Opinion
A159010
11-21-2023
EAST BAY REGIONAL PARK DISTRICT, Plaintiff and Respondent, v. GOLDEN GATE LAND HOLDINGS LLC, et al., Defendants and Appellants
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. RG11586821)
STEWART, P.J.
Golden Gate Land Holdings, LLC, and its codefendants at trial appeal from the judgment in an eminent domain action. They contend the trial court erred in denying their motion for mandatory dismissal of the case because it was not brought to trial within five years. Additionally, they argue the court erred in refusing to strike the testimony of an expert witness who used what they maintain is an improper method of appraisal, then exacerbated its error by failing to take the curative measures they requested. We find no error and therefore affirm the judgment.
BACKGROUND
I.
Initiation of the Action
This is an eminent domain action by which the East Bay Regional Park District (District) acquired a 2.88-acre portion of property owned by Golden Gate Land Holdings, LLC (GGLH) on the eastern shore of the San Francisco Bay to construct a portion of the San Francisco Bay Trail (See Pub. Res. Code, § 5850) and a public park with access to the adjacent Albany Beach. GGLH's property consisted of approximately 137.5 acres straddling the border between the cities of Berkeley and Albany and is the site of Golden Gate Fields racetrack.
GGLH and the other defendants in this case, TSG Developments U.S. Financing, Inc. and Pacific Racing Association, were jointly represented by the same attorneys at trial, as they are on appeal. For convenience, this opinion will refer to the defendants collectively as GGLH.
The 2.88-acre portion taken (the parcel) is at the northwest corner of the property in the City of Albany (the City) adjoining Albany Beach. The parcel has views of the San Francisco Bay in all directions and is the only portion of the property that affords ground level beach access. Under its current zoning," 'Waterfront (recreational),'" potential uses of the parcel include recreational facilities, restaurants and bars and water/sports oriented commercial facilities, and all of those uses require a permit. At the time of these proceedings, the parcel was improved with rough gravel, with no striping for parking spaces, and most of it was covered with sand from nearby dunes at Albany Beach.
The District filed its complaint in eminent domain on July 22, 2011.Its Board of Directors had previously adopted a resolution of necessity to take fee title to the 2.88-acre parcel and obtain an easement on a 4.88-acre portion of the property and posted a notice of exemption from the California Environmental Quality Act (CEQA). (Pub. Resources Code, § 21000 et seq.). GGLH had challenged these acts in a petition for writ of mandate and complaint for injunctive relief filed on May 12, 2011 (CEQA action). A notice of related case was filed in the eminent domain action, the parties stipulated that the CEQA and eminent domain cases were related and the CEQA case should be heard first; and the trial court ordered the eminent domain action to trail the CEQA action.
In December 2011, the District deposited $1,686,036.00 with the state treasurer. (Code Civ. Proc., § 1255.010, subd. (a) [deposit of "probable amount of compensation"]). Further statutory references will be to the Code of Civil Procedure except as otherwise specified.
On May 24, 2012, the trial court issued a writ ordering the District to vacate its exemption finding and conduct a CEQA review but leaving the resolution of necessity intact, thus permitting the District to proceed with its eminent domain action. GGLH appealed, and the trial court's decision was affirmed by Division Five of this court on April 12, 2013 (the CEQA appeal). (Golden Gate Land Holdings LLC v. East Bay Regional Park District (2013) 215 Cal.App.4th 353 (Golden Gate).) While the CEQA appeal was pending, the eminent domain case was also stayed. (Golden Gate, at p. 364, fn. 9, 381; § 916, subd. (a).) The stay was in effect until the remittitur issued in the CEQA case on July 5, 2013.
The opinion in Golden Gate stated that the stay would be dissolved upon finality of the opinion as to that court (Golden Gate, supra, 215 Cal.App.4th at p. 381), which, under rule 8.264(b) of the California Rules of Court, would have been May 13, 2013. Because GGLH petitioned for review in Golden Gate, however, the trial court declined to take further action in the eminent domain case while that petition was pending. The California Supreme Court denied review on July 1, 2013, and the remittitur in Golden Gate issued on July 5, 2013.
II.
The Settlement Agreement
Over the next several years, the parties pursued settlement discussions and mediation and trial dates were set and rescheduled.
On April 5, 2016, the parties entered into a settlement agreement providing for GGLH to donate to the District the 4.88-acre "Bay Trail Extension Easement" and for the parties to "in good faith enter into nonbinding mediation (the 'Mediation') to establish a mutually agreeable purchase price for the 2.88-acre Albany Beach Expansion Area." The agreement set out a "protocol for the Mediation" that included the following statement: "The Parties agree that the Condemnation Litigation and the CEQA Litigation shall be stayed pending completion of this mediation. The parties waive enforcement of the 5-year period prescribed by Code of Civil Procedure Section 583.310, so that the trial contemplated by paragraph 11 below (if necessary) may be expeditiously scheduled and completed." The agreement further stated that in the event the parties were unable to reach mediated agreement on the purchase price, "GGLH shall waive all pending and future CEQA objections to the Albany Beach Restoration and Public Access Project EIR (and shall dismiss all pending CEQA litigation with prejudice) and shall also waive objections to the Park District's right to take the Albany Beach Expansion Area and the Bay Trail Extension Easement, and the Condemnation Litigation shall go to jury trial with normal pre-trial discovery."
On June 29, 2016, the parties stipulated to an extension of the five-year period for bringing the action to trial as follows: "The parties hereby stipulate and agree that the time for commencement of trial in this proceeding is extended to Monday, July 24, 2017. Notwithstanding any period of time which might be tolled under Code Civ. Proc., § 583.340, the five-year period to bring the proceeding to trial under Code Civ. Proc., § 583.310 would otherwise expire on Friday, July 22, 2016."
The parties did not resolve their issues. In December 2016, the trial court granted GGLH's motion for an order determining the date of valuation for the 2.88-acre parcel, ruling that the date of valuation would be the date of commencement of trial, which at the time was apparently set for March 2017. Trial was later scheduled for July 10, 2017.
III.
The District's Motion in Limine
On July 10, 2017, the District filed its motion in limine No. 1, seeking a determination that the 2.88-acre parcel was subject to a legal dedication requirement from the City for public park purposes. According to the motion, the District's appraiser maintained that the parcel should be valued as currently zoned for waterfront and recreational use while GGLH maintained it should be valued as a senior residential community with supportive services, which its appraiser had concluded was the property's "highest and best use" but would require a zoning change that in turn would require a referendum. The District's appraiser assessed the fair market value of the 2.88-acre parcel under the current zoning as $374,400. GGLH's appraiser, using the "highest and best use" and assuming a zoning change, assigned the sum of $12,850,000 as just compensation for the taking of the 2.88-acre parcel and severance damage to the remainder of GGLH's property.
The District's motion argued that under City of Porterville v. Young (1987) 195 Cal.App.3d 1260 (Porterville), because the City would require dedication of the parcel as a condition of development of GGLH's property, the parcel had to be valued according to its existing zoning and GGLH's expert's appraisal and testimony had to be excluded from trial. Citing City of Perris v. Stamper (2016) 1 Cal.5th 576, 585, the District argued the dedication issues had to be determined by the court, not the jury.
At the outset of the hearing on July 10, 2017, counsel for the District informed the court that "we do have a five-year statute issue in this case," as the parties' stipulation to extend the five-year statute to July 24, 2017, left only two weeks to commence the trial unless the date was modified by consent of counsel. Counsel estimated that testimony related to the issues the District sought to have the court determine "before we can go to a jury" would take "a couple of days."
Counsel for GGLH argued that the dedication question presented only fact issues for the jury and the District was unfairly seeking bifurcation for a court trial on the day set for trial. The court set a hearing date in September to determine whether to bifurcate the trial; if so, a court trial would be set for January 29, 2018, or sooner if possible, with the jury trial to follow. The court ruled there was good cause for continuing beyond the five-year date and the parties stipulated to extend the five-year period to February 13, 2018.
The case was subsequently transferred to a different judge and, at a hearing on September 12, 2017, GGLH argued only a jury trial was needed while the District argued the court first had to try the issues raised in its motion in limine. After counsel for the District noted that "we have a five-year statute" and, under the current court order, the period would expire on February 13, 2018, the court set trial for January 29, 2018, and a hearing on November 28, 2017, for the court to decide whether bifurcation was necessary.
In late October 2017, the District moved to advance the January 29, 2018 trial date after learning a "key" witness would be unavailable during February. The District's motion focused on the impending expiration of time under the five-year statute. At an October 31, 2017 hearing, the parties continued to dispute the need for a court trial. In discussing scheduling, the court suggested, "if we start the trial and it's the court trial portion, let's assume it's bifurcated, then we're within the five years. We could then continue . . . the jury portion to some other time, okay? . . . That's assuming we bifurcate." Counsel for the District stated that if they bifurcated, they "would be having a contested trial of fact on fundamental issues in the case, and that satisfies the five-year statute." The court agreed. After the court expressed concern about not deciding the bifurcation issue until November 28, counsel for GGLH suggested that whether it was a court trial first or a jury trial, "no matter what happens, you're going to try this case on the 16th, which solves his problem."
The court's November 15, 2017 case management order advanced the trial date to January 16, 2018, and stated that the previously scheduled pretrial conference would be advanced "to 01/16/2018 at 03:00 PM in Dept. 18, the first day of trial. For purposes of the 5 year statute, this date will be deemed the first day of trial."
After the hearing on November 28, 2017, the court stated in its case management order, that "an evidentiary hearing shall be held on the first day of trial, 1/16/2018 at 8:30 a.m." to address specified questions that needed to be resolved for the court to be able to rule on "whether the dedication requirement is admissible evidence at the jury trial on valuation."
The court's order stated: "The court agreed to hear the Plaintiff's Pretrial Motion In Limine No. 1 .... After hearing, the court has concluded that an evidentiary hearing shall be held on the first day of trial, 1/16/2018 at 8:30 a.m., to address the following issues: (1) whether a dedication requirement exists as to the parcel at issue: (2) Assuming a dedication requirement exists, whether the holding in [Porterville] applies in this case? As to the second issue, the sub-issues are: (a) whether the dedication requirement is constitutional under Nollan v. [California Coastal Commission] (1987) 483 U.S. 825 and Dolan v. City of Tigard (1994) 512 U.S. 374 ('Nollan/Dolan')? and (b) Is it reasonably probable that the City would actually impose the dedication requirement as a condition of development in this case? The court finds that these determinations must be made by the Court in order for the Court to make a ruling as to whether the dedication requirement is admissible evidence at the jury trial on valuation."
In December 2017, the parties filed witness and exhibit lists for what both denominated the "court trial" on January 16, 2018. GGLH filed its "trial brief" on January 4, 2018.
On January 12, 2018, the court filed an order stating, "Per stipulation of the parties and court approval, the trial in this matter (phase I) shall be continued one day to Wednesday, 1/17/2018 at 8:30 a.m. in Dept. 18."
At the outset of the proceedings on January 17, 2018, the court stated, "we are commencing with the trial of the East Bay Regional Park District versus Golden Gate Land Holdings matter" and inquired about time estimates for "this bifurcated portion of the trial" and when jury selection would begin. Although counsel for GGLH reiterated his position that a court trial was not needed, throughout the ensuing three days, counsel for GGLH as well as the court and counsel for the District referred to the proceedings as the "court trial," "bifurcated trial," and "phase" or "portion" of the trial. The court heard in limine motions pertaining to evidence for the court trial and the parties gave opening statements addressing the dedication issue. Two witnesses were sworn and testified, then the proceedings continued over the next two days with further testimony and arguments from counsel.
The witnesses were Robert Doyle, the District's general manager, Jeffrey Bond, the director of the City's community development department, and Owen Poole, whose business involved assisting developers in interfacing with city agencies in the Bay Area.
The trial court took the matter under submission and continued the trial, stating its intention to get its decision to the parties the following week, when they would reconvene and "figure out how we're going to do our jury trial, if it goes forward." The court noted that "[w]e had stipulated the first day of trial was last week" and indicated that potential scheduling issues would have to be dealt with because "[y]ou've got a five-year case."
At this point, the court went off the record for a discussion with counsel, then, back on the record, stated: "So there are a couple of things we're going to put on the record, which is that the Court has indicated that with respect to this preliminary issue, which is the Court trial that we . . . commenced on January 17 [¶] . . . [¶] [T]hat was the first day of trial, and that it was agreed that this was . . . essentially a bifurcated matter, in the sense that the Court had to determine-and the Court decided that it would determine" whether there was a dedication requirement and, if so, whether Porterville applied and whether it was reasonably probable the City would actually impose the dedication requirement as a condition of development of GGLH's property. The court continued, "So for purposes of this case, because we have that five-year statute facing us, the trial has begun and commenced. There's going to be a continuation of the trial so that the Court [can] do a written order with respect to . . . the legal issues before the Court," and the determination of when the "remainder of this case . . . should commence" would depend in part on the court's ruling and the availability of witnesses and counsel for the further proceedings. Counsel were to submit additional briefing the court requested and meet with the court on February 7 "to discuss the further proceedings in terms of the continuation of this trial." The court then asked, "So that's all we need to put on the record at this point, Counsel?" Counsel for GGLH responded, "Yes."
Following the January 2018 proceedings, further trial was set for February 23, 2018, then rescheduled to March 9, 2018, "pursuant to parties['] request." On March 9, the court sought clarification of counsels' positions on some of the issues it had taken under submission in January and took the matter under submission again.
On May 4, 2018, the court filed its order denying the District's motion in limine No. 1. The court described the governing law: Under Porterville, supra, 195 Cal.App.3d 1260, "when a city takes a portion of undeveloped property, which it could have lawfully required the owner to dedicate to the city as a condition of developing the remainder of the property, the court must compensate the owner based on the property value in its current undeveloped state rather than as it might be valued if development could be approved" and, under City of Perris v. Stamper, supra, 1 Cal.5th at pages 585-586, 600, "the court must first determine whether the city could constitutionally require the landowner to dedicate the relevant land" and "the jury must also make a factual finding whether it was reasonably probable that the City actually would have imposed such a dedication requirement as a condition for the development of the property."
The court concluded that the District had not established that, as a matter of law, if GGLH proposed a development and the City required dedication of the 2.88-acre parcel as a condition of that development, the dedication requirement would be constitutional, and found there was a "possibility" GGLH might be able to present evidence demonstrating the 2.88-acre parcel should be valued based on a hypothetical proposed development and voter approval of rezoning. The court stated it was "leav[ing] for the jury" the question whether it was more likely than not that the City would require dedication of the parcel as a condition of the hypothetical development, and declined to limit the evidence the parties could present on the issue.
The court's order stated, "The court held an evidentiary hearing under Evid. Code [section] 402 and heard the motion. The court determines the admissibility of evidence and issues of fact preliminary to the admission of evidence. (Evid. Code § 310.) 'Except as otherwise provided by statute, all relevant evidence is admissible.' (Evid. Code § 350.) [¶] The hearing was not, and this order is not, the first stage of a bifurcated trial in which the court is making findings on the merits. The court does not decide a merits issue in the guise of deciding a motion in limine. (R &B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327, 333.)"
IV.
GGLH's Motion to Dismiss
On June 21, 2018, the parties filed case management conference statements. GGLH asserted that although the court had set trial for January 16, 2018, in order to avoid expiration of the five-year statute, "trial did not begin at that time." GGLH pointed to the trial court's statement that the evidentiary hearing on the District's motion in limine No. 1 "was not, and this order is not, the first stage of a bifurcated trial in which the court is making findings on the merits" and proposed that the court set a trial date as soon as possible, "[a]ssuming that this case can proceed (the five year statute appears to have lapsed)." In a supplemental case management conference statement responding to GGLH's argument, the District noted the trial court's statements on the record that trial had commenced for purposes of the five-year statute and the court's and GGLH's attorney's repeated references to the "trial" that was then occurring. The District quoted the court's remarks putting matters "on the record" following the off-the-record discussion at the end of the January 2018 proceedings and argued that GGLH's counsel's affirmative response demonstrated his agreement that trial had commenced.
The case management conference on July 6, 2018, began with the court asking, "So the question is: Where do we go from here? I guess you can set a trial date, and then the question is whether or not we want to do some of these motions in limine in advance and how far in advance ...." After discussing scheduling issues, trial was set for August 15, 2018. The record reflects no reference to the five-year statute at the conference.
On July 13, 2018, GGLH filed its motion for mandatory dismissal under section 583.310, arguing that no trial occurred before February 13, 2018, the date to which the parties had agreed to extend the five-year statute. According to GGLH, although the court and parties referred to the proceedings held in January 2018 as a" 'Court trial[,]'" in fact "no trial ever took place" and the court "[i]nstead" heard argument and testimony regarding the District's motion in limine No. 1. GGLH further argued that even if the first portion of a bifurcated trial had taken place, it would not satisfy the five-year statute because the court did not determine" 'any contested issue of fact or law that brings the action to the stage where a final disposition can be made.' [(]Sagi Plumbing [v. Chartered Constr. Corp. (2004)] 123 Cal.App.4th [443,] 448).[)]" In GGLH's view, the court confirmed there had not been a trial in its May 4 order stating that there had been an" 'evidentiary hearing'" and "[t]he hearing was not, and this order is not, the first stage of a bifurcated trial in which the court is making findings on the merits," and again when it said at the July case management conference," 'I guess you can set a trial date.'" Thus, GGLH maintains, the District "was surely aware of the Court's decision to treat the proceedings as a preliminary hearing rather than a trial."
The District's opposition argued that GGLH expressly waived the five-year statute in the parties' settlement agreement; the statute was satisfied when the first witness was sworn at the January 2018 court trial; and GGLH agreed on the record that the five-year statute had been satisfied. The District also argued that GGLH was equitably estopped from seeking dismissal and the court was equitably estopped from granting it. If the court rejected all these arguments, the District argued, the five-year statute should be tolled because it was impossible for the District to "foresee this turn of events."
GGLH's reply argued, among other things, that while the parties "clearly both believed that a trial was going to take place in January 2018," the trial court "informed the parties" in its May 4 order "that they were mistaken." In GGLH's view, it became clear at this point that the five-year statute had lapsed, and it was the District's obligation to rush to secure a trial date or stipulation to extend the five-year deadline. In failing to do so- even after GGLH "warn[ed]" the District of "the legal effect of the Court's ruling" in its June 21 case management conference statement-the District failed to exercise diligence.
At an August 9, 2018 hearing on the motion to dismiss, the trial court suggested the five-year period had not expired once certain time periods were excluded from the calculation and allowed GGLH additional time to brief this issue. Counsel for the District argued the motion should be denied regardless, as trial had begun in January. When counsel for GGLH asserted that the court's ruling unequivocally stated the hearing was not the first stage of a bifurcated trial, despite the court's earlier statements that the proceeding was a trial, the court responded that although it began as a motion in limine, "when we [began] to discuss the trial and see how to proceed, I thought we had all agreed that essentially we should proceed with this trial starting with the Court making a determination . . . about . . . the constitutionality of the dedication, . . . and all of that would have to be determined before we could get to the jury on the issue of valuation if we got there. So that's why . . . the order was framed in terms of the motion in limine because it [was] raised initially as a motion in limine, but I think the point was that it was . . . pretty well determined upfront that in order to make this decision we really basically had to have a court trial, and then have witnesses testify ...." Counsel for GGLH argued that the proceeding was just an evidentiary hearing and, however the court characterized it, could not have been a trial because the court was "not making a definitive decision on any contested fact."
The court filed its order denying the motion to dismiss on August 14, 2018, followed by a corrected order filed the next day. The court first rejected GGLH's argument that the parties' April 5, 2016 settlement agreement stating they would" 'waive enforcement of the 5-year period'" meant only that they waived enforcement" 'during mediation, not indefinitely thereafter.'" Second, the court found that commencing trial on August 15, 2018, would be within the five-year period after excluding the 11 months the case was stayed during the CEQA appeal and an additional one year and three months due to the parties' waiver of enforcement in the April 5, 2016 settlement agreement. Third, the trial court found the trial commenced on January 17, 2017. The court stated that GGLH "misconstrue[d]" its statements in the May 4, 2018 order about the January hearing not being "the first stage of a bifurcated trial," which the court explained were "a clarification that its Order was limited to the issues of law, and that its opinions regarding the facts of the case (i.e. it was 'not persuaded by the District's argument that the City would necessarily and inevitably condition future development on dedication of the Fee Parcel as parkland') were not binding on the jury. ('[T]he jury must make the factual finding whether it is reasonably probable that . . . the City will [] require GGLH to dedicate the Fee Parcel as a condition of the hypothetical development')."
GGLH filed a petition for writ of mandate and, on August 17, 2018, this court temporarily stayed the underlying action. On October 23, 2018, we denied the writ petition and dissolved the stay. The trial court had issued its own stay, which remained in effect until January 2, 2019. On January 2, 2019, trial was set for April 15, 2019. The court's order stated that GGLH had "stipulated that for the purposes of any statute of limitations' claim, the period of time from 1/2/2019 through 4/15/2019 is waived and may not be used in calculating time in light of the parties' mutual agreement that the trial shall re-commence on 4/15/2019."
V.
The Jury Trial
Jury selection began on April 15, 2019, and the jury was sworn on April 17. As relevant here, GGLH's appraisal expert, Arthur Gimmy, testified that he concluded the highest and best use of the property would be a 1,625-unit senior assisted living facility on approximately 25 percent of the land at Golden Gate Fields. This use would require a zoning change approved by city voters; Gimmy did not personally investigate the likelihood of such approval but relied on another expert's opinion that there was a reasonable probability the voters would approve the change. Using a comparative sales approach with adjustments for differences in "key factors" influencing price, such as where a comparison property had entitlements for development while this property did not, he calculated an average value of $25 per square foot for GGLH's whole property and $50 per square foot for the 2.88-acre parcel due to its waterfront location. Gimmy determined just compensation for the taking of the 2.88-acre parcel and diminution of value of the rest of GGLH's property to be $12,850,000, $6,577,000 of which was for severance damages.
The expert whose assessment Gimmy relied on, real estate and land use attorney Cecily Barclay, was also a witness at trial.
The District's appraisal expert, Dean Chapman, valued the 137.5-acre property at $130,000 per acre, or a total of $17,875,000, and, applying the same per-acre value to the 2.88-acre parcel, determined the value of the parcel was $374,400. He based his appraisal on the highest and best use of the property within the limits of its current zoning. After investigating the likelihood of zoning changes for the property by interviewing individuals involved in city planning and development and reviewing the general plan and history of development efforts on the property, Chapman concluded that the City's citizens did not want residential development there. He believed that if the property was developed, it would be as a park. Due in part to his and the City's concerns about sea level rise and flooding he had observed on the 2.88-acre parcel, he did not believe the parcel was "buildable."
Chapman had previously appraised the 2.88-acre parcel and 4.88-acre easement in 2010 or 2011 at about $1.6 million. By the time of his new appraisal, awareness of sea level rise had increased; the City had concerns about development in areas subject to sea level rise; he had observed flooding on the parcel, and, due to new cost estimates for extending utilities and elevating the ground, he no longer thought it would be feasible to build a restaurant on the parcel as he had previously.
The jury returned a verdict finding the fair market value of the 2.88-acre parcel to be $2,125,000 and finding no severance damages.
On September 17, 2019, the trial court entered its judgment ordering payment of $2,125,000 plus accrued interest and statutory costs. GGLH timely appealed from the judgment.
DISCUSSION
I.
Relevant Principles of Eminent Domain Law
When property is taken for a public use, the owner must be paid "just compensation, ascertained by a jury unless waived." (Cal. Const., art. I, § 19.) "The measure of this compensation is the fair market value of the property taken." (§ 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, being willing to sell but under no particular or urgent necessity for so doing, nor obliged to sell, and a buyer, being ready, willing, and able to buy but under no particular necessity for so doing, each dealing with the other with full knowledge of all the uses and purposes for which the property is reasonably adaptable and available.' (§ 1263.320, subd. (a).)'" (Sacramento Area Flood Control Agency v. Dhaliwal (2015) 236 Cal.App.4th 1315, 1326 (Dhaliwal), quoting Metropolitan Water Dist. of So. California v. Campus Crusade for Christ, Inc. (2007) 41 Cal.4th 954, 965 (Campus Crusade).) Fair market value takes into account the" '" 'highest and most profitable use to which the property might be put in the reasonably near future, to the extent that the probability of such a prospective use affects the market value.'" '" (Dhaliwal, at pp. 1326-1327.)
When the property taken is part of a larger parcel, in addition to compensation for the property taken, the owner is compensated for any injury to the remainder with severance damages, which consist of "the amount of the damage to the remainder caused by the taking, reduced by the amount of the benefit to the remainder caused by the taking. (§ 1263.410, subd. (b).)" (Campus Crusade, supra, 41 Cal.4th at p. 965.)
"The procedures governing eminent domain actions differ in some respects from those governing other actions. For example, 'all issues except the sole issue relating to compensation[ ] are to be tried by the court.' [Citation.] The defendant (i.e., the property owner) shall present evidence on the issue of compensation first and shall commence and conclude the argument. (§ 1260.210, subd. (a).) And, '[e]xcept as otherwise provided by statute, neither the plaintiff nor the defendant has the burden of proof on the issue of compensation.' (§ 1260.210, subd. (b).)" (Campus Crusade, supra, 41 Cal.4th at pp. 965-966.)
II.
The Motion to Dismiss Was Properly Denied.
A. Governing Principles
Pursuant to section 583.310, "An action shall be brought to trial within five years after the action is commenced against the defendant." The parties may extend the five-year period by "written stipulation" or "oral agreement made in open court, if entered in the minutes of the court or a transcript is made." (§ 583.330.) "In computing the time within which an action must be brought to trial pursuant to this article, there shall be excluded the time during which . . . [¶] [t]he jurisdiction of the court to try the action was suspended," "[p]rosecution or trial of the action was stayed or enjoined," or "[b]ringing the action to trial, for any other reason, was impossible, impracticable, or futile." (§ 583.340.) "The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute" (§ 583.360, subd. (b)) and "[a]n action shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial" within the prescribed time. (§ 583.360, subd. (a).)
Section 583.310" 'only requires that the action be brought to trial within the five-year period, and places no limitation upon when the trial shall be completed.' [Citation.] Thus, once trial commences, the statute no longer applies, 'even though the proceedings amount only to a partial hearing. [Citation.]' (Bella Vista Dev. Co. v. Superior Court (1963) 223 Cal.App.2d 603, 607 [Bella Vista] [former § 583]; see also Berri v. Superior Court (1955) 43 Cal.2d 856, 861 [Berri] ['partial trial of an action will take the case out of the operation' of the five-year statute].)" (In re Marriage of Macfarlane & Lang (1992) 8 Cal.App.4th 247, 253-254 (Macfarlane).)
" 'A "trial" is the examination before a competent tribunal, according to the law of the land, of questions of fact or of law put in issue by pleadings, for the purpose of determining the rights of the parties. [Citations.]' (Adams v. Superior Court (1959) 52 Cal.2d 867, 870; see also Berri, supra, 43 Cal.2d at p. 859 [trial 'is the determination of an issue of law or fact'].) Thus, an action has been brought to trial if there 'is a trial of issues of fact with the purpose of determining the case on the merits.' (Berri, supra, at p. 859.) In a nonjury case, the swearing of a single witness satisfies this requirement; in jury cases, the impaneling of the jury suffices. (Hartman v. Santamarina (1982) 30 Cal.3d 762, 765.)" (Macfarlane, supra, 8 Cal.App.4th at p. 254.)
B. The Five-year Rule Was Satisfied When Trial Commenced on January 17, 2018.
GGLH contends the January 2018 proceedings on the District's motion in limine did not, and could not, constitute commencement of trial for purposes of the five-year statute because adjudication of the motion did not result in a final disposition of the case. In GGLH's view, adjudication of a motion constitutes commencement of trial only where it fully and finally resolves the case, leaving nothing for further determination. For example, GGLH points to cases holding that determination or hearing of a demurrer is not a trial for purposes of the five-year rule "unless the ruling on demurrer is a final determination of the case," as "[w]hen the demurrer has been sustained and judgment of dismissal has been entered" (Berri, supra, 43 Cal.2d at pp. 858-859), and that "the granting of a motion for summary judgment is a trial" within the meaning of the five-year statute while denial of such a motion is not (Bella Vista,, supra, 223 Cal.App.2d at pp. 612-613.) GGLH describes Macfarlane, supra, 8 Cal.App.4th at p. 255, as explaining that" 'an order after motion that finally determines all of the issues in a case . . . does satisfy the statute,' whereas 'an order after motion that determines only some of the legal issues in a case' does not."
Macfarlane noted that the cases drawing this distinction did not "purport to alter the rule that a case is brought to trial in a nonjury case when the first witness is sworn" and therefore did not require dismissal where "there was a partial trial of factual issues involving the swearing of witnesses and the taking of evidence and testimony." (Macfarlane, supra, 8 Cal.App.4th at pp. 255-256.) In that case, the trial court bifurcated dissolution proceedings, took evidence and terminated marital status, then in subsequent hearings resolved two of the remaining issues. After the wife sought appellate review and this court denied her writ petition and dismissed her appeal as being from a nonappealable interlocutory order, the husband obtained an order dismissing the case for failure to bring it to trial within five years. (Id. at p. 251.) Macfarlane found the dismissal erroneous because there had been a partial trial, noting that the trial court not only "grant[ed] a judgment of dissolution after the parties presented evidence" but "received evidence, swore witnesses, and took testimony in determining the existence of a transmutation agreement and the validity of the quitclaim deeds, which were two of the major issues relating to the property over which it had reserved jurisdiction." (Id. at pp. 254-255.) In the present case, the trial court bifurcated the trial into two phases, at the first of which the court "received evidence, swore witnesses and took testimony" on issues it was necessary for the court to resolve before the jury, in the second phase, would be able to determine the value of the condemned property.
Subsequent to Macfarlane, a statute specifically pertaining to dismissal in certain family law cases was amended to state that a petition for dissolution of marriage may not be dismissed under the delayed prosecution statutes if a separate trial on the issue of the status of the marriage has been conducted. (§ 583.161, subd. (d); Stats. 1994, ch. 1269, § 3 [adding then subd. (c)].)
GGLH, however, maintains the January 2018 proceedings cannot be considered a trial because they addressed a motion in limine. The "most compelling precedent," according to GGLH, is Hendrix v. Hendrix (1985) 171 Cal.App.3d 859 (Hendrix). Hendrix held that the hearing on a motion in limine to exclude evidence of plaintiff's husband's incompetence in an action for recovery of property did not commence trial for purposes of the five-year statute. (Id. at p. 861.) The motion was granted because the pleadings did not raise any competency issue and the plaintiff thereafter amended her complaint but failed to take action to have the case set for trial until after the five-year period expired. (Id. at p. 861-862.) Upholding dismissal of the case, Hendrix explained that a "trial" is" 'the examination before a competent tribunal, according to the law of the land, of questions of fact or of law put in issue by pleadings, for the purpose of determining the rights of the parties.' [Citation.] . . . In determining whether a trial has commenced, '[t]he essential thing is that the action be brought to a stage where final disposition is to be made of it.' [Citations.]" (Id. at p. 862.) The hearing on the motion in limine in Hendrix "was not a trial because it did not involve a question of law or fact raised by the pleadings" (ibid.) and "made no determination of plaintiff's rights under her existing cause of action." (Id. at p. 863.) That is clearly not the case here, and we do not read Hendrix as holding that proceedings on a motion in limine can never be a trial for purposes of the five-year statute.
GGLH emphasizes that the trial court's ruling on the District's motion in limine was not a final disposition of the case. We are not persuaded that a hard and fast distinction between case dispositive motions and motions that do not directly result in a final disposition of the entire case applies where the trial has been bifurcated into separate court and jury phases. The District's motion presented factual and legal issues that had to be decided by the court before a jury could determine the value of the property; these issues were pivotal to the jury trial because they would determine the admissibility of GGLH's evidence of value and manner in which the jury was required to assess value.
Moreover, if the court had agreed with the District, GGLH's only evidence of value would have been excluded from consideration, leaving the District's appraisal expert as the only source of evidence upon which the jury could assess the property's value. In that event, the court's resolution of the issues presented for court trial could well have disposed of the entire action, since value of the property was the only issue to be determined.
GGLH argues a trial would have been necessary even if it had been precluded from presenting its evidence of value, but it does not offer any authority or argument in support of this position. "[T]he opinions of valuation witnesses are the only permitted evidence of the value of property (Evid. Code, § 813, subd. (a))" (People ex rel. Dept. Pub. Wks. v. Peninsula Enterprises, Inc. (1979) 91 Cal.App.3d 332, 348) and "[a] jury hearing a condemnation action may not disregard the evidence as to value and render a verdict which either exceeds or falls below the limits established by the testimony of the witnesses." (Aetna Life &Casualty Co. v. City of Los Angeles (1985) 170 Cal.App.3d 865, 877 (Aetna); see CACI No. 3515.) It follows that if GGLH had been precluded from presenting its expert's opinion, the District's expert's appraisal would have set the upper limit of value. GGLH all but conceded as much in the trial court, asserting in a case management statement that the District's motion in limine was "nothing less than an improper motion for summary judgment" that sought to "exclude [GGLH's] appraisal and "essentially cap 'just compensation' at less than $400,000."
Aetna was an inverse condemnation action in which the public entity "offered no evidence on damages, relying instead upon cross-examination of plaintiffs' expert witness and of the homeowners to convince the jury that plaintiffs' damages were less than requested." (Aetna, supra, 170 Cal.App.3d at p. 876.) The trial court granted the plaintiffs' motion for a directed verdict on damages. (Id. at p. 872.) Applying the evidentiary rules that govern direct condemnation actions (id. at p. 877), Aetna affirmed, holding that "[a]ny deviation from the evidence by the jury would have been improper." (Id. at p. 878.) Marshall v. Department of Water & Power (1990) 219 Cal.App.3d 1124, 1147, subsequently held that despite "the validity of the rule defining the limits within which the jury must set compensation as stated in Aetna," the jury is not "stripped of its role as the arbiter of a witness's credibility" in this context. In Marshall, although the plaintiffs offered evidence of substantial damages and the public entity presented no affirmative evidence as to the value of the losses, the jury awarded each of the plaintiffs only $1. (Marshall, at p. 1145.) Marshall rejected the plaintiffs' argument that the jury had no choice but to award the damages their evidence demonstrated. (Id. at pp. 1145-1147.) The court explained: "The jury was instructed that it could disregard the testimony of a witness that it did not believe. The [public entity's] failure to present affirmative evidence, in effect, set a floor of $0. By awarding the token $1.00, the jury was sending an unmistakable message-it did not believe the testimony" of the plaintiffs. (Id. at p. 1147.) Applying the reasoning of these cases to ours, if the trial court had granted the District's motion and excluded GGLH's evidence of value, while the jury would not have been required to accept the specific property value assigned by the District's appraiser, it would not have been able to find a higher value because there would have been no evidence to support doing so. With compensation effectively capped at the amount of the District's appraisal, there would have been no reason for GGLH to pursue a jury determination of value.
GGLH also argues it is irrelevant that granting the District's motion could have ended the case because that is not what happened. GGLH cites Bella Vista,, supra, 223 Cal.App.2d at page 613, for its holding that denial of a motion for summary judgment does not constitute commencement of trial for purposes of the five-year statute. Denial of a summary judgment bears no similarity to denial of the motion in limine in the present case. Denial of a summary judgment motion is "merely a determination that there [are] triable issues of fact" (ibid.) and does not resolve any legal or factual issues. Accordingly, the hearing on the motion is not a" 'partial trial'" and does not "bring the action to trial." (Ibid.)
By contrast, "the granting of a motion for summary judgment is a trial within the meaning of [former] section 583" because the court has found there are no triable issues of fact and determined that the" 'uncontroverted facts justify granting of the motion in favor of the moving party,'" thus finally determining the case. (Bella Vista, supra, 223 Cal.App.2d at p. 613.)
But dismissal under the five-year statute has been found inappropriate in cases where a motion might have but did not in fact resolve the matter. Hendrix, supra, 171 Cal.App.3d at page 862, the case GGLH relies on for the proposition that proceedings on a motion in limine cannot constitute commencement of trial, distinguished two such cases, Clements v. Ragghianti (1957) 155 Cal.App.2d 188 [motion for nonsuit] and Katleman v. Katleman (1959) 175 Cal.App.2d 493 (Katleman). Hendrix noted that both of these cases "were actually called for trial and counsel had made opening statements to the courts; both motions, if granted, would have led to a final disposition." (Hendrix, at p. 862.)
In Katleman, the case was called for trial within the five-year period and after both counsel answered "ready" and made statements about the nature of the case, the plaintiff moved for judgment on the pleadings. (Katleman, supra, 175 Cal.App.2d at p. 494.) The parties argued the motion and it was submitted for decision; the parties then filed briefs and the court later denied the motion. (Ibid.) Plaintiff tried to have the matter reset for trial; by the time it was called for trial, more than five years had passed since it was filed and the trial court granted the defendant's motion to dismiss. (Id. at pp. 494-496.) Katleman reversed, holding that "[t]he making of the motion [for judgment on the pleadings], the argument thereon, and the submission and decision of the motion constituted a partial trial of the case, namely, the trial of an issue of law. If the motion had been granted, the trial of course would have been completed. The denial of the motion completed a part of the trial." (Id. at p. 496.)
Here, too, the court's determination of issues of law and fact raised by the District's motion in limine "completed a part of the trial." Unlike Katleman, here the motion was made prior to trial and counsel for GGLH argued that a court trial was not needed to resolve it. But the court disagreed and, once the court held the matter would be tried in two phases, all participants expressly treated the January 2018 proceedings as a "court trial." As in Katleman, the court determined issues of law and fact that could have resolved the entire case, even though it turned out that the court's denial of the District's motion meant that "phase two"-the jury portion-of the trial would proceed.
Katleman noted that the motion for judgment on the pleadings was "not made in a preliminary proceeding prior to calling the case for trial" but "after the case had been assigned to a department for trial and after the case had been called for trial in that department and the attorneys had answered that they were ready for trial." (Katleman, supra, 175 Cal.App.2d at p. 496.)
Mussat v. Superior Court (1936) 16 Cal.App.2d 291, is another case in which a partial trial satisfied the five-year statute even though it did not end up resolving the case. The trial court in that case appointed a referee to perform an accounting. (Id. at p. 292.) On the day the case was called for trial, counsel "stated the issues" and the matter was continued to a date some six months later "for 'further trial.'" (Ibid.) On the later date, the referee testified and exhibits were received in evidence. (Ibid.) Then, after additional continuances, the appointment was set aside and the referee's report rejected. (Ibid.) Mussat held that "these partial hearings were sufficient to take the case out of the statute though it may be conceded that, aside from the documentary evidence received, the proceedings may not have contributed materially to a final determination of the issues," as the report was rejected. (Ibid.) In the present case, the matters determined by the court in the first phase of trial were pivotal to those determined by the jury in the second phase of trial.
The District's motion required the court to examine "questions of fact or of law put in issue by pleadings, for the purpose of determining the rights of the parties." (Macfarlane, supra, 8 Cal.App.4th at p. 254.) It was set for a court trial as the first phase in a bifurcated trial and the proceedings were conducted as a trial, with opening statements by counsel, examination of witnesses, receipt of exhibits in evidence and closing arguments. The trial court expected to move directly to the jury portion of the trial, although this did not happen because the court spent much longer than anticipated preparing its order denying the District's motion. The January 2018 proceedings constituted a partial trial and therefore took the case outside the operation of the five-year statute (Berri, supra, 43 Cal.2d at p. 861) regardless of whether the second phase-the jury trial-began before expiration of that period.
Given this conclusion, we need not determine whether, as the District maintains, GGLH's affirmative or tacit acceptance of the January 2018 proceedings as the commencement of trial is a sufficient basis for finding GGLH estopped from asserting a contrary position. Nevertheless, we cannot help but comment on the striking discordance between GGLH's contemporaneous acknowledgement that the five-year statute was satisfied when the court trial began in January 2018 and its subsequent disavowal and motion to dismiss. It is apparent that, at the time, the trial court and parties understood the January 2018 proceedings to be a partial trial addressing issues the court had decided it needed to resolve before a jury could be asked to determine the value of the condemned property. The trial court bifurcated the proceedings for this purpose, set January 16, 2018, as "the first day of trial," subsequently continued "the trial in this matter (phase I)" to January 17, and on January 17 stated on the record that "we are commencing with the trial." GGLH did not contradict or object to this statement; its counsel reiterated his position that a court trial was not necessary but he did not suggest that what was occurring was not a trial.
GGLH's assertion that the trial court subsequently "made clear that no trial had commenced" in its order denying the District's motion in limine was expressly refuted by the trial court. As earlier described, the order stated that the court "held an evidentiary hearing under Evid. Code [section] 402 and heard the motion. The court determines the admissibility of evidence and issues of fact preliminary to the admission of evidence. (Evid. Code § 310.) . . . [¶] The hearing was not, and this order is not, the first stage of a bifurcated trial in which the court is making findings on the merits. The court does not decide a merits issue in the guise of deciding a motion in limine. (R & B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327, 333.)" (Italics added.) In denying the motion to dismiss, the court stated that GGLH "misconstrue[d]" the italicized statement, which it explained was a "clarification that its Order was limited to the issues of law, and that its opinions regarding the facts of the case (i.e. it was 'not persuaded by the District's argument that the City would necessarily and inevitably condition future development on dedication of the Fee Parcel as parkland') were not binding on the jury. ('[T]he jury must make the factual finding whether it is reasonably probable that . . . the City will [] require GGLH to dedicate the Fee Parcel as a condition of the hypothetical development')." The case the court cited in connection with the italicized statement confirms that it was addressing the distinction between preliminary issues decided by the court and issues of fact decided by the jury, not whether the January 2018 proceedings constituted a trial for purposes of the five-year rule. At the page the court cited, R & B Auto Center, Inc. v. Farmers Group, Inc., supra, 140 Cal.App.4th at page 333, in comments on a trial court's "numerous erroneous rulings that essentially deprived [a party] of an opportunity to put on its case," "caution[ed] against the wholesale disposition of a case through rulings on motions in limine" and stated that "a judge generally should not be weighing the evidence on a motion in limine," emphasizing the "hallowed right to a jury trial."
The parties dispute whether GGLH affirmatively agreed when the court stated on the record that trial had started for purposes of the five-year rule. As earlier described, the court made this statement after an off the record conversation with counsel. GGLH maintains that the District mischaracterizes the record by claiming the parties agreed to have the court state the five-year statute had been satisfied, and that the reporter's transcript shows the court placed on the record statements the court wanted to make, not ones counsel agreed to. GGLH argues its counsel's expression of agreement was only to the court's request for confirmation that there was nothing else that needed to be put on the record, not to the substance of the court's statement. The court's statement was obviously intended to reflect what had been discussed off the record. The court did not indicate there had been any objection from GGLH to the conclusion that trial began on January 17 for purposes of the five-year rule, and counsel for GGLH surely could have stated any objection he had when asked if there was anything else to be put on the record. Moreover, counsel for the District stated in a declaration filed in the trial court that during the off-the-record discussion the court and parties conferred "regarding the five year statute," "[i]t was agreed that the Court would recite that the Five-Year Statute had been satisfied," and "[GGLH's] counsel Mr. Moore stated that he would not object to that finding." GGLH does not directly contradict this description of the off the record discussion; it asserts only that the reporter's transcript does not show its attorney agreed to the court's statement-which is not surprising, as the District's counsel maintains the agreement was expressed off the record. In any event, it is clear that GGLH did not voice any disagreement with what the court said at this point or object at any time during the January proceedings that what was happening was not the trial.
In fact, months before, when the court expressed concern about not deciding that issue until a hearing set for November 28, counsel for GGLH had suggested that on the January date the court was either going to have a court trial or a jury trial, "[S]o, no matter what happens, you're going to try this case on the 16th, which solves his problem ...." As earlier described, the parties filed witness and exhibit lists for the "court trial" and GGLH filed a "trial brief"; the court heard in limine motions pertaining to evidence for the court trial and the parties gave opening statements addressing the dedication issue. Witnesses were sworn and testified, thus satisfying the requirement for commencement of a court trial. (Hartman v. Santamarina, supra, 30 Cal.3d at p. 765.) Counsel for both parties, as well as the court, referred to the ongoing proceedings as the "court trial," "bifurcated trial," and "phase" or "portion" of the trial.
GGLH argues that "nomenclature is not controlling" (Heenan v. Sobati (2022) 96 Cal.App.4th 995, 1003) and we have no disagreement with the principle that the parties' and court's characterization cannot make a proceeding something it legally cannot be. Here, however, we find no basis for concluding the court trial in January 2018 was anything other than the first phase of a bifurcated trial that all participants understood it to be.
Heenan v. Sobati, supra, 96 Cal.App.4th 995, held that a proceeding before a sitting superior court judge that was characterized by the participants as binding arbitration was in fact a bench trial: Public judges cannot conduct contractual arbitration, which "takes place outside the legal system" with judicial involvement "limited to the award enforcement process." (Id. at pp. 997, 1000-1001.)
III.
The Trial Court Did Not Commit Prejudicial Error Regarding the Testimony of the District's Appraisal Expert.
GGLH contends the trial court abused its discretion in allowing the District's appraiser to testify based on an erroneous appraisal methodology, then exacerbated its error by refusing to allow rebuttal testimony from GGLH's expert on this issue and refusing to give a curative jury instruction GGLH proposed.
A. Background
As earlier indicated, the District's appraiser valued GGLH's 137.5-acre property at $130,000 per acre, a total of $17,875,000. Chapman testified that the $130,000 per acre value was an average; "certain parts of the property are worth more, certain portions are worth less." He thought it "prudent" to assign the average $130,000 value to the 2.88-acre parcel, resulting in a total value of $374,400 for the parcel. Asked if it would be appropriate to double the average value for the 2.88-acre parcel (which is what GGLH's expert did), Chapman testified, "[A]bsolutely not. Because it can't be developed.... [¶] That area doesn't have any more value, in my opinion, than any other portion of the property that's going to be . . . used as a park."
GGLH moved to strike Chapman's testimony as violating the principle stated in People ex rel. Dept. of Public Works v. Silveira (1965) 236 Cal.App.2d 604, 617 (Silveira), that in determining the market value of a condemned parcel that is part of a larger property," 'it is not proper to attribute a per-square-foot value to defendants' entire property and then apply the value to the parcel condemned unless each square foot of defendants' land has the same value" and "if the parcel condemned is different in quality from the rest of the land, it should be assigned a different value.'" (Ibid., quoting Los Angeles County Flood etc. Dist. v. McNulty (1963) 59 Cal.2d 333, 336.)
The trial court denied the motion to strike. The court also denied GGLH's request to present rebuttal testimony addressing Chapman's methodology, noting that GGLH's counsel knew what Chapman's testimony was going to be and did not address his methodology either in cross examining Chapman or in questioning GGLH's own expert about methods of valuing property. GGLH proposed a special jury instruction based on Silveira that would have directed the jury, "An appraiser may not apply the same average acre value for the entire property to the 2.88 acres being condemned, unless each acre of defendants' land has the same value." The District opposed the instruction, arguing it was not appropriate for the court to instruct the jury on appraisal methodology. The instruction was not given.
During the discussion of jury instructions on the record, the court indicated that it generally did not like to base instructions on quotations from cases but would review the cases and consider the issue. As far as we are aware, the record does not reflect the court's subsequent ruling.
B. Analysis
1. Chapman's Testimony Was Not Improper.
" '"' "In condemnation proceedings, the trial court is vested with considerable judicial discretion in admitting or rejecting evidence of value." '" [Citation.] Where . . . "an expert in a condemnation action employs a methodology not sanctioned by California law, his opinion may be excluded." ' City of San Diego v. Sobke [1998] 65 Cal.App.4th [379,] 396; see also Evid. Code, § 801 [expert testimony must be based on matter 'that is of a type that reasonably may be relied upon by an expert in forming an opinion'].)" (Redevelopment Agency of San Diego v. Attisha (2005) 128 Cal.App.4th 357, 373.)
GGLH argues that Chapman's testimony was improper because he applied the same average unit value he found for GGLH's entire property to the 2.88-acre parcel even though he recognized that "certain parts of the property are worth more, certain portions are worth less." We are not convinced.
The rule GGLH relies on derives from cases considering whether, when the condemned property is part of a larger whole, the value of the part taken should be calculated as an independent parcel or as a portion of the whole. Silveira upheld a jury instruction directing the jury to determine whether the strip of land condemned had a greater value considered as a "separate and distinct piece of property disconnected from the remainder of the tract or when considered as a fraction or part of the entire tract," and to use the higher market value. (Silveira, supra, 236 Cal.App.2d at p. 616.) The plaintiff, relying on City of Los Angeles v. Allen (1934) 1 Cal.2d 572 (Allen), had argued the condemned property must be valued as a part of the whole from which it was taken. (Silveira, at p. 616.) But, unlike Silveira, Allen was a case in which the size and shape of the condemned property were such that it had value only as a part of the whole from which it was taken and not as a separate parcel. (Silveira, at p. 617; Allen, at pp. 574-575.) Silveira stated that while "[t]he result in Allen was just and proper under the particular facts of that case," "Allen does not stand for the proposition . . . that where the property sought to be condemned is a part of a larger parcel, it must in all instances be valued as a part of the whole, despite the fact that it may have a greater value as a separate and distinct piece of property." (Silveira, at p. 618.) Similarly, People ex rel. Dept. Pub. Wks. v. Corporation etc. of Latter-Day Saints (1970) 13 Cal.App.3d 371, 379, held that because the condemned property in that case, like that in Silveira, could be valued as an independent parcel, the trial court erred in instructing the jury that it had to be valued as part of the whole from which it was taken. (Dept. Pub. Wks., at pp. 376, 379380.)
In Silveira, a 9.304-acre strip of land fronting a highway and varying in depth from 30 feet at one end to 850 feet at the other end was taken from a 260-acre property. (Silveira, supra, 236 Cal.App.2d at pp. 607608.)
In Allen, in order to widen a boulevard, the city condemned a "narrow strip" (varying from 33.50 feet at one end to 33.58 feet at the other end) that was part of a larger and much deeper property. (Silveira, supra, 236 Cal.App.2d at p. 617; Allen, supra, 1 Cal.2d at pp. 573-574.) Due to the" 'tacit assumption'" of both parties that" 'a piece of land of such slight depth could not have been put to any very valuable use,'" there was no evidence of the value the strip would have if separately owned and unconnected with the remainder of the property. (Allen, at p. 574.)
The focus in Silveira was not on when property can be ascribed an average per unit value but rather on how to value a portion of a larger property when the value of the portion may differ from the value of the whole. Silveira explained, "The requirement that the part taken must be valued as a part of the whole and not as if it stood alone has been imposed because ordinarily this relationship gives the part-particularly where it is a narrow strip-a greater value. [Citations.] This rule has been applied in order to protect the condemnee and assure him a just award because otherwise the part taken would normally be useless and valueless if considered by itself." (Silveira, supra, 236 Cal.App.2d at p. 619.) As earlier explained in People v. Loop (1954) 127 Cal.App.2d 786:" 'In assessing the value of the land taken as part of the entire tract it is not proper merely to compute the percentage value on the basis of an artificial average unit value for the entire tract unless the actualities of the case accord with such coverage value. It may be that the part taken is the most valuable part of the tract considered from a qualitative point of view. To attribute an average unit value thereto which is based in part on the lower value of the balance of the tract is inequitable to the owner in a double aspect of the situation. It attributes a value to the part taken which is lower than its actual value and it attributes a higher ultimate value to the remainder area than its actual value, thereby reducing his recovery as to both factors below his actual damages.' (4 Nichols on Eminent Domain, 3d ed., 330, § 14.231.)" (Id. at p. 796.)
GGLH's challenge to Chapman's testimony and method of appraisal is less a challenge to his use of an average unit value in appraising a property that was not entirely uniform than a challenge to his conclusion that the 2.88-acre parcel is not worth more than other parts of GGLH's property.GGLH argues, for example, that "Chapman's use of the per-acre average was improper because the 2.88-Acre Parcel is a waterfront portion of the Property adjoining Albany Beach, with sweeping views of the Bay, and is worth more than other parts of the 138-acre Property."
In argument on the point at trial, counsel for GGLH appeared to agree that it was appropriate to begin with the per-unit market value of the larger property but argued that Chapman erred in "stopping there" and automatically applying that value to the 2.88-acre parcel, contesting the District's view that Chapman made a considered decision that the same value should apply.
GGLH's expert, like Chapman, calculated a per-unit value for the entire property despite recognizing differences in value between portions of the property; he testified, for example, that the "track area," on "filled land" was unsuitable for building development, "has a much lower value than other parts of the property" while "[t]he portion of the property that has the best geology for development, that's the highest-price portion of the property" and the portion "adjacent . . . partially to the bay and to the land owned by the state has a much higher value than average." The significant difference between the experts with respect to average units of value is that Gimmy found it "reasonable to double the average for the entire property" for the 2.88-acre parcel while Chapman believed it was "prudent" to assign the same average value to the parcel as he assigned to the property as a whole. GGLH and Gimmy are of the view that the 2.88-acre parcel is more valuable than the rest of GGLH's property because waterfront property is more expensive in general and is rare in the Bay Area. The District and Chapman disagree, seeing the 2.88-acre parcel as worth no more than the property as a whole and perhaps worth less; Chapman testified that he did not believe the parcel was "buildable" due to factors including sea level rise and its susceptibility to flooding and therefore would be used as a park.
We fail to see how the parties' experts' difference in assessment of the comparative value of the 2.88-acre parcel renders Chapman's methodology improper. In essence, Chapman viewed the 2.88-acre parcel as lacking value independent of the value of the entire property because he believed it was not feasible to build on the parcel itself. This view of the situation was similar to that in Allen, where the portion of property taken did not have value independent of the whole. The value of the property from which the strip was taken was not uniform; "the acreage near the boulevard was more valuable than that remote from it." (Silveira, supra, 236 Cal.App.2d at p. 617; Allen, supra, 1 Cal.2d at p. 574.) Allen rejected the property owners' contention that the condemned strip along the boulevard should be assigned the higher value and upheld the method by which the referees "averaged out the higher values ($1.64) per square foot of the front area with the lower values (25 cents) of the rear area and arrived at an average value (32 cents) per square foot for the entire tract," then "computed the value of the strip taken by multiplying the number of square feet contained therein by 32 cents." (Silveira, at pp. 617-618; Allen, at p. 576.) Allen thus upheld the appraisal method of calculating an average per unit value for the entire property and then applying that average unit value to determine the value of the condemned parcel.
GGLH's view that the 2.88-acre parcel was worth twice the average value of its entire property did not render improper Chapman's appraisal based on a view that the 2.88-acre parcel was worth at most the same as the average value of the larger property. Rather, the differing views presented a question for the jury to resolve. (People v. Loop, supra, 127 Cal.App.2d at p. 800.) The jury resolved it, awarding compensation in an amount less than GGLH's appraisal and more than the District's.
2. Denial of GGLH's Request to Present a Rebuttal Witness Was Not an Abuse of Discretion.
GGLH sought to present a previously undisclosed expert as a rebuttal witness to address what it viewed as Chapman's improper appraisal method. The court denied its request because it did not view the proposed testimony as proper rebuttal, since GGLH was aware of Chapman's appraisal, should have known how he arrived at his valuation from having deposed him, and did not cross-examine him about his methodology. In short, GGLH argues that it was entitled to offer testimony to rebut the new evidence presented when Chapman "disclosed" for the first time at trial that certain parts of the property were worth more than others, thus revealing the "impropriety of his use of a uniform per-acre valuation of the entire property." The District maintains there was nothing new in Chapman's testimony, as GGLH knew he used an average per-acre value and could have questioned him in his deposition and on cross-examination about whether this methodology was appropriate for the property at issue.
Statutory procedures govern the exchange of expert witness lists and valuation data in eminent domain cases. (§ 1258.010 et seq.; Dhaliwal, supra, 236 Cal.App.4th 1315, 1335.) Parties are required to exchange lists of expert witnesses and statements of valuation data 90 days prior to the commencement of trial (§§ 1258.210, 1258.220), and failure to comply with the statutory requirements limits the witnesses and testimony a party may present in its case in chief. (§ 1258.280; Dhaliwal, at p. 1335.) Section 1258.280" 'does not preclude a party from calling a witness in rebuttal or having a witness give rebuttal testimony that is otherwise proper.'" (Dhaliwal, supra, 236 Cal.App.4th at p. 1336, italics omitted, quoting Cal. Law Revision Com. com. 19, West's Ann. Code Civ Proc. (2007 ed.) foll. § 1258.280, p. 612.) But" 'the court should take care to confine a party's rebuttal case and his redirect examination of his witnesses to their purpose of meeting matters brought out during the adverse party's case or cross-examination of his witnesses. A party should not be permitted to defeat the purpose of this article by reserving witnesses and valuation data for use in rebuttal where such witnesses should have been called and such valuation data presented on the direct examination during the case in chief.'" (Dhaliwal, at p. 1336.)
Here, GGLH sought to present expert testimony on rebuttal because Chapman's testimony, in GGLH's view, revealed that his appraisal methodology was improper. As we have explained, we see no impropriety in the method Chapman employed. GGLH knew well before trial that Chapman assigned the same per-acre value to the 2.88-acre parcel as to the entire 137.5-acre property and, as the trial court noted, could have questioned him about how he concluded each acre should be valued the same. Even after Chapman testified that his per-acre valuation was an average of the values for different parts of the property, GGLH did not cross-examine him about the propriety of using an average figure in these circumstances. We see no reason to suspect Chapman had previously hidden his use of an average peracre value or view that some parts of the 137.5-acre property were worth more than others, and no basis for GGLH's assertion that his "disclosure" at trial "exemplifie[d] an improper 'trial by ambush' strategy."
Harbour Vista, LLC v. HSBC Mortgage Services Inc (2011) 201 Cal.App.4th 1496, 1505, the case GGLH cites, used "trial by ambush" in reference to a scenario in which a defaulting defendant in a quiet title action could appear for the first time at an adjudication hearing and present evidence of an adverse claim the plaintiff had not previously seen. The circumstances here show nothing similar.
" 'The trial court is vested with a sound discretion as to the permissible scope of evidence offered in rebuttal. [Citation.]' [Citation.]" (Tesoro del Valle Master Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 641.) We see no basis for concluding the trial court abused that discretion in denying GGLH's request to present its rebuttal witness.
3. The Trial Court Did Not Err in Declining to Give GGLH's Proposed Jury Instruction.
After Chapman's testimony, GGLH argued that because "[t]he law forbids" the analysis he used, it was necessary for the court to instruct the jury, "An appraiser may not apply the same average acre value for the entire property to the 2.88 acres being condemned, unless each square foot of defendants' land has the same value." GGLH now argues the court's refusal to give this "curative" instruction requires reversal.
Given our conclusion that Chapman's appraisal was not improper, we cannot find error in the trial court's failure to give this instruction.
DISPOSITION
The judgment is affirmed. Costs are awarded to Respondent.
We concur. RICHMAN, J., MILLER, J.