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First Published: 30 July 2015
Revised (substantive): 20 May 2022
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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
NB: as of 5/29/2020, all digital editions (PDF files) of
printed letters include updated, clickable URLs
• Follow-Up No. 53: e-mail from Deborah Taylor-Pearce, to the Office of California Senate President pro Tempore Toni G. Atkins (representing Senate District 39), submitted via “Contact” form at the senator’s website (11/16/2021)
No response from senator’s office.
• Follow-Up No. 52: printed letter (dated 11/15/2021) from Deborah Taylor-Pearce, sent via United States Postal Service, to capitol office (Sacramento) and district office (San Diego) of Toni G. Atkins, President pro Tempore and California State Senator, 39th District; with copy to California Assembly Speaker Anthony Rendon (mailed 11/15/2021)
• Follow-Up No. 51: e-mail from Deborah Taylor-Pearce, to the Office of California Senate President pro Tempore Toni G. Atkins (representing Senate District 39), submitted via “Contact” form at the senator’s website (2/5/2021)
• Follow-Up No. 50: printed letter (dated 2/4/2021) from Deborah Taylor-Pearce, sent via United States Postal Service, to capitol office (Sacramento) and district office (San Diego) of Toni G. Atkins, President pro Tempore and California State Senator, 39th District; with copy to California Assembly Speaker Anthony Rendon (mailed 2/4/2021)
• Follow-Up No. 49: e-mail from Deborah Taylor-Pearce, to the Office of California Senate President pro Tempore Toni G. Atkins (representing Senate District 39), submitted via “Contact” form at the senator’s website (5/29/2020)
• Follow-Up No. 48: printed letter (dated 5/24/2020) from Deborah Taylor-Pearce, sent via United States Postal Service, to capitol office (Sacramento) of Toni G. Atkins, President pro Tempore and California State Senator, 39th District (mailed 5/24/2020)
• Follow-Up No. 47: e-mail from Deborah Taylor-Pearce, to the Office of California Senate President pro Tempore Toni G. Atkins (representing Senate District 39), submitted via “Contact” form at the senator’s website (2/28/2020)
• Follow-Up No. 46: e-mail from Deborah Taylor-Pearce, to the Office of California Senate President pro Tempore Toni G. Atkins (representing Senate District 39), submitted via “Contact” form at the senator’s website (1/7/2020)
• Follow-Up No. 45: printed letter (dated 1/6/2020) from Deborah Taylor-Pearce, sent via United States Postal Service (Certified Mail), to capitol office (Sacramento) of Toni G. Atkins, President pro Tempore and California State Senator, 39th District (1/7/2020)
UPDATE Certified mail delivered and signed for on Friday, 1/10/2020, at 9:08 AM.
• Follow-Up No. 44: e-mail from Deborah Taylor-Pearce, to the Office of California Senate President pro Tempore Toni G. Atkins (representing Senate District 39), submitted via “Contact” form at the senator’s website (12/3/2019)
• Follow-Up No. 43: printed letter (dated 12/2/2019) from Deborah Taylor-Pearce, sent via United States Postal Service (Certified Mail), to capitol office (Sacramento) of Toni G. Atkins, President pro Tempore and California State Senator, 39th District (12/3/2019)
UPDATE Certified mail delivered and signed for on Friday, 12/6/2019, at 7:20 AM.
• Follow-Up No. 42: e-mail from Deborah Taylor-Pearce, to the Office of California Senate President pro Tempore Toni G. Atkins (representing Senate District 39), submitted via “Contact” form at the senator’s website (9/20/2019)
• Follow-Up No. 41: printed letter (dated 9/19/2019) from Deborah Taylor-Pearce, sent via United States Postal Service (Certified Mail), to capitol office (Sacramento) of Toni G. Atkins, President pro Tempore and California State Senator, 39th District (9/20/2019)
UPDATE Certified mail delivered and signed for on Monday, 9/23/2019, at 7:25 AM.
• Follow-Up No. 40: e-mail from Deborah Taylor-Pearce, to the Office of California Senate President pro Tempore Toni G. Atkins (representing Senate District 39), submitted via “Contact” form at the senator’s website (12/17/2018)
• Follow-Up No. 39: e-mail from Deborah Taylor-Pearce, to the Office of California Senate President pro Tempore Toni G. Atkins (representing Senate District 39), submitted via “Contact” form at the senator’s website (10/31/2018)
UPDATE After waiting over 2 weeks for an answer to this request that I be given a “forwarding address for mail sent to Senator Atkins by her constituents in the 39th District,” I have given up on sending further communications to the senator’s district office in San Diego. On 11/16/2018, I repackaged and resent my letter written 10/21/2018 to Senator Atkins’ Capitol Office address.
• Follow-Up No. 38: e-mail from Deborah Taylor-Pearce, to the Office of California Senate President pro Tempore Toni G. Atkins (representing Senate District 39), submitted via “Contact” form at the senator’s website (10/21/2018)
• Follow-Up No. 37: printed letter (dated 10/21/2018) from Deborah Taylor-Pearce, sent via United States Postal Service (Certified Mail), to Toni G. Atkins, President pro Tempore and California State Senator, 39th District (10/22/2018)
UPDATE 1 Certified mail, sent to the senator’s San Diego District Office, not delivered, but held by USPS and then re-routed to Pasadena for special processing on Saturday, 10/27/2018. (The week-long delay in sending a 4-page letter across town was presumably caused by the terrorist shipment of over a dozen improvised explosive devices to prominent Democrats and anti-Trump activists on both coasts.)
UPDATE 2 This first certified mail shipment, sent to the senator’s San Diego District Office, ultimately not deliverable. Returned to me on 10/30/2018, marked: “RETURN TO SENDER / VACANT / UNABLE TO FORWARD.”
UPDATE 3 Returned letter repackaged as Priority Mail and sent Certified Mail, with Return Receipt, to the senator’s capitol office (Sacramento) on 11/16/2018. This second certified mail shipment was delivered successfully to the State Capitol, and signed for on Monday, 11/19/2018, at 8:56 AM.
• Follow-Up No. 36: printed letter (dated 10/18/2018) from Senator Toni G. Atkins (representing Senate District 39), President pro Tempore to Deborah Taylor-Pearce (received 10/20/2018)
With 2 enclosures (printed copies of 2 documents I posted over 3 years ago, on 7/30/2015, to this Web page — in the section giving the legislature’s five analyses of AB 1404 — so there is no need to post them again here):
– for Atkins’ Enclosure 1 = see below, legislative analysis of AB 1404, Item 2 of 5
– for Atkins’ Enclosure 2 = see below, legislative analysis of AB 1404, Item 3 of 5• Follow-Up No. 35: printed letter (dated 10/7/2018) from Deborah Taylor-Pearce, sent via United States Postal Service (Certified Mail), to Toni G. Atkins, President pro Tempore and California State Senator, 39th District (10/8/2018)
UPDATE Certified mail delivered on Wednesday, 10/10/2018, at 1:00 PM.• Follow-Up No. 34: e-mail from Deborah Taylor-Pearce, to the Office of California Senate President pro Tempore Toni G. Atkins (representing Senate District 39), submitted via “Contact” form at the senator’s website (9/24/2018)
• Follow-Up No. 33: e-mail from Deborah Taylor-Pearce to Ryan Trabuco (8/15/2018)
• Follow-Up No. 32: e-mail from Luis Pallera, Council Representative for Councilmember Chris Cate (City of San Diego, 6th District), to Deborah Taylor-Pearce (8/14/2018)
Luis Pallera kindly offered to assist me with any local code enforcement issues I may have, and I am taking him up on that, but will not be recording our correspondence here, since the issues we’ll be discussing (city ordinances re. illegal dumping) have nothing to do with AB 1404.• Follow-Up No. 31: e-mail from Ryan Trabuco, Field Representative, Office of Senate President pro Tempore Toni G. Atkins, to Deborah Taylor-Pearce (8/14/2018)
• Follow-Up No. 30: e-mail from Deborah Taylor-Pearce to Luis Pallera in the office of San Diego City Councilmember for the 6th District, Chris Cate (8/13/2018)
• Follow-Up No. 29: e-mail from Deborah Taylor-Pearce to Senate President pro Tempore Toni G. Atkins, representing California Senate District 39 (8/13/2018)
• Follow-Up No. 28: printed letter from Deborah Taylor-Pearce to Senator Toni G. Atkins (representing Senate District 39), with copy to San Diego City Councilmember Chris Cate (8/13/2018)
• Follow-Up No. 27: printed letter from Senator Toni G. Atkins (representing Senate District 39), President pro Tempore to Deborah Taylor-Pearce (received 8/11/2018)
• Follow-Up No. 26: 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 (8/10/2018)
• Follow-Up No. 25: 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 (7/25/2018)
• Follow-Up No. 24: printed letter from Deborah Taylor-Pearce, sent via United States Postal Service (Certified Mail with Return Receipt), to Toni G. Atkins, California State Senator, 39th District (2/13/2018)
UPDATE Certified mail received and signed for on Friday, 2/16/2018, at 8:58 AM.• Follow-Up No. 23: printed letter from Deborah Taylor-Pearce, sent via United States Postal Service (Certified Mail with Return Receipt), to Toni G. Atkins, California State Senator, 39th District (11/14/2017)
UPDATE Certified mail received and signed for on Friday, 11/17/2017, at 9:01 AM.• Follow-Up No. 22: e-mail from Deborah Taylor-Pearce, to Myrna Zambrano (8/20/2017)
• 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 ] a 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)
FOR THE RECORD: 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)
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[ 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.
Sincerely,
Deborah Taylor-Pearce
e-mail:
dtp@she-philosopher.com
[ 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):
Cover sheet
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_cover-sheet.pdf
Tab 1 - Memorandum to Small Claims Judge, with 6 attachments
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_memo-to-judge.pdf
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_Attach1_map-Overview.pdf
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_Attach2_double-fences.pdf
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_Attach3_real-estate-listing.pdf
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_Attach4_map-Detail.pdf
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_Attach5_use-of-wall_2012-12-02.pdf
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_Attach6_use-of-wall_2014-09-30.pdf
Tab 2 - Timeline
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_timeline.pdf
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_GrantDeed1.png
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_GrantDeed2.png
Tab 3 - Demand Letters
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_DemandLetter-1_2014-05-28.pdf
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_DemandLetter-1_2014-05-28_sig.pdf
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_DemandLetter-2_2014-08-03.pdf
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_DemandLetter-2_2014-08-03_sig.pdf
Tab 4 - Invoices
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_Invoice01_unpaid.pdf
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_Invoice02_unpaid.pdf
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_Invoice03_unpaid.pdf
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_Invoice04_unpaid.pdf
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_Invoice05_unpaid.pdf
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_Invoice05_unpaid_delivery-refused.png
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_Invoice06_unpaid.pdf
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_Invoice07_unpaid.pdf
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_Invoice08_unpaid.pdf
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_Invoice09_unpaid.pdf
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_Invoice10_unpaid.pdf
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_Invoice11_unpaid.pdf
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_Invoice12_unpaid.pdf
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_Invoice13_unpaid.pdf
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_Invoice14_unpaid.pdf
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_Invoice15_unpaid.pdf
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_Invoice16_unpaid.pdf
Tab 5 - Revised Claim
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_costs.pdf
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:
1. for wall-grown bougainvillea
(as evidenced in Attachment 5 and Attachment 6 of my Memo to Small Claims Judge)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
http://she-philosopher.com/SCCcase/TaylorPearce-v-Lewis_timeline.pdf
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 [ITEM 1 of 5] :: AB-1404 | Floor Analysis 1 (4/30/2013)
• created 5/06/13 [ITEM 2 of 5] :: AB-1404 | Assembly Committee on Judiciary (5/7/2013)
(see especially pp. 3–5)• created 6/10/13 [ITEM 3 of 5] :: 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 [ITEM 4 of 5] :: AB-1404 | Senate Rules Committee (6/14/2013)
• created 6/24/13 [ITEM 5 of 5] :: 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,
Deborah Taylor-Pearce
e-mail:
dtp@she-philosopher.com
F9F4E1.gif "e-Copyright 2015 She-philosopher.com.")
^ My favorite variation on the classical motto, festina lente (“make haste slowly” or “slow haste”), as interpreted by Albrecht Dürer (1471–1528).
Dürer’s pen-and-ink drawing of a cherub making heavenly music with a lute, while one foot advances over terra firma at a snail’s pace, is a detail from his superb series of illustrations for the Holy Roman emperor Maximilian I’s Book of Hours, 1515.
This celebrated motto — advocating a proper balance of quickness and steadiness, while teaching us to combine prudence with daring — symbolized sound judgment and leadership, and was adopted by emperors and monarchs from Augustus Caesar and Titus Flavius Vespasian to Queen Elizabeth I. It evoked the Platonic philosopher-king and the sôphrôn ruler — the statesman who governs with moderation, restraint, or shrewdness in the interest of his people, or who instills the classical virtue of sophrosyne (literally, the “soundness or health of mind” then associated with “being in the middle,” the result of cultivating a temperate and moderate lifestyle) in his subjects either by showing them a model in his own life or by making laws that guide them in the ways of virtue.
Festina lente was also central to Aristotle’s notion of Good Counsel: deliberate slowly, but then act very fast. For Cicero, it was the judicious exercise of this kind of mature, deliberative counsel which legitimated the state.
In artfully combining the speed of diligence and the slowness of deliberation, festina lente has always been equated with the capacity for judgment that prevents the passions from gaining control within an individual’s mind — an especially important attribute for those in power, learning how to respond to exigence, while making decisions and taking actions with life-or-death consequences.
By the 16th century in Europe, a revival of Neoplatonist philosophy converged with late-Renaissance enthusiasm for emblems and puzzles to fuel a popular fascination with hieroglyphic communication, represented in literary works such as Francesco Colonna’s Hypnerotomachia Poliphili (Strife of Love in Poliphilus’s Dream), a book of mysticism, printed in 1499 by the prestigious firm of Aldus Manutius (who famously adopted festina lente symbolism for his trademark), which included over 80 emblematic combinations for festina lente, each giving a new twist to the classical theme. A dolphin entwined with an anchor or tied to a tortoise, a tortoise carrying a sail, a sail attached to a column, a butterfly on a crab, a falcon holding the weights of a clock in its beak, a remora twisting around an arrow, an eagle and a lamb, a blindfolded lynx — these and innumerable other visual oxymorons were adopted to signify the rule of life that ripeness is achieved by a growth of strength in which quickness and steadiness are equally developed.
NEW The printing revolution in early-modern Europe fed our all-too-familiar propensity to rush into print and/or pixels. More than one publisher (e.g., Aldus Manutius in Italy, and Pierre Ravaud in France) adapted festina lente as a brand, which cast the early printer as a Renaissance man, who practiced the new trade as a mystery, as well as a business. And the emblem literature recommended that would-be authors similarly exercise impulse control and learn their craft before indulging “the Itch of Scribling” — from Medicaster Medicatus, or, a Remedy for the Itch of Scribling (1685), by the talented Plymouth surgeon James Yonge — as counselled in Emblem No. 185, “We should not publish our works in haste,” of Geoffrey Whitney’s A Choice of Emblemes and Other Devises (1586).
The human compulsion to act in haste is, of course, exacerbated in this digital age, when each of us has the tools to self-publish, and with this, the ability to bypass the gatekeepers & roadblocks & speedbumps that slowed our public journeys in the past. Lacking many of the checks & balances on character and behavior that controlled us in the past, a robust practice of festina lente everywhere in our work and personal lives is no longer a nicety, but has become a necessity.
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