County of Monterey v. W. W. Leasing Unlimited

Opinion

In a proceeding in eminent domain brought by the County of Monterey the jury awarded W. W. Leasing, Unlimited, owner of the condemned property at the time the proceeding was instituted, the sum of $7,318.50. W. W. Leasing appeals from the judgment on various grounds. We find them to be without merit, and consequently affirm.

1. Alleged error in failing to instruct that appellant had suffered severance damages through impairment of access.

In January 1977 appellant contracted for the sale of both parcels to one Leo Copper for $90,000, reserving the right to proceeds from the condemnation proceeding. In March 1977 Copper applied to reclassify the residentially zoned parcel to a commercial designation, C-l-D. That application was not granted, but instead, in August 1977, the board of supervisors accepted a recommendation of the county zoning administrator that the entire property be zoned H-l, allowing for commercial use only with a use permit. In September 1977 the sale from appellant to Copper was consummated, and shortly thereafter Copper applied for a use permit to allow for construction and maintenance of a restaurant on the property. The zoning administrator granted the permit on the condition that access to the restaurant be from Olmstead Road, and not from Highway 68. The zoning administrator testified in the trial of this matter that the condition was imposed because in his opinion restaurant access from the highway would be dangerous, and that the condition was in no way related to the pending condemnation proceeding. Copper testified that he was aware of access problems when he entered into the contract for sale, that access from the highway would have been inadequate even if it had been permitted, and that he preferred access from Olmstead Road, which he was seeking to obtain. The only valuation witness who testified concerning access at the trial was the county’s witness, who expressed the opinion that access to appellant’s property was not adversely affected by the taking, and that in fact it may have been improved as a result of the county’s work on Olmstead Road.

2. Alleged error in excluding evidence of recent valuation data.

In valuing the property taken, both appellant’s and respondent’s expert witnesses made reference to the sales of comparable properties (“comparables”). Under the terms of Code of Civil Procedure sections 1258.210 through 1258.300, the parties were required to exchange data pertaining to such comparables 40 days prior to commencement of the trial. The penalty for failure to comply with this requirement is exclusion of evidence of the comparables at least from the offering party’s case-in-chief. (Code Civ. Proc., § 1258.280.) Here, the comparable sales originally used by appellant’s first witness, Mrs. Arnold, were properly exchanged. Mrs. Arnold had, however, made her appraisal in December of 1977. Apparently, trial had at that time been set for January of 1978. After the January trial date was continued, apparently at respondent’s request, Mrs. Arnold did further research and discovered several new comparables. These new comparables were not exchanged with respondent pursuant to the statutory procedure. Respondent first learned of them when appellant elicited the testimony of Mrs. Arnold at the original trial which commenced on June 19, 1978, and ended in a mistrial on June 21. It was the introduction of evidence concerning those comparables which provoked the court in the original trial to grant a mistrial.

A similar situation arose with respect to comparables relied upon by appellant’s second valuation expert, one Samuelson. This expert had made his appraisal after the continuance of the January trial date. Appellant submitted the appraisal report to respondent but neglected to attach a list of the comparables upon which the expert had relied.

In arguing that the comparables were proper subjects for rebuttal appellant concentrates primarily on the facts that the trial herein had been delayed and that the valuation by respondent’s expert was two years old. Appellant states the comparables were relevant on rebuttal “to show 1) the existence of sales activity [subsequent to the appraisal made by respondent’s expert], 2) the lack of investigation and lack of thoroughness on the part of [that expert], and 3) the indication of value as derived from the elements of comparability.” As to the last of these asserted bases of relevance on rebuttal—the indication of value—this was precisely the issue which appellant was required to and did address in its case-in-chief. As to the other asserted bases of relevance, appellant successfully brought out evidence concerning these subjects despite the court’s ruling that the comparables were not admissible. In testifying on redirect, respondent’s valuation expert testified that he had “not made an investigation of the movement of prices” because from his experience he felt that such movement did not exist. In response, appellant introduced testimony from Arnold and Samuelson that in the relevant time span commercial property of the sort in question had indeed increased in value. Further, in cross-examining respondent’s expert, appellant elicited testimony that the expert had not relied on the subject comparables in making his appraisal and thus brought to the jury’s attention the expert’s alleged “lack of investigation and lack of thoroughness.”

We conclude that appellant was allowed fair scope for rebuttal and that the court properly excluded from such rebuttal the unexchanged data on comparables.

3. Alleged lack of evidence to support the jury’s valuation.

Appellant contends the jury’s valuation of the property is not supported by the evidence in that it was based on a valuation made by respondent’s expert which was dated by two years.

The valuation evidence was basically as follows. Respondent’s expert, Mr. Brodd, valued the property at $1.50 per square foot as of the date of trial for a total of $7,318.50 for the 4,879 square feet taken. His

Both of appellant’s experts disagreed with Brodd’s opinion that commercial properties in the subject area had not increased in value in recent years. They also disagreed with Brodd’s valuation. Arnold assigned a value of $6.50 per square foot; Samuelson valued the property at $3 per square foot.

It is evident from the jury’s verdict awarding appellant $7,318.50 that it accepted the opinion of respondent’s witness who testified that his valuation was current. The determination of value was a question for the jury. (Cal. Const., art. I, § 19.) It rested with the jury to determine the credibility of the expert witnesses and to resolve conflicts in their opinions. (See City of Carlsbad v. Wight (1963) 221 Cal.App.2d 756 , 763 [ 34 Cal.Rptr. 820 ]; People v. Loop, supra, 127 Cal.App.2d at p. 800.) We conclude the jury’s award is supported by the evidence.

4. Alleged error in finding no compensable loss of use.

Appellant argued to the trial court that it was entitled to damages for “loss of use of possession” during the 27 months between the time this action was commenced and the date of trial. The parties stipulated that the question of entitlement was one for the court as a matter of law, and they agreed upon a formula for determining loss if entitlement was found. The trial court found no compensable loss of use, and appellant contends that was error. It argues that appellant “had the burdens, but not the benefit” of the property during the 27-month period, and was therefore entitled to compensation for the value of the use.

The only authority cited by appellant in support of this contention is Sacramento & San Joaquin Drainage Dist. v. Goehring (1970) 13 Cal.App.3d 58 [ 91 Cal.Rptr. 375 ], which applied the principle that a property owner is entitled to compensation for a temporary taking (in that

The judgment is affirmed.

Racanelli, P. J., and Newsom, J., concurred.

A petition for a rehearing was denied August 14, 1980, and appellant’s petition for a hearing by the Supreme Court was denied September 10, 1980.