Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCV 238112
Haerle, Acting P.J.
I. INTRODUCTION
Appellant, an Alameda County attorney, was hired by respondent to represent her in a 2002-2003 real estate dispute involving her, her brother, and other parties, and land owned by respondent and her brother on Skaggs Island in Sonoma County. After the resolution of that dispute, a second dispute arose between these two parties as to the fees owed appellant pursuant to the retention agreement between him and respondent. Appellant sued in Sonoma County Superior Court to collect the fees he claimed were owed him under that agreement. After the close of appellant’s case in a bench trial, respondent moved for judgment pursuant to Code of Civil Procedure section 631.8 (section 631.8). The court granted that motion and entered judgment for respondent. Appellant appeals, claiming a lack of substantial evidence to support the trial court’s ruling. We disagree there was a lack of such evidence, and thus affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
The property at issue here, the Haire Ranch (hereafter sometimes ranch) on Skaggs Island in Sonoma County, was acquired by respondent and her brother, James Haire (hereafter sometimes James) as a gift from their mother in 2000. In April 2001, James approached his sister and offered to buy her half-interest in the ranch for a little over $200,000. Respondent agreed and sold her interest to her brother.
The following year, respondent discovered—apparently from a newspaper article—that, at the time of the agreement with his sister, James had been in negotiations with an organization known as Wildlands, Inc. (Wildlands) regarding a complicated agreement whereby Wildlands would purchase the property from James, resell it to the San Francisco Airport Authority, which would then convert the property into wetlands and, in consideration of that action, be allowed to expand the airport’s existing runways further into San Francisco Bay.
Respondent thereafter hired appellant—as noted, an attorney—to represent her in an effort to rescind the 2001 agreement with her brother James. Her retention agreement with appellant, executed on September 9, 2002, provided that the latter would be paid on a contingency fee basis based on the “fair market value” of “all land and personalty recovered for the benefit of the client....” Respondent was not represented by counsel in the negotiation of this agreement with appellant. She paid appellant $5,000 at the beginning of his representation of her, that amount to be credited against any contingency fee received by appellant.
The sister/brother dispute was resolved in October 2003 by a settlement negotiated by appellant on respondent’s behalf with James. Under that settlement, James paid his sister 50 percent of the option payments he had received from the Airport Authority and transferred to her a 45.25 percent interest in the ranch property. However, prior to the execution of this agreement, in June 2003, the San Francisco Airport Authority cancelled the option agreement.
Less than a year later, on May 27, 2004, Wildlands itself stepped into this breach by executing a new option agreement with the Haires under which it secured a one-year option to purchase the ranch for between $9 and $12 million. The reason for this agreement, according to the record made in the court below, was that Wildlands believed that the U.S. Government might decide to “buy out” a levee maintenance agreement it had regarding all of Skaggs Island—including the approximately one quarter thereof comprising the Haire Ranch—in conjunction with the anticipated conversion of the former Skaggs Island Naval Communications Center (closed in 1993) back to wetlands. If it ever exercised the option provided for in that agreement, Wildlands apparently planned to pay the Haires the purchase price, take title to the land, and then sell “mitigation credits” for the ranch property. Thus, the $9 million to $12 million figure was apparently based on Wildlands’ view of what it might obtain by way of a “buy out” from the federal government of the latter’s obligations under the Skaggs Island levee maintenance agreement.
However, this opportunity did not occur, and the May 2004 option agreement between the two Haires and Wildlands expired in May 2005. After that, respondent attempted to negotiate another option agreement with Wildlands, without success. Wildlands submitted to respondent a four-page, unsigned “Letter of Intent” that, while making clear that it had “no legal effect” and that “no binding contract” existed between the parties, stated that Wildlands might, thereafter, be willing to enter into an option agreement to purchase respondent’s interest in the Haire Ranch for $4,185,000, i.e., 46.5 percent of $9 million. However, no such option agreement was ever executed; indeed, the 2005 Letter of Intent itself was never signed by either party. From July 2005 until the trial of the case, no other offers or offers of options to purchase the property were received by respondent from Wildlands—or, apparently, from anyone else.
How and when respondent’s interest in the ranch increased from 45.25 percent to 46.5 percent is, at least to us, not clear from the record.
In the meantime, specifically in December 2004, appellant demanded to be paid a portion of his fee under the 2002 retention agreement. That agreement provided in relevant part as follows:
“12.... a. The attorney shall receive 10% (TEN PERCENT) of all cash recovered from the matter for the benefit of the client, accomplished by settlement prior to the filing of litigation in a court, and further shall receive 7.5% (SEVEN AND ONE-HALF PERCENT) of the value of all land and personalty recovered for the benefit of the client, accomplished by settlement prior to the filing of litigation in a court;... [¶]
“15. That for purposes of paragraph 12, the phrase ‘value of all land and personalty’ shall be defined to mean that reasonable and fair market value which is the highest determinable at time of payment of the fee due the attorney under paragraph 12. The fair market value shall be determined either by qualified appraisal, the averaging of any disputed qualified appraisals, or actual bona fide offers to purchase any such land or personalty, which offers are current and pending at the time of payment, whatever method shall render the highest land value; provided that any bona fide offer to purchase said land by the San Francisco Airport Authority must be active and available to the client at the time of payment of the fee and cannot be contingent upon the occurrence of further events beyond the control of the client.”
Appellant’s December 2004 demand was based on the 2004 option agreement with Wildlands, claiming that it had effectively set the value of the Haire Ranch at between $9 million and $12 million. Respondent refused to pay this amount, arguing that those sums were simply a “strike price” and did not represent either a bona fide offer to purchase the ranch or an appraisal of the ranch’s real value. Sometime thereafter—neither the complaint or the date it was filed is included in the record provided us—appellant filed suit against respondent.
As noted below, at trial appellant’s contention regarding the fair market value of the ranch was based not on the $9 million-$12 million figure in the 2004 option agreement but, rather, on the $9 million figure in the unexecuted 2005 Letter of Intent.
On July 10, 2007, the parties entered into a partial settlement agreement under which they agreed that the only issues to be tried to the court were (1) the amount of the fee to which appellant was entitled as of June 2005 and (2) whether he was entitled to receive 10 percent of the lease payments respondent was receiving under the 25-year lease of the property she and her brother had effected.
As noted in appellant’s reply brief, this issue was resolved in appellant’s favor at trial and is not before us in this appeal.
The parties waived a jury and the case was tried to the court (the Honorable Gary Nadler) in early October 2007. Appellant called four witnesses: the CEO of Wildlands, Steve Morgan, a real estate appraiser retained by him, Dan Tosh, respondent, and himself. Insofar as pertinent, their testimony will be summarized below. Also at trial, the parties stipulated that respondent had paid appellant a total of $59,500 under their agreement; that sum included the $5,000 retention payment noted above and $23,500 paid in connection with the settlement between appellant her brother, James.
On October 5, 2007, at the close of appellant’s case, respondent brought her motion under section 631.8, arguing that appellant had failed to establish the fair market value of the ranch and, consequently, was unable to prove damages. The trial court agreed with respondent’s position and granted the motion; in the process, it made some specific findings also to be detailed below. A formal judgment was entered in favor of respondent on October 31, 2007.
Thereafter, appellant filed motions for both a new trial and to set aside the judgment. Both motions were argued to the court on February 13, 2008. On February 20, 2008, appellant’s new trial motion was denied by the trial court as untimely and his motion to set aside the judgment was denied on the merits. Appellant filed a timely notice of appeal.
III. DISCUSSION
A. Our Standard of Review.
The first, and possibly most important, rule of law relevant to our disposition of this appeal is our standard of review of a judgment based on the trial court’s grant of a motion brought at the close of a plaintiff’s case under section 631.8. That standard is premised on the underlying purpose of that section, which was recently summarized by one of our sister courts. In People ex rel. Dept. of Motor Vehicles v. Cars 4 Causes (2006) 139 Cal.App.4th 1006, 1012 (DMV), the court wrote: “The purpose of Code of Civil Procedure section 631.8 is ‘to enable the court, when it finds at the completion of plaintiff’s case that the evidence does not justify requiring the defense to produce evidence, to weigh evidence and make findings of fact.’ [Citation.] Under the statute, a court acting as trier of fact may enter judgment in favor of the defendant if the court concludes that the plaintiff failed to sustain its burden of proof. [Citation.] In making the ruling, the trial court assesses witness credibility and resolves conflicts in the evidence. [Citations.]”
Regarding the standard of review itself, the DMV court cited San Diego Metropolitan Transit Development Bd. v. Handlery Hotel, Inc. (1999) 73 Cal.App.4th 517, 528 (San Diego Met.), for the rule that “[o]n appeal, we view the evidence in the light most favorable to the judgment, and are bound by the trial courts’ findings that are supported by the substantial evidence.” (DMV, supra, 39 Cal.App.4th at p. 1012.) But the San Diego Met. case went into even further detail regarding the standard of review issue, stating: “The standard of review of a judgment and its underlying findings entered pursuant to section 631.8 is the same as a judgment granted after a trial in which evidence was produced by both sides. In other words, the findings supporting such a judgment ‘are entitled to the same respect on appeal as are any other findings of a trial court, and are not erroneous if supported by substantial evidence.’ [Citations.] Consequently, where a trial court’s factual finding is challenged on the ground there is no substantial evidence to sustain it, the power of the reviewing court begins and ends with the determination as to whether, on the whole record, there is substantial evidence, contradicted or uncontradicted, that will support the trial court’s determination. [Citation.] [¶] The appellate court views the evidence in the light most favorable to the respondents [citation], resolves all evidentiary conflicts in favor of the prevailing party and indulges all reasonable inferences possible to uphold the trial court’s findings [citation].” (San Diego Met., supra, 73 Cal.App.4th at p. 528; see also Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1263; Allegretti & Co. v. County of Imperial (2006) 138 Cal.App.4th 1261, 1269; Kinney v. Overton (2007) 153 Cal.App.4th 482, 487; & 7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 435(2), p. 507.)
Although not citing any of these recent cases, respondent agrees that whether or not there is substantial evidence supporting the trial court’s grant of a section 631.8 motion is the correct standard of review.
Appellant’s argument on this issue is, to say the least, varied. In headings in his opening brief, he seems to agree that whether or not there was “substantial evidence to support the court’s grant of respondent’s” section 631.8 motion is the operative standard of review, but then seems to quickly morph into arguments based on the weight the trial court should have given to various evidence presented by him at the trial. Then, at the beginning of his reply brief, appellant argues that “whether there was substantial evidence to support the trial court’s finding that appellant made no proper prima facie showing of value of Haire Ranch” is “an unnecessary analysis in this case” which “this Court need not even reach....” And later in that same brief, appellant changes his standard of review argument for the fourth time, arguing that, at trial, he had presented “substantial evidence showing his prima facie case of value.”
Appellant is clearly wrong; we will follow the standard of review principles set forth above from the DMV and San Diego Met. cases.
B. The Trial Court’s Findings.
As noted above, after hearing argument from the parties on respondent’s section 631.8 motion on October 5, 2007, and then recessing to consider the issue, the trial court made verbal findings and rulings, the key portions of which were as follows:
Apparently neither party requested a statement of decision, as could have been done pursuant to section 631.8, subdivision (a), and Code of Civil Procedure section 632. (See Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 140.)
“The issues before the Court were limited by agreement to plaintiff’s entitlement to legal fees under his contract with the defendant.... Under that contract plaintiff was to receive 7.5 percent of the value of all land and personalty received for the benefit of the client. Plaintiff drafted the contract, he was the attorney for the defendant as a result of that contract, defendant was not otherwise represented by counsel.
“... [P]aragraph 15 of [the contract] defines the term value of all land and personalty as, quote, that reasonable and fair market value which is the highest determinable, end quote, at the time of the payment of the attorney fee.
“The parties stipulated that the date in question, that being the date for the payment of that fee, is June 28th, 2005.
“The contract further addresses the term fair market value, or further addresses the fair market value as a defined term and bases its determination on a qualified appraisal if there are disputed qualified appraisals by averaging them or by bona fide offer to purchase. The Court finds no evidence of the bona fide offer to purchase that has been presented....
“Qualified appraisal, that term is not defined and is ambiguous. Plaintiff argues that defendant waived arguing that the contract term in question is ambiguous as she failed to affirmatively respond to an interrogatory requesting this position. However, the Court finds no intent to waive that. The Court does appreciate that such was the interrogatory answer, however, it is noted that plaintiff was aware of the position of the defense with respect to the ambiguity. Both before and during trial plaintiff responded to it, offered evidence in relation thereto, and, therefore, plaintiff was not prejudiced by the defendant’s raising of that point.
“The court further notes again that plaintiff was the drafter of [the contract] and was in a far superior bargaining position to plaintiff as her advisor and attorney. Construing that term, for want of a better word, more favorable to the defendant, the Court determines that the evidence presented supports a definition of a qualified appraisal as an appraisal of the property performed by qualified person to give that opinion. Defendant asserts here that her motion should be granted for two general reasons, first, that there was no fair market value appraisal; and second, the appraisal, even if there was one, was not supported by the evidence.
“Addressing the first point, with respect to the fair market value appraisal, at least as that term is used in the contract..., Mr. Tosh, who is Plaintiff’s expert, relied, or at least according to the defendant, on the [2005] Letter of Intent. The defendant argues that he did not consider the highest and best use and thus did not consider the market value. He did testify, that being Mr. Tosh, that it would cost too much to do such an appraisal, he was not paid to do so and it was beyond the scope of his retention.... Mr. Tosh did testify that he did what he did to determine the value of the property to the extent that he did so determine it, that he perhaps used that Letter of Intent as a point of reference, but he did not testify in this deposition or at trial that that is what he relied on in arriving at his values; however, Mr. Tosh did testify as to the limitations of his valuation, vis-a-vis his opinions with regard to the value of the Haire Ranch, including his testimony that he did not consider the highest and best use. He did not contact any potential buyers or sellers of the comparable properties that he utilized. He did not contact Mr. or Ms. Haire. He did not give a good reason for not contacting them, simply that they weren’t cooperative, but he did testify he made no attempts to cooperate and there has been no testimony indicating that such cooperation was impossible or too difficult or even that it wouldn’t have been provided.
“On the other hand, it is also clear that Mr. Tosh made no effort whatsoever to contact any of the sellers or purchasers of the comparable properties that he evaluated for the purposes of arriving at a value for the Haire Ranch. Now he indicated that in his opinion it was not necessary to do so. The Court finds that testimony to be implausible....
“And he indicated in general terms that the market value is defined as a hypothetical buyer and a hypothetical seller, who were both knowledgeable, and who were both typically motivated, and ultimately that leads to a determination of some value for the property. In this case he clearly testified that he was not retained to spend the time and effort to contact the buyers and sellers, he did not learn with respect to any of the comparable properties what their purpose was, where they are located, for example, whether they were subject to -- strike that – whether they were in an area that was reasonable for purposes of development, whether commercial or residential or otherwise, and he did admit that such would possibly affect the value of the properties.
“All in all, the Court determines that by not considering these sorts of issues, again including the highest and best use, thus not really considering the market value as it was defined by him, the Court determines that his testimony as to the value is not supported by the evidence....
“... The Letter of Intent is nothing more than that, it was a letter as testified to by Mr. Morgan that retained certain rights and those rights would be exercised according to Mr. Morgan if certain contingencies were to come into effect. Those contingencies never came into effect. The Court does not believe based upon the evidence presented that the Letter of Intent that was marked as Exhibit 5 in this case is any reasonable indication whatsoever of the value of the Haire property, and, in fact, Mr. Morgan in his testimony agreed in response to questioning regarding the same. The fact that if certain contingencies were to come into play, were to have been resolved, thus in Mr. Morgan’s view making that property worth $9 million is one thing, but those contingencies were never arrived at, the contingencies were never satisfied, the property, in fact, never was in the position that would have merited the... $9 million as testified to by Mr. Morgan, and he certainly chose not to exercise the option in light of the fact that the contingencies were never resolved. The Court does not find the Letter of Intent to be a bona fide offer....
“There are no damages, and damages are an element for breach of contract. That being said, for the reasons stated by the court, the Court does grant the defense motion at this time. That’s pursuant to Code of Civil Procedure Section 631.8.”
C. The Parties’ Contentions on Appeal.
Summarizing appellant’s contentions regarding these findings and rulings is not the easiest of tasks in view of the 87 pages of briefs he has filed with this court plus, as noted above, his confusing and varied positions regarding our standard of review. But we shall attempt to summarize them as best we can from both his argument in opposition to the section 631.8 motion in the trial court and his briefs to us. That summary is as follows:
Not counting an exhibit attached to his opening brief, an 11-page document entitled: “Uniform Standards of Professional Appraisal and Advisory Opinions, 2006 Edition.” This document was never entered into evidence in the trial court or, as far as we can determine, even offered into evidence by appellant.
1. “All of the evidence supported [a] finding of [a] nine million dollar value. Mr. Tosh stated that in his professional opinion that was the property’s value.” In so opining, Tosh “had to consider” the 2005 Letter of Intent. There was no effective impeachment of Tosh on this issue; further, there was no need for Tosh to contact buyers and sellers of comparable property to compare comparable sales, as the trial court effectively ruled. Similarly, Tosh was not required to conduct a “highest and best use study” as such was not relevant or required; the only relevant consideration was whether $9 million was a “reasonable value.” It was because Tosh performed a market value assessment of the property and determined it was $9 million. He did so based on both the 2004-2005 option agreement between Wildlands and the Haires and the potential extension of that agreement memorialized in the unexecuted Letter of Intent between Wildlands of July 2005, which set the value of the ranch as a whole at $9 million. Tosh was justified in viewing that letter as an offer of another option agreement setting the value of the land at $9 million; thus, such was a “real option agreement” setting a “substantive value.” Overall, Tosh’s expressed opinion was “undisputed, uncontradicted evidence of [the] value” of the ranch.
2. Respondent’s execution of the 2004-2005 option agreement and her approval of the draft 2005 Letter of Intent constituted “adoptive admissions” of the value of the property set forth in those documents, and she is thus “judicially estopped” from now contesting that value.
3. In paragraph 12 of his agreement with respondent, the phrase “qualified appraisal” was not ambiguous; further, that term was intended to broaden the concept of an appraisal, as neither appellant nor respondent thought it was worthwhile to spend the necessary funds to secure a more formal real estate appraisal in order to determine the correct amount of attorney fees payable to appellant.
4. A “qualified appraisal” includes the opinions of the owner and a party such as Wildlands regarding the property’s value. In this connection, Wildlands became the “arbitrator of any potential independent appraisal of the property” via the valuations set forth in both the 2004 option agreement and the draft 2005 Letter of Intent. The opinion of its CEO, Morgan, that a $9 million sale was “realistically achievable” and “probable” undermined the trial court’s ruling. Thus, the court erred in not relying on the Letter of Intent’s $9 million value because that document “embraced already discussed and agreed upon terms, on which Wildlands was prepared to form a contract.” In short, the letter “tended to establish value.”
5. The trial court “substitut[ed] its own judgment” regarding the value of the property for that of Tosh; this was legally wrong, because cases such as Aetna Life & Casualty Co. v. City of Los Angeles (1985) 170 Cal.App.3d 865, 877 (Aetna), allegedly reinforced by “BAJI No. 3515,” establish that the “trier of fact in an eminent domain action... does not make a determination of market value based on its opinion thereof” when that opinion conflicts with expert testimony and prohibits the trier of fact from rejecting an expert real property appraisal.
Respondent’s contention can be summarized much more concisely: the trial court’s ruling was supported by substantial evidence, including the evidence cited by it in its verbal ruling of October 5, 2007, and specifically the failure of appellant, in the trial court, to adduce probative evidence of the “market value” of the property sufficient to trigger an obligation on the part of respondent to pay appellant any more attorney fees than she already had. We agree with respondent, for the reasons set forth below.
D. Our Resolution of these Contentions.
The key issue before the trial court and now us is whether respondent breached her obligation to pay appellant any attorney fees owed him under paragraphs 12 and 15 of the retention agreement and, more specifically, whether at the time of appellant’s demand letter of December 2004, there had been—or even was thereafter—any determination of the “fair market value” of her interest in the Haire Ranch.
The parties apparently agreed, during cross-examination of Tosh, that the term “fair market value” has now been effectively replaced by the term “market value” in the appraisal community. We will, nonetheless, use the term appearing in the 2002 retention agreement between the parties.
The term “fair market value” was defined in the second sentence of paragraph 15 of the retention agreement as follows: “The fair market value shall be determined either by qualified appraisal, the averaging of any disputed qualified appraisals, or actual bona fide offers to purchase any such land or personalty, which offers are current and pending at the time of payment....”
In his lengthy and very repetitive briefs to us, appellant does not contend that there were either multiple “disputed qualified appraisals” to be averaged or “actual bona fide offers to purchase” the ranch (i.e., the second and third definitions of “fair market value” in paragraph 15). He is thus left with the first definition, “qualified appraisal,” and argues that the trial court erred in finding that there was no such appraisal establishing the “fair market value” of the ranch.
First of all, in so arguing, appellant is clearly asking this court to reweigh the evidence. This is, as appellant should be aware, inappropriate. First of all, appellant’s position runs totally contrary to the rule cited above that “[t]he appellate court views the evidence in the light most favorable to the respondents [citation], resolves all evidentiary conflicts in favor of the prevailing party and indulges all reasonable inferences possible to uphold the trial court’s findings [citation].” (San Diego Met., supra, 73 Cal.App.4th at p. 528.) Additionally, the law has long been clear that an appellant should not reargue facts or “merely reassert its positions at the trial.” (Conderback, Inc. v. Standard Oil Co. (1966) 239 Cal.App.2d 664, 687; accord, Albaugh v. Mt. Shasta Power Corp. (1937) 9 Cal.2d 751, 773; see, generally, 9 Witkin, Cal. Procedure (5th ed. 2008) Appeals, §§ 365, 368.)
Citing selected passages from his examination of Wildlands’ CEO Morgan, his appraiser Tosh, and respondent, appellant argues that: (1) there was not substantial evidence that the “fair market value” of the ranch had not been established, (2) there was substantial evidence that that value was $9 million, (3) respondent personally “adopted” these valuations by her execution of the 2004 option agreement and her general approval of the 2005 Letter of Intent and is now “judicially estopped” to deny that value, and (4) all this doesn’t matter because as a matter of law the trial court erred in substituting its judgment regarding the evidence of land value for the opinion offered by Tosh (based largely on the 2004 option agreement and the unexecuted 2005 Letter of Intent).
As noted above, argument (2) stands our standard of review on its proverbial head and we will thus disregard it. Argument (3) as to respondent’s alleged “adoptive admissions” (a term used repeatedly in appellant’s briefs) and “judicial estoppel” borders on the frivolous and we will deal with it only in the footnote below. We are thus left with only arguments (1) and (4) summarized above.
In both direct and cross-examination, respondent testified that the 2004 option agreement and the 2005 Letter of Intent “had nothing to do with your [i.e., appellant’s] fee. I thought your fee was based on the value of the property. I thought those two were separate.” And appellant’s argument that respondent was “judicially estopped” from denying that she owed him additional attorney fees under their retention agreement crosses the border onto the “totally frivolous” side of things. (See, e.g., 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, §§ 339-341, pp. 944-951 [defining what constitutes, and what does not, “judicial estoppel.”].)
Regarding the first, i.e., the evidence as to the “fair market value” of the Haire Ranch, there were only two witnesses whose testimony was directly relevant to this issue, Morgan and Tosh. Morgan’s testimony on this subject was that his company entered into both the 2004 option agreement and attempted (unsuccessfully) to renew that agreement for another year via the 2005 Letter of Intent with the intention of being able to “flip” the property to a “bridge customer” who might then be able to sell it to, e.g., the San Francisco Airport Authority. But his testimony made quite clear that the 2005 Letter of Intent—which, if ever executed, might have extended this opportunity—had nothing to do with the intrinsic value of the property itself. He testified specifically to this effect on cross-examination by respondent’s counsel (testimony not in any way contradicted on direct or redirect examination) as follows:
“Q. Wildlands is – is it true – fair to say that Wildlands can be categorized as a specialty buyer of real estate:
“A. Correct.
“Q. And that you look for particular types of property?
“A. Correct.
“Q. And when you enter into and Wildlands enters into option agreements on a particular piece of property, that – the strike price and the option agreement isn’t based on any inherent value of the property, is that fair?
“A. Normally not.
“Q. It is based upon the concept that you may possibly be able to do something to develop it into wetlands?
“A. To add value.
“Q. And so that’s something that’s pecuniary to Wildlands, is that correct?
“A. That’s correct.
“Q. And particularly in the case of Haire Ranch as of 2004, 2005, there were a number of contingencies that would have had to have fallen into line to make that property anywhere close to marketable for the purposes that you had in mind, correct?
“A. That’s correct.
“Q. And those contingencies didn’t happen?
“A. Correct.
“Q. And is there any – at any time in the last five to seven years, has Wildlands ever been willing to make an offer to buy the Haire Ranch?
“A. As Wildlands being the buyer?
“Q. As Wildlands being the buyer?
“A. No.
“Q. As far as you know has there ever been any other party who has been willing to make an offer that is an offer to purchase Haire Ranch through Wildlands?
“A. No.
“Q. And I just want to make sure I asked this question, the strike price – the letter of intent as far as you are aware was never signed by anybody, correct?
“A. Correct.
“Q. So, therefore, there was never a negotiated – any option agreement as contemplated in the letter of intent, correct?
“A. Correct.
“Q. And the proposed strike price of $9 million.
“A. Correct.
“Q. Did that have any basis that was reflective of the market value of the Haire Ranch?
“A. No.”
The testimony of appellant’s retained real property appraiser, Tosh, was equally unhelpful to appellant. As specifically noted by the trial court, in both his deposition and trial testimony Tosh made clear that the principal basis of his opinion that the Haire Ranch had a value of $9 million was the unexecuted 2005 Letter of Intent. Thus, when asked by respondent’s counsel whether “your assignment and what you actually did was to determine whether this price that was stated in the projected option agreement [i.e., the 2005 Letter of Intent], whether it was reasonable, is that correct?,” Tosh answered in the affirmative and with no qualification. This confirmed almost exactly the same answers he had provided in his deposition, where he explained: “I used the Letter of Intent to determine... is this value... fair and reasonable? That’s all I was doing. That’s all my assignment was. Does this price they are willing to pay make sense, is it reasonable?” On direct examination, he termed his effort as a “restricted use appraisal” undertaken “to determine if the offer of intent... of $9 million made sense, if that was probable.”
In arriving at the conclusion he did, i.e., that the $9 million figure in the 2005 Letter of Intent represented a “reasonable” value for the Haire Ranch, however, Tosh conceded that he had never done any of the following: (1) visited, or even tried to visit, the ranch, (2) talked to either of the owners of the ranch (ibid.), (3) talked to anyone from Wildlands, (4) determined from Wildlands “under what circumstances if any they would be actually willing to sign the Letter of Intent” or “enter into an agreement to buy Haire Ranch,” (5) assessed the value of the Haire Ranch as wetlands, (6) saw any of the seven properties which constituted the comparable sales of farm or ranch land in Sonoma County that he allegedly used to confirm his opinion that the Letter of Intent figure was reasonable, (7) undertook “to determine the highest and best use of the Haire Ranch,” (8) took into consideration an actual “highest and best use” appraisal done in 2000, which apparently produced an appraised value of $2.245 million.
With regard to the seven “comparable sales” which Tosh looked at—on paper anyway—to confirm the reasonableness of the $9 million figure in the Letter of Intent, on direct examination it came out that these properties—alike only in that they were all in Sonoma County and all zoned for farming or agricultural use—had been sold for a range of “from $5,030 to $309,200 per acre, so it was quite a large range.” On cross-examination, it became apparent that the reason it was such a “large range” was that some of those “farm and ranch” properties bordered on Santa Rosa, Petaluma and their suburbs.
The $9 million figure in the Letter of Intent produced a per acre “value” of $8,334 per acre for the ranch.
Clearly, the trial court was correct in determining that Tosh had not truly valued the Haire Ranch at its highest and best use value, or otherwise performed a realistic appraisal of the property but, as he conceded several times, was asked only to come up with various bases upon which to justify a conclusion that the $9 million figure in the 2005 Letter of Intent was, as of then, a “fair market value” for that property. In short, Tosh’s testimony supports and does not detract from the trial court’s conclusion that, in his case in chief, appellant had not presented substantial evidence that the “fair market value” of the ranch was $9 million as of 2005.
Finally, appellant’s argument that the trial court erred as a matter of law in substituting its opinion as to the property’s value for that of Tosh is similarly lacking in merit. Appellant contends that cases such as Aetna combined with “BAJI No. 3515” undermine the trial court’s section 631.8 ruling. We strongly disagree. In the first place, there is no BAJI No. 3515, but we assume appellant means the BAJI instruction that corresponds to CACI No. 3515, which would be BAJI No. 11.80. That jury instruction simply states that the trier of fact may not “find the market value of property... to be less than or more than that testified to by any witness” in an eminent domain action and that a jury may determine that fair market value “only from the opinions of the witnesses who have testified.” (BAJI No. 11.80.)
Appellant’s oft-cited Aetna opinion reiterated this rule in an inverse condemnation action, holding: “The only type of evidence which can be used to establish value in eminent domain cases is the opinion of qualified experts and the property owners. [Citations.] [¶] A jury hearing a condemnation action may not disregard the evidence as to value and render a verdict which either exceeds or falls below the limits established by the testimony of the witnesses. [Citations.] The trier of fact in an eminent domain action is not an appraiser, and does not make a determination of market value based on its opinion thereof. Instead it determines the market value of the property, based on the opinions of the valuation witnesses. [Citation.]” (Aetna, supra, 170 Cal.App.3d at p. 877.)
The various other cases cited by appellant hold substantially to the same effect. But neither they, Aetna, nor BAJI No. 11.80 impact in the slightest on the trial court’s ruling. The premise of that ruling was that appellant produced no credible expert testimony establishing the “fair market value” of respondent’s interest in the Haire Ranch at the critical point in time (2004 or 2005). That court did not, in any way, substitute its opinion of value for that of a qualified expert, the practice precluded by the law set forth in Aetna, BAJI No. 11.80, and the other authority cited by appellant.
For all these reasons, we agree with the trial court that appellant failed to produce substantial evidence of the fair market value of respondent’s interest in the Haire Ranch as of 2004 or 2005 and, thus, that respondent’s section 631.8 motion was properly granted.
IV. DISPOSITION
The judgment is affirmed.
We concur Lambden, J., Richman, J.