Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. C06-00587.
Jenkins, J.
Introduction
In March 2008, a jury awarded defendants C. Donald Carr, Lonne Carr and their company, Bay Area Wetlands, LLC (jointly “defendants”) $6,845,000 in compensation after plaintiff East Bay Regional Park District (EBRPD) acquired a substantial portion of defendants’ shoreline property in Richmond by eminent domain. Defendants appeal the jury verdict, contending it should be set aside and the matter remanded for a new trial because the trial court committed legal error when it barred Bay Area Wetlands, LLC’s claim for lost goodwill and dismissed the Carr’s’ claim for precondemnation damages under Klopping v. City of Whittier (1972) 8 Cal.3d 39 (Klopping). Defendants also contend that several of the trial court’s evidentiary rulings were erroneous and prejudicial. We find defendants’ contentions unpersuasive and affirm the judgment in all respects.
Respondent EBRPD filed a “Motion to Strike Portions of Appellants’ Reply Brief” on December 14, 2009. The motion requests that we strike those portions of the reply brief referring to information allegedly obtained from internet sites that is not part of the appellate record. Appellants filed an opposition on December 21, 2009, citing cases for the proposition that appellate courts routinely take judicial notice of matters contained on publicly available websites. These cases either involve the issue of judicial notice of an official document downloaded from a governmental website or judicial notice of the website itself but not contents thereof, and are inapposite here. Thus, respondents’ motion to strike portions of the reply brief is granted.
Background
A. The Property
The property at the center of this dispute (the Property) comprises 237.36 acres located on San Pablo Bay in the northern part of the City of Richmond (104.03 of the 237.36 acres are submerged in the San Pablo Bay). The Property is sandwiched between the San Pablo Bay to the west and the Southern Pacific Railroad line to the east. To the north the Property is bounded by Point Pinole Regional Shoreline, a district park of some two thousand acres managed by EBRPD and to the south by Rheem Creek, which outfalls into the San Pablo Bay. To reach the main portion of the property, one must travel along Goodrick Avenue, a partially improved roadway which intersects the Richmond Parkway. The land between Rheem Creek and the Richmond Parkway is vacant and undeveloped with the exception of the Richmond Rod and Gun Club, which lies just outside the southwestern boundary of the Property on Goodrick Avenue.
Defendants purchased the subject property in 2000 for the sum of $3 million. After defendants acquired the Property, they removed several old buildings along with some garbage and ended the practice of horse grazing on the land. The Property is now totally vacant except for a small facility used by model airplane enthusiasts comprising a storage hut, a parking lot and a strip of asphalt. The property contains extensive areas of federally protected wetlands and “pickle weed” habitat that is home to two federally protected endangered species, the salt marsh harvest mouse and the clapper rail.
B. The North Richmond Shoreline Specific Plan
On March 1, 1993, the Richmond City Council approved North Richmond Shoreline Specific Plan (NRSSP). The NRSSP was developed jointly by the City of Richmond and Contra Costa County in order to guide and regulate development and conservation activities in the plan area in light of the land use and circulation changes occurring due to the extension of the Richmond Parkway. Development proposals in the plan area are subject to review for consistency with the NRSSP. The NRSSP encompasses the area bounded by Point Pinole Regional Shoreline Park in the north, the Southern Pacific Railway on the east, the San Pablo Bay on the west, and Parr Boulevard to the south. The Property lies within the area governed by the Specific Plan.
Under the NRSSP, the majority of the Property was designated for natural conservation, the primary purpose of which was “to protect and enhance the habitat value of mudflats, marshes, wetlands, riparian corridors and adjacent upland areas which provide critical habitat for sensitive species.” Approximately 20 acres in the southeast corner of the Property were designated for office/industrial flex with the intention of generating employment through the development of “modern, non-nuisance industrial space, office and warehouse facilities... characterized by research, product development and related activities.”
C. Planning Applications
In early 2002, defendants submitted plans to develop the Edgewater Industrial Park and Breuner Marsh Mitigation Bank on the property (Edgewater project). The Edgewater project envisioned development of a technology park on 43 acres with the remainder of the Property given over to a wetlands mitigation bank. The City commissioned an Environmental Impact Report (EIR) on the Edgewater project pursuant to the California Environmental Quality Act (CEQA). In January 2003, the City’s Environmental Assessment Panel (EAP) held two public meetings in connection with certification of the proposed EIR on the Edgewater project. On February 3, 2003, the EAP voted to certify the final EIR for the Edgewater project. The EAP’s decision to certify the final EIR for the Edgewater project was appealed to the City Council by environmental organizations and local labor unions. City planning staff recommended that the City Council grant the appeals, de-certify the EIR, and hold further public consultations regarding the issues raised on appeal of the EIR. On March 11, 2003, after a public hearing during which the appeals were considered, the Council passed a resolution to grant the appeals and de-certify the EIR on the Edgewater project pending further public consultations. Subsequently, defendants withdrew the Edgewater project before the City Council made a final decision on the EIR.
When a property is designated as a wetlands mitigation bank by the appropriate regulatory authorities, the property owner is authorized to sell a designated number of mitigation “credits” to other landowners who need to fill wetlands on their properties for development purposes.
In March 2005, defendants submitted a land use application to the City Council for a planned residential community on the Property called Parkway Transit Village (Transit Village). The Transit Village project proposed using 47 acres of the Property to construct 1, 052 residential units in a mix of townhouses, patio homes and lofts, and provide for 17, 000 square feet of neighborhood commercial/mixed use properties as well as a recreation clubhouse and a transit center. Including parks, trails, access roads and handicapped parking, the gross development “footprint” of Transit Village occupied 60 acres of the Property.
In order to facilitate the residential development envisioned for Transit Village, the application requested an amendment to the General Plan Map to change the land use from industrial/office flex to medium density residential, an amendment to the NRSSP to remove portions of the Property from the NRSSP because the NRSSP does not allow for residential use, and a rezoning of the Transit Village project site to Planned District Area under the Richmond General Plan. The City Planning Department requested further information from defendants regarding the project and defendants submitted additional materials on August 4 and September 15, 2005. On September 16, 2005, the City Planning Department deemed the Transit Village application complete and forwarded the completed application to the City’s environmental consultant to commence an environmental review of the project.
D. Eminent Domain Proceedings
On August 24, 2005, the Land Acquisition Manager for the EBRPD wrote to defendants informing them that the Board of Directors intended to consider adopting a Resolution of Necessity to acquire all of the Property at a public meeting to be held on September 20, 2005. Prior to the public meeting, the Richmond City Council and the Richmond Community Redevelopment Agency (Redevelopment Agency) passed a joint resolution opposing the EBRPDS’s plan to acquire the Property. The joint resolution notes that the City’s General Plan “designate portions of the Property for commercial development in order to increase economic development, provide jobs and increase tax revenue” for public services, and states that “the loss of additional land from the tax roll would be a hardship on the people of the City because it would further reduce the City’s ability to provide” public services.
Following the joint resolution in opposition by the City and the Redevelopment Agency, the EBRPD did not pass a resolution to acquire the Property in total at the public meeting held on September 20, 2005. Instead, EBRPD’s staff entered into discussions with City management and planning staff to address the City’s request that a portion of the Property be exempted from the acquisition to allow for some development in the area. On February 8, 2006, the Land Acquisition Manager for the EBRPD informed defendant by letter that on March 7, 2006, the Board of Directors would consider a Resolution of Necessity to acquire the Property with the exception of a remainder portion of 20 acres (remainder portion) located in the southeastern corner of the Property. The remainder portion corresponds to the 20 acres designated for development as office/industrial/flex under the NRSSP. The Board of Directors of the EBRPD passed a resolution reflecting the land manager’s request in March of 2006.
Thereafter, on March 22, 2006, the EBRPD filed its complaint in eminent domain, seeking to condemn the Property for a public improvement project involving recreational use, open space preservation, ecological preservation, a public park and public trails. Consistent with the resolution passed in March 2006, the complaint exempted approximately 20 acres of the Property (the remainder) and granted to the owner of the remainder a 60-foot-wide non-exclusive easement to run underground utilities and provide pedestrian and vehicular access from Goodrick Avenue to the remainder. EBRPD filed an ex parte application for possession of the Property on April 13, 2006 and a declaration from EBRPD’s counsel. In his declaration, counsel for EBRPD notified the court that $892,000 is the probable amount of compensation that would be awarded for the Property and that said amount had been deposited with the Treasury of the State of California pursuant to Code of Civil Procedure section 1255.010, subdivision (a). On April 13, 2006, the court issued an order for possession of the Property in favor of EBRPD.
Defendants filed an answer to EBRPD’s complaint in eminent domain and asserted a cross-complaint for precondemnation damages together with a jury demand. The cross-complaint asserted a single cause of action for damages based on the allegation that “EBRPD acted improperly by unreasonably delaying its eminent domain action following an announcement of intent to condemn and/or engaged in unreasonable conduct prior to condemnation. As a result of such action the [] Property suffered a diminution in market value and the mitigation bank business planned for the [] Property was damaged in an amount to be determined.”
E. Pretrial Proceedings
In December 2007, EBRPD filed a “Motion for a Determination Re The Propriety of Defendants’ Claim for Compensation for Loss of Goodwill” pursuant to Code of Civil Procedure section 1260.040. In its motion, EBRPD addressed defendants’ intention to present expert testimony at trial in support of a claim for loss of goodwill in the amount of $3.2 million. Defendants’ loss of goodwill claim was based on an alleged loss of revenue to Bay Area Wetlands, LLC’s (BAW) mitigation business occasioned by the EBRPD’s take of the Property. EBRPD argued that defendants were not entitled to loss of goodwill because (1) they were not operating a business on the Property; (2) there is no goodwill associated with a wetlands mitigation bank; and, (3) defendant’s claim for goodwill constitutes an improper duplicate claim for compensation.
Further statutory references are to the Code of Civil Procedure unless otherwise stated.
Section 1260.040 provides in part: “If there is a dispute between plaintiff and defendant over an evidentiary or other legal issue affecting the determination of compensation, either party may move the court for a ruling on the issue. The motion shall be made not later than 60 days before commencement of trial on the issue of compensation. The motion shall be heard by the judge assigned for trial of the case.” (§ 1260.040, subd. (a).)
In support of their opposition to EBRPD’s motion, defendants submitted the declarations of Donald Carr, Jeffrey Olberding (owner and President of Olberding Environmental, Inc., an environmental consulting firm performing environmental analysis and services focused on wetland and biological resource issues), and Ronald Hansen (president of DRC Associates, Inc., a consultancy firm specializing in the appraisal and valuation of the goodwill in privately held businesses). Attached as Exhibit A to Carr’s declaration is a copy of the Certificate of Good Standing/California Limited Liability Company issued by the Secretary of State on January 17, 2008, stating that on November 17, 1999, [BAW] became recognized under the laws of the State of California by filing its Articles of Organization in the office of the Secretary of State and that “no information is available in this office on the financial condition of this limited liability company.”
In his declaration, Carr asserts that he is Co-General Manager of BAW and the members of the company are he and his wife, Lonne Carr, and Stan Davis. BAW has filed tax returns since its inception in 2000. BAW acquired the Property and transferred to Carr and his wife title to that portion of the Property designated for light industrial development under the Edgewater project (described above). On that portion of the Property designated as undevelopable under the Edgewater project, BAW planned to create a mitigation bank because BAW anticipated this would be the most profitable business strategy. BAW spent several hundred thousand dollars dismantling dilapidated buildings and clearing the property of automobiles, washing machines and other debris. BAW also terminated certain uses, including grazing, that were incompatible with the preservation, creation and enhancement of habitat.
Carr also avers that after the Edgewater project was decertified and returned to the City staff for revision in 2003, Carr and his associates decided to pursue a residential project on a portion of the Property (viz., Transit Village, discussed above), with the balance to be used for mitigation-first to mitigate any impact from the Transit Village project and then to provide off-site mitigation for impacts of development of other properties by third parties. In the Spring of 2005, Carr and his associates applied to the City to develop roughly 47 acres of the Property for residential use, which led to discussions with the City’s planning staff and a revised application that was deemed complete in September 2005. Carr adds that during this time they could not enter into additional agreements with third parties because the exact footprint of the proposed residential development could not be determined until final approval of the planning application. Nevertheless, they continued discussions with the Port of Oakland and other potential customers who expected to need off-site mitigation in the near future. In August 2005, they learned the District was planning to condemn the property and shortly thereafter ceased even these limited marketing efforts.
Olberding states in his declaration that he worked for the U.S. Army Corps of Engineers (Corps) from 1992 to 1997 as a regulatory project manager. According to Olberding, a mitigation bank requires an initial site plan approval from the Design Review Team and final approval from the Mitigation Bank Review Team, both of which consist of members from the Corps and other regulatory agencies. Olberding stated he was hired by BAW in 1999 to study wetlands on the Property. On behalf of BAW, Olberding submitted a draft banking instrument to the Mitigation Bank Review Team and was negotiating the number of credits that BAW would be allowed to sell from the bank for various habitats. Further, Olberding opined that the mitigation bank proposed by BAW could not be created until the regulatory agencies signed a mitigation bank instrument, which in turn required the prior approval of an EIR in compliance with CEQA.
The environmental studies conducted on the Property, according to Olberding, also showed that it was suitable not only for mitigation banking, but also for turnkey mitigation. Turnkey, or “sole-source” mitigation occurs where a third-party developer, in order to comply with the developer’s permit conditions, seeks wetlands mitigation off-site and then obtains the appropriate regulatory approval for the off-site mitigation. Olberding noted that in December 2001, Target entered into an agreement with BAW calling for BAW to provide turnkey mitigation services on the Property. Under the contract, BAW agreed to create 3.5 acres of seasonal wetlands on the Property (at $175,000 per acre) and to preserve a further 3 acres of tidal marshland (at $20,000 per acre) for a total fee of $672,500. BAW’s other responsibilities under the contract included assisting Target in obtaining approval for its mitigation plan from the regulatory agencies, performing ongoing monitoring of the mitigation site for a period of five years, and recording the conservation easement as required under the mitigation plan. Olberding also opines that if the Transit Village project had been approved, there would have been enough land left over for BAW to seek approval from the Corps for one to three additional turnkey projects similar to the Target contract.
In his declaration, Hanson described how he used a discounted cash flow method to calculate BAW’s goodwill value. Applying this method, Hanson calculated the goodwill per acre associated with every acre of wetlands preserved and every acre of wetlands created under two scenarios, “conservative” and “likely.” For each type of wetland (preserved or created), he took the estimated per-acre revenue and deducted expenses and capital needs to yield the net operating cash flow. Then he applied a discount factor to obtain the present value of the net operating cash flow, from which he deducted $10,000 per acre, the appraised value of the undevelopable open space on the Property. According to Hanson, “the remainder is the goodwill value per acre” and the goodwill value explicitly excludes the value of the real estate. According to Hanson, the goodwill value per acre under the “likely” scenario for preserved wetlands is $3,800 per acre and $305,000 per acre for wetlands created. To both of these figures Hanson applies a “scenario weight/probability” factor of 0.50 to the calculation of goodwill value per acre. Thereafter, he arrives at a figure of $1,900 preserved goodwill per acre for wetlands preserved on the Property and $152,500 created goodwill per acre for wetlands created on the Property.
The trial court entertained oral argument on plaintiff’s motion at a hearing on February 1, 2008, and issued its Order After Hearing (order) on February 4, 2008. In its order, barring evidence on the issue of loss of goodwill, the court stated: “Defendants are not entitled to claim compensation for loss of goodwill at trial under CCP 1263.510 since there is no goodwill under the facts of this case. [¶] There is no ongoing business, and the ‘business’ [wetlands mitigation bank and/or sale of mitigation credits] on which the claim of future intended use of the property is based is speculation. No regulatory approval has been obtained to either use the property as a wetlands mitigation bank or sell present or future mitigation credits. [¶] The amount of any income Defendants potentially could receive is speculation. [¶] Whether the Defendants would receive necessary permits from regulatory agencies to operate the ‘business’ is speculation. [¶] Compensation for goodwill under the facts of this case would constitute double recovery since defendants will receive ‘just compensation’ on the underlying claim for the fair market value of the property.” [¶] “Defendants shall not be allowed to introduce any evidence at the time of trial relating to their claim for compensation for loss of goodwill.”
F. Trial Proceedings
The presentation of testimony in the jury trial to determine just compensation for the portion of the Property taken by EBRPD commenced on March 6, 2008, and continued through March 25, 2008. Especially pertinent here is the expert testimony presented on the value of just monetary compensation to defendants for the land taken by the EBRPD: Arthur Gimmy and Patrick Idiart, both of whom are land/real estate appraisers and members of the Appraisal Institute, testified as experts on this issue for defendants and EBRPD, respectively.
To arrive at their respective conclusions, each expert employed a similar methodology that can be summarized as follows: First, each expert made an assumption regarding the number of acres available for residential development. Next, based on that assumption, and using comparisons with recent sales of other similarly sized parcels of undeveloped real estate in the region, each expert calculated: (1) the value of the whole property before condemnation and (2) the value of the part taken; (3) the value of the remainder of the property as part of the whole property; and (4) the value of the remainder after condemnation. Just compensation equals the sum of (2) plus (3)-(4), where (3)-(4) represents “severance damages.”
Gimmy assumed, in his calculation of lost good will that approximately 47 contiguous acres of the property was available for residential development. Allowing for wetlands mitigation and site development costs, Gimmy calculated: (1) the value of the whole property before condemnation at $20,804,000; (2) the value of the part taken, including 29.06 acres of developable land, at $13,137,000; (3) the value of the remainder as a part of the whole property at $7,667,000 (i.e. $20,804,000 minus $13,137,000); and, (4) the value of the remainder after condemnation at $5,914,100 (because the remainder is cut in two by a PG&E right of way rendering 1.86 acres unsuitable for residential development and mitigation now has to be off-site due to the take). Gimmy ultimately concluded that the value of just compensation equals $13,137,000 (value of part taken) plus “severance damages” in the amount of $1,753,000, for total just compensation in the amount of $14,890,000.
Idiart, in contrast to Gimmy, assumed that 20 contiguous acres of the property was available for residential development. According to Idiart’s calculations, which allow for site development costs and the risks/delay associated with developing amidst wetlands and sensitive habitat: (1) the value of the whole property before condemnation is $6,982,000; (2) the value of the part taken, including 1.86 acres of developable land, is $1,525,000; (3) the value of the remainder as a part of the whole property, including 18.14 acres of developable land, is $5,457,000; and, (4) the value of the remainder after condemnation is the same as its value before condemnation, thus “severance damages” are zero. Under Idiart’s appraisal, therefore, the value of just compensation equals $1,525,000 (the value of the part taken).
According to Idiart, “severance damages” are zero because (1) before the take there were 20 acres of developable land and after the take defendants still have 18.14 acres of that land and received compensation for the other 1.86 acres; and, (2) there is only a small area of wetlands on the remaining 18.14 acres of developable land and those can simply be left untouched to avoid mitigation costs.
The jury after eight days of testimony returned its verdict in favor of defendants finding that the fair market value of the 217.36 acres of property taken is $6,144,000 and the severance damages to the remainder of defendants’ property after the taking of the 217.36 acres is $701,000. Judgment in eminent domain was filed on May 15, 2008. Notice of entry of judgment was filed on May 19, 2008 and defendants filed a timely notice of appeal on July 8, 2008.
Discussion
A. Compensation for Loss of Goodwill
1. Applicable Legal Standards
“Historically, lost business goodwill was not recoverable under eminent domain law. (Citation.)” (City and County of San Francisco v. Coyne (2008) 168 Cal.App.4th 1515, 1522 (Coyne).) Perceiving an injustice in this state of affairs, the Legislature in 1975 enacted section 1263.510 in order “to provide monetary compensation for the kind of losses which typically occur when an ongoing [] business is forced to move and give up the benefits of its former location.” (People ex rel. Dept. of Transportation v. Muller (1984) 36 Cal.3d 263, 270 [italics added] (Muller).) “Thus, a business owner’s right to compensation for loss of goodwill is a statutory right, not a constitutional right.... [¶]... [¶] If the owner of a business being conducted on the property taken establishes certain preconditions, he or she is entitled to compensation for the loss of goodwill that results from the taking.” (Coyne, supra, 168 Cal.App.4th at p. 1522.)
Section 1263.510 sets forth the prerequisites for an award of compensation for loss of business goodwill in eminent domain proceedings, as follows: “The owner of a business conducted on the property taken, or on the remainder if the property is part of a larger parcel, shall be compensated for loss of goodwill if the owner proves all of the following: [¶] (1) The loss is caused by the taking of the property or the injury to the remainder. [¶] (2) The loss cannot reasonably be prevented by a relocation of the business or by taking steps and adopting procedures that a reasonably prudent person would take and adopt in preserving the goodwill. [¶] (3) Compensation for the loss will not be included in payments under Section 7262 of the Government Code. [¶] (4) Compensation for the loss will not be duplicated in the compensation otherwise awarded to the owner. (§ 1263.510, subd. (a).) Section 1263.510 defines goodwill as “the benefits that accrue to a business as a result of its location, reputation for dependability, skill or quality, and any other circumstances resulting in probable retention of old or acquisition of new patronage.” (§ 1263.510, subd. (b).)
“Compensation for loss of goodwill in eminent domain proceedings ‘involves a two-step process. Whether the qualifying conditions for such compensation [citation] have been met is a matter for the trial court to resolve. Only if the court finds these conditions exist does the remaining issue of the value of the goodwill loss, if any, go to the jury. [Citations.]’ (Citation.) ‘Under section 1263.510, subdivision (a), the business owner has the initial burden of showing entitlement to compensation for lost goodwill.’ (Citation.) Where... the entitlement to business goodwill is disputed, ‘the determination of that dispute, including the resolution of any disputed factual issues is for the trial court.’ ” (Coyne, supra, 168 Cal.App.4th at pp. 1522-1523; citing Emeryville Redevelopment v. Harcros Pigments, Inc. (2002) 101 Cal.App.4th 1083, 1119 (Emeryville) [“Only upon proving to the court’s satisfaction that the statutory conditions [for loss of goodwill] are satisfied may the landowner present evidence of lost goodwill to the jury.”].)
Neither Coyne nor Emeryville, supra, declares whether review of the trial court’s determination is for abuse of discretion or de novo but we need not resolve this issue because our decision would be the same under either standard.
3. Analysis
Defendants contend that the trial court erred in several respects when it ruled that they were not entitled to present their claim for lost goodwill to the jury. First, they contend BAW established the statutory prerequisites for recovery of lost goodwill and assert that the trial court did not find to the contrary. Alternatively, defendants argue that the trial court erred by concluding that defendants were not operating a business on the property. Defendants point to the fact that BAW filed tax returns every year since its inception in 2000 in support of their claim to loss of goodwill. Additionally, defendants argue that the trial court did not understand that the nature of the business conducted by BAW was turnkey mitigation services, not a mitigation bank, leading the trial court to conclude erroneously that the business was speculative.
This assertion is based on Carr’s declaration. No tax records are included in the record.
Defendants’ contentions are unpersuasive because the evidence does not support a conclusion that defendants were conducting an ongoing business on the Property when it was acquired by EBRPD. (Muller, supra, 36 Cal.3d at p. 270 [compensation for loss of goodwill available where an “ongoing business[] [is] diminished in value by a forced relocation”] [italics added].) Defendants rely largely upon the declaration of Carr to support their argument. However, Carr’s declaration establishes that defendants registered BAW as a limited liability company in 2000 with the intention of creating a mitigation bank, and that they spent some seed money cleaning up the Property with that aim in mind. But, no mitigation bank was ever established on the Property. Indeed, after BAW’s inception and during the pendency of the Edgewater project, BAW did not conduct any business selling mitigation credits from an established mitigation bank. The record does establish that BAW entered an agreement for a single “turnkey” mitigation project with Target in December 2001. In addition, after March 2003, when the Edgewater project was decertified by the City and defendants decided to pursue the Transit Village project, BAW could not pursue any further “turnkey” contracts because the final configuration of the residential development had to await regulatory approval. Accordingly, we find no error in the trial court’s determination that Carr’s declaration does not meet “ ‘the initial burden of showing entitlement to compensation for lost goodwill.’ (Citation.)” (Coyne, supra, 168 Cal.App.4th at p. 1523.)
Moreover, the evidence adduced through Olberding’s declaration does not support defendants’ assertion of error here. Olberding describes discussions with the regulatory authorities with a view to establishing a mitigation bank on the Property but those efforts never reached fruition and no regulatory authority was obtained for a mitigation bank on the Property. In his declaration, Olberding, not unlike Carr, focuses primarily on the 2001 mitigation contract with Target, but aside from that sole transaction he merely speculates that if the Transit Village project had been approved, then BAW might have been able to complete between one and three other turnkey projects on the Property with the approval of the Corps.
Furthermore, Hanson’s calculations do not help defendants. If defendants had actually obtained approval for a mitigation bank of a certain number of credits, then Hanson’s calculations of the per acre revenues available from each acre of land sold for mitigation purposes may have carried some weight. However, in the absence of a mitigation bank, and with evidence of only one single turnkey mitigation contract, Hansen’s calculations for lost goodwill lack evidentiary value and are irrelevant to the foundational issue of whether BAW constituted an ongoing business on the Property.
Indeed, Coyne, supra, provides support for the conclusion we reach here. In Coyne, a developer (Coyne) appealed the trial court’s decision not to allow his claim for loss of goodwill to go the jury. The City of San Francisco acquired the property on Lombard Street by eminent domain after Coyne had obtained planning permission to build a nine-unit residential condominium building with ground floor retail space on the site. (Coyne, supra, 168 Cal.App.4th at pp. 1519-1521.) Coyne’s expert calculated goodwill based on the profits that would flow from the sale of residential and commercial units to be built on the property. (Id. at p. 1523.) The appellate court rejected the idea that Coyne was entitled to loss of goodwill on that basis because although Coyne had obtained approval for the project, “no building permit had been issued[, ] [] no construction had begun[, ]... [and] none of the units had been presold or prereleased.” (Id. at p. 1524.) Thus, the appellate court concluded that at the time eminent domain proceedings were initiated, “there was no ongoing business devoted to retailing the condominium units to potential customers.” (Ibid.) Similar to the situation in Coyne, when EBRPD initiated eminent domain proceedings in March 2006, BAW did not have a permit for a mitigation bank, no work had begun on the Property to construct a mitigation bank, no mitigation units had been presold from a mitigation bank, and no contracts had been entered to supply turnkey mitigation on the property since the Target contract in December 2001. Thus, we find no error in the trial court’s conclusion that defendants did not have an ongoing business on the Property on which to base a claim for compensation for loss of goodwill. (Cf. Coyne, supra, 168 Cal.App.4th at p. 1524.)
B. Precondemnation Damages Under Klopping
1. Procedural Background
As noted above, defendants filed a cross-complaint for precondemnation damages together with a jury demand on May 31, 2006. On August 2, 2006, the EBRPD filed a demurrer to defendants cross-complaint. On September 19, 2006, the trial court issued a minute order sustaining the demurrer to the cross-complaint with leave to amend. The trial court ruled: “Insofar as they seek to set forth a cause of action for precondemnation damages based on unreasonable delay following an announcement of intent to condemn, Cross complainants have failed to adequately allege an announcement of intent. (Citation.) [¶] Insofar as they seek to set forth a cause of action for precondemnation damages based on unreasonable conduct, Cross-complainants have failed to allege an intent to condemn, unreasonable conduct, and direct interference with the development of their property.... [¶] In the amended cross-complaint, Cross-Complainants should plead each of the two independent theories of precondemnation liability in a separate cause of action, rather than combining both theories in one cause of action.” (Italics added.)
Subsequently, defendants filed an amended cross-complaint for precondemnation damages. After setting forth the factual allegations forming the basis for the relief sought, the cross-complaint, consistent with the trial court’s instructions in the September 2006 minute order, asserted two legal theories for such relief. These legal theories were asserted in the form of a first cause of action seeking precondemnation damages based on EBRPD’s unreasonable delay in bringing the condemnation action and a second cause of action seeking precondemnation damages based on EBRPD’s unreasonable conduct prior to filing suit. On November 3, 2006, EBRPD filed a demurrer to defendants amended cross-complaint.
After argument on the demurrer, the trial court issued an order prepared by counsel for EBRPD and approved by defendants’ counsel. The order overruled EBRPD’s demurrer to the first cause of action in the amended cross-complaint (seeking precondemnation damages on the basis of EBRPD’s unreasonable delay) and gave EBRPD 20 days to answer the amended cross-complaint. In addition, the order sustained without leave to amend EBRPD’s demurrer to the second cause of action in the amended complaint (seeking precondemnation damages on the basis of EBRPD’s unreasonable conduct).
On April 9, 2007, EBRPD filed a general denial in answer to the amended cross-complaint. Subsequently, the parties submitted a joint stipulation and proposed order to vacate the bench trial set for December 3, 2007. In their stipulation, the parties stated in part: “Defendants have decided not to pursue the first cause of action of its Cross-Complaint or to otherwise claim damages for unreasonable delay in filing this proceeding. Defendants also have decided not to contest [EBRPD’s] right to take the property it seeks to acquire by this proceeding. Thus, the issues to be decided by the bench trial are no longer contested and the bench trial date should be vacated.” The proposed order was adopted and signed by trial court, and filed on November 15, 2007.
2. Analysis
In Klopping, our Supreme Court recognized an inverse condemnation claim for precondemnation damages. The court observed, “when the condemner acts unreasonably in issuing precondemnation statements, either by excessively delaying eminent domain action or by other oppressive conduct, our constitutional concern over property rights requires that the owner be compensated. This requirement applies even though the activities which give rise to such damages may be significantly less than those which would constitute a de facto taking of the property....” (Klopping, supra, 8 Cal.3d at pp. 51-52.) The court accordingly held “that a condemnee must be provided with an opportunity to demonstrate that (1) the public authority acted improperly either by unreasonably delaying eminent domain action following an announcement of intent to condemn or by other unreasonable conduct prior to condemnation; and (2) as a result of such action the property in question suffered a diminution in market value.” (Id. at p. 52, fn. omitted.)
Defendants first contend that the trial court erred by requiring them to plead their claim for precondemnation damages in two separate counts (corresponding to the holding in Klopping that a condemnee may assert damages on the basis of either unreasonable delay in filing an eminent domain action following an announcement of intent to condemn, or by other unreasonable conduct prior to condemnation, see Klopping, supra, 8 Cal.3d at p. 52 [italics added]). Defendants argue that Klopping recognizes a single cause of action for inverse condemnation under separate theories and accordingly the trial court erred by requiring them to divide that single cause of action into two because a “demurrer cannot be sustained to just part of a cause of action.” Continuing this line of reasoning, defendants further assert that “the trial court’s ruling that ‘unreasonable delay’ was adequately alleged under Klopping shows that the indivisible cause of action was properly stated, and thus the demurrer to the ‘unreasonable conduct’ prong of Klopping was improperly sustained.”
We do not reach the merits of defendants’ claim because we find this claim is not cognizable on appeal. After the trial court sustained EBRPD’s demurrer to defendants’ cross-complaint with leave to amend, defendants had four options: (1) petition the appellate court for an extraordinary writ; (2) amend the cross-complaint; (3) dismiss without prejudice and re-file the cross-complaint; and (4) refuse to amend and allow the trial court to enter a judgment of dismissal and appeal from that judgment. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2010) ¶¶ 7:146 to 7:150.1, pp. 7(I)-58 to 7(I)-61.) Out of these four options, defendants chose to amend the cross-complaint. By filing an amended cross-complaint, defendants conceded that the cross-complaint was inadequate and waived any error in the trial court’s sustaining of the demurrer to it, including the ruling that the Klopping claim should be alleged in two counts. (Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1698-1699; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966, fn. 2 [“Rather than appealing the trial court’s order, the DLSE chose to amend its complaint. By doing so, it waived its right to appeal any error in the sustaining of the first demurrer.”]; Van de Kamp v. Bank of America (1988) 204 Cal.App.3d 819, 866 [“It is well established that election to amend a complaint after a demurrer thereto has been sustained ‘waives any error in the ruling sustaining the demurrer.’ ”]; Sheehy v. Roman Catholic Archbishop (1942) 49 Cal.App.2d 537, 540-541 [“[W]hen a party does not leave his pleading where the order sustaining the demurrer has left it, he waives any error on the part of the trial court in sustaining the demurrer.”].) Accordingly, defendants waived any claim of error in the trial court’s ruling on the demurrer to the cross complaint when they filed the amended cross-complaint. Thus, the claim is not cognizable on appeal.
Defendants also contend the trial court erred when it sustained without leave to amend EBRPD’s demurrer to the amended complaint. Defendants assert error on the ground that the amended cross-complaint sufficiently alleges a claim for damages under Klopping for “unreasonable conduct” by EBRPD prior to condemnation.
On appeal from an order sustaining a demurrer without leave to amend, we examine the pleading de novo to determine whether the facts alleged sufficiently state a cause of action under any possible legal theory. (See McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) “[W]e give the complaint a reasonable interpretation” and “ ‘[t]reat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law.’ ” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank).) “[I]n reviewing an order sustaining a demurrer without leave to amend, ‘the allegations of the complaint must be liberally construed with a view toward attaining substantial justice among the parties.’ [Citations.]” (King v. Central Bank (1977) 18 Cal.3d 840, 843.) We must also decide “whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm.” (Blank, supra, 39 Cal.3d at p. 318.) “We are not bound by the trial court’s stated reasons, if any, supporting its ruling; we review the ruling, not its rationale.” (Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625, 631.)
It is well established that to state a claim for precondemnation damages caused by the condemner’s unreasonable conduct, the condemnee must allege facts showing that the public authority’s conduct prior to condemnation was “oppressive” (Klopping, supra, 8 Cal.3d at p. 52), meaning that the public authority must have “acted affirmatively to lower the value of the subject property, physically burdened the property, and/or decreased the income the property produced. (Citations.)” (Contra Costa Water Dist. v. Vaquero Farms, Inc. (1997) 58 Cal.App.4th 883, 901 (Vaquero); Barthelemy v. Orange County Flood Control District (1998) 65 Cal.App.4th 558, 565 [same]; Jones v. City of Los Angeles (1979) 88 Cal.App.3d 965, 972 [for Klopping damages, public authority must engage in “unreasonable conduct resulting in direct and special interference with plaintiff’s property”].) Additionally, the condemnee must allege facts showing that as a result of the public authority’s oppressive conduct “the property in question suffered a diminution in market value.” (Klopping, supra, 8 Cal.3d at p. 52.)
Here, the pertinent allegations of the amended cross-complaint are as follows: After defendants purchased the property [in 2000], they incurred substantial expenses in cleaning up the property in order to make it suitable for a mitigation bank. EBRPD “intended and planned to, and did prevent [defendants] from benefiting from their expenditures by actively opposing” defendants’ efforts to obtain necessary approvals from the City. EBRPD opposed the Edgewater project by submitting comment letters to the City and ultimately by appealing the decision to certify the EIR for the project to the City Council. As a direct result of EBRPD’s objection to the EIR, the City Council decertified the EIR, which meant the EIR could not be used by the Department of Fish and Game “to inform its decision to execute a mitigation bank agreement” for the Property. With respect to the Transit Village project, the amended cross-complaint further alleges as follows: On or about February 3, 2006, EBRPD wrote to the City Planning Department in response to a Notice of Preparation of an EIR for the Transit Village project raising objections to the project and stating the City should require the Property to be donated in fee to a government agency for public use. The amended cross-complaint further alleges that after EBRPD filed its complaint in eminent domain, the processing of defendants’ applications for development of the Transit Village project ceased.
These allegations are insufficient to sustain a claim under Klopping. Regarding the mitigation bank, the allegations show that defendants could not establish a mitigation bank without approval of the Edgewater project EIR by the City and that EBRPD appealed the decision to certify the EIR. However, the City made the final decision to decertify the EIR, not EBRPD. Thus, the allegations fail to show that oppressive conduct on the part of EBRPD resulted in “a diminution in market value” of the Property by preventing the establishment of a mitigation bank. (Klopping, supra, 8 Cal.3d at p. 52.) Similarly, the allegations with respect to the Transit Village are insufficient because EBRPD’s legitimate participation in the planning process does not constitute oppressive conduct aimed at lowering the value of the property. (See Vaquero, surpa, 58 Cal.App.4th at p. 901.) In sum, having vetted the cross-complaint against the applicable pleading standard as described above, we affirm the trial court’s grant of the demurrer without leave to amend.
C. In Limine and Other Evidentiary Rulings
Defendants contend the trial court made three erroneous and prejudicial evidentiary rulings, two in regard to motions in limine and one regarding admission of testimony at trial. Defendants assert that the errors alleged were individually and collectively prejudicial. We review defendants claims of error in turn, providing factual and procedural background as required.
1. Standard of Review
“ ‘ “The usual purpose of motions in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party.” ’ (Citation.)... As rulings on the admissibility of evidence, [motions in limine] are subject to review on appeal for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 203, [‘appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion’]; (Citation).)” (Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 268-269.) Indeed, “ ‘[t]he abuse of discretion standard of review applies to any ruling by a trial court on the admissibility of evidence.’ (Citation) ‘Under this standard, a trial court’s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ (Citation.)” Employers Reinsurance Co. v. Superior Court (2008) 161 Cal.App.4th 906, 919.)
2. The Grunwald Fax
Defendants’ motion in limine No. 6 sought to exclude a fax dated November 22, 2005, from Brian Grunwald to Donald Carr. The fax opens, “Don, we have our backs to the wall. We have failing political support, failing City staff support and strong opposition from the environmental community.” Defendants contend the Grunwald fax was inadmissible pursuant to section 1263.330 because the Grunwald fax was sent after EBRPD’s letter of August 24, 2005, to defendants about their intention to acquire the entirety of their property by resolution at a public meeting on September 20, 2005. We find this claim meritless.
Bryan Grunwald testified on behalf of defendants at trial on the feasibility of a 47-acre residential development on the Property. Grunwald practices architecture, urban design and city and regional planning and was retained by defendants after they purchased the property to prepare a master plan for submission to the City indicating land use, circulation and infrastructure.
Section 1263.330 provides in pertinent part: “The fair market value of the property taken shall not include any increase or decrease in the value of the property that is attributable to... [¶]... [¶] (c) any preliminary actions of the plaintiff relating to the taking of the property. (§ 1263.330, subd. (c).)
First, admission of the Grunwald fax does not conflict with section 1263.330 because the statute does not preclude evidence postdating any preliminary action by the condemning authority and the fax itself addresses failing political support for the Transit Village project, not issues of valuation of the Property. Second, the fax does not constitute a preliminary action by the condemnor, EBRPD, as required under the statute, nor does the fax indicate that it was prepared in direct response to an action by EBRPD. Thus, the trial court’s admission of the Grunwald fax is not in conflict with section 1263.330. Moreover, the Grunwald fax of November 2005 was only one of a series of other memos from Grunwald to Carr introduced without objection by EBRPD at trial to show that political support for the Transit Village project was uneven at best. These memos were all relevant to the central issue in the trial to determine just compensation-namely the likelihood that defendants would have eventually obtained the planning and environmental approvals for approximately 47 acres of residential and commercial development on the property, and we find no abuse of discretion by the trial court in admitting them, including the Grunwald fax of November 2005.
These include a memo of October 7, 2004 reporting on the opposition of the Parchester Village Association and the North Richmond Shoreline Alliance to the project; a memo of January 10, 2005 noting the opposition of the Sierra Club to the project; a memo of January 18, 2005 reporting Maria Viramontes’ (a potential mayoral candidate) concerns about the project and noting her “equivocal” support for the plan; a memo of January 20, 2005 reporting that Jim Rogers, a member of the City Council, favored industrial rather than residential development, and a memo of February 3, 2005 reporting that council member Gayle McLaughlin “preferred the property to be open space.”
On this point the jury was instructed as follows: “A determination of the property’s highest and best use is not necessarily limited by current zoning or land use restrictions. If you decide that as of April 13, 2006 there was a reasonable probability of a change in zoning or other use restrictions in the near future, then you must determine the highest and best use of the property based on that change. [¶] A ‘reasonable probability is more than a mere possibility, but less than a certainty. You are not permitted to value the property with reference to what it was worth to the defendants for speculation or merely possible uses.”
3. EBRPD’s Motion in Limine to Exclude a Map of Transit Village Project
Defendants also contend that the trial court erred by granting EBRPD’s motion in limine No. 6. In this motion, EBRPD moved to exclude the admission of a diagram of Transit Village on the basis that plans for the project were “never approved by the City in any way, and the ability of defendants to have the plan approved is hotly disputed.” The diagram in question was attached as Exhibit W to EBRPD’s counsel’s declaration in support of EBRPD’s motions in limine. The single-page diagram is designated “Wetlands Impacts/Mitigation Plan.” The diagram demarcates the project’s proposed 47-acre residential footprint, shows the layout of streets, blocks and buildings within that footprint, as well as wetlands created or preserved outside the footprint. At a pretrial hearing, the trial court granted EBRPD’s motion in limine No. 6 in part, ruling that defendants could use the diagram to show the “outside envelope” of the residential footprint but not the street and block layout within the residential footprint.
Defendants assert that the diagram was relevant to a proper determination of the market value of the land taken because it showed the feasibility of the proposed highest and best use. We disagree. “[A]n owner may not prove damages by bringing in evidence that the taking will frustrate a ‘specific plan of development’ [but] may introduce a map, diagram or illustration of proposed uses of the property to show whether such uses are feasible and whether the property is adaptable to those uses.” (City of Hollister v. McCullough (1994) 26 Cal.App.4th 289, 300.) The diagram that the trial court allowed into evidence illustrated the point that development of a 47-acre residential footprint on the Property was feasible. Thus, the trial court did not abuse its discretion by excluding defendant’s more detailed diagram showing a specific layout of streets and blocks within the 47-acre residential footprint.
4. Expert Testimony
Defendants contend the trial court erred in allowing EBRPD’s expert witnesses to testify in violation of the rule that “experts may properly rely on hearsay in forming their opinion, [but] may not relate the out-of-court statements of another as independent proof of the fact, ” citing Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516 [plaintiffs expert in tort action against hotel for injury caused by loose shower head improperly testified concerning an informal survey he conducted of maintenance procedures in other hotels] and People v. Killebrew (2002) 103 Cal.App.4th 644, 659 [stating that an “expert may not testify to incompetent hearsay under the guise of stating reasons for an opinion”].
Defendants offer three specific instances where hearsay evidence was admitted through expert testimony in violation of this rule. The principal instance identified by defendants occurred during Idiart’s testimony regarding his valuation of the property. To arrive at his valuation, Idiart compared recent sales of other similarly sized parcels of land in the region to arrive at a price per acre for each land zone (i.e., developable, submerged and wetlands) within the property. Idiart stated that he used the purchase of the subject property by Carr in 2000 as one such comparable in determining the value of wetlands acreage. Idiart also testified that he used the 2000 Carr purchase as a comparison property in another appraisal he conducted for the Napa Flood Control District, and in that appraisal his office obtained the information on the Carr purchase from Stan Davis, Carr’s associate. At one point during Idiart’s testimony, counsel for EBRPD asked Idiart, “And what was the information that Mr. Davis provided your office?” The trial court sustained a hearsay objection to the question. Counsel for EBRPD rephrased the question as follows: “As a result of that [information received], what was your understanding of the sale that was transacted at the time?” Idiart replied, “According to Mr. Davis, the sales price was based on approximately 20 acres.” The trial court broke in and instructed the witness, “No. Just tell us without saying who said it.” Counsel for EBRPD reformulated the question as, “And again based on the information that you obtained, what was the buyer’s understanding of the area approved for development at the time of the acquisition?” At that point, the trial court sustained another hearsay objection by defendants’ counsel.
In two of the instances, the trial court sustained a hearsay objection to what defendants would term an attempt to relay hearsay directly to the jury, and thereafter the expert offered an opinion to the question as rephrased without further objection. Accordingly, even if the experts’ responses to the questions as rephrased amounted to hearsay, it nevertheless constitutes competent evidence that defendants may not now challenge on appeal. (See Flood v. Simpson (1975) 45 Cal.App.3d 644, 649 [stating that hearsay evidence is competent and relevant absent a specific hearsay objection]; Buchanan v. Nye (1954) 128 Cal.App.2d 582, 586 [hearsay “must be objected to at the trial” and absent objection is not subject to challenge on appeal].)
Defendants contend that Idiart should not have been permitted to offer hearsay testimony bearing on the key issue in dispute, whether 47.2 acres or 20 acres of the property was developable. The record is not clear regarding whether the hearsay response by Idiart was actually received in evidence. By its interjection, it is clear the trial court did not intend Idiart’s initial answer to stand. Also, the trial court sustained the second hearsay objection after counsel for EBRPD rephrased the question, at which point EBRPD’s counsel stated he was “done rephrasing it at this point, your Honor” and moved on.
Even assuming Idiart’s answer was received in evidence, any error was harmless. First, we note that by the time Idiart offered his hearsay response regarding Davis’ statement, he had already explained in detail to the jury the basis for his assumption that approximately 20 acres were available for development purposes. More importantly, however, the jury verdict clearly shows that the jury rejected Idiart’s calculation of just compensation based on his assumption that only 20 acres of the property would be available for residential development. Accordingly, we conclude that even if Idiart’s comment regarding the basis of Carr’s purchase of the property in 2000 was erroneously admitted, it was harmless error. (People v. Watson (1956) 46 Cal.2d 818, 837 [error is harmless unless reviewing court “is of the opinion ‘that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error’ ”].)
Disposition
The judgment is affirmed. Defendants shall bear costs on appeal.
We concur: McGuiness, P. J., Pollak, J.