Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC280370, Lee Smalley Edmon, Judge.
Blum Collins, Steven A. Blum; Peterson Law Group, John S. Peterson and Joseph A. Schwar for Plaintiff and Appellant.
Brian A. Cardoza and Richard D. Arko for Defendant and Respondent Southern California Edison Company.
Rockard J. Delgadillo, City Attorney, Claudia McGee Henry, Sr. Assistant City Attorney, and Gerald M. Sato, Deputy City Attorney, for Defendant and Respondent City of Los Angeles.
ARMSTRONG, J.
Uniwill L.P. ("Uniwill") appeals the summary judgment entered in favor of defendants City of Los Angeles (the "City") and Southern California Edison Company ("Edison") in this lawsuit for inverse condemnation. The trial court ruled that the undisputed facts establish that Edison maintained existing facilities on Uniwill's property at the time its tentative tract map was issued and that, as a consequence, Uniwill was required to relocate Edison's fiber optic cable lines at its own expense. We agree, and so affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The factual background recited below comes from our prior opinion in Uniwill L.P. v. City of Los Angeles (2004) 124 Cal.App.4th 537 ("Uniwill I"), as well as the record on appeal. We state the facts consistent with the rules, on review of a summary judgment, that "we view the evidence in the light most favorable to plaintiffs" and "liberally construe plaintiffs' evidentiary submissions and strictly scrutinize defendants' own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiffs' favor." (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)
In the mid to late 1990s, Uniwill bought individual parcels of real property in the Pico-Union district of Los Angeles, just west of downtown, ultimately acquiring approximately eight acres bounded by Sixth Street to the north, Wilshire Boulevard to the south, Union Avenue to the east and Burlington Avenue to the west (the "Property"). Shatto Street bisected the Property, running east/west midway between Wilshire Boulevard and Sixth Street.
Uniwill was aware that the City of Los Angeles planning staff had determined that the section of Shatto Street between Union and Burlington was no longer necessary as a public street, and was therefore a candidate for "vacation," that is, termination of the public street easement and reversion of the right-of-way back to the adjacent property owners. Based upon that knowledge, Uniwill proposed to develop a shopping center on the Property, including the area occupied by Shatto Street which was expected to be vacated.
On August 9, 1999, Uniwill applied to the City Advisory Agency for a Tentative Tract Map; Tentative Tract Map No. 52972 (the "TTM") was issued on December 20, 1999, approving construction of Uniwill's shopping center project (the "Project") subject to certain conditions. Based on that approval, Uniwill obtained the necessary building permits, arranged construction financing, and commenced construction of the Project, valued at between $20 and $30 million.
When the construction was well under way (grading and underground excavations were complete, rough plumbing and utilities had been installed, and foundations for major structures had been erected, which work together represented approximately 20 to 25 percent of the work to be done on the Project), and after Uniwill had expended some $6.5 million, Uniwill learned that the City maintained that, as a condition of the TTM, Uniwill was required to relocate an overhead utility line which Edison had recently constructed on the Shatto Street right-of-way. Specifically, the City demanded that Uniwill convey to Edison an easement (the "Edison easement") for a fiber optic communications cable (valued at $35,000 to $40,000), complete certain trenching work (which cost approximately $220,000), and pay a fee ($79,570); if Uniwill refused, the City would not issue a Final Tract Map for the project. Although it did not believe that these terms were in fact a condition of the TTM, Uniwill determined that it was economically unfeasible to stop the Project and commence litigation to vindicate its rights. Consequently, Uniwill complied with the City's demand, which it termed an "unlawful exaction," under protest and, after completing the Project, filed suit in inverse condemnation.
The City demurred to the complaint, and Edison moved for judgment on the pleadings. The City argued that the Edison easement was a condition of the TTM, and as such, Uniwill had 90 days to challenge the permit condition pursuant to Government Code section 66499.37. Edison concurred, and also maintained that the complaint failed to state a cause of action against it for inverse condemnation and economic duress. The trial court rejected the contention that the Edison easement was a condition of the TTM, but concluded that the lawsuit was barred under Government Code section 66499.37, because it was not filed within 90 days of defendants' demand that Uniwill grant the easement and install the fiber optic cable facility or forfeit the Final Tract Map approval.
Uniwill appealed, and in Uniwill I, this court reversed. We ruled that the five-year limitations period for inverse condemnation applied, not the 90-day period found in Government Code section 66499.37. We also found that the complaint stated a cause of action for inverse condemnation and economic duress against Edison.
After remand, the City and Edison filed separate motions for summary judgment. They argued, as they had in support of their earlier motions, that the TTM contained the condition which placed on Uniwill the burden of the underground installation of Edison's fiber optic cable line on the Property. The language of the TTM upon which defendants relied read:
"5. That the portion of Shatto Street adjoining the tract property be permitted to be merged with the remainder of the subdivision pursuant to Section 66499.20-1/2 of the State Government Code, and in addition, the following be done and be administered by the City Engineer:
"[¶]
"b. That satisfactory arrangements be made with all public utility agencies maintaining existing facilities within the area being merged."
Defendants contended that the undisputed facts established that, as of date the TTM was approved, Edison "maintain[ed] existing facilities within the area being merged." In opposition to the summary judgment motions, Uniwill argued first that this court ruled in Uniwill I that the Edison easement was not a specific requirement of the TTM, and thus, the doctrine of law of the case precluded defendants' relitigation of the issue of whether the TTM required Uniwill to undertake the work which the City had demanded. Uniwill also maintained that the evidence presented to the trial court showed "that Edison did not install the cable until some time in the spring of the year 2000. Prior to that time the only 'installation' was a few wooden cross arms which, in addition to being of negligible value, bore no visible sign or identification." However, the trial court sustained defendants' objections to Uniwill's evidence in support of this contention. In the absence of evidence contradicting the evidence proffered by defendants, the trial court concluded that the undisputed facts established that Edison had an existing facility on the Property on December 20, 1999. Accordingly, it entered judgment for defendants.
The cross-arms were in fact attached to City-owned telephone poles which were slated to be removed pursuant to the terms of the TTM.
Uniwill appeals that judgment.
STANDARD OF REVIEW
"Summary judgment is properly granted when the evidence in support of the moving party establishes that there is no issue of fact to be tried. [Citations.] The trial court must decide if a triable issue of fact exists. If none does, and the sole remaining issue is one of law, it is the duty of the trial court to determine the issue of law." (Torres v. Reardon (1992) 3 Cal.App.4th 831, 836.)
"[W]e review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained." (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 334.) "This court exercises its independent judgment as to the legal effect of the undisputed facts disclosed by the parties' papers. In so doing, we apply the same three-step analysis required of the trial court: We first identify the issues framed by the pleadings, since it is these allegations to which the motion must respond. Secondly, we determine whether the moving party has established facts which negate the opponents' claim and justify a judgment in the movant's favor. Finally, if the summary judgment motion prima facie justifies a judgment, we determine whether the opposition demonstrates the existence of a triable, material factual issue." (Torres v. Reardon, supra, 3 Cal.App.4th at p. 836, internal citations omitted.)
DISCUSSION
1. Law of the case
Uniwill maintains that "This court already ruled in its 2004 opinion in this case that the Edison easement was not contained in the Tentative Tract Map." Thus, Uniwill relies on the doctrine of law of the case to argue that the summary judgment must be reversed.
"'The doctrine of "law of the case" deals with the effect of the first appellate decision on the subsequent retrial or appeal: The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.'" (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491 [emphasis deleted], quoting 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 895, p. 928.)
The gravamen of Uniwill's complaint in inverse condemnation is that the defendants engaged in conduct amounting to economic duress in order to force Uniwill to grant Edison an easement, and to bear the financial burden of the installation a new fiber optic cable line on the Property. As we explained in Uniwill I, "The City demurred to the complaint. However, rather than admit the allegations of the complaint for purposes of the demurrer, the City contradicted the allegations of the complaint. It requested that the trial court take judicial notice of the Tentative Tract Map, which it contended contained the Edison easement." (Uniwill I, supra, 124 Cal.App.4th at p. 540.) In effect, the defendants presented evidence to prove that the easement which Uniwill claimed was taken by inverse condemnation was in fact a condition of the TTM. As the trial court recognized, this was not a proper use of a demurrer. Thus, that court rejected defendants' analysis based on the controverted permit condition. Rather, it ruled that the 90-day statute of limitations of Government Code section 66499.37 commenced to run on May 20, 2000, the date Uniwill learned of the City's demand that Uniwill grant the Edison easement.
This court agreed with the trial court that the allegations of the complaint did not permit defendants' challenge to the timeliness of the complaint based on the supposed permit condition. "Uniwill alleged that the City's demand that it grant Edison an easement, which demand was made after the Tentative Tract Map had been approved and substantial work on the project had been completed, was not a requirement imposed by the Advisory Agency as a condition for the grant of permission to develop the property. Rather, it was merely a threat, uttered by a City representative with the power (although not the authority) to deprive Uniwill of what it was legally entitled to, issuance of a Final Tract Map and a Certificate of Occupancy upon completion of the project in conformity with the governmental approvals already issued." From this we concluded, "Because it is the City's burden on demurrer to establish that Uniwill cannot prevail at trial, the demurrer should have been overruled." That conclusion did not depend upon a ruling by this court that the Edison easement was not a condition of the TTM. Rather, it was based on the allegations of the complaint, which if proved at trial, would establish that the Edison easement was not a condition of the TTM. The doctrine of law of the case has no application to the situation before us.
2. The undisputed evidence establishes Edison maintained existing facilities on the Property at the time the TTM was issued
The parties agree that if Edison "maintained existing facilities" on the Property on December 20, 1999, the date the TTM was issued, then pursuant to the terms of the TTM, Uniwill was required to relocate those facilities at its own expense. Likewise, all parties also agree that, if Edison did not maintain existing facilities on the Property on December 20, 1999 but, for instance, did maintain such facilities on January 1, 2000, that Uniwill would have no obligation under the TTM to relocate those facilities. Thus, as the trial court noted, the meaning of the term "maintain existing facilities" as it appears in the TTM is the critical issue in this case.
Defendants proffered the declaration of Santiago Perez, an Edison employee whose duties included designing and planning the construction of the company's wireless facilities, to establish the existence of Edison's facilities on the Shatto Street right-of-way bisecting the Property prior to December 20, 1999. Mr. Perez explained that, in 1998, "SCE began the preparation for the installation of a fiber optics cable route to run from Hillhurst Avenue to 611 Wilshire Boulevard in the City of Los Angeles. This fiber optics route was a continuation of an existing line which commenced at SCE's La Cienega substation." Mr. Perez continued: "In July 1999, I coordinated with a third-party contractor, Arizona Pipeline, to begin laying street-grade infrastructure to accommodate the fiber optics lines. Underground conduit facilities were placed near LADWP utility poles at each end of Shatto in order to permit fiber optic lines to run beneath the street at those locations. Thus SCE had fiber optic facilities in place on Shatto Street, as early as July 1999." Mr. Perez further stated that "phase one" of the fiber optics construction project, including installation of crossarms, brackets, blocks and fiber optic cable on the Shatto Street telephone poles, was completed by November 15, 1999. "Phase two of the project consisted of sp[l]icing the cable and hooking up the connections. This final phase was accomplished during the first quarter of 2000."
While Uniwill submitted declarations to controvert Mr. Perez's statement that cable was strung on the poles prior to December 20, 1999, that evidence was not authenticated and/or was inconclusive. Specifically, Uniwill relied on the declarations of two of its principals, David Oved and Fred Leeds, to create a triable issue of fact regarding the date the cable was strung. Messrs. Oved and Leeds, in turn, relied on unauthenticated photographs bearing the dates of November 29, 1999 and December 15, 1999, to rebut Mr. Perez's declaration that fiber optic cable was strung on the Shatto Street poles prior to December 20, 1999. Mr. Oved also declared that "Although I have testified in deposition that I do not know exactly when the fiber optic cable was installed, I do know it was not in place on the utility poles on Shatto Street until some time in the year 2000 after the Tentative Tract Map had been approved." Mr. Leeds declared "Some time in the spring of 2000, probably in the month of March, I observed a truck and a number of workmen stringing a utility line on the poles on Shatto Street. I spoke to one of the crew doing the work and was informed it was a fiber optic cable for the Southern California Edison Company. While I have stated in deposition that I cannot specify the exact date when the fiber optic cable was installed, I can state with certainty that it was not installed until some time in the year 2000."
Defendants objected to this evidence, and the trial court ruled that the foregoing statements of Messrs. Oved and Leeds, as well as the unauthenticated photographs, were inadmissible for lack of foundation and because they were based on hearsay. Uniwill does not challenge these evidentiary rulings on appeal. Indeed, in its reply brief, Uniwill states that "the evidence to which objections were sustained below is not essential to this appeal and was included only to aid the narrative." However, while Uniwill is insistent in its claim that it "does dispute that Edison had existing utility facilities on Shatto Street when the TTM was issued," it cites no admissible evidence to counter defendants' evidence to the contrary, but refers this court only to its attorney's argument in opposition to Edison's summary judgment motion, and to its separate statement in opposition to the motion, which is itself nothing more than an argument about the meaning of the term "existing facility." Consequently, the only evidence before the trial court concerning the status of the Edison facilities on the Shatto Street right-of-way on December 20, 1999 was the declaration of Mr. Perez.
Uniwill contends that declarations of Mr. Perez submitted in support of defendants' summary judgment motions presented inconsistencies which required resolution by way of trial. But these alleged inconsistencies do not undermine the veracity of Mr. Perez's statement that "phase one" of the construction project, including stringing of fiber optic cables, was completed by November 15, 1999.
The trial court properly determined that the only evidence before it established that Edison had completed the installation of its new fiber optic facilities on the Property at the time the TTM was issued. Uniwill is thus left to argue that the permit condition did not apply to Edison's utility facility because, although it was physically extant, it did not become operational until sometime after December 20, 1999. This Uniwill does by reference to Streets and Highways Code section 700, subdivision (b).
Indeed, both Uniwill and defendants rely on this statutory definition to argue their respective positions. We question whether the Streets and Highway Code definition of "utility facility" has any application to this case. Section 701 of the code states that "This article is limited to state highways which are or shall become freeways." That language seems to exclude the subject Property. However, since the parties rely on the definition, we quote the statute here.
The referenced code section defines "utility facility" as ". . . any pole, poleline, pipe, pipeline, conduit, cable, aqueduct, or other structure or appurtenance thereof used for public or privately owned utility services or used by any mutual organization supplying water or telephone service to its members." Based upon this definition, Uniwill contends that "there can be no 'utility facility' unless it, per the language of the code, is being 'used for . . . utility services.' In other words, unless utility services are being provided by the system, none of its components is being 'used for . . . utility services.'"
Edison counters, "The fact the fiber-optic line may not, as yet have been 'switched on' before issuance of the TTM is irrelevant. The test is not whether the system was fully operational, but rather whether the existing facilities were in conflict with the Project. The express language of the TTM required the accommodation of all 'existing facilities,' not just those operating at a specific point in time."
We deduce from the foregoing that Uniwill reads the phrase "maintain existing facilities" in the permit condition to refer to the actual utility service provided by a utility to a customer (here, presumably, internet service), while defendants use the term to refer to all of the pieces of equipment which together make up the physical components which enable the utility to provide the service. We believe that defendants have the better argument. The permit condition is concerned with relocating the physical components which together enable the utility to provide the service to a customer. And it was these physical components, which were located on telephone poles which Uniwill wished to remove, which were in conflict with the Project.
In sum, the dispositive issue in this case is whether or not Edison, within the meaning of the TTM, "maintain[ed] existing facilities" on the Property on December 20, 1999. The only admissible evidence on this question was contained in a single declaration, that of Edison employee Santiago Perez. Mr. Perez declared that construction of the portion of its new fiber optic cable line which traversed the Property was completed by November 15, 1999, although the line did not actually provide utility service to Edison customers until the first quarter of 2000. We conclude that, under these facts, Edison maintained existing facilities on the Property at the time the TTM was issued. Because Uniwill concedes that it was required to relocate, at its own expense, all facilities which existed on the Property on December 20, 1999, Uniwill cannot prevail in this action for inverse condemnation.
Finally, relying on Klopping v. City of Whittier (1972) 8 Cal.3d 39 ("Klopping"), Uniwill contends that even if Edison's cable was an "existing utility" within the meaning of the TTM, and the burden of its relocation therefore fell on Uniwill, "the unreasonable manner in which it became an existing utility makes it a de facto taking of Uniwill's land." The argument lacks merit.
In Klopping, the value of private property was significantly diminished, due not to a governmental taking, but due to a governmental agency's precipitous pre-condemnation statements. The Supreme Court found that "when the condemnor acts unreasonably in issuing pre-condemnation statements, either by excessively delaying eminent domain action or by other oppressive conduct, our constitutional concern over property rights requires that the owner be compensated. . . . [¶] Accordingly, we hold that a condemnee must be provided with an opportunity to demonstrate that (1) the public authority acted improperly . . . by unreasonable conduct prior to condemnation; and (2) as a result of such action the property in question suffered a diminution in market value." (Klopping, supra, 8 Cal.3d at pp. 55-57.)
Here, there was no condemnation, and thus there was no pre-condemnation conduct which might form the basis of a Klopping claim. The Edison facilities predated the TTM, and were acquired in the usual course pursuant to a longstanding Joint Pole Agreement between Edison and the City. There was no evidence that Edison obtained rights in the Shatto Street right-of-way with knowledge of Uniwill's development plans. Rather, Uniwill agreed to relocate Edison's utility facilities as a condition to the vacation of Shatto Street and the grant of a Final Tract Map. Thus, there was no unreasonable action on the part of defendants which would constitute a de facto taking of Uniwill's property.
In sum, because the uncontradicted evidence shows that, pursuant to the terms of the TTM, Uniwill was required to relocate at its own expense the Edison facilities that existed on December 20, 1999, Uniwill cannot prevail in this action for inverse condemnation.
DISPOSITION
The judgment is affirmed. Respondents to recover costs on appeal.
We concur: TURNER, P. J., MOSK, J.
Uniwill also complains that Edison employee Ed Alvarez changed his deposition testimony, raising a triable issue of fact. At his deposition, Mr. Alvarez was asked to examine a photograph of the Shatto Street right-of-way purportedly taken a few days before December 20, 1999, and to state whether Edison's fiber optic cable line appeared to be hanging on the poles. He answered in the negative. He subsequently "corrected" his deposition testimony to state "Pictures are unclear. Hard to tell[;] could possibly be fiber optic line on cross arms." The photograph to which Mr. Alvarez's testimony refers was not admitted into evidence. Consequently, whether or not Mr. Alvarez observed Edison's fiber optic cable facility in place on the poles as depicted in the photograph is irrelevant.