Opinion
Rehearing Denied May 2, 1960.
Hearing Granted June 2, 1960.
Opinion vacated 9 Cal.Rptr. 601.
George C. Hadley, Joseph A. Montoya, Hugh R. Williams, Charles E. Spencer, Jr., Los Angeles, for appellant.
Hodge L. Dolle and J. Marion Wright, Los Angeles, for respondents.
FOURT, Acting Presiding Justice.
This is an appeal from a judgment in a condemnation action.
The State Highway Commission, by a resolution, a copy of which was attached to the complaint in the action, declared the The proceedings were taken and the properties condemned pursuant to what is referred to as a 'Chapter 20 Provision.' Chapter 20, Statute of 1952--Second Extrza-Ordinary Session, p. 463. In the first instance a trial date was contemplated before January 2, 1957, just two days before the expiration of one year from the issuance of summons. Counsel for the defendants was then engaged in other trial work and an agreement between counsel as to a trial date was made and entered into. Trial was set for May 21, 1957, and it was stipulated that the date of value should remain as the date of issuance of summons (for that trial only). The first trial started on May 21, 1957 and continued through June 18, 1957. A jury returned a verdict for $610,763. The plaintiff made a motion for a new trial, and the same was denied on September 12, 1957. An appeal was taken by the plaintiff on September 18, 1957 and the judgment was reversed. See, People v. Murata, 161 Cal.App.2d 369, 326 P.2d 947. The remittitur was filed with the Superior Court on August 18, 1958 and a request for a setting was made on October 20, 1958.
On December 30, 1958 the defendants filed a 'Notice of Motion for Appointment of a Judge to Determine Prior to the Trial of Factual Issues, the Date Valuation.' The hearing on that motion was held on February 26, 1959 and on March 2, 1959 the Court ordered as follows:
'* * * It is further ordered--The judgment in this case having been reversed on appeal and remanded for a new trial, the date of valuation of the property in question for the purpose of assessing compensation and damages shall be the date of the second trial.'
Pre-trial was set for April 17, 1959 and trial was set for April 27, 1959. The pretrial was continued to April 27, 1959. A petition by the plaintiff for a Writ of Prohibition and Mandamus to prevent the trial court from changing the date of value was denied by this court on March 13, 1959. Defendants filed amendments to their answer on April 27, 1959 alleging in effect an increased valuation of the parcels involved.
The jury returned a verdict for $650,103.12 based on the value as of May 4, 1959. Plaintiff's motion for a new trial was denied and notice of appeal was filed August 14, 1959.
The case involves about 53.113 acres of property on the southeast corner of Santa Ana Freeway and the San Gabriel River which will be the site of the future interchange between the San Gabriel Freeway and the Santa Ana Freeway. The property consisted of nine parcels used as a single farm, although divided into three separate units.
The only question presented is whether, in an eminent domain proceeding where judgment has been reversed on appeal for errors of law and remanded for a new trial, compensation and damages shall be deemed to have accrued at the date of the issuance of summons (date used at the first trial) or at the date of the second trial.
Section 1249 of the Code of Civil Procedure reads as follows:
'For the purpose of assessing compensation and damages the right thereof shall be deemed to have accrued at the date of the issuance of summons and its actual value at that date shall be the measure of compensation for all property to be actually taken, and the basis of damages to property not actually taken but injuriously affected, in all cases where such damages are allowed as provided in section one thousand two hundred forty-eight; provided, that in any case in which the issue is not tried within one year after the date of the commencement of the action, unless the delay is caused by the defendant, the compensation It was in 1911 that the Legislature added that part of the code section which declares that in cases wherein the issue is not tried within one year after commencement of the action the compensation and damages shall be deemed to have accured at the date of trial.
Appellants contend that:
'(1) Once the case is 'tried within one year,' as in the instant, case, the date of value may not shift; (2) A retrial following a reversal must be a re-examination of an issue of fact theretofore tried and the only issue of fact to be retried is the valuation which must be of the same date; (3) The law of the case requires a retrial with the same valuation date in that otherwise the case is entirely different from the one reversed on appeal; (4) The delay in causing the retrial to be held beyond one year from commencement of the action must be laid at the door of the defendants which means that the exception in Section 1249 Code of Civil Procedure which provides for the valuation date being the date of trial cannot of effective.'
Appellant further asserts that this case was tried within one year and that in any event any delay was caused by the defendant. As might be suspected property gencrally and the parcels in question in particular have continually increased in value for the past several years and such was reflected in the second verdict.
For the purposes of this opinion it will be considered that the first trial was held within one year from the date of issuance of summons. The plaintiff makes no contention that the stipulation entered into between the attorneys should be binding as to the second trial.
The late Clarence B. Runkle, Judge of the Superior Court, trial judge in the case of People v. Loop, No. 574,769, wrote an opinion with reference to the matter therein closely allied to the question here. We quote with approval some parts of that opinion:
"Trial' is a proceeding where issues of law or fact are examined and determined so as finally to dispose of the controversy. (Goldtree vs. Spreckles [Spreckels], 135 Cal. 666 [67 P. 1091]; City of Pasadena vs. Superior Court, 212 Cal. 309, 313 [298 P. 698]; Broder vs. Conklin, 98 Cal. 360, 362 [33 P. 211]; Hastings vs. Hastings, 31 Cal. 95, 98; San Joaquin etc. Irrigation Co. vs. Stevinson, 30 Cal.App. 405, 414 [158 P. 768].)
'The word 'trial' as used in Sec. 1249, C.C.P. must therefore be construed to mean the trial that disposes of the case. The reversal on appeal completely set aside the prior trial and its results, with the same effect as though it had never occurred, and put the case back in its status before that trial (Sharp vs. Miller, 66 Cal. 98 [4 P. 1065]; Central Savings Bank of Oakland vs. Lake, 201 Cal. 438, 443 [257 P. 521]; Atchison, Topeka & Santa Fe Railway Co. vs. Superior Court, 12 Cal.2d 549 [86 P.2d 85]; Benjamin vs. Ver Nooy [168 N.Y. 578], 61 N.E. 971).
'It follows that the valuation date in the case at bar is now the date of the trial which is about to commence, sometimes referred to as the second trial, but in reality the only trial in this case unless the judgment resulting therefrom is also reversed and this trial is therefore completely set aside as though it had never occurred.
'The case of City of Los Angeles vs. Morris, 74 Cal.App. 473 [241 P. 409], relied on heavily by the plaintiff, is not applicable. It construes the Street Opening Act of 1903 which provides two alternative, 'The court says at page 478 of [74 Cal.App., at page 411 of 241 P.] the Morris case: 'The purpose of the legislation contained in section 10 of the statute was that prior to trial of the action a time be fixed, with relation to which the compensation to be awarded should be established according to the actual value of the property at the date so appointed. The issue of fact was thus made and settled for determination upon the evidence thereafter to be taken.' (Emphases added.) The purpose of the statute was thus recognized to provide a valuation date in advance of the trial so that the evidence of valuation could be prepared in a completed form for presentation at the trial. It is this light that the court then proceeds to say: 'We find in the statute nothing to indicate that the date, with relation to which compensation shall be measured and damages assessed in such cases, shall be shifted along from time to time by means of continuances of the trial, or even by means of an order granting a new trial in the action.' This latter statement obviously could not be applied to the language in Sec. 1249 now in question because the time of trial can 'be shifted along from time to time by means of continuances of the trial.' Such continuances, if brief, would probably have little bearing on valuation, but if extended as they often are, could have a definite effect on valuation. Furthermore, since 'trial' means a proceeding in which facts are not only examined, but are actually determined, a mistrial could result in shifting along the trial date to a very much later time.
'It is at once apparent from these considerations that there is a vast difference between 'date of the order setting the cause for trial' which was construed in the Morris case, and 'the date of the trial' in Sec. 1249 which we now have to construe. The former is a definite fixed date, the latter is a movable event. Presumably it was in recognition of this that the court in the Morris case compared the language which it there had to construe with the language in the first part of Sec. 1249 which fixes a definite immovable valuation date.
'* * * 'Trial' means the proceeding which effectively disposes of the controversy. There has therefore been no trial in this sense as yet in the pending action, and the valuation date must therefore be determined to be the time of the forthcoming trial.
'If there were any doubt in regard to this, it would have to be resolved in favor of the defendant because eminent domain statutes must be strictly construed in favor of the party whose property is being taken. (Bensley vs. Mountain Lake Water Co., 13 Cal. 306.)'
In Mitchel v. Brown, 78 Cal.App.2d 58, at page 62, 176 P.2d 957, at page 959, it was said:
'* * * The judgment was reversed generally and the effect was to remand the case for a retrial on all issues, as though it had never been tried at all. (* * *) The effect of that decision was to leave the case open for retrial on all of the issues raised by the pleadings, with any amendment that might be made.'
And, in Benjamin v. Ver Nooy, 168 N.Y. 578, 61 N.E. 971, 972, it was stated:
'In a certain sense there is but one trial of an action, for a trial that it so infected with error as to be reversed on appeal is, in effect, no trial at all. * * * It does Appellant places great reliance upon the cases of Allyne v. Superior Court, 200 Cal. 661, 254 P. 564 and In re Alpine, 203 Cal. 731, 265 P. 947, 58 A.L.R. 1500. However, in our opinion, neither of the cases cited is controlling or has to do with the subject matter involved in this case. In the Allyne case the Court stated that [200 Cal. 661, 254 P. 565]:
'* * * The principal question involved is whether the mandatory provisions of section 583, Code of Civil Procedure, require the dismissal of an action which has not been brought to trial within five years after the granting of a motion for a new trial. We are of the opinion that neither section 583 nor any other section of the code compels a trial judge to dismiss an action under such circumstances.
* * *
* * *
'The plain and obvious purpose of the foregoing section is to regulate the matter of compulsory dismissals only under one set of circumstances, to wit, where an answer has been filed and the action has not been brought to trial within five years thereafter. * * *'
The Alpine case was a criminal matter and involved the interpretation of Section 1382 of the Penal Code.
Appellant asserts further that the prior holding of this Court in People v. Murata, 161 Cal.App.2d 369, 326 P.2d 947, (Division Two) would be inconsistent with determining value as of the date of the second trial. We have read the opinion carefully and we find nothing therein which would or would even attempt to preclude the setting of a new valuation date.
Appellant also insists that the retrial was caused by the defendants inducing the trial judge to make certain mistakes and 'but for' defendants objecting to certain testimony of the plaintiff there would have been no appeal and no reversal. We entertain no doubt after reading the record of the first trial proceedings that the defendants' counsel were perfectly sincere and ethical in their representation of the defendants. Some of the questions of law involved were ultimately decided against them but that is not to say that their contentions were in anywise frivolous. At least one trial judge of considerable experience and one very able member of the Supreme Court determined that they were right. We cannot believe that the Legislature had any such a situation as this in mind when it wrote in the Amendment the words, 'unless the delay is caused by the defendant.'
Appellant also complains that it has been severely prejudiced. It is true that in the second trial the amount awarded was greater for five of the parcels than was allowed in the first trial. However, the value of real estate is by no means constant and the plaintiff knew full well what it was confronted with when it followed the course which it did follow.
It would seem only fair and just to the property owner that he should be compensated as of the date of the trial under the circumstances of this case. There is an obvious economic unfeasibility in compelling the defendants to be at the mercy of the court processes which may take years and years before there is a final determination of the action. To deny the defendant any increase in the value of the property under the circumstances here presented is akin to withholding due process.
The judgment is affirmed.
LILLIE, J., and ROBERT H. SCOTT, J. pro tem., concur.