Solano Transportation Authority v. Anderson CA1/4 ( 2021 )

Filed 3/30/21 Solano Transportation Authority v. Anderson CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
SOLANO TRANSPORTATION
AUTHORITY, A156167
Plaintiff and Respondent,
(Solano County
v. Super. Ct. No. FCS044861)
ARTHUR L. ANDERSON et al.,
Defendants and Appellants.
In this eminent domain action, the trial court entered judgment
awarding defendants Arthur L. Anderson, Matthew T. Archer, and Dunnigan
Hills Farming Company (collectively, the Anderson Parties) $8,100 as
compensation for the taking by plaintiff Solano Transportation Authority (the
Authority) of real property belonging to the Anderson Parties. The Anderson
Parties appeal, alleging the court erred in (1) granting several motions in
limine excluding expert testimony at trial, (2) delaying its consideration of
their ex parte request to continue the expert exchange date, and (3) untimely
hearing and determining, and ultimately overruling, their objections to the
Authority’s right to take the property.1 We affirm.
The Anderson Parties filed their opening brief on July 1, 2020. On
1
July 20, 2020, the Anderson Parties filed an “Errata to Appellants’ Opening
1
I. BACKGROUND
A. The Subject Property and Underlying Dispute
By this eminent domain action, the Authority sought to acquire fee title
ownership to a narrow strip of land bisecting the Anderson Parties’ roughly
568-acre property located in the Suisun Marsh, south of Fairfield, along
Chadbourne Road, as well as temporary construction easements. The
Authority’s goal was to construct in the narrow take area a north-south
running water conveyance system, consisting of a weir, earthen channel, and
related improvements, to transfer water from a reservoir or canal at the
north end of condemned strip, south through the Anderson Parties’ property,
bringing the water into an environmental mitigation site. This mitigation
site was designed to compensate for habitat/species impacts from a
transportation highway project known as “I-80/I-680/State Route 12
Interchange Project” in Solano County (Interchange Project).2
The Anderson Parties claim they had plans to develop their property by
converting it to a mitigation bank which would generate income to them in
the form of sales of environmental credits. They contend that the mitigation
Brief.” After the Authority moved to strike the errata, which the Anderson
Parties opposed, we ordered the Anderson Parties to notify us as to which
brief it intended to use as the opening brief. The Anderson Parties elected to
have its original opening brief stricken and to have the errata serve as the
opening brief. We therefore refer to the arguments raised in the errata.
2 Acquiring and developing real property to serve as a mitigation site,
and obtaining a water supply for the site, was required as part of the
environmental review for the Interchange Project. Federal and California
law require a proponent of a project to analyze the environmental impacts of
the property and measures to mitigate any impacts. (See Pub. Resources
Code, § 21002; Cal. Code Regs., tit. 14, § 15126.4; 32 C.F.R. § 651.15 (2020).)
Mitigation can include avoiding, minimizing, rectifying, reducing, or
eliminating the impact, or compensating for the impact. (Cal. Code Regs.,
tit. 14, § 15370; 32 C.F.R. § 651.15 (2020).)
2
project they wish to pursue “depends on creating new, equivalent tidal
channels and flows on the east and west sides of the [condemned strip].” On
the west, they argue, this involves breaching an existing levee along Suisun
Creek and constructing an east-west running channel into the Anderson
Parties’ property. In their view, however, the Authority’s north-south water
conveyance project conflicts with and prevents them from proceeding with
their own plans to develop the strip as a mitigation bank.
B. Precondemnation Events
In order to meet the environmental mitigation conditions imposed in
connection with the Interchange Project, the Authority contracted with
Grizzly Bay LLC (originally Water Hole Land Company Inc.) (Grizzly Bay),
which had purchased property adjacent to the Anderson Parties’ property to
serve as a mitigation site. Obtaining the narrow strip bisecting the Anderson
Parties’ property was necessary so that the Authority could direct the flow of
water to certain areas within the mitigation site and so that it could make
improvements facilitating that objective.
On January 14, 2015, the Authority’s Board, after holding a hearing,
adopted a resolution of necessity authorizing the acquisition of about 61,435
square feet (1.41 acres) in fee title of the Anderson Parties’ real property, as
well as 8,202 square feet (0.19 acres) in temporary constructive easements.
On February 6, 2015, the Authority then filed a notice that a deposit of
probable compensation in the amount of $8,300 had been made with the
State Treasurer.
C. The Eminent Domain Action and Motion To Specially Set a Trial
on Right-to-take Objections
On February 6, 2015, the Authority filed this action in eminent domain.
On that same day, the Authority moved for prejudgment possession of the
Anderson Parties’ property.
3
The Anderson Parties then filed an answer to the complaint, asserting
numerous affirmative defenses, including those contesting the Authority’s
right to take their property. The Anderson Parties also opposed the motion
for prejudgment possession.
In May 2015, the Anderson Parties moved for orders to specially set a
trial on their right-to-take objections and to temporarily stay the Authority’s
motion for prejudgment possession, pending the outcome of the trial on the
right-to-take objections. The Authority opposed the motion, and the
Anderson Parties replied to the opposition. The trial court granted the
Authority’s motion for prejudgment possession and denied the Anderson
Parties’ motion to specially set a trial and stay the motion for prejudgment
possession.
D. Ex Parte Application To Continue the Expert Exchange Date
Over three years later, on July 24, 2018,3 the Anderson Parties filed an
ex parte application to continue then-pending July 26 expert exchange and
September 19 trial dates. In their application, the Anderson Parties noted
that the parties had been engaged in extensive settlement discussions over
the past two years. In the course of those discussions, the parties agreed
multiple times to continue the expert exchange date. As of July 19, the
parties were unable to finalize their settlement efforts. The parties again
agreed to continue the exchange date to July 23, and then to July 26. But the
Authority declined the Anderson Parties’ request to continue the exchange
date beyond July 26. The Authority opposed the ex parte application.
On July 31, the trial court conducted a hearing, explaining there was “a
new rule of court for the civil division where we have a hearing to see if we
would set it for an ex parte hearing . . . to consider a motion to continue this
3 All further dates refer to the year 2018 unless otherwise stated.
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matter which is currently set for trial.” The court then scheduled a hearing
on the Anderson Parties’ motion to continue for August 24 and ordered the
parties to file moving and opposing papers in accordance with a briefing
schedule set by the court. One week later, the Anderson Parties requested
the court take the matter off calendar.
E. Expert Exchange
The parties proceeded with the expert exchange on July 26. The
Anderson Parties submitted their list of experts, which included Jeffrey
Kauttu, an appraiser; Tim DeGraff, a wetlands and biology consultant; and
Arthur Anderson, whose company was an owner of the subject properties.
The Anderson Parties explained that DeGraff would testify about the
conditions and characteristics of their property and the property adjacent to
it, “the . . . feasibility of the relevant properties’ highest and best use(s),” the
impacts of the taking on the Anderson Parties’ property, and the suitability of
the property as a “mitigation bank.”4 DeGraff previously had prepared the
“Rancho Suisun Conservancy Mitigation Bank Draft Prospectus” (Draft
Prospectus), a plan for developing and constructing the Anderson Parties’
property into a mitigation bank.
4 “Mitigation banking has been defined as wetland restoration,
creation, enhancement, and in exceptional circumstances, preservation
undertaken expressly for the purpose of compensating for unavoidable
wetland losses in advance of development actions, when such compensation
cannot be achieved at the development site or would not be as
environmentally beneficial. It typically involves the consolidation of small,
fragmented wetland mitigation projects into one large contiguous site. Units
of restored, created, enhanced or preserved wetlands are expressed as
‘credits’ which may subsequently be withdrawn to offset ‘debits’ incurred at a
project development site.” (Lindgren & Mattas, Cal. Land Use Practice
(Cont.Ed.Bar 2020) Mitigation Banks, § 14.26.)
5
The Anderson Parties indicated that Kauttu would “testify as a
valuation witness” and attached his statement of valuation data. Kauttu
opined that the highest and best use of the Anderson Parties’ property was
“wetland mitigation banking.” Kauttu concluded the Anderson Parties were
entitled to severance damages in the amount of $5,099,000 and just
compensation in the amount of $5,122,000.
On August 16, Kauttu’s deposition was taken, and the Anderson
Parties served Kauttu’s updated statement of valuation data. This time,
Kauttu determined the Anderson Parties were entitled to $2,975,000 in
severance damages and $2,998,265 in total just compensation.
The Authority also served the statement of valuation data of its
appraiser, Terry Larson, who determined that the highest and best use of the
property is for irrigated crops. Larson concluded that the Anderson Parties
were entitled to severance damages in the amount of $500, with total just
compensation in the amount of approximately $8,100.
Both Kauttu and Larson used January 26, 2015, as the date of
valuation, the date that the Authority deposited the probable compensation.
(Code Civ. Proc., § 1263.110, subd. (a).)5
F. The Authority’s Motions in Limine
On August 17, 2018, the Authority filed motions in limine nos. 1 and 2.
Motion in limine no. 1 sought to exclude Kauttu’s valuation opinions based on
a method known as the “developer’s approach.” Motion in limine no. 2 sought
to exclude evidence of “sales and other data” related to other properties that
Kauttu used to value the Anderson Parties’ property.
All further undesignated statutory references are to the Code of Civil
5
Procedure.
6
On September 14, the Authority filed further in limine motions.
“Supplemental” motion in limine no. 1 sought to exclude additional opinions
of Kauttu relying on the “developer’s approach” that were made after his
original appraisal. Motion in limine no. 3 sought to exclude additional
opinions of Kauttu that the Anderson Parties had failed to timely disclose.
(§ 1260.010 et seq.) Motion in limine no. 4 sought to exclude evidence of a
transaction that Kauttu used as a “comparable sale” to value the Anderson
Parties’ property.
The Anderson Parties filed oppositions to the supplemental motion in
limine no. 1 and motions in limine nos. 2, 3, and 4.
After hearing arguments on the motions at the September 14 trial
calling, the court granted motion in limine no. 1, but reserved ruling on
whether Kauttu’s opinions based on the “developer’s approach” were
admissible to show the Anderson Parties’ position on the “highest and best
use” of their property; granted motion in limine no. 2 (except as to the
admissibility of comparable sales evidence in “Item 8,” which is the subject of
motion in limine no. 4); granted motion in limine no. 4, but reserved ruling on
the admissibility of the “comparable sales” evidence to show “market activity
and demand”; and reserved ruling on motion in limine no. 3.
A jury trial commenced on September 19. The Authority filed
additional motions in limine to address additional opinions that Kauttu had
presented since his August 16 updated appraisal. In its motion in limine
no. 5, the Authority sought to exclude the opinions in Kauttu’s “updated file
memorandum” served on September 14 or 15. The Authority also filed
motion in limine no. 6 to “preclude [the Anderson Parties] from offering
further evidence of a specific plan of development” through DeGraff and
Kauttu.
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After hearing arguments and conducting an evidentiary hearing, the
court granted motion in limine no. 5. As for motion in limine no. 6, the court
invited the Anderson Parties to provide an offer of proof as to the testimony
of DeGraff. In response, counsel for the Anderson Parties stated, “I don’t
know that there’s anything that he can talk about” and therefore “we may
end up having to stipulate to judgment at this juncture.”
G. Ruling on Right-to-take Objections
Meanwhile, on September 19, the Anderson Parties requested a
hearing for the court to determine and rule on their right-to-take objections.
The court agreed to do so and on the following day, heard arguments on the
objections. The court overruled the objections.
H. Judgment and Appeal
Following the court’s rulings at trial, the parties stipulated to the
$8,100 valuation the Authority’s appraiser, Larson, had set as the total just
compensation due to the Anderson Parties. Upon that stipulation, the trial
court dismissed the jury and entered a judgment awarding $8,100 to the
Anderson Parties.6 From this judgment, the Anderson Parties timely
appealed.
II. DISCUSSION
A. Overview of Eminent Domain Law
Under the federal and California Constitutions, “[t]he state’s power to
take property by eminent domain is conditioned on its obligation to pay ‘just
compensation’ to the owner.” (Emeryville Redevelopment Agency v. Harcros
Pigments, Inc. (2002) 101 Cal.App.4th 1083, 1094 (Emeryville); U.S. Const.,
5th Amend.; Cal. Const., art. I, § 19.) “ ‘Just compensation’ ” is defined as
6 The judgment states that “Defendant Dunnigan Hills Farming
Company, Inc. has not appeared at trial and had its default entered on the
record on September 26, 2018.”
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“ ‘fair market value.’ ” (Emeryville, supra, 101 Cal.App.4th at p. 1094, citing
§ 1263.310). “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 . . . and a buyer
. . . each dealing with the other with full knowledge of all the uses and
purposes for which the property is reasonably adaptable and available.”
(§ 1263.320, subd. (a).) “The just compensation clause ‘is primarily aimed at
making a landowner whole for any governmental taking or damage to his or
her property.’ ” (Escondido Union School Dist. v. Casa Sueños de Oro, Inc.
(2005) 129 Cal.App.4th 944, 958 (Escondido).) “[I]t also protects the public by
limiting its liability to losses that can fairly be attributed to the taking. ‘ “A
landowner is not entitled to be placed in a better position financially than he
was before the condemnation; neither is the state required to pay more than
land is worth merely because of some theoretical, intangible concept.” ’ ”
(Emeryville, supra, at p. 1094.)
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. (§ 1263.410, subd. (a); Metropolitan Water
Dist. of So. California v. Campus Crusade for Christ, Inc. (2007) 41 Cal.4th
954, 965.) Such compensation is commonly called “severance damages.”
(City of San Diego v. Neumann (1993) 6 Cal.4th 738, 741.) “Severance
damage is determined by ascertaining the market value of the property not
taken as a part of the whole in the before condition and by deducting
therefrom the market value of such remainder after the take and the
construction of the improvement in the manner proposed by plaintiff.” (San
Bernardino County Flood Control Dist. v. Sweet (1967) 255 Cal.App.2d 889,
904; see § 1263.410, subd. (b).)
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B. Exclusion of the Defense Appraiser’s Valuation Opinions
The Anderson Parties’ challenges largely turn on whether the trial
court correctly ruled on the Authority’s motions in limine. Having reviewed
the record, we conclude that the trial court appropriately exercised its
discretion in excluding the opinions of the Anderson Parties’ appraiser,
Kauttu.
1. Standard of Review
The trial court enjoys “ ‘broad authority’ ” over the admission and
exclusion of evidence. (McCoy v. Pacific Maritime Assn. (2013)
216 Cal.App.4th 283, 295–296.) We review for an abuse of discretion the trial
court’s ruling on a motion in limine to exclude evidence.7 (See Mardirossian
& Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 268–269.) We note,
however, that the deference the abuse of discretion standard calls for depends
on the aspect of the trial court’s ruling under review. Its factual findings are
reviewed for substantial evidence; its conclusions of law, such as the
interpretation of a statute, are reviewed de novo; and its application of the
7 The Authority cites to County of Glenn v. Foley (2012)
212 Cal.App.4th 393 (Foley), which provided that “when the nonstatutory
procedure of a motion in limine strays beyond its traditional confines and
results in the entire elimination of a cause of action or a defense, we treat it
as a demurrer to the evidence and review the motion de novo, lest it be used
to evade the more exacting standards for such a motion.” (Id. at p. 398, citing
Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1593–1594
[explaining “nontraditional in limine motions” are those construed as a
replacement for dispositive motions].) Because the motions in limine at issue
here were not the result of a “nontraditional” procedure, we do not treat the
motions as demurrers. The Authority’s motions were directed at specific
aspects of Kauttu’s opinions, not the entirety of his proposed testimony.
Apparently, however, the Anderson Parties determined that after the
motions were granted, the basis for his valuation was not strong enough to
make it worthwhile to proceed.
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law to the facts is reversible only if arbitrary and capricious. (Haraguchi v.
Superior Court (2008) 43 Cal.4th 706, 711–712; Emeryville, supra,
101 Cal.App.4th at p. 1095.) Furthermore, “[i]t is for the trial court, in its
discretion, to determine whether the probative value of relevant evidence is
outweighed by a substantial danger of undue prejudice. The appellate court
may not interfere with the trial court’s determination . . . unless the trial
court’s determination was beyond the bounds of reason and resulted in a
manifest miscarriage of justice.” (Rufo v. Simpson (2001) 86 Cal.App.4th 573,
596.) “It is the appellant’s burden on appeal to show the trial court abused
its discretion.” (Cahill v. San Diego Gas & Electric Co. (2011)
194 Cal.App.4th 939, 957 (Cahill).)
With these principles in mind, we turn to the specifics of the in limine
motions at issue.
2. Motion in Limine No. 2: Exclusion of “Comparable Sales”
Evidence
We first address the Authority’s motion in limine no. 2, which sought to
preclude Kauttu’s use of, as evidence of “comparable sales,” purchases of
other properties by public agencies. Kauttu’s updated appraisal referred to
eight transactions, labeled as “Items” 1 through 8.8 The Authority argued
that Items 1, 2, 3, 6, 7, and 8, were inadmissible as comparable sales evidence
under Evidence Code section 822, subdivision (a)(1). The Authority did not
object to Items 4 and 5. The trial granted the motion as to Items 1, 2, 3, 6,
and 7 (it ruled separately as to Item 8, which was the subject of motion in
limine no. 4).
8Kauttu’s original statement of valuation data contains the same
transactions as those in his updated statement of valuation data. We refer to
the numbers of the “items” as they appear in the updated statement of
valuation data.
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a. General Principles on “Comparable Sales” Evidence
Evidence Code section 816 permits a witness determining the value of
property to “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[.]” “Under this method, the appraiser identifies sales of
properties deemed to resemble the condemned property in relevant respects,
and then derives a market value for the condemned property from the prices
paid for these ‘comparables,’ typically adjusting the price to reflect such
matters as material differences between the properties and differences in
market forces between the time and location of the comparable sale and that
of the property being valued.” (Emeryville, supra, 101 Cal.App.4th at
p. 1094.)
Evidence Code section 822, subdivision (a)(1) limits such evidence. It
provides that “[i]n an eminent domain . . . proceeding . . . , 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: [¶] []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.”
Additionally, Evidence Code section 822, subdivision (a)(2) renders
inadmissible “[t]he price at which an offer or option to purchase or lease . . .
was made, or the price at which the property or interest was optioned,
offered, or listed for sale or lease[.]”
b. The Court Did Not Abuse Its Discretion in Excluding the Sales
of Properties to Public Agencies
Items 1, 2, and 3 refer to sales of properties to the State of California’s
Department of Water Resources (DWR). Item 6 refers to a sale of property to
the East Bay Regional Park District. Kauttu noted that the properties were
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purchased for mitigation purposes. Item 7 refers to several bids submitted in
response to DWR’s request for proposals in 2016.
The parties do not dispute that these properties were acquired for a
public use. (Evid. Code, § 822, subd. (a)(1).) The Anderson Parties, however,
suggest that the acquisitions by the DWR do not fall within the ban of
Evidence Code section 822, subdivision (a)(1) because they were for
properties which were not taken by eminent domain. Specifically, the
Anderson Parties contend that the DWR was “conditionally stripped of such
power, or had adopted its own internal policy or rule prohibiting its use”
when it acquired the properties. They claim that “Kauttu knew DWR had
clearly, repeatedly informed said owners in writing that it either did not
have, or was not using, any such powers.”
As an initial matter, we note that the Anderson Parties fail to provide
citations to the record to support their factual statements. The record
citation it does provide—Kauttu’s declaration submitted in opposition to
another motion in limine—does not mention the DWR or the transactions at
issue. California Rule of Court, rule 8.204(a)(1)(C) requires that appellate
briefs “[s]upport any reference to a matter in the record by a citation to the
volume and page number of the record where the matter appears.”
Accordingly, “ ‘[a]ny statement in a brief concerning matters in the appellate
record—whether factual or procedural and no matter where in the brief the
reference to the record occurs—must be supported by a citation to the
record.’ ” (Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th
958, 970 (Professional Collection Consultants).) “ ‘The appellate court is not
required to search the record on its own seeking error.’ [Citation.] Thus, ‘[i]f
a party fails to support an argument with the necessary citations to the
13
record, . . . the argument [will be] deemed to have been waived.’ ” (Nwosu v.
Uba (2004) 122 Cal.App.4th 1229, 1246 (Nwosu).)
Even if we were to overlook the waiver, we would still conclude that the
DWR transactions were inadmissible under Evidence Code section 822,
subdivision (a)(1). According to the Anderson Parties, “[s]ales to public
agencies should be admitted if there’s little or no evidence of being forced or
compelled[.]” To support this assertion, the Anderson Parties cite to City and
County of San Francisco v. Golden Gate Heights Investments (1993)
14 Cal.App.4th 1203 (Golden Gate Heights) and Sacramento etc. R. R. Co. v.
Heilbron (1909) 156 Cal. 408 (Heilbron). Neither case stands for the
proposition advanced by the Anderson Parties.
Heilbron, supra, 156 Cal. 408 does not address comparable sales
evidence, much less announce a rule suggested by the Anderson parties that
sales of properties to public agencies are admissible if those sales are “ ‘not
forced.’ ” The transaction at issue in Golden Gate Heights, supra,
14 Cal.App.4th 1203, was not compelled by eminent domain power and was
not the subject of an eminent domain action at the time of its acquisition.
(Id. at p. 1207.) In that case, the appellate court rejected the appellant’s
proposed narrow reading of a former version of Evidence Code section 822,
subdivision (a)(1), but in the alternative held that even assuming arguendo
the appellant was correct that the “trial court erred by admitting and relying
upon evidence of comparable sales consummated under the threat of eminent
domain condemnation” (Golden Gate Heights, at p. 1210), the error was
harmless.
Elsewhere, we have rejected the idea that agency sales may be
admissible on a discretionary basis upon a showing that the sales did not
take place under the duress of condemnation power. (See Emeryville, supra,
14
101 Cal.App.4th at p. 1095 [the admissibility of agency sales is not “subject to
deferential review as a matter entrusted to the trial court’s discretion”].)
“Whatever [Evidence Code] section 822(a)(1) means, it does not confer a
discretionary power on the trial court. It categorically excludes evidence of a
specified character, subject to a stated exception.” (Ibid.) Phrased in
mandatory terms, the statute precludes evidence of any acquisition of
property that “could have been taken by eminent domain.” (Evid. Code,
§ 822, subd. (a)(1), italics added.) Contrary to the Anderson Parties’
contentions, for the preclusion to apply, there is no requirement that the
property must in fact be taken by eminent domain. It would have been an
abuse of discretion to admit evidence that is categorically inadmissible by
statute.
With respect to Item 7, we conclude that the trial court correctly ruled
on it as well. Item 7 refers to several bids submitted in response to the
DWR’s request for proposals in 2016. Like the DWR sales, those proposals
are plainly inadmissible by statute. The applicable statutory proscription
here, Evidence Code section 822, subdivision (a)(2), renders inadmissible
“[t]he price[s] at which an offer or option to purchase . . . was made, or the
price[s] at which the property or interest was optioned, offered, or listed for
sale[.]”
Despite these statutory bars to admission, the Anderson Parties insist
that the exception in Evidence Code section 823 applies to Items 1, 2, 3 and 7,
sales of properties to the DWR. That statute provides, “the value of property
for which there is no relevant, comparable market may be determined by any
method of valuation that is just and equitable.” In this case, there was
evidence of relevant, comparable sales of properties that were not barred by
Evidence Code section 822, subdivisions (a)(1) or (a)(2). Items 4 and 5 of
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Kauttu’s updated appraisal identify two sales to private parties of properties
used for mitigation, transactions which the Authority does not challenge.
Additionally, Anderson testified at trial to several comparable transactions,
including purchase of adjacent property by Grizzly Bay for mitigation
development in the amount of $3,000 per acre, as well as his own purchase of
another property for mitigation development at $2,000 per acre. Accordingly,
Evidence Code section 823 does not assist the Anderson Parties.
c. Motion in Limine No. 4: Exclusion of Contract for Sale of
“Turnkey” Mitigation Site
The Anderson Parties further contend the trial court erred in granting
the Authority’s motion in limine no. 4 seeking to preclude “Item 8” in
Kauttu’s updated statement of valuation data. Item 8 refers to a “contract to
‘Provide Environmental Mitigation’ ” between Grizzly Bay and plaintiff in
2012.
“In order to be considered comparable, the sale or contract must have
been made sufficiently near in time to the date of valuation, and the property
sold 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 that the price realized for the property
sold may fairly be considered as shedding light on the value of the property
being valued.” (Evid. Code, § 816.) “There can be no absolute formula or
definition of what constitutes similar or like property. Certainly, similar does
not mean identical. It appears to us that the determination must vary with
each particular case.” (People ex rel. Dept. Pub. Wks. v. Silveira (1965)
236 Cal.App.2d 604, 624 (Silveira).) “The admissibility of testimony relating
to comparable sales rests largely in the discretion of the trial court.” (San
16
Bernardino County Flood Control Dist. v. Sweet, supra, 255 Cal.App.2d at
p. 905.) We see no abuse of discretion in the court’s exclusion of Item 8.
The Anderson Parties contend that the contract referred to in Item 8
was a sufficiently comparable sale under Evidence Code section 816 because
the property contracted for is located “directly adjacent to [the Anderson
Parties’] property, similar in character, was sold a few years before this
action’s date of valu[ation], and—like [the Anderson Parties’]—is developed
as a mitigation site or bank.” It is true that “the sale or contract [was] made
sufficiently near in time to the date of valuation, and the property sold [is]
located sufficiently near [the Anderson Parties’] property[.]” (Evid. Code,
§ 816.) But we disagree with the Anderson Parties’ contention that the
properties were “similar in character.”
Item 8 refers to an “Agreement of Purchase and Sale of Turn-Key
Mitigation Values.” Kauttu explained that “[t]he total sale price [$2,738,350]
(and price per acre [$64,280]) reflect the price paid for finished (turn-key)
mitigation values.” Kauttu further noted the Authority had paid Grizzly Bay
an additional $1 million since closing. The Anderson Parties’ property, in
contrast, was undeveloped. The Anderson Parties had not obtained approval
or permits to begin development of their proposed plans. In addition,
whereas the Authority had apparently invested $1 million in Grizzly Bay’s
development, the Anderson Parties’ property was not generating any income
from its potential as a mitigation site. Moreover, the acquisition in Item 8
was for 42.6 acres of developed land, whereas the Anderson Parties’ property
sought to be condemned is roughly 1.41 acres (61,435 square feet) in fee title
and 0.19 acres (8,202 square feet) in easements. Given the disparity in size
and nature of improvements on the two properties, the trial court reasonably
concluded Item 8 was not a comparable sale that “may fairly be considered as
17
shedding light on the value of ” the Anderson Parties’ property. (Evid. Code,
§ 816.)
In support of their claim to the contrary, the Anderson Parties cite
Escondido, supra, 129 Cal.App.4th 944 and Foley, supra, 212 Cal.App.4th
393, but those cases do not assist them.
In Escondido, the property owner’s appraiser relied on the sales of
finished lots to value two parcels that were in the process of the development
of two manufactured homes. (Escondido, supra, 129 Cal.App.4th at p. 984.)
The public agency contended it was error to allow such evidence because
work on the two manufactured homes was not complete when the complaint
was filed. (Ibid.) The appellate court disagreed, finding that the appraiser
properly valued the property based on the assumption that the project was
completed and subtracted the cost of completion, which was undisputed by
the parties. (Ibid.) While there was work to be completed, the owner had
gained significant progress in the development project. By the time the
complaint had been filed and served, both of the manufactured homes had
been delivered on the site and permanently affixed. (Ibid.)
Escondido is distinguishable. As explained above, the Anderson
Parties were in the earliest stages of developing their land and had not
obtained approval to begin construction. Also, unlike in Escondido, costs for
the completion of the project on the Anderson Parties’ property had not been
ascertained, much less agreed upon by the parties.
Foley, supra, 212 Cal.App.4th 393, is similarly inapposite. There, the
appellate court found that recent sales of orchards were “ ‘sufficiently alike in
respect to character, size, situation, usability, and improvements,’ ” such that
the price “ ‘may fairly be considered as shedding light’ ” on the value of a
condemned livestock pasture under Evidence Code section 816. (Evid. Code,
18
§ 816; Foley, at p. 401, italics omitted.) The court explained that “the
proffered comparable sales did not present the risk of comparing apples with
oranges (or high-density residential property with barren land). It was a
comparison of a feasible use of the subject property with recent sales of
property used for that purpose, with the differential for the costs of
improvements either documented in university studies (the cost of
establishing the orchards) or not impossible to determine (the other
improvements).” (Id. at p. 402.) Here, in contrast, no verifiable data such as
the types of mitigation credits likely to be approved or the price for each
credit, existed. Thus, unlike in Foley, “there . . . appear to be insurmountable
obstacles to a jury being able to derive a rational value of the comparable
properties as bare land.” (Ibid.)
The Anderson Parties also cite Merced Irrigation Dist. v.
Woolstenhulme (1971) 4 Cal.3d 478 (Merced), which addressed the issue
whether the Anderson Parties’ property was entitled to be compensated for
the project-caused enhancement in value that accrued to the property before
it was targeted for acquisition. Answering that question, our Supreme Court
concluded that under limited circumstances, a property owner may properly
be compensated for the increase in value, so long as it was not reasonably
probable the property being evaluated was anticipated to be taken for the
project. (Id. at pp. 497–498.) Further, the Court explained, “[t]he conclusion
is particularly viable if an expert appraisal witness can fairly estimate the
amount of each of the enhanced sales prices which is attributable to ‘project
enhancement.’ ” (Id. at p. 501.) On this record, there is no evidence of
“project enhancement” of value based on the factors identified in Merced. The
Anderson Parties never purported to rely, as a measure of just compensation,
on any appreciation to their property value that may have accrued in
19
anticipation they would reap benefits resulting from their proximity to the
Authority’s project on Grizzly Bay’s property. In addition, the adjustment
procedure endorsed by the court in Merced is predicated on the appraiser’s
ability to “fairly estimate” the amount of any adjustment. (Ibid.) Where, as
here, an appraiser is unable to support his adjustments, evidence of the
adjustment should not be admitted.
The Anderson Parties therefore have failed to establish the court
abused its discretion in excluding Item 8.
3. Motions in Limine Nos. 1, 5, and 6: Exclusion of Kauttu’s
Opinions Based on the Developer’s Approach
The Anderson Parties next challenge the trial court’s exclusion of
Kauttu’s valuation opinions based on his use of the developer’s approach. As
we explain below, the Authority sought to exclude such evidence through
interrelated motions in limine nos. 1, 5, and 6.
a. General Principles Relating to the Developer’s Approach
“The developer’s approach (also known as the ‘economic analysis’ or
‘residual land value’ approach) as a method for measuring the fair market
value of undeveloped land has been repeatedly held inadmissible by
California courts.” (Contra Costa Water Dist. v. Bar-C Properties (1992)
5 Cal.App.4th 652, 657 (Bar-C ).) “This valuation method ‘starts with the
presumed value of the finished product, such as a house tract, apartment
complex or commercial building. The developer then subtracts costs of
marketing the product, building the improvements, and obtaining
development entitlements to end with the portion of the finished product
value attributable to the land. This residual land value guides the amount a
real estate developer will offer to purchase land.’ ” (San Diego Gas & Electric
Co. v. Schmidt (2014) 228 Cal.App.4th 1280, 1291; accord, Silveira, supra,
236 Cal.App.2d 604.)
20
“While it is recognized that the suitability of condemned acreage for
development as a subdivision is a factor which may properly be considered in
determining fair market value, our courts have held that ‘it is not proper to
place a valuation upon property which is suitable for subdivision taking the
market value of contemplated lots and subtracting therefrom the cost of
subdivision.’ ” (Bar-C, supra, 5 Cal.App.4th at pp. 657–658; Buena Park
School Dist. v. Metrim Corp. (1959) 176 Cal.App.2d 255, 260.) “[E]vidence of
value in terms of the money which the land would bring for a specific purpose
or as a result of a projected specific plan of development is not admissible as
an element in determining such market value.” (Silveira, supra,
236 Cal.App.2d at p. 627; accord, Santa Clara County Flood Control & Water
Conservation Dist. v. Freitas (1960) 177 Cal.App.2d 264, 267; see § 1263.330,
subd. (a) [“[t]he fair market value of the property taken shall not include any
increase or decrease in the value of the property that is attributable to . . . [¶]
. . . [t]he project for which the property is taken”].)
As explained in Bar-C, supra, 5 Cal.App.4th 652, “[t]he rationale for
this rule is that the expenses of completing the subdivision, improving the
land, laying out streets, holding it and paying out taxes and interest until the
lots are sold are far too uncertain and conjectural to allow finished
subdivided lot prices to be used as a basis for computing value.” (Id. at
p. 658.)
Thus, in Bar-C, supra, 5 Cal.App.4th 652, the appellate court upheld
the trial court’s refusal to admit testimony of the landowner’s appraiser who
sought to value the raw land based on the sale prices for finished subdivision
lots, reduced by the estimated cost of developing the land. (Id. at p. 657.)
Even though the landowners obtained tentative map approval and a
preliminary public report from the California Department of Real Estate, the
21
eventual outcome of the owners’ plans was considered too uncertain and
conjectural to allow a valuation as if the subdivision were complete. (See id.at pp. 658–659.)
b. Factual Background
The procedural history of the Authority’s motions in limine nos. 1, 5,
and 6 is convoluted, in part because Kauttu provided multiple valuation
opinions before and during trial, which the trial court explained had “ke[pt]
metamorphosing.”
The various iterations of Kauttu’s opinions are his: (1) July 26
statement of valuation data; (2) August 16 updated statement of valuation
data; (3) testimony at his August 16 deposition; (4) September 14 or 15
“updated file memorandum”9; and (5) testimony at an evidentiary hearing
during trial.
In his July 26 statement of valuation data, Kauttu appraised the
Anderson Parties’ fee acquisition of the property at $21,150; the remainder of
the Anderson Parties’ property before the taking at $8,499,000; and the
remainder after the taking at $3,400,000. He determined that the Anderson
Parties were entitled to $5,099,000 in severance damages and $5,122,000 in
total just compensation.
Kauttu valued the property as if it were a mitigation bank that could
generate income through the sale of mitigation credits. Specifically, Kauttu
identified the types of mitigation credits that were available in the “before
condition” of the Anderson Parties’ property over the course of eight years,
using the January 26, 2015 date of valuation. They included tidal wetlands,
seasonal wetlands, and oak woodland. Kauttu also provided the number of
credits available, as well as the retail price, for each type of credit. For
9 This memorandum is not included in the appellate record.
22
example, in year four,10 Kauttu determined roughly 327 mitigation credits
were available in the “before condition” and 129 mitigation credits in the
“after condition.” He then calculated the gross revenues derived from sales of
those credits and subtracted marketing costs based on 7 percent of the
revenue, to arrive at a total gross income of $11,344,815 in the “before
condition” and $6,229,815 in the “after condition.” Kauttu then determined
the total amount of expenses and subtracted that amount from the income to
obtain the net income and in turn multiplied that number by a “present
value” percentage to determine the present value of the property.
On August 16, the Anderson Parties served Kauttu’s “(Updated)
Statement of Valuation Data,” which used the same January 26, 2015 date of
valuation, but included his projected valuations over the course of ten years.
In his updated appraisal, Kauttu’s valuations of severance damages and total
compensation had decreased. Kauttu valued severance damages in the
amount of $2,975,000 and total just compensation in the amount of
$2,998,265. In addition to the types of mitigation credits noted above, Kauttu
opined that the property in its “before condition” also could generate income
through riparian and stream credits.
Kauttu’s deposition was taken on August 16. Kauttu acknowledged he
was familiar with the “subdivision development methodology” addressed in
Bar-C that was considered “too speculative.” He then testified that based on
his “experience in California,” the income approach “can’t be used as a
primary approach to value so my wings are clipped a little bit.”
10Kauttu testified at his subsequent deposition that the Anderson
Parties were in “the very . . . beginning steps” of a four-year mitigation
approval process.
23
Kauttu attempted to explain the method for his valuations. Kauttu,
however, gave differing responses concerning use of the “income approach.”11
Initially, he explained his method was two-fold, noting that he first used a
“sales comparison approach,” which required him “to use sales that are
broader in time, location, [and] use.” He then used the “income approach,”
which was “apply[ing] a bracketing” or “secondary” methodology to
“corroborat[e]” the values he obtained by using the “the sales comparison”
approach.
Other times, however, Kauttu stated that he did not use, nor did he
need to use, the income approach. But when later asked if “the income
approach was essential to coming up with [his] opinion of severance,” Kauttu
stated, “[I]n my opinion it was the best tool to use as an indicator of the
impact on value and on a percentage basis.” Kauttu testified, “There is no
sales comparison approach data that you could use on a paired sales basis to
inform that estimate. . . . So it . . . required me to come up with a reasonable
approach.” Kauttu further testified he “had to find a tool to use to determine
how much a property decreases in value when you take half the credits
away.”
Kauttu also testified that he had relied on DeGraff’s opinions, and
particularly the Draft Prospectus. For example, when asked where he
“c[a]me up with the price for . . . a stream linear foot credit,” Kauttu
responded, “The total number of credits is an element of design” and that
“[i]t’s in the prospectus.”
11 Indeed, the court explained at trial, “[I]t’s really hard to make heads
or tails of what Mr. Kauttu was saying in his deposition. And I would think
that he would be the most motivated to be clear during his deposition.”
Defense counsel also commented, “[Kauttu] says things that half the time I
frankly don’t know what—where he is going with it.”
24
Kauttu testified that the “before condition” of the Anderson Parties’
property would suffer an approximately 35 percent diminution in market
value, a percentage he “felt was a very strong indicator of what the impact
[would be] on [his] before value.” He also testified that he calculated a
“50 percent reduction” in the number of mitigation credits available as a
result of the taking.
On August 17, the Authority filed motion in limine no. 1 to exclude
Kauttu’s valuation opinions based on his use of the developer’s approach.
The Authority argued that, instead of valuing the property in its present
condition as raw, undeveloped land, Kauttu evaluated the property as a
completed mitigation site. The Anderson Parties “then calculate the loss of
imagined mitigation credits as an element of ‘damages’ they seek to recover
as compensation in this action.” According to the Authority, Kauttu’s
valuation method is speculative because it “contemplates the prolonged
selling of mitigation credits generated by an unapproved development of the
property as a mitigation site” and “[t]here is no verifiable data to support the
assumptions about the types of credits that might be approved or the demand
for said credits.”
On September 14, the Authority filed its supplemental motion in limine
no. 1 to exclude Kauttu’s opinions using the developer’s approach that he
presented at deposition. The Authority explained that at his deposition,
Kauttu acknowledged he relied on the mitigation plan outlined by DeGraff, in
violation of Bar-C. The Authority also argued that many of Kauttu’s opinions
were speculative. Moreover, the Authority asserted that “Kauttu could not
make up his mind what he did. . . . [I]f he used the developer’s approach, it is
excluded under Bar-C. If it is unnecessary to his opinion, it should be
precluded under Evidence Code Section 352.”
25
The Anderson Parties opposed the Authority’s supplemental motion in
limine no. 1. They acknowledged that “Kauttu’s opinions are indeed based on
both the ‘comparable sales’ or ‘market data’ approach, and a variation of the
‘income’ approach.” They argued, however, that Kauttu’s use of the income
approach did not involve the level of speculation found in cases such as
Bar-C. The Anderson Parties also argued it is proper to use the “income
approach” merely as a check or method of confirming his conclusions based on
the comparable sales approach. Further, they contended that, since “private
sales” are hard to come by and the highest and best use of the property was
disputed, “the value of [the Anderson Parties’] property ‘may be determined
by any method of valuation that is just and equitable’ ” pursuant to Evidence
Code section 823.
The trial court heard arguments on the Authority’s motion and
supplemental motion in limine no. 1. The court granted the motion, but
reserved ruling on whether opinions based on the developer’s approach were
admissible for the limited purpose of establishing the Anderson Parties’
position on the highest and best use of the property.
Thereafter, the Authority filed motions in limine nos. 5 and 6.12 Motion
in limine no. 5 sought to exclude new opinions Kauttu had presented in his
“updated file memorandum” served on September 14 or 15. The motion also
requested that the court clarify whether its earlier ruling on motion in limine
12 The Anderson Parties did not include motions in limine nos. 5 and 6
in the appellate record. However, we find the record is adequate for us to
consider the Anderson Parties’ claims of error. As explained below, the
reporter’s transcript reflects extensive discussions between the court and
parties concerning issues raised in both motions over several days at trial, as
well as the court’s findings on those issues.
26
no. 1 precluding use of the developer’s approach extended to Kauttu’s
recently introduced opinions.
In motion in limine no. 6, the Authority sought to “preclude [the
Anderson Parties] from offering further evidence of a specific plan of
development” through the testimony of Kauttu and the additional testimony
of DeGraff, who had testified earlier at trial. In opposition to motions in
limine nos. 5 and 6, the Anderson Parties submitted Kauttu’s declaration.
Kauttu attempted to clarify earlier statements and testimony that “seem to
have created some confusion” as to whether he applied the income approach.
He averred that he used both the income approach and comparable sales
analysis.
The court heard arguments on motions in limine nos. 5 and 6 and the
issues remaining from the earlier motions over several days at trial. It
expressed, “I think these motions in limine are also a concern with an end
run being made around the statute in some kind of subject matter discussion.
For example, if it’s a discussion of highest and best use, the concern is that
impermissible testimony would be put before the jury.” After extensive
discussions, the court granted motion in limine no. 5 and excluded Kauttu’s
“testimony with regard to severance damages” because they were based on
the impermissible developer’s approach. The court also precluded the
opinions not disclosed in Kauttu’s August [15] updated statement of
valuation data, finding they had not made a good faith effort to comply with
the requirements for exchange valuation data and therefore caused prejudice
to the Authority.
The court also conducted an Evidence Code section 402 hearing where
Kauttu testified as to his opinions. During the hearing the Authority’s
counsel addressed Kauttu’s opinion that “ ‘[t]he subject property lost almost
27
exactly one-half of the potential mitigation credits as a result of the taking.’ ”
Kauttu was asked, “That is based upon the 320, 160 in the ‘after’ condition,
which is based upon specific plans of development; is that correct, sir?” He
replied, “Yes.”
The court expressed that it did not “hear anything in the 402 [hearing]
that would change my ruling on motion in limine number one or motion in
limine number five . . . .” 13
c. The Trial Court Properly Granted Motions in Limine
Nos. 1, 5 and 6
The Anderson Parties do not dispute that Kauttu valued the Anderson
Parties’ property using the developer’s approach, despite Kauttu’s
“ambigu[ous] or confus[ing]” explanations and testimony. The Anderson
Parties also do not dispute that Kauttu’s opinions relied on a specific plan of
development, DeGraff’s Draft Prospectus. They further acknowledge that
Bar-C held that “ ‘evidence of value in terms of the money which the land
would bring for a specific purpose or as a result of a projected specific plan of
development is not admissible[.]” (Bar-C, supra, 5 Cal.App.4th at p. 658.)
Despite these concessions, the Anderson Parties nonetheless argue that
the opinion proffered by Kauttu utilizing the developer’s approach was
admissible. First, they attempt to distinguish Bar-C from the present case.
They suggest that, here, unlike in Bar-C, evidence of a developed mitigation
bank as a basis for computing the value of the subject property was not
13 The trial court did not make a ruling on motion in limine no. 6. It
appears its ruling was dependent upon the Anderson Parties’ offer of proof as
to the additional testimony of DeGraff. After twice being invited to make an
offer of proof, defense counsel replied, “Well, Your Honor, I don’t know that
there’s anything that he can talk about, because it all goes to severance
damages.” Thereafter, counsel explained that “we may end up having to
stipulate to judgment at this juncture.”
28
conjectural. For example, the Anderson Parties cite the Draft Prospectus’s
“very detailed and extensive” analysis, a regulatory agency’s “favorable
response thereto” after reviewing the Draft Prospectus, and the existence of
an approved mitigation site on property directly located next to the Anderson
Parties’.
Here again, the Anderson Parties do not provide citations to the record
that support their factual statements. Instead, they cite to arguments raised
in their opposition to supplemental motion in limine no. 1. As explained
above, the Anderson Parties’ failure to provide proper record citations forfeits
their contentions. (Professional Collection Consultants, supra, 8 Cal.App.5th
at p. 970; Nwosu, supra, 122 Cal.App.4th at p. 1246.)
In any event, we reject the Anderson Parties’ attempt to distinguish
this case from Bar-C. While cases, including Bar-C, have recognized that the
trial court has discretion to admit finished subdivision sales as a basis for
valuating unimproved property where the “developer was farther along in the
subdivision process,” that situation does not describe the circumstances here.
(Bar-C, supra, 5 Cal.App.4th at p. 658; see, e.g., Buena Park School Dist. v.
Metrim Corp., supra, 176 Cal.App.2d at p. 258 [not only had a tentative map
been approved but an adjacent golf course was well on the way toward
completion, the property had been surveyed, the engineering work was done
and a considerable amount of grading was completed; the property had been
marked out into lots and some streets were ready for paving; utilities, sewer
and water lines had been brought to the edge of the property]; see also
Escondido, supra, 129 Cal.App.4th at p. 984 [because the condemned
property was near completion of its improvements on the date of service of
summons and complaint, the appraiser adjusted comparable sales prices from
29
fully improved property by deducting the cost, which was undisputed, to
finish those improvements].)
Here, by contrast, the Anderson Parties were not “far[] along” in their
development process. (Bar-C., supra, 5 Cal.App.4th at p. 658.) According to
Kauttu, the Anderson Parties were in “the very . . . beginning steps” of their
four-year mitigation approval process. As noted above, although the
Anderson Parties claim the Draft Prospectus received positive feedback from
a reviewing regulatory agency, the Anderson Parties had not obtained a
permit or other approval to begin developing their property into a mitigation
site. In addition, the property was not generating any income from its
potential as a mitigation site. We therefore disagree that the developments
in this case have “sufficiently crossed the threshold toward the sale of [a]
finished [mitigation site] as to render the developer’s approach an acceptable
method of valuation. (Bar-C, supra, 5 Cal.App.4th at p. 659.)
The Anderson Parties next argue that a valuation opinion based on the
developer’s approach may be admissible for the limited purpose of supporting
a party’s position on the highest and best use of the property, where such
issue is disputed. “The highest and best use is defined as ‘that use, among
the possible alternative uses, that is physically practical, legally permissible,
market supportable, and most economically feasible.’ ” (San Diego Gas &
Electric Co. v. Schmidt, supra, 228 Cal.App.4th at p. 1289; accord, County of
San Diego v. Rancho Vista Del Mar, Inc. (1993) 16 Cal.App.4th 1046, 1058
(Rancho Vista).)
As we have explained, a property owner may not value his or her
property based upon its use for a projected special purpose. (See Bar-C,
supra, 5 Cal.App.4th at p. 657.) But “[w]hile a property owner may not
generally present evidence of the value of his [or her] property ‘ “in terms of
30
money” ’ that the property would bring for a special purpose [citation],
evidence of a particular use may be relevant to establishing the highest and
best use since such evidence may tend to establish the property’s adaptability
for that kind of use.” (Rancho Vista, supra, 16 Cal.App.4th at p. 1059; accord,
Heilbron, supra, 156 Cal. at p. 412; Silveira, supra, 236 Cal.App.2d at p. 627;
cf. People ex rel. Dept. of Public Works v. Princess Park Estates, Inc. (1969)
270 Cal.App.2d 876, 884–885 [evidence of specific plans held inadmissible
because they were offered for the purpose of enhancing severance damages].)
Thus, “[w]hether construction plans are admissible depends on the purpose
for which they are offered.” (People ex rel. Dept. of Transportation v. Tanczos
(1996) 42 Cal.App.4th 1215, 1218.) The following cases are instructive.
In one case cited by the Anderson Parties, City of Los Angeles v. Decker
(1977) 18 Cal.3d 860 (Decker), “[t]he principal valuation issue at trial was the
highest and best use to which the properties could be put.” (Id. at p. 864.)
The defendant’s appraiser testified that the highest and best use was for the
construction of airport related facilities. (Ibid.) The city’s appraiser testified
that “it would be very unlikely that any developer would undertake the
development of airport related facilities[.]” (Ibid.) The city’s position was
that the highest and best use of the property remained residential. (Ibid.)
Under those circumstances, the adaptability of the property for airport
parking purposes was admissible. (Id. at p. 869.)
In City of Pleasant Hill v. First Baptist Church (1969) 1 Cal.App.3d 384(Pleasant Hill), another case cited by the Anderson Parties, the court
explained, “ ‘[i]t is true that evidence of a proposed use may be relevant, not
to enhance damages but to show that the proposed use is feasible and, as
such, might enter into a determination of the market value.’ [Citation.]”
(Id. at p. 399.) In that case, “ ‘all the experts agreed that the land was
31
suitable and valuable, before but not after the condemnation, for the building
of a motel and restaurant project, and that this would have been a feasible
plan for the use of the property.’ ” (Id. at pp. 399–340.) Accordingly, it
“ ‘appears that the sketch of a specific plan or development could have no
other purpose than to attempt to enhance damages, and its rejection was
proper.’ [Citations.]” (Id. at p. 400.)14
Here, like Pleasant Hill, but unlike Decker, no one disagreed that the
property was feasible for mitigation purposes, although the Authority’s
appraiser opined that agricultural use would have ultimately yielded more
profit. It therefore follows that the Anderson Parties’ attempts to introduce
Kauttu’s economic analysis relying on the Anderson Parties’ specific plans for
developing the property as a mitigation bank “ ‘could have no other purpose
than to attempt to enhance damages[.]’ ” (Pleasant Hill, supra, 1 Cal.App.3d
at p. 400.) The purpose for which the Anderson Parties offered Kauttu’s
economic analysis was not to establish that their specific development plan
for mitigation was feasible, but rather to show that the severance from the
taking would damage the prospect of such a development. (See id. at
14 We would reach the same conclusion as to DeGraff, whose testimony
the Anderson Parties attempted to elicit to show how the taking would have
negatively “impact[ed] the [Anderson Parties’] ability to get a [mitigation]
bank approved and the types of credits and whether or not it can have tidal
connection.” As noted above, the Anderson Parties stated such testimony “all
goes to severance damages.” Because evidence of a specific plan is
inadmissible to enhance severance damages, we view counsel’s comment as a
concession that DeGraff’s additional testimony was offered for an
impermissible purpose. (See Pleasant Hill, supra, 1 Cal.App.3d at p. 399; see
also Rancho Vista, supra, 16 Cal.App.4th at p. 1059.) Under those
circumstances, the Anderson Parties have effectively abandoned any
argument that DeGraff’s additional testimony was admissible. (See Fleming
v. Superior Court (2010) 191 Cal.App.4th 73, 99 [concession of point is
effective abandonment of issue].)
32
pp. 399–400; Rancho Vista, supra, 16 Cal.App.4th at p. 1058.) Kauttu’s
valuation opinions were thus inadmissible on this basis.
Even if evidence of the Anderson Parties’ specific plans was relevant
and admissible, it was excludable under Evidence Code section 352. First,
the evidence would have been cumulative. (Evid. Code, § 352.) DeGraff
testified at trial about the property’s potential as a mitigation site as part of
his preparation of the Draft Prospectus. Anderson also testified that the
property’s potential as a mitigation bank was “well known in the community”
at the time he purchased the property.
Second, the risk of prejudicing the jury substantially outweighed any
probative value in the evidence of the Anderson Parties’ specific plans. (Evid.
Code, § 352.) As this court explained in Emeryville, supra, 101 Cal.App.4th
1083, “We believe the lesson of Decker and similar cases is that evidence of
specific project plans is inadmissible in the absence of specific facts or points
of contention that demonstrably enhance the probative value of the evidence
to a point where it outweighs the inherent potential for prejudice. That test
is not satisfied merely because the plans ‘illustrate’ or ‘demonstrate’ an
undisputed potential use for the property. If evidence of project plans could
be introduced on that rationale, it would seem to be admissible in every case,
and the rule to which Decker is an exception would cease to exist.” (Id. at
p. 1105, first italics added, second italics in original.)
Here, evidence of the Anderson Parties’ project plans would have
merely “ ‘illustrate[d]’ or ‘demonstrate[d]’ an undisputed potential use for the
property.” (Emeryville, supra, 101 Cal.App.4th at p. 1105.) Such evidence
therefore had limited probative value. Further, given the speculative nature
of Kauttu’s valuations, any probative value in the evidence was substantially
outweighed by the risk of prejudicing the jury. (See Rancho Vista, supra,
33
16 Cal.App.4th at p. 1059 [“ ‘Speculative and conjectural calculations of
prospective receipts and expenditures and consequent profits to be derived
from a prospective enterprise not only throw no light on the issue of the
market value of the land to be used in the enterprise, but operate to confuse
and mislead the mind of the jurors’ ”].) Indeed, the trial court recognized the
risk of prejudice, explaining that “if it’s a discussion of highest and best use,
the concern is that impermissible testimony would be put before the jury.”
The evidence was therefore properly excluded under Evidence Code
section 352.
The Anderson Parties’ additional attempts to avoid Bar-C’s prohibition
on the use of the developer’s approach are also unpersuasive. The Anderson
Parties contend, for example, that Bar-C should not apply when evidence of
comparable sales is not available to assess the condemned property’s market
value. In support of this argument, the Anderson Parties rely on the
exception in Evidence Code section 823. Again, that statute provides that
“the value of property for which there is no relevant, comparable market may
be determined by any method of valuation that is just and equitable.” (Evid.
Code, § 823.) As we explained above, this exception does not apply because
there was evidence of relevant, comparable sales of properties.
The Anderson Parties also cite several cases for the proposition that
valuation evidence generally held impermissible could still be admitted
“where there is a greater need for [it]” and to “ensure the equitable nature
and goals of the [T]akings [C]lause [of the Fifth Amendment to the United
Sates Constitution].” But none of the cited cases supports such a proposition.
Contrary to the Anderson Parties’ suggestions, the court in Redevelopment
Agency v. Contra Costa Theatre (1982) 135 Cal.App.3d 73, 83–86 affirmed the
admission of a landowner’s expert’s testimony after applying established
34
evidentiary principles, not because of the party’s “need for [the evidence].”
Action Apartment Assn. v. Santa Monica Rent Control Bd. (2001)
94 Cal.App.4th 587 does not address permissible valuation methods of
appraisers in eminent domain cases. The quoted reference “ ‘to the dictates
of “ ‘justice and fairness’ ” ’ ” appeared in the context of discussing a principle
underlying the Takings Clause in general, not to any application of
evidentiary standards. (U.S. Const., 5th Amend., id. at p. 601.) Thor v.
Boska (1974) 38 Cal.App.3d 558 and Burke v. Almaden Vineyards, Inc. (1978)
86 Cal.App.3d 768 are readily distinguishable in that they are personal
injury, not eminent domain cases, that do not address the evidentiary issue
before us.
On this basis, we also reject the Anderson Parties’ argument that the
developer’s approach is allowed when used merely to “check” or “validate” the
values of land determined by the use of comparable sales. There are several
problems with this argument.
First, it is unclear from the record whether Kauttu in fact used the
income approach as a “check” against values based on the comparable sales
approach. In his declarations and at the Evidence Code section 402 hearing,
Kauttu stated he used the inverse of that method, namely that he “us[ed] the
income approach as a primary approach and the sales comparison approach
as a secondary approach.”
In addition, Kauttu stated in his appraisals and at his deposition that
he could not use the sales comparison approach to calculate severance
damages. At the evidentiary hearing, for example, Kauttu testified he
previously opined in his reports that “ ‘[t]he “after” condition value of the
property could not reasonably be estimated by direct comparison,’ ” a
statement that he later disavowed as “not reflect[ing] [his] state of mind or
35
all of the body of [his] work[.]” If, as Kauttu originally asserted, he could not
use the comparable sales approach to calculate severance damages, then he
could not have used the income approach as a “check” against values based
on comparable sales. As the Authority argued below in its in limine motions,
“Kauttu could not make up his mind . . . [about] what he did.”
Kauttu’s adoption of inherently inconsistent positions alone would have
justified exclusion of any purported reliance on the income approach as a
mere check on values derived from a comparative sales approach. At a
minimum, Kauttu’s conflicting statements and testimony would have been
inadmissible under Evidence Code section 801, subdivision (a), because they
“would [not have] assist[ed] the trier of fact.” At most, any probative value in
the evidence would have been substantially outweighed by the risk of
misleading the jury and confusing the issues. (Evid. Code, § 352.)
Indeed, the trial court discerned from Kauttu’s shifting opinions an ad
hoc attempt by the Anderson Parties to substantiate their 35 percent
diminution of value through claiming use of an alternative method to the
developer’s approach. The court explained, “If [Kauttu] uses an
impermissible method and comes up with 35 percent and then you guys try to
clean it up and he comes up with the same amount—the same percentage,
that doesn’t sound appropriate.” In another instance, the court stated to the
Anderson Parties’ counsel, “You’re telling me he . . . used an improper
methodology to come up with 35 percent. But you’re saying he can get back
to that same number a different way?”
The record discloses that the “different way” the Anderson Parties took
to arrive at the 35 percent diminution of value was unreliable and
misleading. If Kauttu was relying on the comparable sales approach,
followed by a “bracketing” or “adjustment” method, to formulate a severance
36
damages calculation, then he was required to identify the purportedly
comparable sales forming the basis of that calculation. He failed to do so.
As explained above, there was competent comparable sales evidence
available, including two sales of other properties which Kauttu provided as
Items 4 and 5 of his updated appraisal. Items 4 and 5 referred to sales in the
amounts of roughly $6,500 and $11,000 per acre with mitigation as the
properties’ highest and best uses, and the parties did not dispute were
comparable. Kauttu, however, testified he did not rely on those two sales to
calculate the diminution of value, but rather “on something that is outside of
the report[s]” he produced. Kauttu testified he relied on his “25 years of
experience appraising mitigation properties, including six mitigation
properties in Suisun Marsh in the last few years . . . . And [he] can’t un-know
that.” But Kauttu did not include those allegedly comparable sales in any of
his appraisals; nor did he explain them at the evidentiary hearing, though
acknowledging he was required to disclose them. The Anderson Parties have
therefore failed to substantiate their claim that Kauttu used the income
approach as a mere check on the comparative sales approach.
Further, there were misleading aspects of such an approach, thereby
confirming the trial court’s observations that the Anderson Parties were
attempting to “clean . . . up” an otherwise impermissible severance damages
conclusion. For example, Kauttu justified use of the bracketing approach on
the ground comparable sales data was lacking. This premise is misleading,
because, contrary to Kauttu’s claim, there was evidence of comparable sales,
which he acknowledged. Yet, he testified he did not rely upon those sales.
Instead, he relied on other sales of properties that he had never previously
disclosed or attempted to explain. Then, rather than adjust those allegedly
comparable sales to make them as similar to the subject property as possible,
37
it appears Kauttu did the opposite by injecting “qualitative adjustments,”
which required looking at “how much of a percentage difference is there [in
the] before and after” conditions of the property.
Notably, Kauttu testified that the differences between the property’s
before and after conditions were based on “conversations with [DeGraff and
his consulting firm] about a probable plan of development.” Although Kauttu
stated elsewhere “we didn’t use that,” he immediately testified thereafter, “I
had that study and that information available. And where I used it was just
to look at the difference between the ‘before’ and ‘after’ values.” According to
Kauttu, the result of applying the adjustments was that “the mitigation
potential of the property [was] severely, severely impacted, severely reduced.”
In particular, Kauttu determined a 35 percent diminution of value, which fell
in between “the upper range of the impact on value of the take [of] 50
percent” and “[a] nominal lower bracket [of] 10 percent.” Ultimately,
therefore, Kauttu’s use of “qualitative adjustments” to calculate severance
damages still was based on a specific plan of development.
Given these circumstances, the trial court’s misgivings about the
Anderson Parties’ attempts to “clean . . . up” their severance damages
calculation were appropriate. As Kauttu confirmed, “my qualitative
adjustment just corroborated what I had discovered using the inadmissible
approach.” The court justifiably found Kauttu’s opinions “misleading.” The
opinions were properly excluded based on their substantial risk of prejudicing
the jury. (Evid. Code, § 352.)
Lastly, the Anderson Parties’ reliance on their constitutional right to
just compensation does not exempt them from complying with evidentiary
standards for appraisal methods. As explained in Foley, supra,
212 Cal.App.4th 393: “[T]he ‘involvement of a constitutional right does not
38
change the rules of evidence in an eminent domain proceeding. It does not
deny due process to cut off a litigant’s right to present evidence where the
party fails to comply with established evidentiary standards for appraisal
methods. Thus, when a valuation expert employs an unsanctioned
methodology, the opinion may be excluded in part or in whole in the
discretion of the trial court.’ ” (Id. at p. 398.)
In sum, we conclude that the trial court was within its discretion to
exclude Kauttu’s opinions based on the developer’s approach.
4. Motion in Limine No. 3: Exclusion of Undisclosed
Expert Opinions
The Anderson Parties’ final attack on the exclusion of Kauttu’s
proffered testimony rests on the contention that he should have been
permitted to present his opinions concerning “[the Authority’s] taking of
[their] water rights, and how [the Authority’s] project design and operation
would severely . . . [and] negatively impact [the Anderson Parties’] mitigation
bank and property value.” We disagree.
In its motion in limine no. 3, the Authority argued in part that Kauttu
was not permitted to testify about certain claims that the Anderson Parties
had made in their Trial Management Conference Statement. In that
statement, the Anderson Parties noted DeGraff and Kauttu had opined that,
“ ‘but for’ ” the taking, the Anderson Parties’ plans to develop their property
as a mitigation bank, under the “Rancho Suisun Mitigation Bank Draft
Prospectus” prepared by DeGraff, would result in “significant revenue and
increased [fair market value].” The Anderson Parties also argued that the
complaint was defective by failing to mention the Authority’s attempt to
acquire “water rights”; the Authority violated an existing easement; the
Authority’s and Grizzly Bay’s project would increase flooding risks to the
Anderson Parties’ property; and the Authority would not pay a fair amount
39
for the increased costs to pump out additional water. The Anderson Parties
stated that “Kauttu opines that these severance damages amount to several
million dollars.”
The Authority asserted that because the Anderson Parties had failed to
disclose that Kauttu would be offering valuation opinions on those grounds,
the evidence was inadmissible. (§ 1258.250, subd. (b).) In the motion, the
Authority also quoted Kauttu’s deposition transcript where he testified that
he was not aware of the “ ‘water right issue’ ” and had “ ‘exclude[d] it from
[his] value opinion.’ ” In opposition to the motion, the Anderson Parties
submitted a copy of Kauttu’s list of “corrections” to his deposition transcript.
In that document, Kauttu acknowledged he had indeed testified that he
excluded the “water rights” and “design issues” from his opinions. Kauttu
explained, however, that his “intent was to say that the issues do impact
value” and that he was “seeking additional information sufficient to estimate
a price impact on value.” The trial court reserved ruling on motion in limine
no. 3.
The court then revisited the question whether to exclude Kauttu’s
previously undisclosed opinions in connection with the Authority’s motion in
limine no. 5. As revealed in discussions between the court and parties at
trial, Kauttu provided new valuations that factored in the water rights and
project design issues in his September 14, 2018 updated file memorandum,
which was the subject of the Authority’s motion in limine no. 5. The court
excluded the memorandum because Kauttu’s use of previously undisclosed
factors to form new valuation opinions violated the statutory expert
disclosure requirements and prejudiced the Authority. (See § 1258.210 et
seq.)
40
As noted above, the trial court did not make a definitive ruling on the
Authority’s motion in limine no. 3. It appears from the record, however, that
the court did address the objections that the Authority raised in motion in
limine no. 3 in connection with motion in limine no. 5. Even if we were to
construe the court’s ruling on motion in limine no. 5 as a ruling on motion in
limine no. 3, as the parties do, we would find no basis for reversal.
Initially, we note that the appellate record does not include the
relevant deposition testimony, the Authority’s motion in limine no. 5, or
Kauttu’s September 14 updated file memorandum. The record does,
however, contain Kauttu’s list of corrections to his deposition testimony,
acknowledging he admitted to excluding the alleged water rights dispute and
the impacts of the Authority’s and Grizzly Bay’s project design from his
original severance damages calculations, but explaining such omission was
not intentional. The record also contains oral proceedings at trial during
which the court and parties extensively discussed the nature of Kauttu’s
additional opinions and the court’s factual and legal findings. From what we
can glean from the record, the trial court reasonably precluded Kauttu from
testifying about any new opinions that the Anderson Parties had failed to
previously disclose.
The Anderson Parties were required to exchange their expert witness
valuation data as of the July 26 exchange date agreed upon by the parties.
(§§ 1258.220, subd. (a), 1258.250.) Section 1258.280 provides that upon an
objection, “[n]o party required to serve statements of valuation data on the
objecting party may call a witness to testify on direct examination during [its]
case in chief to his [or her] opinion on any matter listed in Section 1258.250
unless a statement of valuation data for such witness was served.”
(§ 1258.280, subd. (b).)
41
The Anderson Parties concede that Kauttu presented “belated”
opinions, in violation of the statutory requirements. They argue, however,
that Kauttu should have been allowed to testify about those new opinions for
at least two reasons. First, the Anderson Parties rely on section 1258.280,
subdivision (c), which allows an expert to testify about an undisclosed opinion
merely to explain or elaborate on an earlier disclosed opinion. Such reliance
is misplaced. Kauttu’s additional opinions concerning the alleged water
rights and project design issues were not merely explanatory of his earlier
opinions; rather, they were “wholesale additional” opinions.
Second, the Anderson Parties rely on section 1258.290, subdivision (a),
which permits an expert witness to testify to an opinion not previously
disclosed “if the court finds that such party has made a good faith effort to
comply with Sections 1258.210 to 1258.260 [disclosure requirements], . . .
that he has complied with Section 1258.270 [notice requirements for
presenting additional witnesses and data], and by the date of exchange he [or
she]: [¶] (1) Would not in the exercise of reasonable diligence have
determined to call such witness or discovered or listed such opinion or data;
or [¶] (2) Failed to determine to call such witness or to discover or list such
opinion or data through mistake, inadvertence, surprise, or excusable
neglect.” In making these determinations, “the court shall take into account
the extent to which the opposing party has relied upon the list of expert
witnesses and statements of valuation data and will be prejudiced if the
witness is called . . . .” (§ 1258.290, subd. (b).)
The Anderson Parties assert that their failure to timely disclose
Kauttu’s additional opinions was inadvertent and not based on “bad faith.”
But the Anderson Parties fail to provide record citations to support their
factual and procedural assertions, thereby forfeiting them. (Professional
42
Collection Consultants, supra, 8 Cal.App.5th at p. 970; Nwosu, supra,
122 Cal.App.4th at p. 1246.) Section 1258.290, subdivision (a) and the
related statutory subdivisions cross-referenced therein provide a considerable
degree of discretionary flexibility to accommodate late-surfacing expert
opinion on valuation, but at some point the trial court must make a call one
way or the other whether litigants forced to deal with such opinions are being
placed in an unfair position. We cannot say the court made the wrong call
here. As explained by the court, Kauttu’s new opinions were “not a
nonprejudicial ‘mathematical recalculation.’ ” (City of Santa Clarita v. NTS
Technical Systems (2006) 137 Cal.App.4th 264, 277–278.) Rather, they were
“a wholesale additional analysis of a subject matter which was not present in
his August 2018 statement [of valuation data].” While the court
acknowledged the Anderson Parties’ explanation that “discovery was stayed
for over two years while settlement negotiations occurred,” it declined to
credit that explanation. We do not “rejudge the trial court’s determination.”
(Id. at p. 276.)
The record supports the court’s finding that the Anderson Parties’
omissions were prejudicial. The court noted that Kauttu had presented his
updated appraisal just four days before trial, thereby preventing the
Authority from redeposing or retaining additional experts. (See City of Santa
Clarita v. NTS Technical Systems, supra, 137 Cal.App.4th at p. 277 [“the
untimely service of the statement might deprive the other party of the
opportunity to counter its contents and effect”]; Bonds v. Roy (1999)
20 Cal.4th 140, 148 [“Allowing new and unexpected testimony for the first
time at trial” inconsistent with requirement of “timely disclosure of the
general substance of an expert’s expected testimony” in order for “parties . . .
properly [to] prepare for trial”].)
43
C. Ex Parte Application To Continue Expert Exchange and Trial
The Anderson Parties challenge the validity of the local court rules
governing the procedures for filing and hearing ex parte applications. They
contend that in applying the new rules, the court delayed its consideration of
the ex parte request to continue the expert exchange and for a trial
continuance and that the delay effectively mooted their request. These
claims lack merit.
On July 24, the Anderson Parties filed an ex parte application for an
order continuing the July 26 expert exchange and September 19 trial dates.
On July 31, the trial court conducted a hearing and explained that, “We have
a new rule of court for the civil division where we have a hearing to see if we
would set it for an ex parte hearing.” Accordingly, the trial court set the
hearing for August 24 and ordered the parties to prepare moving papers and
opposing papers prior to the hearing. The Anderson Parties later requested
the court take the matter off calendar.
The Anderson Parties argue that “[t]he court’s new ex parte rules
inexplicably delayed, and thus essentially rendered moot and effectively
denied” their ex parte request. We presume that the local rule of court at
issue, which the Anderson Parties do not identify, is rule 3.14 of the Superior
Court of Solano County, Local Rules. That rule provides that “[e]x parte
applications submitted to seek scheduling relief from court setting guides or
caps . . . may be summarily granted without a hearing. [¶] An ex parte
hearing shall be conducted only following the filing of the ex parte application
and supporting paperwork, any underlying related motion, and proof of
satisfaction of any filing fees.” (Super. Ct. Solano County, Local Rules,
rule 3.14, Civil Cases, Ex Parte Matters (local rule 3.14).)
The Anderson Parties did not object to, or otherwise raise their
concerns about, the trial court’s new procedures. Indeed, the Anderson
44
Parties agreed to proceed on the matter as ordered by the court in accordance
with the new local rule. The Anderson Parties thus acquiesced to the court’s
procedures, resulting in forfeiture of their challenges on appeal. (See
Children’s Hospital and Medical Center v. Bontá (2002) 97 Cal.App.4th 740,
776 [“ ‘An appellate court will not consider procedural defects or erroneous
rulings where an objection could have been, but was not, raised in the court
below’ ”].)
As to the merits, the Anderson Parties fail to explain how local rule
3.14 is itself invalid. The absence of cogent legal argument allows us to treat
the Anderson Parties’ challenges to the validity of the local rule as forfeited.
(Cahill, supra, 194 Cal.App.4th at p. 956.) In any event, we see no error in
the manner in which the trial court conducted the proceedings with respect to
the ex parte request. The Anderson Parties were given an opportunity to file
a noticed motion and a reply to any opposition and have their arguments
heard at a formal hearing at least three weeks before trial. The Anderson
Parties simply failed to avail themselves of this opportunity. Because the
Anderson Parties’ inability to obtain the relief they sought was due to their
own inaction, their claims of prejudice are not well taken.
D. Ruling on Right-to-take Objections
Finally, the Anderson Parties argue that the trial court prejudicially
erred in untimely hearing and ruling on their right-to-take objections. As
explained below, the Anderson Parties have forfeited these claims of error.
We briefly summarize the procedures relating to the resolution of
necessity and assertion of right-to-take defenses in eminent domain cases. A
public agency can take private property only if (1) the property is necessary
for a public project; (2) the project is in turn necessary for a public purpose;
and (3) the taking of the particular property is compatible with the greatest
public good and the least private injury. (§ 1240.030.) A public agency must
45
hold a hearing to consider whether the taking meets these three criteria.
(§ 1245.235.) After the hearing, if the agency decides the taking meets the
criteria, then it must adopt a resolution of necessity (§§ 1240.040, 1245.220),
which is a prerequisite to bringing a condemnation action. (§§ 1240.040,
1245.220).
Where resolution of necessity is adopted, a person having an interest in
property described in a resolution of necessity may still obtain judicial review
of the validity of the resolution by asserting objections to the right to take.
(§ 1245.255.) “Where objections to the right to take are raised, unless the
court orders otherwise, they shall be heard and determined prior to the
determination of the issue of compensation. [¶] (b) The court may, on motion
of any party, after notice and hearing, specially set such objections for trial.”
(§ 1260.110.) These objections are heard and determined by the court.
(§ 1260.120, subd. (a).)
In their answer to the complaint, the Anderson Parties asserted several
right-to-take objections as affirmative defenses. (§§ 1250.350, 1250.360.) For
example, the Anderson Parties argued that the Authority failed to proceed in
a manner required by law and was not authorized to take the Anderson
Parties’ property by eminent domain (fifth affirmative defense) and that the
adoption of the resolution of necessity was invalid (sixth affirmative defense)
and contrary to law (tenth affirmative defense).
Thereafter, the Anderson Parties moved to specially set a trial on their
right-to-take objections. The trial court denied the motion.
In the three years that followed, the Anderson Parties did not renew
their request to specially set a trial on their right-to-take objections or
otherwise have their objections heard earlier. It was not until after a jury
46
trial commenced on September 19, that the Anderson Parties requested a
hearing on their objections. The court agreed to hold a hearing.
After hearing arguments on the objections the following day, the court
overruled the objections. It further commented that the Anderson Parties
could have either filed a motion for reconsideration in the trial court,
petitioned this court for a writ of mandate to review the order of denial, or
otherwise made such a request to have their right-to-take objections heard
prior to trial, but failed to do so. The court stated that, even had the
Anderson Parties taken any of those approaches, it would have concluded
that they were unlikely to show a possibility of prevailing on the issue.
The Anderson Parties first argue that the court erred in denying their
May 2015 motion to specially set trial on their right-to-take objections.
Because the Anderson Parties do not present any cogent argument to support
this claim of error, other than to state that their objections “had clear merit,”
the Anderson Parties have forfeited the contention. (Cahill, supra,
194 Cal.App.4th at p. 956.)
Second, the Anderson Parties contend that the trial court erred by not
hearing and determining their right-to-take objections in a timely manner.
We conclude this argument also has been forfeited. The Anderson Parties did
not request that their objections be heard earlier than the September 14 trial
calling. For example, as the court explained, the Anderson Parties could
have filed either a renewed motion to specially set trial, a motion for
reconsideration of the order of denial, or a writ petition in the appellate court
to challenge the order. Additionally, at the trial management conference, the
Anderson Parties informed the court they would not be seeking to bifurcate
the trial. Moreover, at the September 14 trial calling, the Anderson Parties
confirmed they were ready to proceed with the jury trial and did not raise the
47
need to have their objections heard separately. Given these circumstances,
the Anderson Parties have forfeited the right to challenge the timeliness of
the court’s ruling on their objections. (See Children’s Hospital and Medical
Center v. Bontá, supra, 97 Cal.App.4th at p. 776 [“ ‘An appellate court will not
consider procedural defects or erroneous rulings where an objection could
have been, but was not, raised in the court below’ ”].)
The Anderson Parties further contend that the court’s refusal to timely
hear and determine their right-to-take objections “forced [them] into the
unnecessary, unreasonable, and unjust position of having to thereafter
expend well over $400,000 in attorneys’ fees . . . to continue defending itself
and pursue constitutionally required just compensation.” This claim of
prejudice assumes that the Anderson Parties would have prevailed on the
merits of their objections, thereby negating the need to proceed with a trial
on just compensation. The Anderson Parties, however, fail to establish this
assumption is valid. As noted above, the Anderson Parties state in their
opening brief that their “defenses had clear merit.” As an example, the
Anderson Parties argue that the complaint omits to mention the “taking [of]
any water or water rights[.]” But the Anderson Parties do not provide record
citations in support of this argument. (See Nwosu, supra, 122 Cal.App.4th at
p. 1246.) Nor do they cogently analyze the nature of this objection, how the
objection is meritorious, or how the trial court erred in overruling it. (Cahill,
supra, 194 Cal.App.4th at p. 956.)
E. Fees Requested on Appeal
As noted above, the Anderson Parties filed an opening brief, followed by
an errata to the opening brief. After the Authority moved to strike the
errata, which the Anderson Parties opposed, we ordered the Anderson Parties
to file a written response “electing either (1) that its original opening brief
shall be stricken, the Errata to Appellants’ Opening Brief shall be the
48
opening brief, Respondent may withdraw the currently filed Respondent’s
Brief and submit a revised brief addressed to the Errata to Appellants’
Opening Brief, and Appellants agree to reimburse Respondent reasonable
attorney fees incurred in preparing a revised Respondent’s Brief, not to
exceed $5,000; or (2) that the Errata to Appellants’ Opening Brief shall be
stricken.” The Anderson Parties elected the first option. The Authority later
informed us that because it had preemptively addressed the errata
arguments in the respondent’s brief, it would not be filing a revised brief.
The Authority, however, now requests “that the $5,000 allotment for costs to
revise the Respondent’s Brief to address the Errata be applied to the costs
incurred to address the Errata in the Respondent’s initial briefing.” Because
the Authority was able to respond to the arguments raised in the errata
without the need to file a revised respondent’s brief, we decline to award it
the requested fees, although we do award it costs on appeal as the prevailing
party under rule 8.278(a)(2) of the California Rules of Court.
III. DISPOSITION
The judgment is affirmed. The Authority shall recover its costs on
appeal.
STREETER, J.
WE CONCUR:
POLLAK, P. J.
TUCHER, J.
49