which accused Kahn of
‘committing criminal loan fraud’), and sent the standing motion, but
not [Kahn’s] opposition which refuted [the Prices’] inaccurate
statements. The September 20 email recites in bold and italicized font
the occupancy requirements of [Kahn’s] reverse mortgage and claims
that ‘[Kahn] provided false and inaccurate information to the lender’
because she had filed a declaration of domicile in Florida prior to
obtaining the loan. Weisberg then argues: ‘It is telling that the
opposition presented by [Kahn] to our motion, which is heavy on
procedural objections and hyperbole, never refutes the facts above. Her
declaration suggests that she fills out a form provided to her by your
client which simply asks if she “currently lives in the property,” and
while she admittedly visited the property annually she believes
(subjectively) that this satisfies the “primary residency requirement” of
the loan to your client’s and [the Bank’s] satisfaction.’ ” [¶] The
suggestion that Kahn ‘visits’ – as opposed to occupies – her home was
patently false. Not only were there pre-trial site inspections at both
properties attended by defendants’ counsel and experts, and [the
court’s] site inspection with the Prices and their counsel, but a
principal argument for retaining the tree was that it shielded the
Prices and their children from constant observation of their home by
Kahn. When [the court] questioned Weisberg about his ‘visits the
property annually’ statement, it was clear that his prevarication had
been discovered, and he had no explanation. [¶] Perhaps
underestimating Kahn’s counsel, Weisberg assumed that he could
42
instigate the default and not be held responsible for his actions. Not
content to rely solely on his misrepresentation of Kahn’s occupancy,
Weisberg sought to strengthen his position by arguing – contrary to the
evidence – that removal of tree would destabilize both properties.
Fortunately for Kahn, her lawyer was not deterred. She not only
rescued the property but provided the evidence the court needed to
address the Prices’ and Weisberg’s transgressions.”
The court therefore found that “[t]he prerequisites for providing
relief pursuant to section 128.5 are justified by the extraordinary
actions – both in and outside the court – undertaken by the Prices and
Weisberg. The standing motion was frivolous, intended to cause
unnecessary delay, and filed in bad faith. However, the motion was
merely the overture for the bad faith conduct which followed: the effort
to precipitate a default on the reverse mortgage, which was only
avoided by the valiant efforts of Kahn’s indomitable counsel. That the
Prices and Weisberg possessed an ‘evil motive’ is obvious, that they
pursued it so blatantly is astonishing.” Thus, as a result of appellants’
“conduct – which included false statements and unsupportable legal
claims – the lender and its service provider issued a notice of default on
the reverse mortgage on Kahn’s residence. In response Kahn incurred
legal fees and costs to undo the harm done by [appellants’]
extraordinary misconduct.”
The court awarded sanctions in the requested sum of “$47,345.30
as the total [Kahn] incurred in fees, costs, and expenses to address the
standing motion and to counter the misconduct” of appellants. Having
considered the circumstances, and after reviewing the record after the
hearing, the court concluded the full amount requested was justified:
43
“At the hearing [the court stated its] tentative decision to reduce the
amount by $7,457.75 – the amount attributed by [Kahn] to
participating in the judicial mediation following trial. However, the
evidence adduced in the sanctions motion when reviewed in its totality
leads inescapably to the conclusion that [appellants] used the
mediation as a delay tactic to afford counsel the opportunity to file the
standing motion. . . . [The court] encourage[d] parties to use the court’s
judicial mediation program – which provides confidential alternate
dispute resolution at no cost – but where, as here, it was used as a tool
to further the strategy of obstruction, [Kahn] should not bear the cost of
participation.”
The court also considered how to allocate the sanctions, and
“concluded from the evidence at trial – based in part on [Katherine]
Price’s emails to third parties – and the post-trial conduct described in
this order that the sanction should be awarded against [appellants],”
and that while the court could allocate the award against defense
counsel only, it found defense counsel’s “actions and tactics were not
only known by [the Prices] but were authorized by them as well.”
The court ordered sanctions in the sum of $47,345.30, to be paid
by appellants, jointly and severally, to compensate Kahn for the
attorney fees and costs that she incurred to “oppose the standing
motion and defendants’ sanctions motion, to present [sic] plaintiff’s
sanctions motion and to undo the notice of default on her home.” 16
16 We assume the trial court and attorney Weisberg have already
reported the judicially imposed sanctions to the State Bar of
California. (Bus. & Prof. Code, §§ 6068, subd. (o)(3) [attorney self-
reporting duties]; 6086.7, subd. (a)(3) [court reporting duties].)
44
B. Analysis
Appellants present extensive argument directed at Kahn’s initial
sanctions motion, contending the motion was not in compliance with
the “safe harbor provisions” of sections 128.5, which was a structural
error requiring reversal as a matter of law. However, section 128.5’s
“ ‘safe harbor provisions’ ” are applicable only where sanctions are
sought for “frivolous pleadings” that can be withdrawn or appropriately
corrected. (§ 128.5, subd. (f)(1)(B),(D); see In re Marriage of
Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 124, 147 [safe harbor
provisions “allow time for the withdrawal of frivolous pleadings”].)
Here section 128.5’s “safe harbor” provisions were not applicable as the
court did not award sanctions for the failure to withdraw the standing
motion, but for appellants’ bad faith conduct and tactics in sending
factually misleading and legally unsupportable communications to the
Bank and loan service provider with the sole intent to harass Kahn and
unnecessarily delaying the court proceedings. We therefore reject
appellants’ reliance on Kahn’s purported lack of compliance with
section 128.5’s safe harbor provisions.
We see no merit to the remainder of appellants’ numerous
arguments, beginning with their assertion that the court erred in
denying the Prices’ standing motion and therefore sanctions could not
be granted. The trial court correctly found Kahn had standing to
pursue an action as the evidence admitted at trial satisfied the only
standing requirement – that the “complaining party” be the “property
owner.” (Ord., § 822, subd. (b).) Even if Kahn had never occupied or
resided in the property, she was still the property owner by virtue of
the grant deeds and had standing to pursue an action.
45
Next, appellants are incorrect in stating that the trial court
analysis of defense Weisberg’s September 20, 2019 email was factually
unsupported and legally erroneous. The court’s interpretation of the
email and the inferences to be drawn from it were not based solely on
the language in the email, but also on Weisberg’s responses to the
court’s questions concerning certain statements in the email, which the
court found to be not credible. Appellants’ “elaborate factual
presentation is but an attempt to reargue on appeal those factual
issues decided adversely to [them] at the trial level, contrary to
established precepts of appellate review. As such, it is doomed to fail.”
(Hasson, supra, 32 Cal.3d at pp. 398-399.)
There is likewise no merit to appellants’ argument that Kahn did
not prove she incurred any expenses as a result of the communications.
Based on Weisberg’s September 20, 2019 email, the loan service
provider’s December 18, 2019 letter, and the declarations of Kahn’s
counsel, the trial court could and did find that, absent defense counsel’s
communications, neither the Bank nor the loan service provider would
have made any inquiry regarding the loan in the first instance. The
trial court was free to reject appellants’ contentions that no sanctions
were warranted because a default notice would not have issued had
Kahn responded to the loan service provider’s initial telephone
inquiries, the actions of the Bank and loan service provider were
“superseding” causes of any expenses Kahn may have incurred based
on the issuance of the default notice and its withdrawal, and/or Kahn
failed to provide documentary “evidence of her interactions with the
bank preceding its decision not to proceed with foreclosure.”
46
Appellants attempt to argue that Weisberg’s communications
with the Bank and loan service provider were not sanctionable as they
were outside of civil litigation. This argument is both forfeited for
appellate review as it is now raised for the first time and has absolutely
no merit. Defense counsel’s factually misleading and legally
unsupportable communications were without question made in the
course of the litigation and the court in no way abused its discretion in
finding they were made to harass Kahn and unnecessarily delay entry
of judgment in her favor. We are not persuaded otherwise by
appellants’ citations to portions of the legislative history of section
128.5 or the factually distinguishable, and therefore inapposite, cases of
County of Imperial v. Farmer (1988) 205 Cal.App.3d 479, Rabbitt v.
Vincente (1987) 195 Cal.App.3d 170, and Optimal Markets, Inc. v.
Salant (2013) 221 Cal.App.4th 912. Nor do we see any merit to
appellants’ argument that upholding the award of sanctions in this case
constitutes a violation of appellants’ constitutional rights to free speech
and due process and would otherwise have “monumental adverse
consequences for legal rights and public policies.”
In a similar vein, appellants contend section 128.5 sanctions
cannot be awarded to Kahn for any expenses incurred to “undo the
notice of default on her home” because those sums were not incurred as
a result of actions or tactics in litigation – rather, they were incurred as
a result of having to address a default in her loan in a private
transaction between Kahn and the Bank outside of litigation.
According to appellants, the sanctions were in the nature of
“consequential damages,” which are not permissible under the
47
authority of Brewster v. Southern Pacific Transportation Co. (1991) 235
Cal.App.3d 701 (Brewster). We disagree.
The appellate court in Brewster held that the trial court had no
authority to impose section 128.5 sanctions against an individual
attorney in order to compensate the plaintiff railroad for lost profits
after counsel served a false temporary restraining order that caused
the railroad to stop operating trains. (Brewster, supra, 235 Cal.App.3d
at pp. 707, 710.) When the railroad learned there was no temporary
restraining order, it filed a motion for sanctions, seeking to recover
$139,000 in consequential damages for the financial loss caused by the
wrongful stopping of the trains, plus related attorney’s fees attributed
to calculating the financial loss, which the trial court granted. (Id. at p.
711.) The Court of Appeals reversed, not because section 128.5
sanctions were limited to attorney fees and costs, but because the
consequential damages and related attorney fees to document the
financial loss were “unrelated to the cost of the actual proceedings
before the court.” (Brewster, supra, at pp. 710-711, 716.) The court
noted that allowing such an award in the nature of sanctions would
relieve the railroad of its “obligation to file a civil suit for damages
against [the attorney] to recover the cost of rerouting [its] trains.” (Id.
at pp. 711, 716.)
Unlike in Brewster, here the sanctions were warranted to
compensate Kahn for reasonable expenses (attorney fees and costs)
directly related to appellants’ bad faith tactics in the litigation, and to
compensate her for those expenses to mitigate appellants’ misconduct.
Hence, the sanctions awarded in this case are “more closely related” to
the litigation than the consequential damages and related attorney fees
48
at issue in Brewster. (Tenderloin Housing Clinic, Inc. v. Sparks (1992)
8 Cal.App.4th 299, 307-308 (Tenderloin Housing Clinic) [rejecting
reliance on Brewster, appellate court upheld an award of sanctions for
“reasonable expenses” to reimburse for lost vacation time and airfare
expenses that defendants’ counsel was required to pay when she had to
cut short her vacation to attend depositions that were scheduled in
violation of parties’ stipulations]; 580 Folsom Associates v. Prometheus
Development Co. (1990) 223 Cal.App.3d 1, 9, 27-28 [appellate court
upheld an award of sanctions to compensate a corporate party for the
cost of time spent by corporate personnel in defending a meritless
cross-complaint].) Because we hold the expenses (attorney fees and
costs) incurred by Kahn to “undo the default notice on her home”
caused by appellants’ bad faith actions and tactics were properly
awarded as section 128.5 sanctions, we reject appellants’ additional
claim that such sums should have been adjudicated in a separate civil
suit. (Tenderloin Housing Clinic, supra, 8 Cal.App.4th at p. 308.)17
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.
17 In light of our determination, we do not address appellants’ other
contentions.
49
_________________________
Petrou, J.
WE CONCUR:
_________________________
Fujisaki, Acting P.J.
_________________________
Chou, J.*
Kahn v. Price et al./A159536 A160057
* Judge of the Superior Court of San Mateo County, assigned by
the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
50
Trial Court: San Francisco County Superior Court
Trial Judge: Hon. Jeffrey S. Ross
Counsel: Bonapart & Associates, Barri Kaplan Bonapart; Bien
& Summers, Eilliot L. Bien, for Plaintiff and
Respondent.
Law Offices of Tony J. Tanke, Tony J. Tanke;
Weisberg & Miller, William S. Weisberg, for
Defendants and Appellants.
51