First Published: 30 July 2015
Revised (substantive): 15 February 2017
U P D A T E S
relating to my first Open Letter of 7/30/2015 (see below)
addressed to the Author(s) of California Assembly Bill 1404
• Follow-Up No. 21: e-mail from Deborah Taylor-Pearce, to Myrna Zambrano (2/15/2017)
• Follow-Up No. 20: e-mail from Myrna Zambrano, District Director for the Office of Senator Toni G. Atkins, to Deborah Taylor-Pearce (2/14/2017)
• Follow-Up No. 19: e-mail from Deborah Taylor-Pearce, to the Office of California State Senator Toni G. Atkins (representing Senate District 39), submitted via “Contact” form at the senator’s website (2/1/2017)
• Follow-Up No. 18: e-mail from Deborah Taylor-Pearce, to Leora Gershenzon (9/28/2016)
• Restricted-access designation removed from this Web page on 9/18/2016: this Web page is now accessible to the public at large, and to commercial search engines (see new She-philosopher.com study page for overview)
• Follow-Up No. 17: e-mail from Deborah Taylor-Pearce, to Leora Gershenzon (7/31/2016)
• Follow-Up No. 16: e-mail from Deborah Taylor-Pearce, to Leora Gershenzon (7/20/2016)
• Follow-Up No. 15: e-mail from Leora Gershenzon, Deputy Chief Counsel, Assembly Judiciary Committee, to Deborah Taylor-Pearce (7/19/2016)
• Follow-Up No. 14: e-mail from Deborah Taylor-Pearce, to Alexandria Smith-Davis (7/5/2016)
• (posted 5/31/2016): NOTICE to voters in California’s State Assembly 77th District, encompassing zip codes: 91942, 92014, 92020, 92024, 92025, 92027, 92029, 92037, 92040, 92064, 92065, 92067, 92071, 92074, 92075, 92091, 92109, 92111, 92117, 92119, 92120, 92121, 92122, 92123, 92124, 92126, 92127, 92128, 92129, 92130, 92131, 92142, 92145, 92150, 92159, 92161, 92172, 92177, 92182, 92191, 92196, 92197, 92198, and 92199:
Assemblyman Brian Maienschein — whose office was ineffectual (as documented below) in responding to my two Open Letters concerning California Assembly Bill 1404 (AB-1404), thus causing me to have to turn to the Speaker of the California State Assembly for action — is up for re-election this year. His name is on the ballot (“Member of the State Assembly 77th District”) for the Presidential Primary Election scheduled for Tuesday, June 7, 2016.
For all those who feel as I do — that Mr. Maienschein does not represent our best interests — now is your chance to make your voice heard. Express yourself at the ballot box on 6/7/2016!
• Follow-Up No. 13: e-mail from Deborah Taylor-Pearce, to Alexandria Smith-Davis (4/18/2016)
• Follow-Up No. 12: e-mail from Alexandria Smith-Davis, on behalf of the Assembly Judiciary Committee, to Deborah Taylor-Pearce (4/11/2016)
• Follow-Up No. 11: e-mail from Deborah Taylor-Pearce, to Alexandria Smith-Davis (4/10/2016)
• Follow-Up No. 10: e-mail from Alexandria Smith-Davis, on behalf of the Assembly Judiciary Committee, to Deborah Taylor-Pearce (4/7/2016)
• Follow-Up No. 9: printed letter from Deborah Taylor-Pearce, sent via United States Postal Service (Certified Mail with Return Receipt), to California Assembly Speaker Anthony Rendon (4/1/2016)
UPDATE: Certified mail received and signed for at the Speaker’s office on Wednesday, 4/6/2016, at 8:01 AM.
FOR THE RECORD: As documented above (Follow-Up No. 10), I was contacted by the authors of AB-1404 the very next day (4/7/2016, at 3:11 PM), but have been away from e-mail for several days, and didn’t actually receive the message until late in the evening on Saturday, 4/9/2016.
What a pleasant surprise: I wish to thank the Speaker for acting so promptly and effectively on my request.
• Follow-Up No. 8: e-mail from Deborah Taylor-Pearce, to the Office of Assembly Speaker Anthony Rendon (63rd Assembly District), submitted via “Contact Anthony” form at the Speaker’s website (4/1/2016)
NOTE: Online submission rejected because “Address is not in District. Please contact your District Representative.”
• Follow-Up No. 7: e-mail from Deborah Taylor-Pearce, to Robert Knudsen (2/26/2016)
• Follow-Up No. 6: e-mail from Robert Knudsen, on behalf of the Office of Assemblymember Brian Maienschein, 77th District, to Deborah Taylor-Pearce (2/24/2016)
• Follow-Up No. 5: e-mail from Deborah Taylor-Pearce, to the Office of Assemblymember Brian Maienschein, 77th District, submitted via form at the Assemblymember’s website (2/17/2016)
• Follow-Up No. 4: e-mail from Michael Lieberman, former Senior Field Representative in the Office of Assemblymember Brian Maienschein, 77th District, to Deborah Taylor Pearce (2/16/2016)
• Follow-Up No. 3: e-mail from Deborah Taylor-Pearce, to Michael Lieberman, Senior Field Representative in the Office of Assemblymember Brian Maienschein, 77th District (2/10/2016)
• 2nd Open Letter of 2/10/2016 posted (see below)
• Follow-Up No. 2: e-mail from Deborah Taylor-Pearce, to Michael Lieberman, Senior Field Representative in the Office of Assemblymember Brian Maienschein, 77th District (8/25/2015)
• Follow-Up No. 1: e-mail from Michael Lieberman, Senior Field Representative in the Office of Assemblymember Brian Maienschein, 77th District, to Deborah Taylor Pearce (8/21/2015)
[ 2nd Open Letter: 2/10/2016 ]
To the lawmakers responsible for California Assembly Bill 1404 (AB-1404), the “Good Neighbor Fence Act of 2013”:
It has been over six months now since I posted my first Open Letter to the California state lawmakers reponsible for Assembly Bill 1404, the so-called “Good Neighbor Fence Act of 2013.”
I have yet to receive any answer to my queries concerning what rights & obligations I, and others like me, have under the new law, and I am running out of patience.
I realize that homeowner disputes in a working-class neighborhood like mine may be a trivial matter for California lawmakers. But for those of us having to live with the effects of your laws, it is a very big deal — something which has a daily, in-your-face impact on my quality of life, with economic consequences well beyond just my individual household. When the court uses the new law to force me, against my will, to subsidize the home ownership of others in a different subdivision there are ripple effects: declining property values for me and my subdivision neighbors; reduced investment in the local, artisanal economy; costs to local businesses and non-profits from lost productivity; increased health-care costs (because I no longer feel secure enough in my own back garden to continue exercising regularly); and more. The longer this drags on, the more ripples there will be.
I am a long-time property owner, taxpayer, and citizen of California who has voted in every election for which I have been eligible to participate — even on that fateful Nov. 2 when I underwent surgery for cancer. As such, it is not unreasonable that, when I ask California lawmakers to explain what protections and recourse I have under the new “Good Neighbor Fence Act of 2013,” they respond in a timely manner, no matter how unimportant a constituent I am. That’s how the system is supposed to work in a representative democracy. You are supposed to serve, and be accountable to, the people.
Living in the state of California in 2016, most of us take for granted that ours is a polity of law & order; that the legal system, although not perfect (especially when underfunded & over-utilized), is rational rather than arbitrary; that when you play by the rules, and “go by the book,” justice for all is to be found in the courts, and not at the point of a gun. We label those who don’t trust the system to dispense justice “nut jobs,” “radicalized” and “extremist.” And we congratulate ourselves on how advanced our modern world is compared to, say, the medieval world to which some extremists are clamoring to return.
But as a historian, and as someone who has now experienced the arbitrary and capricious exercise of state power at first hand, I too have come to question the value of the legal system under which I have lost, what I mistakenly thought were inalienable, rights. My recent experience with the California justice system has taught me that there is no equality under the law; that there is sometimes no legal recourse for the aggrieved; that not all property owners are equal under the law; and that the law serves the rich & powerful, who can interpret it as they please, just as they have always done.
History is full of instructive stories about boundary disputes and fights over private property, but one in particular bears repeating here because it speaks directly to the California statute which I believe has been in force for over 140 years:
Adjoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them.
(Cal. Civ. Code § 841(a))
This is the statute around which I built my small claims court case. And it is the statute which the judge said does not apply to the defendant whom I sued in small claims court, because it does not apply to subdivision boundary fencing.
Around 1532, “one of the richest and most powerful men in England,” Thomas Cromwell — the English statesman who presided over Henry VIII’s break with the Roman Catholic church, over the dissolution of the monasteries, and over the beginning of the English Reformation, drafting legislation and “exploiting the development of the royal supremacy to advance evangelical reform” in Britain —
took out a ninety-nine-year lease of two recently constructed messuages within the precinct of the Austin Friars in London, where he had lived for the past decade. It was undoubtedly now that Cromwell perpetrated the remarkably arbitrary act later recorded by John Stow. Not only did he move the palings of his neighbours’ gardens 22 feet back without permission, warning, or compensation, but he also set Stow’s father’s house upon rollers and moved that as well, before starting to build upon the land thus cleared.
(Howard Leithead, “Cromwell, Thomas, earl of Essex [b. in or before 1485, d. 1540], royal minister,” Oxford Dictionary of National Biography, online edn., Oxford University Press, May 2009, n. pag.)
For those who are curious, I give the complete text of Stow’s original narrative (first printed in 1598, rev. 1603) elsewhere at this website. Here I want to substitute a late-19th-century synopsis of Cromwell’s land grab, written by Henry Morley, around the same time as Cal. Civ. Code § 841(a), for the Introduction to his 1890 edition of Stow’s A Survay of London:
A story told by Stow of his young days enables us to determine very nearly where his father the tailor lived. It must have been in Threadneedle Street, old tailors’ quarters; for he has an illustration of the high-handed dealing of great men in the days of Henry the Eighth, that touched his father’s house. Thomas Cromwell — Wolsey’s Cromwell — when, after Wolsey’s fall, he had risen high in the king’s favour, bought some old tenements in Throgmorton Street, which he pulled down, to build upon their site a large house for himself. When the new house was built there was a fair space for garden to the south of it which met the ends of the gardens running northward from Threadneedle Street. But Thomas Cromwell, as his garden was not large enough to please him, without payment offered or leave asked, simply pulled down the palings that were his neighbours’ landmarks to the north, pushed his own garden limit twenty-two feet southward into the gardens of his neighbours, and then built them out with a high brick wall. Stow says that his father had a house — probably a summer house — at the end of his garden, and the great man had it taken up and moved on rollers, off the ground he had annexed, into that half of his garden which was left to Mr. Stow. But Mr. Stow had to go on paying the rent of the whole for the half that was left him, “because no man durst go to argue the matter.” The surveyors of the work had no answer to expostulations but that “Sir Thomas commanded them to do so.” The ground here in question was very close to, if not actually on, the site of the present Stock Exchange. This sort of procedure was afterwards more restricted to commons, enclosures, and the blocking up of rights of way; a practice against which Shakespeare battled at Stratford in his latter days. The gardens invaded by Sir Thomas Cromwell must, of course, have run back from houses in Threadneedle Street, and as the date must have been 1531 or 1532 when Cromwell is known to have put new buildings on the ground of two messuages taken on a ninety-nine years’ lease from the Austin Friars, this was a home incident of the time when the author [historian John Stow (1524/5–1605)] of the “Survey of London” was a child of six or seven.
(Henry Morley, Introduction, A Survay of London. Contayning the Originall, Antiquity, Increase, Moderne Estate, and Description of that Citie, Written in the Year 1598. By John Stow Citizen of London, ed. by H. Morley, 1890, 10)
In 2016, with all the personal cameras that are out there, all the surveillance and 24/7 media coverage, Thomas Cromwell would not be able to get away with such high-handed acts of appropriation because of “appearances”; and he was a wiley enough politician that he would understand this. A master of the legal “technicality” and “loophole,” Cromwell would have found some other, legal, way to serve himself (just as he was able “to manipulate factional politics” and use the law to “execute and enforce the royal supremacy” for Henry VIII).
I am not suggesting that life for the demos in 2016 Southern-California suburbia is not an improvement over that under Henry VIII’s despotic monarchy ... but even after several centuries of progress perfecting the democratic state, there is more in common than we might think. The activist judge in my small claims court case advocated, from the bench, a Cromwellian doctrine: he ruled that new property owners who don’t like the location of their subdivision boundary fencing are free to remove it (indeed, he encouraged them to do so); and he gave new owners legal permission to encroach on someone else’s private property, without any requirement that they compensate the aggrieved party for their loss. In effect, the judge who heard my small claims court case ruled that, under the “Good Neighbor Fence Act of 2013,” I and my subdivision neighbors have no more recourse against the aggressive encroachment of property owners in the adjoining subdivision than did Cromwell’s neighbors in Henrician England.
What I seek to learn now is what California lawmakers intend to do about this. My experience has shown that state law, as interpreted by the judge who heard my small claims court case, is biased towards the real estate industry. The judge noted several times that he is also a real estate broker, and this industry perspective dominated his view of my case from the beginning. He emphasized the transactional aspects of home ownership, giving undue weight to a new homeowner’s right to maximize property values, while giving no weight at all to the local values & culture that make ours a neighborhood where people want to live. His view of fencing was similarly selective (fences are “just” fences, and should be located on the property line, so there need only be one of them between adjoining properties). And his disdain for my neighbor’s masonry wall while under construction (as pictured in Attachment 2 of my Memo to Small Claims Judge) and for my own masonry wall (as pictured in Attachment 5 of my Memo to Small Claims Judge) was palpable.
Long-time homeowners like me, who are less interested in flipping houses, and more interested in investing in a community, have a very different perspective. When I look at my neighbor’s wall, as shown in Attachment 2 of my Memo to Small Claims Judge, I see a labor of love — not an eyesore — which took several years to complete, as do many of my neighbors’ more expensive do-it-yourself projects. Now that it’s finished, the masonry fence adds considerably to my neighbors’ quality of life, and represents a substantial long-term investment in their property. But these are the sort of cost-benefit trade-offs, made by long-time homeowners, which the judge would not even consider. In my subdivision, my next-door neighbors to the south have lived in their home for 35 years; across the street from us are two more homes still occupied by the original owners, as is our home. Our four households may represent a minority of property owners, but we do exist, and our interests deserve to be represented under California state law.
So, once again, I am asking the author(s) of California Assembly Bill 1404 what protections and recourse I, and others like me, have under the new law?
The judge in my small claims court case seemed to think I have none. And if he is right, I need to know this — sooner, not later — so that I can alert others.
The public deserves to know that long-term California property owners have lost rights & security under the new “Good Neighbor Fence Act of 2013.”
Conversely, if the author(s) of California AB-1404 do not believe homeowners have lost rights & security under the new law, you need to better inform us how we can effectively use the law to protect ourselves and our property from predatory neighbors, and withstand the arbitrary & capricious exercise of state power in the courts.
[ 1st Open Letter: 7/30/2015 ]
An introductory note for the open letter which follows: On 29 July 2015, I tried to comment on “AB-1404 Real property: boundaries. (2013-2014)” at the website for California Legislative Information only to receive a message that “One cannot send comments on prior session Bill.”
I have recent experience testing the new law in Small Claims Court (it did not go well ;-) and wanted to pass on that experience to the bill’s author(s), as well as to ask a couple of questions about the law’s meaning and application.
Because my comments exceed the 200-character limit for Web-form submissions at Brian Maienschein’s website (San Diego’s Member of the California State Assembly Committee on Judiciary), I decided to reformat my e-mail as a Web page, and have asked Mr. Maienschein’s office to pass on the active link to the appropriate personnel.
I hope my experience in Small Claims Court will be of benefit to the legal community, and I will keep these pages active at this location until interest in the subject has waned.
To the author(s) of California Assembly Bill 1404 (AB-1404), the “Good Neighbor Fence Act of 2013”:
My Small Claims Court hearing — relating to a longstanding dispute over subdivision boundary fencing in a working-class San Diego neighborhood — was finally held on 7/15/2015.
I was the plaintiff, and my case rested on California Civil Code 841(a):
Adjoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them.
which, to my great surprise, was disallowed by the judge, who told me that the statute does not apply to my case. The judge (who noted that he is also a real estate broker) believes that only those “boundaries and monuments” which are legally required must be maintained; and since there is no legal requirement for subdivision boundary fencing, there is no responsibility to maintain it.
I can’t find this exclusion anywhere in the Good Neighbor Fence Act of 2013, and don’t understand why a state law intended to uniformly resolve “typical omissions and ambiguities in local ordinances that touch upon shared fencing” (here quoting from the 5/7/2013 hearing of the Assembly Committee on Judiciary, p. 5) doesn’t apply to the defendant, as well as to everyone else in California.
I am not, however, a lawyer, and so I rely on a common-sense parsing of California Civil Code 841(a). In my interpretation, the statute doesn’t say “maintaining the boundaries and monuments between them which are required by law” but only “maintaining the boundaries and monuments between them” — which in our case equates to double fences and a 21-inch clearing between subdivisions, as established by the developer of the defendant’s subdivision in 1975.
Because my case is fairly complicated, I gave the court a hefty documentation package — a binder with 5 tab dividers, containing the following (I’ve posted copies of everything but the receipts for recoverable costs to this website for review, should anyone in your office be interested):
Tab 1 - Memorandum to Small Claims Judge, with 6 attachments
Tab 2 - Timeline
Tab 3 - Demand Letters
Tab 4 - Invoices
Tab 5 - Revised Claim
FYI, I lost my judgment. The judge was openly hostile to my case, announcing early on that “double fences are stupid ...” (or words to that effect: parts of the hearing are still a blur for me) and serve no purpose. Choosing to ignore the benefits I believe double fences provide, the judge asserted that he himself would have immediately pulled down his superfluous subdivision boundary fence in such a situation, and I knew right then & there that I had lost my case.
The judge then became a vigorous advocate for the defendant (at one point even advising her to take legal action against me), and tried several times to turn my code-compliant masonry fence into an illegal structure, based on what he wrongly perceived as its excessive height, and the fact that it is located at rather than on our property line. In addition to deciding that California Civil Code 841(a) is irrelevant to my case, the judge would not accept that the defendant is actually “using” my wall. I thought my documentation package for the court had established at least two ways the defendant is using my wall:
2. for enclosure
But the judge disagreed: “it’s just there,” he told me several times about my wall, arguing that that’s not the same thing as “use,” and challenging me to prove otherwise. In retrospect, I wish I had had the presence of mind to argue that my wall is not “just there” ... like the ocean, or a public commons. It’s a fence, which I paid for and built for my exclusive use, on my private property.
Moreover, as I noted on p. 2 of the Timeline
my wall is a lot more to me than “just” a fence. It’s what I call “a living wall” — a collaborative, creative process with local artisans — which holds special meaning for me. We even have plans to develop the wall further, converting it to a source of food and cooling (i.e., like a roof garden turned vertically on its end, with drip irrigation, mosaics, wall art, etc.).
But I expect these arguments, too, no matter how eloquently expressed, would have fallen on deaf ears and been dismissed as irrelevant. Although masonry is one of my passions, being able to describe in detail the beauty of a well-tooled joint is no persuasive argument against the legal technicalities of “it’s just there.”
In his quest to rid the world of legacy double fences, the judge raised all sorts of (to me) bizarre legal technicalities, for which I had no ready answers. I have prepared a detailed summary of these for the authors of the two Nolo books (both excellent, indispensable guides) which I used to prepare my case — the 7th edn. of Neighbor Law: Fences, Trees, Boundaries & Noise, by Cora Jordan & Emily Doskow, and the 18th edn. of Everybody’s Guide to Small Claims Court in California, by Ralph Warner — in hopes that my experience will help them to help those of us trying to understand and abide by Section 841 of the Civil Code in the future.
Unfortunately, I fear that it may be too late for me.
During the course of what seemed to me more like an inquisition than a fair legal proceeding in “a true people’s court,” the judge actively encouraged the defendant to take full advantage of the fact that the masonry fence on my private property “is just there” (which, as far as I’m concerned, gives her a license to freeload) while forcing me, against my will, to subsidize the home ownership of those living in a different subdivision.
This is especially galling given that I choose to live frugally in order that I can finance all of the pro bono work I do for organizations such as UC San Diego’s Moores Cancer Center. Even so, I manage to save up enough money to cover my obligations as a property owner, and wouldn’t dream of demanding that my neighbors subsidize my home ownership.
So I feel as though the court has stripped me of what few legal means I had to
safeguard against the unjust enrichment of one landowner by the adjoining landowner’s construction or maintenance of a boundary fence between them
and to protect
against invasions of privacy and unlawful encroachment.
(the 5/7/2013 hearing of the Assembly Committee on Judiciary, pp. 1 and 4)
I can’t believe this sort of outcome was the intent of California’s Good Neighbor Fence Act of 2013, as explained in the legislature’s five analyses of the bill, which I have reproduced here for convenience:
• created 5/08/13 :: AB-1404 | Floor Analysis 1 (4/30/2013)
• created 5/06/13 :: AB-1404 | Assembly Committee on Judiciary (5/7/2013)
(see especially pp. 3–5)
• created 6/10/13 :: AB-1404 | Senate Committee on Judiciary (6/11/2013)
(see especially p. 5, re. “a landowner who elects to not place fencing on his or her land”)
• created 6/14/13 :: AB-1404 | Senate Rules Committee (6/14/2013)
• created 6/24/13 :: AB-1404 | Floor Analysis 2 (6/24/2013)
and would ask if I have any legal protections at all under the new law? Left to my own devices, I can’t find them, and neither, apparently, could the Small Claims Court judge.
Thank you in advance for your time and attention,