Opinion
E072364
06-15-2020
SOUTHERN CALIFORNIA EDISON COMPANY, Plaintiff and Respondent, v. JAMES CONSTANT, Defendant and Appellant.
James Constant, in pro. per., for Defendant and Appellant. Nossman, Bradford B. Kuhn and Bernadette M. Duran-Brown for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1609865) OPINION APPEAL from the Superior Court of San Bernardino County. John M. Pacheco, and David A. Williams, Judges. Affirmed. James Constant, in pro. per., for Defendant and Appellant. Nossman, Bradford B. Kuhn and Bernadette M. Duran-Brown for Plaintiff and Respondent.
Defendant and appellant James Constant (Constant) appeals the final judgment in condemnation entered in favor of plaintiff and respondent Southern California Edison Company (SCE).
SCE received approval from the California Public Utilities Commission (CPUC) to construct the Falcon Ridge Substation Project (Project) to provide electricity primarily to Rancho Cucamonga, Rialto and Fontana. In order to complete the project, SCE needed to obtain an easement over the vacant commercial property owned by Constant and Robert Constant and Constance Constant, Trustees of the Constant Family Trust dated January 27, 1997 (Trustees). SCE attempted to negotiate with Constant and Trustees but they refused SCE's offer of compensation.
Trustees are not part of the instant appeal as they settled with SCE and assigned all of their rights to Constant.
On June 22, 2016, SCE filed an eminent domain action against Constant to obtain a 2,823-acre permanent transmission line easement (Easement) over the property owned by Constant and Trustees (Property). Constant filed numerous challenges to the action and Constant and Trustees filed a cross-complaint for inverse condemnation and trespass. SCE was granted a motion for summary judgment on the cross-complaint. When the eminent domain action finally proceeded to a jury trial on the issue of just compensation, the trial court determined that Constant had exchanged no admissible evidence with SCE as to his valuation of the Easement and a directed verdict was entered in favor of SCE. SCE was ordered to pay Constant $66,110 for the Easement.
Constant makes nine claims on appeal: (1) SCE was required to adopt a Resolution of Necessity (RON) prior to bringing its eminent domain action; (2) Contract impairment; (3) Inadequate compensation for contract impairment; (4) Failure to be compensated under the double easement exception; (5) Compensation for rights of way pursuant to Civil Code section 813; (6) Compensation for severance damages; (7) SCE's valuation of Easement did not include relevant comparable sales in violation of Evidence Code section 816; (8) Failure of the trial court to provide a Statement of Decision; and (9) The trial court erred by entering a directed verdict denying his right to a jury trial pursuant to Code of Civil Procedure section 630 and Article I, Section 16 of the California Constitution.
In his reply brief, Constant raises new issues regarding sanctions and SCE's failure to pay him the $66,110. We will not address issues raised for the first time in the reply brief. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766.)
FACTUAL AND PROCEDURAL HISTORY
A. COMPLAINT
On June 22, 2016, SCE filed a complaint in eminent domain against Constant and Trustees (Complaint). SCE sought to condemn and acquire the Easement that it described as a portion of the Property, which consisted of a 2,823 square foot permanent transmission line easement to be used for the construction, maintenance and operation of the Project. The Easement would be used for overhead electrical transmission lines.
The CPUC granted the right to construct the Project to SCE on February 5, 2014. The Project was deemed necessary to meet the demand for electricity in the cities of Rancho Cucamonga, Fontana and Rialto. SCE alleged the Easement was necessary for the Project to be completed.
With the Complaint, SCE sought an order for prejudgment possession. The property where the Easement would be granted was vacant commercial property. SCE had the power to take prejudgment possession of the Easement pursuant to eminent domain and it would deposit the probable compensation. SCE's eminent domain power was authorized by Article I, Section 19 of the California Constitution; California Public Utilities Code sections 217, 218 and 612; and California Code of Civil Procedure sections 1240.510 and 1240.610.
SCE retained an appraiser to determine the value of the Easement. SCE argued it would suffer substantial hardship if prejudgment possession was not granted as electricity service to the surrounding cities could be impacted. Constant, in pro. per., filed an Answer.
B. FIRST MOTION FOR JUDGMENT ON THE PLEADINGS
On July 20, 2016, Constant filed his first motion for judgment on the pleadings (MJP-1) in response to SCE filing the Complaint and the request for prejudgment possession. Constant alleged that SCE had to first obtain a RON before exercising its power of eminent domain. Constant further argued that prejudgment possession was unconstitutional under the Fifth Amendment, violated equal protection laws, and was without due process of law. Further, SCE had to first comply with California's Environmental Quality Act (CEQA) before it could file the eminent domain action. Constant also alleged that the eminent domain action constituted elder financial abuse within the meaning of Welfare and Institutions Code section 15610.27 and 15610.30.
Constant also claimed that the compensation offered by SCE was insufficient. Constant alleged that the actual value of the Easement was $868,000, which he determined by relying on an earlier easement Constant granted to the City of Fontana for the construction of Mango Avenue on the west side of the Property.
SCE filed opposition to MJP-1. SCE clarified that the Easement would be used only to construct overhead electrical wires. Further, a motion for judgment on the pleadings was an improper response; Constant had to seek relief by filing a demurrer. SCE maintained it had brought a proper eminent domain action. SCE also alleged that it did not have to adopt a RON because it was not a public entity within the meaning of Code of Civil Procedure section 1240.040, and instead was a privately owned public utility. SCE had the authorization to take the Easement from the CPUC. Constant could contest the compensation offered by SCE at trial. SCE also provided that CEQA review had been completed.
MJP-1 was heard by the trial court on August 23, 2016. The tentative ruling was to deny MJP-1. Constant argued both orally and in writing that a RON was necessary because SCE was a public entity. The trial court denied MJP-1.
C. RULING ON MOTION FOR PREJUDGMENT POSSESSION
After MJP-1 was denied, Constant filed opposition to SCE's request for prejudgment possession. SCE filed a reply contending the opposition was filed late and lacked merit. SCE had deposited $31,800 with the state treasurer in compliance with Code of Civil Procedure section 1255.010, subdivision (a), as probable compensation for the Easement.
The motion for prejudgment possession was heard on September 21, 2016. The trial court issued a detailed written ruling. The trial court provided that SCE had the right to take the Easement by eminent domain pursuant to Public Utilities Code section 612. The Easement was only for 2,823 feet of unoccupied land. The trial court ruled that SCE was a public utility, and not a public entity that had to secure a RON in order to exercise its power of eminent domain. Constant would have an opportunity to contest the compensation amount at a trial. SCE had properly deposited the likely compensation for the Easement. The trial court concluded that since the Easement was vacant, and SCE had shown an immediate need for possession, the trial court granted the motion for prejudgment possession.
D. EXCLUSION OF SETTLEMENT AGREEMENT AS VALUATION OF THE EASEMENT
On October 7, 2016, Constant filed a request for designation of property owner as expert in valuation of property and statement of valuation data. He presented his valuation of the Easement as $868,000. As evidence, he stated that a private developer, Pacific Industrial LLC (Pacific), had required access to his property to construct a nearby commercial development and had paid him $750,000 for a 2,439 square foot easement (Settlement Agreement). Constant provided the easement deed granted to the City of Fontana to develop a public street, Mango Avenue.
At the same time, Constant filed for a protective order to keep the details of the Settlement Agreement confidential. Constant contended that only the payment by Pacific for the easement had to be disclosed. He insisted the terms of the sale of the easement to Pacific included a confidentiality agreement. The Settlement Agreement included the following term: " 'The terms of this Settlement Agreement are confidential in nature and shall not be disclosed unless the disclosure is reasonably necessary for the party's business purposes or required under applicable law or regulation.' " Constant sought judicial notice of the redacted Settlement Agreement, which only disclosed the payment amount, the confidentiality provision and the description of the granted easement.
At the same time, Constant filed a second motion for judgment on the pleadings (MJP-2) arguing that judgment should be entered in the amount of $868,000.
SCE filed opposition to the protective order for the Settlement Agreement and MJP-2. SCE argued that under the terms of the Settlement Agreement, the entire Settlement Agreement could be disclosed because it was being used for a business purpose. SCE argued that judgment on the pleadings could not be entered without a trial where both parties presented evidence of value. MJP-2 and the request for protective order were denied by the trial court after a hearing. The trial court ruled the Settlement Agreement was not subject to a protective order because it was clearly being used for a business purpose. Further, MJP-2 was denied; the trial court ruled that a trial on value was required.
On March 29, 2017, SCE moved for a determination that the Settlement Agreement could not be used to value the Easement. SCE argued the Settlement Agreement did not qualify as a comparable sale to determine value of the Easement. SCE argued that the amount paid by Pacific was not based on an arm's length transaction. The amount paid was in recognition that Constant would not pursue any CEQA claims and for payment of the easement. The Settlement Agreement did not represent the fair market value of the Easement.
SCE provided that Pacific had needed the easement on the Property to develop an industrial complex. Constant fought the development and brought numerous CEQA objections. Pacific entered into the Settlement Agreement both to stop Constant from raising any further CEQA claims and to purchase the easement needed for the development. Resolution of the CEQA claims was a "driving factor" for paying $750,000 to Constant.
SCE relied upon a deposition of the owner of Pacific, Dan Floriani, who stated the reason that Pacific paid so much for the easement was the time constraints it had for starting the development. It was not an arm's length transaction. Avoiding litigation on CEQA was a major contributing factor in the amount paid to Constant by Pacific. There was no allocation as to the amount that was paid to avoid litigation and the value of the easement. It did not reflect the fair market value of an easement on the property. SCE also insisted the Settlement Agreement was inadmissible as a matter of law, relying upon Evidence Code section 822, subdivision (a), because the easement could have been taken by eminent domain by the City of Fontana to construct the public street, and therefore, could not be used as the fair market value in this case.
Constant filed opposition. Constant stated the Settlement Agreement was protected by the "Taking Clause" and the "Contract Clause" of the Federal Constitution.
At the hearing on exclusion of the Settlement Agreement, SCE encouraged the trial court to rule so that Constant would have time to obtain another appraisal. The trial court issued a written ruling that the Settlement Agreement amount was inadmissible pursuant to Evidence Code section 822, subdivision (a)(1). The City of Fontana could have taken the easement by eminent domain because it was for the construction of a public road. Further, it was not possible to determine, based on the terms of the Settlement Agreement, how much was allocated to preventing the CEQA litigation and how much for the easement itself. Avoiding litigation and time constraints all contributed to the price. The trial court concluded that the Settlement Agreement did not shed any light on the value of the Easement and it could not be used to prove value of the Easement.
On May 17, 2017, Constant filed a motion for reconsideration of the trial court's ruling on excluding the Settlement Agreement. Constant contended that the trial court lacked jurisdiction to set aside the Settlement Agreement. The granting of SCE's motion to exclude the evidence also violated the exclusionary rule.
SCE filed opposition to the motion for reconsideration arguing Constant had not shown any new facts or evidence that warranted granting the motion for reconsideration. The trial court denied the motion for reconsideration after hearing.
E. OTHER MOTIONS AND THE CROSS-COMPLAINT
1. CROSS-COMPLAINT
On April 26, 2017, an attorney on behalf of Trustees and Constant filed a cross-complaint for inverse condemnation and trespass against SCE (cross-complaint). They argued there was going to be overuse of the Easement and the Easement would be used for purposes beyond what SCE was entitled under the eminent domain action. The overuse/misuse of the eminent domain power exceeded $500,000.
On June 1, 2017, SCE filed a demurrer to the cross-complaint. SCE argued there was no showing of current misuse to support an action of trespass or inverse condemnation. Further, SCE had access to the Property through Mango Avenue, which was a public road. SCE's demurrer to the cross-complaint was denied and it was ordered to answer.
In relation to the cross-complaint, Constant filed several requests for judicial notice of authority that SCE must have filed a RON prior to bringing the eminent domain action. The trial court denied Constant's requests for judicial notice as irrelevant and rejected that there was no jurisdiction based on the argument that no RON had been filed.
2. MOTION FOR INCREASED DEPOSIT
Constant also filed a motion for an increased deposit. He argued again that the Settlement Agreement should set the value of the Easement and the deposit by SCE was insufficient. Constant insisted he also was entitled to compensation for breach of the Settlement Agreement by SCE. SCE opposed the motion as an improper motion for reconsideration. SCE contended that this was the seventh attempt to raise that the Settlement Agreement should be considered for the value of the Easement. The trial court denied the motion to increase deposit. It noted that the Settlement Agreement could not be used as a comparable transaction.
3. MOTION FOR SEPARATE TRIALS
Constant also filed a motion for three separate trials. The first trial would determine just compensation to Constant for contract impairment claims for damages due to SCE's impairment of the Settlement Agreement; the second trial would involve SCE's complaint to determine just compensation; and the third trial would be the trial on the cross-complaint.
SCE filed opposition to the motion for three separate trials. There was no pending issue as to a cause of action for impairment of the Settlement Agreement to justify a separate trial. The complaint and cross-complaint should be tried together. Separate trials would be a waste of resources and unduly prejudicial to SCE. The trial court denied the motion for separate trials. The trial court ruled that there was no cause of action in the cross-complaint for breach or interference with the Settlement Agreement. It was not an issue. Further, there was no need to bifurcate the issues in the complaint and cross-complaint.
4. MOTION FOR SUMMARY ADJUDICATION
Constant filed a motion for summary adjudication as to his claims for damages. He alleged that the trial court should issue an order in the amount of 2.3 million dollars to compensate him for SCE's impairment of contract for interfering with the Settlement Agreement. On November 27, 2017, SCE filed opposition to the motion for summary adjudication of the claims. It alleged it was just another improper motion for reconsideration of the exclusion of the Settlement Agreement.
5. CONSTANT'S MOTION TO QUASH AND FOR SANCTIONS
On November 14, 2017, Constant filed a motion to quash subpoena duces tecum and for monetary sanctions in the amount of $5,000 against SCE. His claim related to the subpoena of Pacific on January 30, 2017, regarding the motion on admissibility of the Settlement Agreement. SCE objected to the motion to squash subpoena. SCE argued again it was an improper motion for reconsideration.
6. MOTION FOR JUDGMENT ON THE PLEADINGS: CROSS-COMPLAINT
Constant filed a motion for judgment on the pleadings on the cross-complaint (MJP-3). SCE filed opposition. SCE filed an original answer, but then based on complaints by Constant, filed an amended answer. Constant filed a demurrer to the amended answer but it was denied. SCE argued MJP-3 was another motion for reconsideration that should be denied. Further, MJP-3 raised the same claims as those in the demurrer, which was denied by the trial court.
7. SCE'S MOTION FOR SANCTIONS
SCE, in response to the numerous motions filed by Constant, filed a motion for sanctions against Constant. SCE complained that Constant continued to file frivolous motions and employed bad faith tactics in litigation. None of his motions had anything to do with the eminent domain action. If the trial court did not intervene, Constant would continue to file his motions and the motions were filed for delay purposes.
SCE's motion for sanctions and Constant's numerous motions were heard by the trial court on December 14, 2017. The sanctions motion by SCE was deferred until trial. Constant's motion for judgment on the cross-complaint, motion for summary adjudication and motion to squash subpoena were all denied.
8. SCE'S MOTION FOR SUMMARY JUDGMENT ON THE CROSS-COMPLAINT
On January 9, 2018, SCE filed a motion for summary judgment on the cross-complaint. SCE alleged that the causes of action in the cross-complaint could not be proven. The cross-complaint was based on SCE driving its vehicles on Mango Avenue to access the Easement. Mango Avenue was a public street and driving its vehicles on the road was not a misuse or overuse of its eminent domain power. The motion for summary judgment on the cross-complaint was heard on March 26, 2018. The motion was granted on the grounds that Constant and Trustees had not shown any damages.
F. DIRECTED VERDICT
On January 30, 2018, Constant filed another motion for summary adjudication as to his claims for damages. He again argued that the proper payment for the Easement was $868,000. He referenced the breach of the Settlement Agreement. He sought an order for damages in an amount exceeding 2.3 million dollars. SCE filed opposition arguing the motion lacked merit and was another motion for reconsideration of the exclusion of the Settlement Agreement for valuation. On March 29, 2018, based on Constant filing the additional motion for summary adjudication, SCE brought another motion for sanctions pursuant to Code of Civil Procedure sections 128.5 and 128.7.
On April 2, 2018, Constant filed a designation of property owner as qualified witness and statement of valuation data relying on Evidence Code section 813 and Code of Civil Procedure section 1258.210. He was seeking total damages for breach of the Settlement Agreement; money for the Easement; money on the cross-complaint and other damages totaling $3,368,000. No comparable sales were provided.
On April 23, 2018, SCE's second motion for sanctions was heard by the trial court. The motion was granted and Constant was ordered to pay $3,500 in sanctions on or before June 7, 2018. The trial court also denied Constant's motion for summary adjudication of the damages. Constant was instructed that prior to filing any other motions in the case, he had to first seek permission from the trial court.
SCE's expert designation and statement of valuation dated August 6, 2018, presented an appraisal prepared by Sydney Hawran, a real estate appraiser. She estimated the value of the Easement was $66,100 by looking at comparable properties and the Property itself.
On August 17, 2018, Constant filed his motion in limine No. 1 (MIL-1) to exclude SCE's valuation. Constant argued the valuation by SCE was improper under the guidelines of Evidence Code section 816. All of the comparable property values were insufficient. Further, he argued that the Easement was part of a "double easement" and the value was higher.
On September 21, 2018, SCE filed a motion in limine to exclude Constant's testimony at trial on value. Constant could not rely on the Settlement Agreement because it had already been excluded by the trial court. Constant also could not rely on damages arising from the cross-complaint because the cross-complaint had been dismissed. Further, since Constant designated himself as the expert on valuation, he was subject to deposition. He had shown up for the deposition scheduled by SCE but had left before the deposition started, because SCE refused to pay him $12,400 in expert witness fees. Constant's refusal to comply with the court's order warranted exclusion of his testimony at trial. The trial court ordered that Constant attend a deposition.
On October 24, 2018, SCE filed its motion in limine No. 3 (Mil-3) to exclude argument and testimony about the Settlement Agreement and any matters encompassed by the dismissed cross-complaint at trial. SCE was certain that Constant intended to bring this evidence in at trial despite the trial court's prior rulings that the Settlement Agreement was not to be discussed at trial. Motion in limine No. 5 (MIL-5) was filed by SCE to exclude Constant's testimony because Constant planned to rely on the Settlement Agreement for value. SCE supplemented MIL-5 after it was able to depose Constant. At the deposition, Constant stated that he had no other opinion of value to present to the jury besides the Settlement Agreement. Constant admitted he had no comparable sales; the only value was based on the Settlement Agreement. Constant intended to testify about the Settlement Agreement even though it was inadmissible and then appeal the decision.
SCE's motion in limine No. 4 (MIL-4) sought to exclude any testimony by Constant that did not have to do with valuation. Constant could not testify that he was entitled to just compensation for SCE's impairment of the Settlement Agreement. Constant further could not testify that compensation be paid for trespass by SCE on Mango Avenue.
The first day set for trial was November 5, 2018. The parties discussed the motions in limine filed by both Constant and SCE. The trial court first denied Constant's MIL No. 1 to exclude SCE's appraiser's valuation.
Constant opposed MIL-3, MIL-4 and MIL-5. Constant submitted written responses to SCE's motions in limine. Constant argued just compensation was due under the contract price relying on Code of Civil Procedure section 2963.320, subdivision (b), rather than under subdivision (a). Constant wanted to testify as the property owner/expert on the Easement value. Constant argued that SCE impaired the Settlement Agreement and he was entitled to prove the impairment and claim damages.
The trial court heard argument on SCE's motions in limine. Constant complained that he was being muzzled. He had been straightforward as to what he would testify to and the amount of damages he was asking for. SCE contended that Constant was going to testify in violation of the trial court's orders. Constant admitted in his deposition that the only evidence he had was the Settlement Agreement.
The trial court asked Constant if he was going to testify that since he was given $750,000 for the Settlement Agreement, he should receive the same here. Constant then responded that SCE had impaired the Settlement Agreement. The trial court asked Constant to explain. Constant stated that the Settlement Agreement amount was the only price available for the Easement. Constant insisted that since the Settlement Agreement had been disclosed by SCE, he was entitled to compensation. The trial court advised Constant that the jury would not hear about the Settlement Agreement.
Constant stated, "Now, if you're not permitting me to bring in my earlier agreement and bring that price to bear on what they're trying to do to me, then I have no other option except to say, good-by, trial is over. I've been strangled here. I can't make any testimony." SCE clarified that Constant's only valuation was the Settlement Agreement which was not admissible. Constant acknowledged if the Settlement Agreement was not allowed, he had nothing to say before the jury. His only defense was the contract price.
The trial court clarified that the Settlement Agreement was with Pacific, and not SCE. It was not a comparable sale. Constant's testimony would be excluded. The trial court granted SCE's MIL Nos. 3, 4 and 5 excluding any discussion of the Settlement Agreement, contract impairment and claims with regards to the cross-complaint.
Just prior to the jury trial beginning, Trustees and SCE reached a stipulated proposed interlocutory judgment and condemnation. Trustees had assigned their claims in the action to Constant. SCE and Trustees agreed on a price of $200,000 for the Easement and to forego litigation. Constant was proceeding to trial pro per.
SCE argued to the trial court that since Trustees were no longer part of the case, that the only evidence of value that would be presented was by SCE. As such, the proper remedy was for the trial court to enter a verdict and not to proceed to jury trial. Constant indicated that he was entitled to testify about his personal opinion as to the value of the Property. When asked by the trial court what his opinion was based on, Constant responded it was by selling his piece of property to a wholesale developer and that the current price of the Easement was two or three times $750,000. The trial court advised Constant he could only testify to what was in his deposition or given in his valuation opinion filed prior to trial. Again Constant complained that SCE "opened up" the Settlement Agreement which broke the contract.
Robert Constant was going to testify as to value.
On November 8, 2017, the parties addressed SCE's written request for directed verdict which it filed on November 7, 2018. The trial court at the hearing noted it had read Constant's deposition and could only find that Constant relied on the Settlement Agreement in reaching his opinion on value. Constant admitted the value was based on the Settlement Agreement but wanted to know how he could contest that they breached the contract by disclosing it. The trial court admonished Constant that he could not base valuation on speculation. Constant agreed that his argument was that SCE broke the contract with Pacific by disclosing the Settlement Agreement and he wanted compensation for the breach. The trial court disagreed that any contract had been "broken." Constant and his family had been paid for the prior easement. Further, the issue whether SCE improperly subpoenaed the Settlement Agreement was not before the court in the eminent domain action.
SCE also argued that even if the action was considered under Code of Civil Procedure section 1263.320, subdivision (b), as argued by Constant, Constant still did not have any credible evidence of value as all he relied on was the Settlement Agreement. SCE reiterated that Code of Civil Procedure section 1263.320, subdivision (b), only applied when there was no comparable properties; this was a commercial property with plenty of comparable properties.
Constant contended he could raise severance damages at trial but SCE objected no evidence on severance damages had been provided by Constant. The trial court noted that in his deposition, Constant only referred to valuation evidence from the Settlement Agreement and never mentioned value based on severance damages. Constant insisted he would present evidence of severance damages to the Property based on the presence of electrical equipment. SCE again objected that no evidence had been exchanged prior to trial and that his testimony would be purely speculative. The trial court advised Constant that it could not allow a trial by ambush.
After hearing argument, the trial court directed the verdict in favor of SCE and set the value of the Easement as $66,100. It ruled that it had given Constant ample opportunity to explain how he would present credible and admissible evidence in a jury trial and he had failed to present any credible evidence. The jury trial would be based only on value within the meaning of Code of Civil Procedure section 1263.320, subdivision (a) and not subdivision (b). Constant had no credible evidence of value to present other than the Settlement Agreement. Based on the rules of procedure and discovery, Constant could not prevail at a jury trial. The trial court found in favor of SCE. A jury trial would be a waste of judicial resources.
On January 17, 2019, the trial court signed a final condemnation judgment and order. SCE would send a check to Constant in the amount of $66,100. Constant filed his notice of appeal on March 14, 2019.
DISCUSSION
A. RESOLUTION OF NECESSITY
Constant contends, relying on Code of Civil Procedure section 1240.040, that SCE was required to obtain a RON before it could bring an eminent domain action. SCE insists that since it was not a "public entity" but rather a "public utility" it did not have to adopt a RON.
Code of Civil Procedure section 1240.030 provides that a public entity can only exercise its power of eminent domain if "(a) The public interest and necessity require the project," "(b) The project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury," and "(c) The property sought to be acquired is necessary for the project." Code of Civil Procedure section 1240.040 provides that "A public entity may exercise the power of eminent domain only if it has adopted a resolution of necessity that meets the requirements of Article 2 (commencing with Section 1245.210) of Chapter 4." A public entity is defined in Code of Civil Procedure section 1235.190 as "the state, a county, city, district, public authority, public agency, and any other political subdivision in the state."
Code of Civil Procedure sections 1245.210 and 1245.220 provides a list of the governing bodies that can issue the RON; the CPUC is not listed. A RON must include a conclusion that the public interest and necessity require the proposed project; the proposed project is planned and located in a manner that is most compatible to the greatest public good; and the property is necessary for the proposed project. (Code of Civ. Proc., § 1245.230.)
SCE is an electrical company. "An electrical corporation may condemn any property necessary for the construction and maintenance of its electric plant." (Pub. Util. Code, § 612.) Article 7 of the Public Utilities Code is entitled Eminent Domain and only applies to a corporation or person that is a public utility. (Pub. Util. Code, § 610.) Prior to starting the Project, SCE had to obtain a certificate from the CPUC approving the project. (Pub. Util. Code, § 1001.) In order to obtain such certificate, SCE had to comply with the provisions of Public Utilities Code section 625, subdivision (b)(2)(A)-(D) which requires a showing that the public interest and necessity require the proposed project; the property to be condemned is necessary for completion of the project; and the public benefit outweighs the hardship to the property owner. These are the same requirements of a RON.
We review this statutory interpretation claim de novo. (Community Youth Athletic Center v. City of National City (2013) 220 Cal.App.4th 1385, 1408-1409.) Here, in their Complaint, SCE made it clear that the CPUC had granted it the right to construct the Project, which included obtaining the Easement. SCE had no further requirement to obtain a RON based on the above statutory language. SCE brought the eminent domain action pursuant to the authorization in the Public Utilities Code and the condemnation of the Easement was considered a public necessity. Constant provides no legal authority that supports that SCE had to obtain a RON to pursue the eminent domain action despite the Public Utilities Code having identical requirements for obtaining a certificate from the CPUC. The trial court properly denied Constant's numerous filings raising the issue and allowed the eminent domain action to proceed without a RON. The CPUC properly authorized the Easement and SCE could proceed with the eminent domain proceedings.
B. CONTRACT IMPAIRMENT
Constant's argument is not entirely clear. Constant first claims that a contract impairment claim was raised by SCE's impairment of his Settlement Agreement with Pacific and the trial court should have sealed the Settlement Agreement. Constant also references the contract clauses of the federal and state Constitutions. We will attempt to respond to the numerous issues raised by Constant.
Pursuant to the California Constitution, Article I, section 9, a " 'law impairing the obligation of contracts may not be passed.' [Citation.] Similarly, under the Federal Constitution, 'no state shall . . . pass any . . . law impairing the obligation of contracts." (San Bernardino Public Employees Association v. City of Fontana (1998) 67 Cal.App.4th 1215, 1222.) "The contract clauses of both the federal and California Constitutions prohibit a state from passing laws impairing the obligation of contracts. [Citations.] Pursuant to these clauses, the state's ability to modify its own contracts with other parties, or contracts between other parties, is limited." (Teachers' Retirement Board v. Genest (2007) 154 Cal.App.4th 1012, 1026.)
Here, the contract clauses of the state and federal constitutions do not apply. There was no law passed by a state agency, which impaired Constant's ability to enter into a contract or that improperly modified a contract. Constant was able to enter into the Settlement Agreement with Pacific. He received payment under the Settlement Agreement. Constant merely cites to the contract clause of the federal constitution but provides no coherent argument or relevant legal authority to support that the private agreement between himself and Pacific was somehow breached by its disclosure.
Moreover, Constant disclosed the Settlement Agreement in MJP-1 and his valuation of property. Constant wanted to use the Settlement Agreement in his case. SCE sought and was granted the exclusion of the Settlement Agreement because it had no bearing on the issue of just compensation. SCE did not use the Settlement Agreement. Constant has failed to provide any argument or legal authority that supports the actions by SCE in this case involved a violation of the contract clauses of either the federal or state constitutions. Constant's failure to provide adequate legal authority waives the claim. (Akins v. State (1998) 61 Cal.App.4th 1, 50.)
Moreover, Constant has not shown that he brought a proper cause of action raising a claim of contract impairment. To the extent that Constant is arguing that SCE is liable in tort for intentionally interfering with the performance of the Settlement Agreement, he never raised that issue in the cross-complaint. The cross-complaint only raised the issues of trespass and condemnation. SCE's complaint was based on eminent domain and did not address the Settlement Agreement. The trial court found SCE's impairment of the Settlement Agreement was not a proper issue that had been raised in the case. The cause of action for intentionally interfering with Settlement Agreement was never properly filed below and cannot be considered on appeal.
Moreover, even if we were to consider that Constant properly raised the issue of interference with contract, he cannot prevail. "To prevail on a cause of action for intentional interference with contractual relations, a plaintiff must plead and prove (1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant's knowledge of that contract; (3) the defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage." (Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1148.)
While Constant can prove that SCE was aware of the Settlement Agreement, he cannot show that there was a breach of the Settlement Agreement. The evidence is undisputed that Constant had already been paid under the Settlement Agreement and the easement obtained to construct Mango Avenue had already been completed. As such, even if Constant could somehow be found to have properly raised the tort claim of interference with contract, he would not be entitled to damages as he cannot show there was an actual breach of the Settlement Agreement on which damages could be awarded.
Constant has not shown that he has a claim for a violation of the contract clauses under either the federal or state constitutions or that he has a proper contract impairment action.
C. JUST COMPENSATION FOR THE EASEMENT
Constant makes several claims that the trial court's determination as to just compensation paid for the Easement was inadequate, which we will address together. Constant first contends that SCE's expert only provided a valuation for the eminent domain action and did not compensate him at the contract price for impairment of the Settlement Agreement. He was owed $887,550 just compensation for impairing defendant's Settlement Agreement. Constant further appears to argue that the Settlement Agreement was properly used for valuing the Easement.
Constant also argues that the trial court should have calculated the value of the Easement under Code of Civil Procedure section 1263.320, subdivision (b), rather than under Code of Civil Procedure section 1263.320, subdivision (a).
Constant contends that SCE's valuation of $66,100 does not compensate him for the double easement. The trial court had to consider that he already had an easement across the Property. He was entitled to compensation in the amount of $929,025.
Constant insists SCE's appraiser failed to value compensation for the right of way across Mango Avenue and that he is entitled to compensation for the taking under Civil Code section 813. He appears to be arguing that SCE's trucks use the existing right of way on Mango Avenue, which he claims is a private road. SCE's actions constituted trespass.
Constant additionally claims that he was entitled to severance damages, which was the damage to the Property due to the taking of the Easement. He insists that the appraisal completed by Hawran did not include severance damages.
Finally, SCE's appraisal was improper because it failed to provide adequate comparable sales as required by Evidence Code section 816.
1. SCE'S APPRAISAL
Here, the trial court relied on the appraisal by SCE's expert, Hawran when reaching its decision that SCE owed Constant $66,100. The report indicated that the highest and best use of the Property was commercial development. Eight comparable sales of properties near the Property were provided. The Easement was described as a triangular parcel along Mango Avenue, which would allow for SCE to maintain and construct overhead and underground electrical transmission lines. Hawran stated, "The value of a Permanent Easement is estimated [by] considering the value of the Subject Larger Parcel before the encumbrance is in place, and then after the encumbrance if made—in other words, the value of the rights the property owner will lose." Harwan took into account the impact of the use of the Easement and the impact to other uses of the parcel outside the easement area. Hawran noted that the electrical line would only aerially cross the Easement. It would not restrict access to Mango Avenue. Further, other easements could be granted under the transmission lines. No physical structure would be placed on the Easement. There were no existing improvements in the Easement area of the Property. Research was conducted on the impact of overhead electrical transmission lines and none was found for commercial properties.
Hawran determined the value of the Property was $3,601,546. The value after the Easement was $3,535,488. The value of the Easement was $66,100.
2. JUST COMPENSATION IN EMINENT DOMAIN ACTIONS
" 'When private property is taken through eminent domain, the condemning agency must pay "just compensation" to the owner. [Citation.] The measure of just compensation is the fair market value of the property taken.' " (Central Valley Gas Storage, LLC v. Southam (2017) 11 Cal.App.5th 686, 691 (Central Valley).)
"The Legislature has defined the measure of just compensation as 'the fair market value of the property taken.' [Citation.] 'The fair market value of the property taken is the highest price on the date of valuation that would be agreed to by a seller, being willing to sell but under no particular or urgent necessity for so doing, nor obliged to sell, and a buyer, being ready, willing, and able to buy but under no particular necessity for so doing, each dealing with the other with full knowledge of all the uses and purposes for which the property is reasonably adaptable and available.' " (Metropolitan Water District of Southern California v. Campus Crusade for Christ, Inc. (2007) 41 Cal.4th 954, 965, citing to Code of Civ. Proc., section 1263.310, subd. (a).) In an eminent domain proceeding, "[t]he value of land is essentially a question of opinion to be established by expert testimony." (County Sanitation District No. 8 of Los Angeles County v. Watson Land Company (1993) 17 Cal.App.4th 1268, 1277 (County Sanitation).) In addition, property owners may testify as to value of the property. (Aetna Life and Casualty Co. v. City of Los Angeles (1985) 170 Cal.App.3d 865, 877 (Aetna).)
"An easement in gross is the personal right to use the land of another." (County Sanitation, supra, 17 Cal.App.4th at p. 1279.) "The value of an easement in gross, . . . is the difference in the before and after value of the strip of land taken, and not what has been gained by the public agency." (Ibid.) " '[T]he condemnee is entitled to be reimbursed for the actual value of what he or she has lost—no more and no less.' " (Ibid.)
The trial court's valuation findings are upheld when supported by substantial evidence. (See Central Valley, supra, 11 Cal.App.5th at p. 692.) "An expert's opinion is substantial evidence if it has evidentiary support and is accompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion." (San Diego Gas & Electric Co. v. Schmidt (2014) 228 Cal.App.4th 1280, 1292.) To the extent Constant argues that the appraiser's opinion was improperly admitted, we review for abuse of discretion. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.)
3. CODE OF CIVIL PROCEDURE SECTION 1263.320
Constant repeatedly argues that the trial court should have calculated the compensation for the Easement under Code of Civil Procedure section 1263.320, subdivision (b), rather than pursuant to Code of Civil Procedure section 1263.320, subdivision (a).
Code of Civil Procedure section 1263.320, subdivision (a) provides "The fair market value of the property taken is the highest price on the date of valuation that would be agreed to by a seller, being willing to sell but under no particular or urgent necessity for so doing, nor obliged to sell, and a buyer, being ready, willing, and able to buy but under no particular necessity for so doing, each dealing with the other with full knowledge of all the uses and purposes for which the property is reasonably adaptable and available." Subdivision (b) provides that "[t]he fair market value of property taken for which there is no relevant, comparable market is its value on the date of valuation as determine by any method of valuation that is just and equitable."
"[W]hen there is 'a market for . . . property in the private marketplace as demonstrated by the evidence,' the trial court errs in admitting evidence of a valuation methodology that ignores the developed market for a particular type of property. [Citation.] To this end, '[c]ourts, both trial and appellate, have the responsibility of insuring that an expert's determination of value takes into account only reasonable and credible factors.' " (Central Valley, supra, 11 Cal.App.5th at p. 692.)
Here, SCE's appraiser provided a detailed report as to the value of the Easement, including eight comparable sales. She used those figures to determine a value of the Property and the value of the small piece of Property that would be needed. The trial court properly determined that the appraisal took into account the proper factors. The trial court did not abuse its discretion by considering compensation pursuant to Code of Civil Procedure section 1263.320, subdivision (a).
Underlying this argument appears to be Constant's continued assertion that the Settlement Agreement was the proper valuation for the Easement. However, the trial court reasonably concluded that the Settlement Agreement was not properly used to value the Easement. Evidence Code section 822, subdivision (a) provides, "In an eminent domain . . . proceeding, notwithstanding the provisions of [Evidence Code] Sections 814 to 821, inclusive, the following matter is inadmissible as evidence and shall not be taken into account as a basis for an opinion as to the value of property: [¶] (1) The price or other terms and circumstances of an acquisition of property or a property interest if the acquisition was for a public use for which the property could have been taken by eminent domain."
Here, Constant, based on the Settlement Agreement, granted to the City of Fontana the extension of the public street Mango Avenue over his Property. The president of Pacific, Floriani, testified that Pacific entered into the Settlement Agreement in order to avoid any further CEQA litigation. He also recognized that the easement could have been taken by eminent domain by the City of Fontana if the negotiations were not successful. As such, the compensation in the Settlement Agreement could not be considered in the instant eminent domain action to value the Easement. The Settlement Agreement was properly excluded by the trial court as evidence of value pursuant to Evidence Code section 822, subdivision (a)(1).
Further, as noted by the trial court, the Settlement Agreement was not properly considered in determining the fair market value of the Easement because it was based both on the value of the easement and the payment to avoid any further CEQA litigation. It is impossible to determine the value for the property from the Settlement Agreement.
The trial court reasonably considered the value of the Easement under Code of Civil Procedure section 1263.320, subdivision (a). The Settlement Agreement shed no light on the value of the Easement and was properly excluded by the trial court.
4. CONTRACT IMPAIRMENT DAMAGES
Constant insists that Hawran improperly excluded any compensation for his contract impairment claims. As stated above, there was no action for contract impairment brought by Constant in the trial court and he cannot show that his rights under the contract clauses of the state or federal constitutions were violated in this case. He is not entitled to an award of $887,550 for contract impairment and Hawran did not have to consider the damages in her appraisal.
5. DOUBLE EASEMENT EXCEPTION
Constant appears to argue that the valuation by the appraiser was improper because she did not take into account the "double easement exception." Relying on County Sanitation, supra, 17 Cal.App.4th at page 1279, Constant insists the appraiser had to calculate "the value of the second easement [as] the difference in value of the strip of land before and after the imposition of the second easement."
Constant filed his MIL No. 1 seeking to exclude SCE's appraisal. As part of his argument, he complained that Hawran had not considered the double easement exception. He stated that the "before" easement was purchased by Pacific for $355.10 per square foot. The value of SCE's "after" easement "fails as a matter of law under Evidence Code [section] 816." In response, SCE alleged that the Easement was next to Mango Avenue, not over Mango Avenue. Accordingly, the double easement exception was not applicable. Moreover, Constant incorrectly argued he would be paid twice for the same easement. The double easement exception would require SCE to subtract the value of Mango Avenue. The trial court denied Constant's MIL No. 1.
"[I]f a public entity seeks to condemn an easement over land already subject to an easement, the value of the second easement is the difference in value of the strip of land before and after the imposition of the second easement. This value may only be nominal." (County Sanitation, supra, 17 Cal.App.4th at p. 1280; see also City of Gilroy v. Filice (1963) 221 Cal.App.2d 259, 265-266 [since the area was already encumbered by a road easement, the second easement for a sewer resulted in no loss of value].)
Here, the Easement was next to Mango Avenue, not over Mango Avenue. No double easement exists. Further, Constant misapplies the double easement exception. He was not entitled to payment again for the easement for which he was already paid by Pacific. In fact, if the Easement was on the same strip of land as Mango Avenue, he would have likely been entitled to a lesser amount for the Easement. (City of Gilroy v. Filice, supra, 221 Cal.App.2d at pp. 265-266.) There was no error in the appraisal for ignoring the double easement exception.
6. SEVERANCE DAMAGES
Constant states that he is entitled to severance damages. SCE's appraisal did not take into account severance damages.
"When the property taken is part of a larger parcel, the owner is compensated not merely for the injury to the part taken but also for the injury, if any, to the remainder. . . . Such compensation is commonly called 'severance damages.' " (Metropolitan Water District of Southern California v. Campus Crusade for Christ, Inc., supra, 41 Cal.4th at p. 965.) "In determining severance damage, the jury must assume 'the most serious damage' which will be caused to the remainder by the taking of the easement and construction of the property. [Citation.] The value of the remainder after the condemnation has occurred is referred to as the 'after' value of the property. The diminution in fair market value is determined by comparing the before and after values. This is the amount of the severance damage." (San Diego Gas & Electric Co. v. Daley (1988) 205 Cal.App.3d 1334, 1345, disapproved of on other grounds by Los Angeles County Metropolitan Transportation Authority v. Continental Development Corp. (1997) 16 Cal.4th 694, 720.)
"Severance damages must be based upon real physical disturbance of a property right and a decrease in market value of the property rather than upon remote possibilities which are highly speculative and conjectural." (County Sanitation, supra, 17 Cal.App.4th at p. 1282.)
At the hearing on the directed verdict, Constant mentioned for the first time that he wanted to testify about severance damages. SCE objected as there had been no evidence of severance damages provided by Constant prior to the date of trial. Constant argued that he would present testimony that if someone wanted to buy the Property, the electrical wires would block the property and the buyer may be concerned about the electrical wires. Constant's testimony was clearly based on conjecture and speculation. Further, there was no exchange of evidence with SCE prior to trial to support his severance damages claim.
Hawran provided that the transmission lines would be aerial and that no development on the Easement would be required. She had researched the impact of electrical transmission lines in relation to commercial property and had found no diminution in value. She also took into account the impact of the Easement on the entire Property value. As such, Hawran's appraisal properly evaluated the severance damages of the Easement.
Constant further claims that he was entitled to compensation pursuant to Civil Code section 813. He insists that Mango Avenue was a private road and SCE's trucks were trespassing by using the road.
In the cross-complaint filed by Trustees and Constant, they contended that SCE committed trespass by overusing Mango Avenue, which was not contemplated in the eminent domain action. In support of the cross-complaint, Constant had filed a notice of consent to use land pursuant to Civil Code section 813. In that notice, he acknowledged that he dedicated an easement to Fontana to construct Mango Avenue for "street, highway and public utility purposes."
Civil Code section 813 allows an owner of property to record a notice providing, " 'The right of the public or any person to make any use whatsoever of the above described land or any portion thereof (other than any use expressly allowed by a written or recorded map, agreement, deed or dedication) is by permission, and subject to control, of owner: Section 813, Civil Code.' "
Constant's argument is premised on his contention that Mango Avenue was a private road, which SCE could not traverse without committing trespass. However, Mango Avenue was clearly a public road as stated in the easement grant to Fontana. The trial court granted SCE's motion for summary judgment on the cross-complaint because there was no showing of trespass since Mango Avenue was not a private road. Constant has failed to show he was entitled to any compensation for the use of Mango Avenue by SCE pursuant to Civil Code section 813.
8. APPRAISAL INSUFFICIENT PURSUANT TO EVIDENCE CODE SECTION 816
Constant finally contends that SCE did not provide proper comparable properties in reaching is valuation. He acknowledges that Hawran's valuations were appropriate for the entire Property but insists she did not provide adequate comparable values for the Easement. SCE responds that it retained a highly respected real estate appraiser who properly determined the fair market value of the Easement. SCE insists that the appraiser properly took into account the fair market value of the Easement; there was no violation of Evidence Code section 816.
Evidence Code section 816 provides, "When relevant to the determination of the value of property, a witness may take into account as a basis for his opinion the price and other terms and circumstances of any sale or contract to sell and purchase comparable property if the sale or contract was freely made in good faith within a reasonable time before or after the date of valuation. In order to be considered comparable, the sale or contract must be located sufficiently near the property being valued, and must be sufficiently alike in respect to character, size, situation, usability, and improvements, to make it clear that the property sold and the property being valued are comparable in value and the price realized for the property sold may fairly be considered as shedding light on the value of the property being valued." "This whole 'shedding light on value' standard is nothing more than a restatement of the general rule for the introduction of circumstantial evidence, which is admissible if relevant, 'i.e., if it can provide any rational inference in support of the issue' [citation]. And the reasonability of inferences has always been a question of law for the court." (County of Glenn v. Foley (2012) 212 Cal.App.4th 393, 402, fns. omitted.)
Initially, Constant has provided no relevant legal authority which supports that SCE's appraisal was insufficient. While Constant cites to Evidence Code section 816, he provides no other authority that comparable sales provided by Hawran were insufficient. Such failure to provide relevant legal authority waives the issue on appeal. (Akins v. State, supra, 61 Cal.App.4th at p. 50.)
Moreover, we cannot conclude that the trial court abused its discretion by relying upon Hawran's appraisal. Hawran's appraisal included eight comparable sales, she considered the severance damages, and the character of the Property. The appraisal complied with Evidence Code section 816.
D. STATEMENT OF DECISION
Constant contends the trial court improperly denied his timely request for a Statement of Decision. SCE states that the request was not proper and was defective.
On November 13, 2018, Constant submitted a document entitled "REQUEST FOR STATEMENTS OF DECISION." In the body of the request, it stated as follows: "James Constant, who appeared at the trial of the above entitled action, hereby requests that the court issues statements of decision explaining the factual and legal basis for its decisions regarding the following controverted issues: [¶] 1. The court's final judgment entered __________ in this case; [¶] 2. The court's ruling at the hearing on 8/23/16 that "Edison is a private company not subject to providing a Resolution of Necessity"; and [¶] 3. Applicable case law (see my Trial Exhibit)."
Code of Civil Procedure section 632 provides in pertinent part that, "In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial." "The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision." (Ibid.) "The court's statement of decision is sufficient if it fairly discloses the court's determination as to the ultimate facts and material issues in the case.' [Citations.] 'Ultimate facts are distinguished from evidentiary facts and from legal conclusions.' " (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 983.)
Granting a motion for a directed verdict decides a question of law. A statement of decision on a motion for directed verdict would be inappropriate. (Angelier v. State Board of Pharmacy (1997) 58 Cal.App.4th 592, 598, fn. 5 ["section 632 only requires a statement of decision for issues of fact that are decided by the trial court, not issues of law"]) Here, the trial court entered a directed verdict based on Constant's failure to provide any admissible evidence of valuation of the Easement. It reached the directed verdict based on the only evidence of values provided by SCE's appraiser. Moreover, Constant's request for decision does not include that the trial court resolve any "ultimate facts." (Thompson v. Asimos, supra, 6 Cal.App.5th at p. 983.) The trial court properly declined to prepare a statement of decision.
E. DIRECTED VERDICT
Constant's final claim is that the trial court erred by granting SCE's directed verdict. He insists he had evidence to present regarding contract impairment and compensation for contract impairment; evidence for rights of way pursuant to Civil Code section 813; evidence of severance damages; and the improper valuation by the SCE's appraiser. He was denied his rights to a jury trial under Code of Civil Procedure section 630, subdivision (a) and the California Constitution.
Code of Civil Procedure section 630 provides, "Unless the court specified an earlier time for making a motion for directed verdict, after all parties have completed the presentation of all of their evidence in a trial by jury, any party may, without waiving his or her right to trial by jury in the event the motion is not granted, move for an order directing entry of a verdict in its favor." "A directed verdict is proper only when, after disregarding conflicting evidence and giving the opposing party's evidence every legitimate inference which may be drawn therefrom, there remains no evidence of sufficient substantiality to support a verdict in favor of the opposing party. [Citation.] Unless it can be said as a matter of law that no other reasonable conclusion is legally deducible from the evidence and that any other holding would be so lacking in evidentiary support that a reviewing court would be compelled to reverse on appeal, or a trial court to set it aside, the trial court is not justified in taking the issue from the jury." (Aetna, supra, 170 Cal.App.3d at p. 876.)
Aetna was a condemnation action in which the trial court granted the plaintiff property owners' motion for directed verdict on the amount of their damages. (Aetna, supra, 170 Cal.App.3d at p. 876.) It found that the "[d]efendants offered no evidence on damages, relying instead upon cross-examination of plaintiffs' expert witness and of the homeowners to convince the jury that plaintiffs' damages were less than requested." (Ibid.) Based on the failure of the defendants to present any evidence of value, the trial court properly directed a verdict based on the plaintiffs' evidence. (Id. at p. 878.)
The significance of lack of evidence on value in an eminent domain case is unique due to the role of the trier of fact. In an eminent domain action, "[t]he jury determines the fair market value of the property based on the highest and best use for which the property is geographically and economically adaptable." (San Diego Gas and Electric v. Schmidt, supra, 228 Cal.App.4th at p. 1288.) "In determining the fair market value of a property, the jury is entitled to consider any factor having 'the potential of affecting the market value' so long as the effect of the factor on market value is not conjectural, speculative or remote." (Sacramento Area Flood Control Agency v. Dhaliwal (2015) 236 Cal.App.4th 1315, 1330 (Dhaliwal).) "[A]n opinion founded on incompetent matter may be rejected." (County of Los Angeles v. Kling (1972) 22 Cal.App.3d 916, 923.)
"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." (Aetna, supra, 170 Cal.App.3d at p. 877; see also County of Los Angeles v. Kling, supra, 22 Cal.App.3d at p. 923 [a jury can properly set value based only on competent expert testimony presented to it and a directed verdict is appropriate when only one party presents evidence of value].)
Evidence Code section 813 permits both qualified experts and owners of property to express opinions as to the value of property. However, Evidence Code section 814 provides, "The opinion of a witness as to the value of property is limited to such an opinion as is based on matter perceived by or personally known to the witness or made known to the witness at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion as to the value of [the] property, including but not limited to the matters listed in Sections 815 to 821, inclusive, unless a witness is precluded by law from using such matter as a basis for an opinion."
The trial court is vested with broad discretion in admitting or excluding evidence of value. (Redevelopment Agency v. Contra Costa Theatre, Inc. (1982) 135 Cal.App.3d 73, 86.) We review the trial court's ruling under abuse of discretion. (Dhaliwal, supra, 236 Cal.App.4th at pp. 1331-1332.)
Here, we conclude the trial court properly excluded the evidence Constant sought to introduce at the jury trial. Prior to trial, SCE brought MIL-3, MIL-4, and MIL-5 to exclude any reference to the Settlement Agreement at trial, the contract impairment, and Constant's testimony. Constant presented opposition stating that he wanted to introduce evidence of impairment of the Settlement Agreement, just compensation pursuant to the contract price, order of rights of way pursuant to Civil Code section 813 and severance damages.
Constant was examined thoroughly by the trial court as to what evidence of value he would present at the jury trial. Constant provided no satisfactory statement to the trial court as to his opinion of value other than that he would rely on the Settlement Agreement and the contract impairment. The trial court, within its discretion, had excluded these items from evidence. As such, Constant could not testify regarding the Settlement Agreement or contract impairment at the jury trial.
Further, for the first time, on the day set for trial, Constant argued he wanted to present evidence about severance damages. SCE objected that Constant had not disclosed any severance damage evidence to SCE. The trial court admonished Constant that it would not allow a trial by ambush. The penalty for failure to comply with the disclosure requirements of Code of Civil Procedure section 1258.010 et seq. is exclusion of the evidence. (Dhaliwal, supra, 236 Cal.App.4th at p. 1335.) Moreover, Constant admitted that his severance damages were based on his own speculation. Such evidence is not admissible. (Evid. Code, § 814.)
Code of Civil Procedure sections 1258.210 and 1258.220 require the parties in an eminent domain action to exchange lists of expert witnesses and statements of valuation data 90 days prior to the commencement of trial. --------
After the trial court excluded the evidence, Constant admitted that he would have no testimony without the Settlement Agreement being admitted. The jury could only base its opinion on the appraised value. The appraised value was that provided by Hawran. The trial court did not violate Constant's right to a jury trial by entering the directed verdict based on Constant's failure to provide any admissible evidence to be presented at the trial on just compensation. A jury trial would have been a waste of judicial resources as there was no evidence Constant could have presented that a jury could rely on to reach its determination of just compensation.
Here, SCE properly filed an eminent domain action to acquire the Easement on the Property to erect aerial electrical transmission lines. It obtained an appraisal and paid just compensation to Constant for the value of the Easement. We conclude there was no error by directing a verdict in favor of SCE for condemnation of the Easement and Constant was given just compensation.
DISPOSITION
We affirm the order of condemnation. As the prevailing party, Southern California Edison Company is awarded its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS.
MILLER
J. We concur: McKINSTER
Acting P. J. CODRINGTON
J.