Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIC862025, Yuri Hofmann, Judge.
McDonald, J.
William David Horner, doing business as Dave Horner Trucking (Horner), appeals a judgment entered after a jury verdict did not award him compensation for loss of business goodwill in the condemnation action brought by the State of California Department of Transportation (CalTrans) against Horner and others. On appeal, Horner contends the trial court erred by: (1) instructing on Civil Code section 1945; (2) refusing to give his requested special instructions; (3) admitting the testimonies of an expert witness and a percipient witness presented by CalTrans; (4) excluding some of his cross-examination of that percipient witness; and (5) denying him compensation for the loss of vehicles and other equipment. Horner asserts that as a result of these trial court errors he is entitled to a new trial on the issue of compensation for his loss of business goodwill.
All statutory references are to the Civil Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Beginning in 1992, Horner and his brother, Darryl Horner, operated a trucking business on that portion of a Santee property (Property) they rented from William Payne and Boyd Smith, the Property's owners. Apparently at least through 1996, the Horners were lessees under a written lease for the Property, which provided for a month-to-month term that could be terminated on 30-days' notice and any holdover was deemed a month-to-month tenancy.
In or about 2002, their business was losing money and Horner bought his brother's one-half interest in the business. Horner continued renting the Property on a month-to-month basis following expiration of the written lease, paying rent of about $1,350 per month. In 2003 and 2004, his business lost money. In 2005, his business earned a small profit, but that profit apparently did not reflect the cost of Horner's personal services.
In November 2005, CalTrans gave Horner notice of intent to take the Property in condemnation and his eligibility for relocation benefits. On March 1, 2006, CalTrans filed this eminent domain action for condemnation of the Property, naming Horner and other lessees of the Property as defendants, along with the Property's owners. On May 25, Horner filed an answer, requesting the condemnation be denied but, if granted, that he be awarded just compensation for his loss of business goodwill and other losses caused by the taking.
On or about November 20, 2006, the trial court issued a writ of possession to remove Horner from the Property. In December, Horner was removed from the Property.
In June 2007, in the first phase of the bifurcated trial, a bench trial was conducted on Horner's entitlement to compensation for lost business goodwill. The court found Horner had proved he made reasonable, albeit unsuccessful, efforts to relocate his business and satisfied the other requirements for entitlement to an award of compensation for lost business goodwill. The trial court stated, "Horner had occupied the premises at Magnolia since 1992. Initially, he was there under a lease, but that somehow became converted into a month-to-month tenancy through what appears to be neglect or comfort between the parties. It's unclear why that happened, but it was a month-to-month tenancy at the end."
In August, in the second phase of the trial, a jury trial was conducted on the amount of compensation Horner should be awarded for lost business goodwill. The jury returned a verdict finding Horner had not lost any business goodwill. On November 2, the trial court denied Horner's motion for new trial and entered judgment in condemnation awarding Horner $0 for lost business goodwill. Horner timely filed a notice of appeal.
DISCUSSION
I
General Principles of Eminent Domain Law
" 'An owner is entitled to just compensation for property taken for public use. [Citations.]' [Citation.] The principle behind the concept of just compensation is to put the owner in as good a position pecuniarily as he would have occupied if his property had not been taken. [Citations.] But it is the duty of the state to see that compensation is just not merely to the individual whose property is taken, but to the public that is to pay for it. [Citation.] 'The just compensation required by the constitution to be made to the [property] owner is to be measured by the loss caused to him by the appropriation. He is entitled to receive the value of what he has been deprived of, and no more. To award him less would be unjust to him; to award him more would be unjust to the public.' [Citations.]" (City of Carlsbad v. Rudvalis (2003) 109 Cal.App.4th 667, 678.)
"Where all the property subject to a lease is acquired for public use, the lease terminates." (Code Civ. Proc., § 1265.110.) "When condemnation terminates a tenancy, the lessee is ordinarily entitled to share in the condemnation award to compensate for the value of his or her leasehold interest. ([Code Civ. Proc.,] § 1265.150; City of Vista v. Fielder (1996) 13 Cal.4th 612, 616 [54 Cal.Rptr.2d 861, 919 P.2d 151].)" (Redevelopment Agency of San Diego v. Attisha (2005) 128 Cal.App.4th 357, 366 (Attisha).) As the California Supreme Court explained, "[f]or purposes of the Eminent Domain Law, [a leasehold] interest may carry what is called 'bonus value'--which may be defined as 'the present value of the difference between economic rent, i.e., the value of market rental, and the contract rent through the remaining lease term.' [Citation.]" (City of Vista v. Fielder, at p. 617, fn. 1, quoting New Haven Unified School Dist. v. Taco Bell Corp. (1994) 24 Cal.App.4th 1473, 1478-1479.) "The bonus value usually assumes importance only in long-term commercial leases." (New Haven Unified School Dist., at p. 1479.) "In short-term leases, the lessee will have at best a small claim against the condemning authority." (Ibid.) Horner does not seek any bonus value for his leasehold interest in this case.
"[T]he Eminent Domain Law recognizes that, generally, a lessee is entitled to 'compensation for the value of his leasehold interest [taken], if any, and any of his property taken' therewith, including 'goodwill.' [Citations.]" (City of Vista v. Fielder, supra, 13 Cal.4th at pp. 616-617.) In contrast to the bonus value of a lessee's leasehold interest as a lessee, "a lessee may possess goodwill as owner of a business." (Id. at p. 617, fn. 1.) "[G]oodwill can exist apart from a leasehold, and a leasehold can exist apart from goodwill." (Id. at p. 620, fn. 6.) In this context, "goodwill" is defined as "the benefits that accrue to a business as a result of its location, reputation for dependability, skill or quality, and any other circumstances resulting in probable retention of old or acquisition of new patronage." (Code Civ. Proc., § 1263.510, subd. (b).) " 'Goodwill value is a transferable property right which is generally defined as the amount a willing buyer would pay for a going concern above the book value of the assets.' [Citation.]" (Attisha, supra, 128 Cal.App.4th at p. 367.) There is no single acceptable method for valuing loss of goodwill. (Id. at p. 368; City of San Diego v. Sobke (1998) 65 Cal.App.4th 379, 389.) Rather, valuation of goodwill lost in a particular case must be determined on its own facts and circumstances. (Attisha, at p. 368; Sobke, at p. 389; In re Marriage of Foster (1974) 42 Cal.App.3d 577, 583.)
"The business owner has the initial burden of showing entitlement to compensation for lost goodwill. This entails proof the condemnation caused the loss, the loss cannot reasonably be prevented by relocating the business or otherwise mitigating damages, and compensation for the loss will not be included in relocation benefits allowed under Government Code section 7262 or otherwise duplicated in the condemnation award. (Code Civ. Proc., § 1263.510, subd. (a).)" (Attisha, supra, 128 Cal.App.4th at p. 367.) "Whether the qualifying conditions for such compensation [citation] have been met is a matter for the trial court to resolve. Only if the court finds these conditions exist [i.e., that the owner is entitled to compensation for lost goodwill] does the remaining issue of the value of the goodwill loss, if any, go to the jury. [Citations.]" (City of Santa Clarita v. NTS Technical Systems (2006) 137 Cal.App.4th 264, 270, fn. omitted.) The trier of fact determines the amount of the loss of goodwill based on the evidence admitted at trial. (Attisha, supra, at p. 367; People ex rel. Dept. of Transportation v. Salami (1991) 2 Cal.App.4th 37, 45.) Neither party bears the burden of proof to show the amount of the goodwill loss, if any. (Code Civ. Proc., § 1260.210, subd. (b).)
II
Instruction on Section 1945
Horner contends the trial court erred by instructing on section 1945 because that instruction, in effect, stated he had only a 30-day tenancy under applicable law. He argues the court also should have instructed that section 1945 states only a presumption.
A
At trial, Horner testified he had a month-to-month rental agreement for the Property. He admitted that at his deposition he stated he knew he could give the Property's owners one month's notice of lease termination and then move his business.
Chris Pedersen, Horner's valuation expert, testified Horner lost $525,000 in business goodwill because of CalTrans's taking of the Property. That valuation apparently was based, in part, on Pedersen's assumption that Horner had a year-to-year (instead of a month-to-month) rental agreement for the Property. On cross-examination, CalTrans's counsel asked Pedersen whether Horner had a month-to-month rental agreement for the Property. Pedersen answered: "Well, he [Horner] had a year-to-year rental. What would -- without drawing a legal conclusion, what I would say is a year-to-year lease." Nevertheless, Pedersen admitted he knew Payne, one of the Property's owners, stated at his deposition that he and Horner had a verbal 30-day rental agreement and either could terminate that agreement on 30 days' notice.
On cross-examination, Horner testified he had not told Pedersen he had a month-to-month tenancy.
In contrast, Robert Taylor, CalTrans's valuation expert, testified Horner did not have any business goodwill at the time of its taking of the Property. His opinion was based, in part, on his assumption Horner had a month-to-month rental agreement for the Property. Taylor testified that because Horner had a month-to-month rental agreement, there was no guarantee a hypothetical willing buyer of Horner's business would pay rent of $1,350 per month "going forward" because the lease could be terminated on 30 days' notice. Accordingly, in calculating the goodwill value of Horner's business, Taylor assumed the business would have to pay $4,700 per month in fair market rent for the Property, as Stephen Roach, CalTrans's real estate expert, had informed him.
To counter the potential impact of Pedersen's testimony that Horner had a year-to-year lease, CalTrans requested (on the last day of trial) an instruction on section 1945. Section 1945 provides:
"If a lessee of real property remains in possession thereof after the expiration of the hiring, and the lessor accepts rent from him, the parties are presumed to have renewed the hiring on the same terms and for the same time, not exceeding one month when the rent is payable monthly, nor in any case one year." (Italics added.)
CalTrans omitted the italicized language from its requested instruction, explaining that language was not applicable in this case.
In support of its request, CalTrans argued: "Pedersen tried to infer that the law was this would be a one-year lease for some reason or other. This code section says when you are paying month to month and it ends, it continues on terms as an unwritten agreement, but still month to month." It further argued: "Everyone is in agreement that there was a written lease and that it became an oral or verbal agreement between Mr. Horner and Mr. Payne and that it was always month to month, with the exception of Chris Pedersen."
The trial court stated CalTrans's proposed instruction with language from section 1945 was "an accurate reflection of the law. There is evidence with respect to this issue, [and therefore] the Court will permit it." Thereafter, the trial court instructed the jury on section 1945:
"If a lessee of real property remains in possession thereof after the expiration of the hiring and the lessor accepts rent from him, the parties are presumed to have renewed the hiring on the same terms and for the same time, not exceeding one month when the month [sic] is payable monthly."
In closing argument, CalTrans referred to that instruction's presumption and argued the weight of the evidence showed Horner had a month-to-month tenancy, despite Pedersen's testimony to the contrary.
In so arguing, CalTrans repeated the court's instruction, except CalTrans correctly used the word "rent" instead of the court's mistaken use of the word "month" in the last phrase of that instruction.
B
Horner asserts the trial court erred by instructing on section 1945 because that instruction, in effect, stated he had only a 30-day tenancy under applicable law and the court also should have instructed that section 1945 states only a presumption. In so arguing, Horner disregards the express language of the section 1945 instruction and its effect on the jury's deliberations. The section 1945 instruction expressly stated: "If a lessee of real property remains in possession thereof after the expiration of the hiring, and the lessor accepts rent from him, the parties are presumed to have renewed the hiring on the same terms and for the same time...." (Italics added.) Therefore, the clear and plain language of that instruction reflects that it provides for a rebuttable, and not a "conclusive," presumption. That instruction did not instruct the jury that it was required to find Horner had only a month-to-month tenancy. Rather, that instruction set forth only a rebuttable presumption that would apply based on findings the jury could make from the evidence that Horner remained in possession after his lease expired and Payne accepted rent from him thereafter. Based on that instruction, absent persuasive evidence to the contrary, the jury could have found Horner, in effect, "held over" his tenancy after the expiration of his lease and, by Payne's acceptance of Horner's monthly rent thereafter, had a renewed agreement for a month-to-month tenancy of the Property.
Although Horner also argues CalTrans belatedly requested the section 1945 instruction on the last day of trial and did not timely request it before trial, we are not persuaded the trial court abused its discretion by granting CalTrans's purported late request for that instruction. CalTrans requested that instruction because Pedersen testified at trial that Horner had a year-to-year rental agreement, instead of a month-to-month agreement. Had Pedersen not so testified, CalTrans presumably would not have found it necessary to request an instruction on section 1945's presumption. Therefore, before trial when CalTrans requested the majority of its instructions, it had no reason to request that section 1945 instruction. The court reasonably could have concluded CalTrans had good cause to belatedly request that instruction, based on Pedersen's trial testimony.
Horner also argues CalTrans should have advised the trial court, and the court should have instructed, apparently sua sponte, that a contrary presumption of a year-to-year rental agreement was also possible based on the evidence in this case. In support of his argument, Horner cites Miller v. Stults (1956) 143 Cal.App.2d 592. However, that case is factually inapposite. Miller stated: "A tenancy from year to year is created where a tenant holds over after the expiration of a former lease for one or more years and pays rent, nothing being said between the parties, no agreement as to the time he shall hold being made. [Citation.]" (Id. at p. 599.) In contrast, in this case there was no evidence showing Horner ever had a former lease for a term of one or more years. Rather, the evidence showed that the prior written leases expressly provided only month-to-month terms. Therefore, the evidence in this case did not support an instruction based on Miller.
We further conclude neither section 1945 nor Miller supports Horner's assertion that: "Not only did Civil Code [section] 1945 raise only a rebuttable presumption of a month to month [tenancy] but where the landlord continues to rent under the same conditions over a period of years, then [a] year to year tenancy is created under the statute." Horner does not cite, and we are not aware of, any authority supporting a conclusion that a year-to-year tenancy is created when a landlord continues a month-to-month rental agreement over a period of many years.
In any event, assuming arguendo Pedersen's testimony regarding a yearly rental agreement could have supported a Miller-type instruction, we conclude the trial court did not err by not so instructing because Horner did not expressly set forth and request a special instruction based on Miller and does not show the court had a duty to sua sponte so instruct. (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686; Weller v. American Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991, 1010; Hilts v. County of Solano (1968) 265 Cal.App.2d 161, 171.) "[A] party may not argue on appeal that the court failed to give a specific instruction when that party did not request such instruction [citations]." (Hilts, at p. 171.) "[A] trial court is not 'obligated to seek out theories [a party] might have advanced, or to articulate for him that which he has left unspoken.' [Citations.]" (Mesecher, at p. 1686.) "Generally, 'in a civil case, each of the parties must propose complete and comprehensive instructions in accordance with his theory of the litigation; if the parties do not do so, the court has no duty to instruct on its own motion [i.e., sua sponte].' [Citations.]" (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1067.) "[T]here ordinarily is no duty to instruct in the absence of a specific request by a party; the exception is a complete failure to instruct on material issues and controlling legal principles which may amount to reversible error. [Citations.]" (Agarwal v. Johnson (1979) 25 Cal.3d 932, 951, disapproved on another ground in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4.) Horner does not show the trial court completely failed to instruct on material issues and controlling legal principles by not giving a Miller-type instruction. Accordingly, the court did not have a duty to so instruct on its own motion.
Horner also argues the trial court should have sua sponte instructed that the jury could consider custom and practice and other circumstances in determining whether he had a reasonable expectation of continued tenancy of the Property. He concedes he did not expressly request such an instruction. As Horner notes, in Attisha we stated: "It was the jury's province to determine whether there was a reasonable probability of a lease renewal given the Agency's conflicting evidence the highest and best use of the property is redevelopment in the near future." (Attisha, supra, 128 Cal.App.4th at p. 373; cf. Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1041 [tenant should be allowed to amend complaint to seek compensation for value of leasehold interest (i.e., bonus value) and allege facts to support his claim that he would have been permitted to continue his tenancy beyond the lease term (e.g., on a month-to-month or long-term basis) because his business was very popular and provided a continuous flow of income to the landowner].) Furthermore, Attisha stated: "[San Diego Metropolitan Transit Development Bd. v. Handlery Hotel, Inc. (1999) 73 Cal.App.4th 517] does not suggest that when condemnation caused termination of a lease and the tenant's entitlement to goodwill is established, evidence of his or her reasonable expectation of a lease renewal is inadmissible as a matter of law in valuing goodwill loss." (Attisha, supra, 128 Cal.App.4th at p. 372.)
In the circumstances of Handlery, we stated: "Without an option to renew, Handlery had no legally protectible property interest in the continued operation of the [golf] course after the 50-year lease term expired naturally. Handlery's mere expectation is not one which is compensable in an inverse condemnation proceeding." (San Diego Metropolitan Transit Development Bd. v. Handlery Hotel, Inc., supra, 73 Cal.App.4th at pp. 532-533.) We concluded the landowner's series of short-term extensions of Handlery's tenancy pending the agency's taking of possession of the property "did not transmute [Handlery's] status to that of a business owner affected by the taking with a compensable interest for condemnation purposes. Rather, the brief terms of these successive lease extensions, culminating with a month-to-month tenancy terminable on seven days notice, define the length of time Handlery reasonably expected to remain in the business of operating the golf course. [Citation.]" (Id. at p. 538, fn. omitted.)
Assuming arguendo the principles set forth in Attisha and Kong applied in the circumstances of this case to allow Horner to present evidence, and argue to the jury, that he had a reasonable expectation his month-to-month tenancy would continue at a rent of $1,350 per month had it not been for CalTrans's taking of the Property, we conclude the trial court did not have any duty to sua sponte instruct on the principles set forth in those cases. (Pool v. City of Oakland, supra, 42 Cal.3d at p. 1067; Agarwal v. Johnson, supra, 25 Cal.3d at p. 951; Mesecher v. County of San Diego, supra, 9 Cal.App.4th at p. 1686; Weller v. American Broadcasting Companies, Inc., supra, 232 Cal.App.3d at p. 1010; Hilts v. County of Solano, supra, 265 Cal.App.2d at p. 171.) Although Horner presented evidence that could have supported a finding he had a reasonable expectation of continued tenancy despite his month-to-month rental agreement, because, as he concedes, he did not request an Attisha-type instruction, we conclude he cannot complain on appeal that the court erred by not so instructing. As noted above, "a party may not argue on appeal that the court failed to give a specific instruction when that party did not request such instruction [citations]." (Hilts, at p. 171.) "[A] trial court is not 'obligated to seek out theories [a party] might have advanced, or to articulate for him that which he has left unspoken.' [Citations.]" (Mesecher, at p. 1686.) Horner does not show the trial court completely failed to instruct on material issues and controlling legal principles by not giving an Attisha-type instruction. Accordingly, the court did not have a duty to so instruct on its own motion. Furthermore, we are not persuaded by Horner's apparent assertion that the court's instruction on section 1945 was an incorrect statement of law, or erroneous as given, because it did not also instruct on the principles set forth in Attisha and Kong. As we conclude below, the instruction on section 1945 was an accurate statement of the law. Accordingly, we conclude the trial court did not err by failing to instruct on the principles set forth in Attisha and Kong.
Horner likewise does not persuade us any request for an instruction based on the principles in Attisha and Kong would have been futile and refused by the trial court. Although the court may have found Attisha to be factually inapposite to the instant case, we presume an appropriately worded instruction setting forth general principles of law set forth therein would not have been refused by the court.
We are also not persuaded by Horner's assertion that the court's instruction on section 1945, in effect, nullified his evidence on his purported reasonable expectation of continued tenancy of the Property. Likewise, we are not persuaded by Horner's assertion that the trial court should have admonished or instructed the jury that the law did not preclude Horner from presenting evidence on the fact that, and arguing, he had a reasonable expectation of continued tenancy of the Property and that question was for the jury to decide. As noted above, absent a party's request for a specific instruction, a court has no duty to sua sponte instruct with the instruction. (Pool v. City of Oakland, supra, 42 Cal.3d at p. 1067; Agarwal v. Johnson, supra, 25 Cal.3d at p. 951; Mesecher v. County of San Diego, supra, 9 Cal.App.4th at p. 1686; Weller v. American Broadcasting Companies, Inc., supra, 232 Cal.App.3d at p. 1010; Hilts v. County of Solano, supra, 265 Cal.App.2d at p. 171.) Horner does not show the trial court completely failed to instruct on material issues and controlling legal principles by not giving such an instruction. Accordingly, the court did not have a duty to so instruct on its own motion.
Horner also apparently argues CalTrans did not cite any case law in support of its requested instruction on section 1945. However, as the trial court noted, the requested instruction merely set forth statutory language and therefore was an accurate statement of the law. CalTrans was not required to cite supporting case law.
Horner also argues the trial court erred by instructing on section 1945 because it in effect permitted CalTrans to relitigate, and the jury to decide, the issue of causation of loss of goodwill, which issue had already been decided by the court during the entitlement phase of the trial. However, the instruction on section 1945 was relevant to the jury's consideration of Horner's reasonable expectation of continued tenancy of the Property with rent of $1,350 per month, which was relevant to the valuation of his loss, if any, of business goodwill because of CalTrans's taking of the Property. Because the jury was charged with determining only the amount of Horner's lost business goodwill and was not asked to address, or instructed on, the issue of causation, we conclude the instruction on section 1945 did not improperly permit CalTrans to relitigate, or the jury to decide, the issue of causation in the circumstances of this case.
In any event, assuming arguendo the trial court erred by instructing on section 1945 and/or not instructing sua sponte as Horner asserts, he has not carried his burden on appeal to show those instructional errors were prejudicial. Based on our review of the record, it is not reasonably probable a result more favorable to Horner would have been reached in the absence of those purported instructional errors. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 570-571; Agarwal v. Johnson, supra, 25 Cal.3d at p. 951; People v. Watson (1956) 46 Cal.2d 818, 836.)
III
Refusal of Horner's Requested Instructions
Horner contends the trial court erred by refusing to give certain special instructions he requested.
A
Horner argues the trial court erred by refusing his request for special instructions informing the jury that the court had already determined the issue of his entitlement to compensation for loss of goodwill. Horner requested a special instruction stating:
"Some disputes in this matter have already been decided by the court. This means they are no longer questions of fact you need to decide. The reason they are being provided to you is so that you need not guess or wonder about them, and you will know where your role in deciding facts begins.
"This Court has determined that [Horner] has met its threshold burden of entitlement to compensation for the loss of goodwill under Code of Civil Procedure [s]ection 1263.510[, subd.] (a).
"You need only determine the amount of compensation to which [Horner] is entitled."
Horner also requested a special instruction stating:
"The trial court in an entitlement phase has already ruled on the issues of [Code of Civil Procedure section] 1263.510[, subdivision] (a)[, i.e.,]
"1. Whether the taking caused Mr. Horner's losses. The trial court has already determined [']Yes.[']
"2. Whether Mr. Horner could have mitigated his losses[, i.e.,] by relocating or taking other reasonably prudent measures? The trial court has already determined [']Yes.['] [sic]."
He also requested a special instruction stating:
"This Court has already found that the advantages which Mr. Horner had accrued over the years and lost as a result of the taking could not be recaptured or preserved at any of the potential sites he considered and that Mr. Horner made reasonable efforts to locate an acceptable site that was workable for him. Thus you are not to consider whether [Horner] mitigated its damages."
The trial court refused to give those special instructions. The court explained:
"I guess my general feeling is I would decline [those instructions] because the only issue before [the jury] is valuation.... [¶]... [¶]... My thinking is that the only issue before them is to come up with a figure, with a number... [¶]... [¶]... with a valuation number. The issues of causation are not before them. They don't need to know all of the findings, any of the findings, that were previously made.... To you it has significance and anybody that knows about eminent domain issues it may have significance because that's the process. The jury is unaware of it and [doesn't] need to know anything about it, other than the valuation process."
Horner argues, in a conclusory manner, the trial court erred by refusing those special instructions regarding its findings during the prior entitlement phase of the trial. However, he does not present any substantive analysis showing why the court erred by refusing those instructions. At most, he argues that, based on CalTrans's closing arguments (without specific citations to the record or quotation of the language of those arguments), the jury could have believed it was deciding the causation and mitigation issues. Therefore, he argues the court should have instructed that it had already decided those issues and the jury should not be concerned about causation. We are not persuaded by Horner's argument that it was necessary the jury be instructed on the trial court's findings during the prior entitlement phase of the trial. After a court makes the prerequisite finding that a property owner is entitled to compensation because of an agency's taking of property, the only question to be decided by a jury is the amount of the compensation, if any, to which that property owner is entitled. In the circumstances of this case, the amount of Horner's loss of goodwill was the only question the jury was charged with deciding. The jury was not asked to decide the causation and mitigation issues or other entitlement-phase issues. Those issues were irrelevant to the jury's task. Although it is possible the jury may have speculated about those issues, the jury was not instructed to consider, much less decide, them. The trial court could have reasonably concluded that had those requested instructions been given, they likely may have confused the jury regarding the issues it was to consider. The trial court did not err by refusing to give the special instructions requested by Horner on the court's entitlement phase findings. (Levy-Zentner Co. v. Southern Pac. Transportation Co. (1977) 74 Cal.App.3d 762, 782.)
B
Horner also asserts in a conclusory manner that the trial court erred by refusing to give his requested special instructions on "cheap rent" based on People ex rel. Dept. of Transportation v. Muller (1984) 36 Cal.3d 263 (Muller). Horner requested a special instruction stating:
"The owner of a business conducted on the property being taken, is entitled to recover compensation for the loss, if any, of business goodwill. The term 'goodwill,' as used in this instruction, means the benefits that attach to a business as a result of its location, its reputation for dependability, skill or quality, and any other circumstances resulting in probable retention of old patronage or acquisition of new patronage.
"In determining the value of the loss of goodwill, to which [Horner] is entitled under [Code of Civil Procedure section] 1263.510[,] you may consider that the losses [Horner] incurred as the result of losing the benefits of the former site included the cheap rent he was paying at that site."
Horner also requested a special instruction that stated:
"Cheap rent is a benefit of a site for which a business may be compensated under [Code of Civil Procedure section] 1263.510[, subdivision] (b). Although you have heard some testimony that [Horner] should have been paying a rent other than his contract rent, you may conclude that the rent that he was paying was a benefit of the site which he has now lost. Accordingly, you may rely in determining the amount of compensation for the loss of goodwill on the contracted rent that [Horner] paid at the subject site and not make any adjustments."
Except for the first paragraph of the first instruction, which was a restatement of the definition of goodwill set forth in CACI No. 3513 and Code of Civil Procedure section 1263.510, subdivision (b), the trial court refused to give those instructions, explaining that Muller, on which those instructions were based, was factually inapposite to this case because Muller involved a 15-year lease with low rent at the time of the condemnation. Accordingly, the court stated: "I don't think, as [the instruction] is stated, it's a correct statement of the law." Noting Horner presented evidence on his cheap rent and could argue it in closing, the trial court stated: "I'm giving them the general principle [i.e., CACI No. 3513's definition of goodwill]. I'm not willing to give them this instruction. I'm not going to give them the [Muller] holding, because it's factually distinguishable." The court stated: "You [Horner] can argue it if you want, but I'm not going to give them that instruction." The court confirmed it refused that instruction based on its concept and not just its wording.
In Muller, a veterinarian (Muller) owned real property on which his veterinary hospital was located. (Muller, supra, 36 Cal.3d at p. 265.) In 1972, CalTrans notified him that it was considering condemnation of the property for construction of a freeway. (Ibid.) In or about 1974, he leased that property to his corporate veterinary practice (which, at the time, had other shareholders) for a 15-year term. (Ibid.) It was agreed that were the property condemned, he would buy or build a replacement hospital and lease it to the corporation with rent equal to 10 percent of his costs for land and construction. (Id. at p. 266.) In 1978, CalTrans informed him that it would proceed with condemnation of the property. (Ibid.) Muller purchased a parcel of real property about one mile away and constructed a new hospital. (Ibid.) His costs eventually totaled $502,000. (Id. at p. 267.) In 1980, the veterinary practice moved to the new location and began paying annual rent of $54,000. (Ibid.) The annual rent at the old building had been about $25,000. (Id. at p. 266, fn. 3.) At trial, Muller's two experts testified regarding the goodwill value of Muller's practice before and after the condemnation. (Id. at p. 267.) They testified Muller had between $176,000 to $200,000 in goodwill before the condemnation but, because of the increased rent at the new location, had no goodwill value after the condemnation. (Ibid.) In contrast, CalTrans's expert testified that Muller had lost no goodwill value because he did not have any goodwill before the condemnation. (Id. at p. 268.) The jury awarded Muller $96,000 in lost business goodwill. (Ibid.)
On appeal in Muller, CalTrans argued the evidence showed Muller had lost only profits, not goodwill. (Muller, supra, 36 Cal.3d at p. 269.) Citing the definition of "goodwill" in Code of Civil Procedure section 1263.510, the Muller court noted Muller had clearly lost a "benefit" of the condemned location that had accrued to his business--specifically, "[h]e has lost the cheap rent in an older building which enabled his practice to show a profit." (Muller, at p. 268.) Muller stated:
"[The statute] does authorize compensation for a loss of 'benefits' of 'location.' There are other benefits to a particular location besides patronage.... Here, the old location carried the manifest benefit of a cheap rent in an older building. The statute authorizes a court to award compensation for the loss of this benefit." (Muller, at p. 269, italics added.)
Accordingly, Muller affirmed the judgment awarding Muller compensation for lost business goodwill. (Id. at p. 272.)
Although at first glance the selected excerpts from pages 268 and 269 of Muller arguably provide support for Horner's requested instructions on cheap rent, a closer review of those excerpts shows they must be interpreted in relation to the particular facts in that case. As the trial court in this case noted, Muller involved a 15-year lease with low rent. There were about nine years remaining on that lease at the time Muller moved to the new location because of the condemnation of the old property. (Muller, supra, 36 Cal.3d at pp. 265, 267.) He had to pay a much higher rent at the new location than he paid at the old location. Therefore, his business clearly had a long-term lease at the old location that allowed the business to pay less rent and, thus, earn greater profits, which benefit he lost by being forced to move. Although Muller involved only the issue of the amount of lost goodwill, the benefit of Muller's long-term lease at low rent was not substantially different from the "bonus value" of his leasehold interest had the condemnation action focused instead on the taking of Muller's leasehold interest (i.e., a portion of the value of the condemned real property). As one court noted, because Muller was both the owner of the real property and the owner of the business, Muller apparently had no need to distinguish between those separate, but somewhat overlapping, concepts. (New Haven Unified School Dist. v. Taco Bell Corp., supra, 24 Cal.App.4th at p. 1480 ["[S]ince Muller was the owner of the building, it would have been absurd for him to claim leasehold bonus value in his separate capacity as lessee, i.e., shareholder of the veterinary practice.... While cheap rent may sometimes include an element of leasehold bonus value, the facts of the Muller decision did not present any issue of this kind."].)
Given the particular facts in Muller, we conclude Muller does not set forth a general rule that "cheap rent" paid for a condemned location always supports a finding of a substantial benefit of that location and thus goodwill. On the contrary, we interpret Muller as concluding "cheap rent" may be a factor in determining the amount of the loss of business goodwill if the business owner pays relatively "low" or "cheap" rent for the condemned property pursuant to a long-term lease, or at least pursuant to a reasonable expectation of a similar continued tenancy with that same rent. In our view, Muller does not hold that "cheap rent" is always a factor in the determination of lost goodwill. If a business owner does not have a long-term lease or reasonable expectation of a continued tenancy of the condemned property at a low or cheap rent, that rent is not a factor in the determination of the lost goodwill.
Horner requested special instructions that stated, in effect, the jury could consider the cheap rent he was paying for his tenancy of the Property in determining the amount of his lost business goodwill. He requested an instruction that stated in part: "[Y]ou may consider that the losses [Horner] incurred as the result of losing the benefits of the former site included the cheap rent he was paying at that site." He also requested an instruction that stated in part:
"Cheap rent is a benefit of a site for which a business may be compensated under [Code of Civil Procedure section] 1263.510[, subdivision] (b). Although you have heard some testimony that [Horner] should have been paying a rent other than his contract rent, you may conclude that the rent that he was paying was a benefit of the site which he has now lost. Accordingly, you may rely in determining the amount of compensation for the loss of goodwill on the contracted rent that [Horner] paid at the subject site and not make any adjustments.""
We conclude Horner's requested special instructions were inaccurate statements of the law because they did not set forth Muller's holding as we interpret it. Under our interpretation, cheap rent may not be considered to be a benefit of the condemned location if the business owner did not have a long-term lease, or at least a reasonable expectation of a similar continued tenancy of that location with the same rent. "Although correct statements of the law taken from opinions of reviewing courts may provide a basis for instructions, 'an extract may be inappropriate if the facts underlying the opinion are different from those presented in the new case.' [Citation.]" (Drake v. Dean (1993) 15 Cal.App.4th 915, 924.) Furthermore, it is well-established that "[i]t is the responsibility of counsel to propose correct instructions and the court has no duty to modify erroneous instructions submitted to it, and there is no error if it simply rejects such instructions. [Citation.]" (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 335.) Alternatively stated, "[a] trial judge is not required to correct requested instructions which are incomplete or erroneous [citations], and the refusal of the instruction did not constitute error." (Faulk v. Soberanes (1961) 56 Cal.2d 466, 470-471.) "A trial court owes no duty to modify or edit an instruction offered by either side in a civil case, and if there is error in the charge proposed, the court may reject the entire instruction. [Citations.]" (Ernest W. Hahn, Inc. v. Sunshield Insulation Co. (1977) 68 Cal.App.3d 1018, 1024.) Furthermore, "[w]hile a litigant has a right to have the jury properly instructed on its theory of the case [citation] the instructions proffered on that theory must accurately state the law and must not be argumentative in overemphasizing or stressing selective items of evidence. [Citation.]" (Fierro v. International Harvester Co. (1982) 127 Cal.App.3d 862, 869.) Based on those principles and Horner's inaccurately worded instructions, we conclude the trial court did not err by refusing to instruct with Horner's requested special instructions regarding cheap rent. Furthermore, because the court correctly instructed with CACI No. 3513 on the definition of goodwill and its inclusion of the benefits of the condemned location, the court properly instructed on the substance of the law applicable to the case. (Hyatt v. Sierra Boat Co., at p. 335.)
C
Horner also apparently asserts the trial court erred by refusing to instruct: "You may not consider any price for a property that was not comparable. You may not consider any price at which a property was offered to be leased." He argues the court should have given that instruction to provide for the possibility that Roach's testimony regarding fair market rent of comparable properties was based on only offers to lease and not actual leases, and thereby allow the jury to discredit Roach's testimony. In support of his instruction, he cites Evidence Code section 822, which provides the "price at which an offer or option to... lease the property... or listed for... lease" is not admissible as evidence and cannot be considered in forming an opinion as to the value of property in an eminent domain proceeding. (Evid. Code, § 822, subd. (a)(2).) Assuming arguendo Evidence Code section 822's provisions apply to purportedly comparable properties in valuing the condemned property or its fair market rent, we nevertheless conclude there is no evidence showing Roach's testimony regarding comparable rents was based on offers to lease and not actual executed leases of purportedly comparable properties. Rather, Horner only speculates that may have been the case. Roach testified his opinion was based on actual leases, not offers to lease. Horner did not show otherwise. Absent sufficient evidence in the record to support Horner's requested instruction, we conclude the trial court did not err by refusing to give that instruction. (Morey v. Vannucci (1998) 64 Cal.App.4th 904, 915; Bernal v. Richard Wolf Medical Instruments Corp. (1990) 221 Cal.App.3d 1326, 1338, overruled on another ground in Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 574, 580.)
To the extent Horner also contends the trial court erred by refusing his request for an instruction that the court had already ruled he could not relocate to the "relocation" or comparable sites on which Roach relied, we need not and do not address the merits of that contention because it is made in only a conclusory manner and does not set forth any substantive analysis of the facts and applicable law showing the court prejudicially erred. Accordingly, we deem that contention to have been waived on appeal. (People v. Stanley (1995) 10 Cal.4th 764, 793; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; Niko v. Foreman (2006) 144 Cal.App.4th 344, 367, fn. 7; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
D
In any event, assuming arguendo the trial court erred by refusing to give any or all of Horner's requested special instructions discussed above, we nevertheless conclude Horner has not carried his burden on appeal to show such errors were prejudicial. Rather than showing the prejudicial effect of each purported instructional error, Horner merely argues, in a conclusory manner, those errors compounded the prejudice of the court's instruction on section 1945. However, as we concluded above, the trial court did not err by instructing on section 1945. In any event, based on our review of the record, it is not reasonably probable a result more favorable to Horner would have been reached had the trial court not instructed on section 1945. Likewise, based on our review of the record, we conclude it is not reasonably probable a result more favorable to Horner would have been reached had the court given the special instructions he requested. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 570-571; Agarwal v. Johnson, supra, 25 Cal.3d at p. 951; People v. Watson, supra, 46 Cal.2d at p. 836.)
IV
Admission of Roach's Testimony
Horner contends the trial court erred by denying his motion to exclude testimony by Roach, CalTrans's fair market rent expert.
A
On or about March 1, 2007, the parties apparently exchanged their lists of expert witnesses and statements of valuation relating to Horner's compensation for loss of business goodwill because of condemnation of the Property. CalTrans's notice listed Taylor as its goodwill valuation expert. On or about March 16, in the real property valuation portion of the condemnation case (i.e., involving the Property's owners and not Horner), CalTrans gave notice to the Property's owners listing Roach as its expert witness in the valuation of the real property.
At a May 11 pretrial hearing, CalTrans noted Taylor's valuation of business goodwill was based, in part, on Roach's valuation of the fair market rent for the Property. Noting Roach had not been listed as an expert witness regarding valuation of Horner's business goodwill, CalTrans asked the trial court for leave to consolidate its expert witness designations so both Taylor and Roach could testify in the goodwill portion of the condemnation case. CalTrans argued there would be no prejudice to Horner because Roach had yet to be deposed. The court requested CalTrans submit a written request for consolidation of its expert witness lists.
On May 15, CalTrans filed an application to consolidate its expert witness designations so it could use Roach as an expert to testify regarding fair market rent for the Property, implicitly acknowledging he was not timely designated as an expert witness pursuant to Code of Civil Procedure section 1258.230. Horner opposed CalTrans's application. In so doing, Horner apparently did not object to Taylor testifying regarding goodwill valuation based on Roach's opinion on fair market rent, but instead objected to Roach testifying regarding his opinion on fair market rent.
At the May 18 hearing on the application, CalTrans stated it would like to present Roach's testimony on fair market rent to explain the basis of Taylor's assumption that $4,700 was the fair market rent for the Property, part of his foundation for his valuation of Horner's goodwill. The trial court granted CalTrans's application to consolidate the expert witness designations, thereby allowing Roach to testify on fair market rent at the trial on Horner's lost goodwill. The court stated it did not believe such consolidation would be unfair or prejudicial to Horner's case as he had "plenty of time" (presumably to conduct discovery regarding and otherwise prepare for Roach's testimony).
However, Horner thereafter apparently did not depose Roach or request discovery of documents on which Roach relied in determining his opinion on fair market rent. The parties' July 27 joint trial readiness conference report shows CalTrans provided Horner with copies of trial exhibits setting forth the basis for Roach's opinion on fair market rent (i.e., exhibits 55-63).
On August 15, Horner filed an in limine motion to exclude Roach's testimony at trial. CalTrans opposed the motion. On August 21, the trial court denied the motion.
On August 22 (apparently pursuant to a subpoena Horner served on Roach on August 2), CalTrans delivered copies of documents from Roach's case file to Horner's counsel, who argued the documents included a statement of valuation of fair market rent not previously disclosed, as required, and moved for a mistrial or exclusion of Roach's testimony based on misconduct by CalTrans. She argued the trial should, at least, be continued subject to an investigation regarding that possible misconduct. The court stated that if there was misconduct, that matter could be addressed at another time without interrupting the instant condemnation trial. The court found there appeared to be a report CalTrans should have disclosed to Horner. However, concluding any prejudice to Horner from that nondisclosure could be cured by allowing him to depose Roach before his testimony at trial, the court denied Horner's motion for mistrial. In so ruling, the court directed Roach be made available for a two-hour deposition by Horner before his (Roach's) testimony at trial. The deposition could be arranged for whenever Horner's counsel could conduct it (e.g., over the weekend) to examine Roach regarding the contents of that undisclosed report. However, Horner's counsel thereafter did not avail herself of the opportunity to depose Roach.
B
Assuming arguendo CalTrans untimely designated Roach as an expert witness in the trial on Horner's lost goodwill, we conclude the trial court did not abuse its discretion by granting CalTrans's application to consolidate its designations of expert witnesses. A trial court may, on such terms as may be just (e.g., continuing the trial), allow a party to call a witness not included in that party's list of expert witnesses. (Code Civ. Proc., § 1258.290.) In the circumstances of this case, the trial court could reasonably conclude that on May 18, 2007, Horner had sufficient time to depose Roach and conduct other discovery to prepare for his (Roach's) trial testimony, which ultimately did not occur until about three months later.
Furthermore, assuming arguendo CalTrans violated disclosure rules by failing to timely disclose a report contained in Roach's case file regarding comparable properties, we conclude the trial court did not abuse its discretion by denying Horner's motion for mistrial. By providing Horner with the opportunity to depose Roach before he testified at trial, the court appropriately cured any prejudice that could have arisen regarding the failure to disclose the report. Despite Horner's argument that opportunity was an inadequate, "last minute" cure for the nondisclosure, Horner's failure to avail himself of the opportunity to depose Roach significantly undermines his argument that only a mistrial would have been an adequate remedy. We are not persuaded the trial court abused its discretion by denying his motion for mistrial. In any event, Horner does not carry his burden to show the purported error was prejudicial (i.e., absent that error he probably would have obtained a more favorable result). Based on our review of the record, it is not reasonably probable a result more favorable to Horner would have been reached had Roach's report been disclosed. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 570-571; Agarwal v. Johnson, supra, 25 Cal.3d at p. 951; People v. Watson, supra, 46 Cal.2d at p. 836.)
C
Horner also argues the trial court erred by admitting Roach's testimony because his testimony was inadmissible as a matter of law. He argues that because bonus value of a leasehold interest was not an issue in his goodwill valuation case, Roach's testimony regarding the fair market rent for the Property should have been excluded. Before the goodwill valuation phase of the trial, the parties agreed bonus value was not an issue. Roach testified at trial that he calculated the fair market rent of the Property to be $4,700 per month. He further testified that in forming his opinion he separated out the real property interests so that he did not have a real property interest overlapping with a goodwill interest. On objection by Horner's counsel that bonus value was not an issue, CalTrans's counsel clarified: "We are not talking about bonus value." After an unreported sidebar conference, Roach testified that he always calculated fair market rent of a property for a goodwill appraiser so the appraisals of real property and of goodwill did not overlap or duplicate. However, on cross-examination Horner's counsel asked Roach whether he had been asked to calculate bonus value in this case. Roach answered: "No." The court sustained CalTrans's objection to a question by Horner's counsel as to whether Roach knew whether there is bonus value in this case. The record does not support the apparent premise of Horner's argument that Roach testified regarding bonus value or, at least, that his calculation of fair market rent was based in part on his calculation of bonus value. The record shows bonus value was not an issue in the goodwill case and Roach did not calculate or testify regarding any bonus value of the Property. On the contrary, Roach testified he calculated the fair market rent for the Property so the goodwill appraiser (Taylor) could use it in valuing business goodwill. Horner does not show the trial court abused its discretion by admitting Roach's testimony on fair market rent or otherwise. (City of San Diego v. Sobke, supra, 65 Cal.App.4th at p. 396 [trial court has considerable discretion in admitting or rejecting evidence on value].)
Horner also argues Roach's testimony on fair market rent should have been excluded because he did not find any comparable rental sites similar to the Property. He argues many of his comparable sites were ones he previously considered as potential relocation sites, but were not suitable for his business. On cross-examination by Horner's counsel, Roach testified that although he did not necessarily know whether Horner could relocate his trucking business to each of the comparable rental sites, he believed each comparable site he used in calculating the fair market rent of the condemned property was sufficiently comparable to help form his opinion on fair market rent. He stated he investigated every comparable site on multiple occasions. When Horner's counsel asked him whether it was the jury's role to assess whether the sites were comparable, Roach agreed that issue was "absolutely [the jury's] province" and he would not take that decision away from the jury. Based on the record, we conclude Horner does not show the trial court abused its discretion by admitting Roach's testimony regarding comparable rental sites. (City of San Diego v. Sobke, supra, 65 Cal.App.4th at p. 396.) Horner does not show that any particular comparable rental site was insufficiently similar. In any event, Roach confirmed it was the jury's decision whether any particular site on which he relied was, in fact, sufficiently comparable to the Property for purposes of calculating the Property's fair market rent. Accordingly, it was a question for the jury to decide, based on its weighing of the evidence, whether Roach's comparable sites were sufficiently similar to the Property. We are not persuaded Roach's testimony on comparable rental sites was inadmissible as a matter of law.
Horner also argues Roach's testimony regarding comparable rental sites was inadmissible as a matter of law because it is possible some or all of those comparable sites did not involve actual leases, but instead involved only offers to lease, and therefore were inadmissible under Evidence Code section 822, Code of Civil Procedure section 1263.330, or as insufficiently comparable. However, Horner only speculates that is the case. Roach testified that all of the comparable sites on which he relied were actual leases and not listings or offers to lease. Horner did not show otherwise. Accordingly, Horner does not show the trial court abused its discretion by admitting that testimony by Roach. (City of San Diego v. Sobke, supra, 65 Cal.App.4th at p. 396.)
Code of Civil Procedure section 1263.330 provides: "The fair market value of the property taken shall not include any increase or decrease in the value of the property that is attributable to any of the following: [¶] (a) The project for which the property is taken. [¶] (b) The eminent domain proceeding in which the property is taken. [¶] (c) Any preliminary actions of the plaintiff relating to the taking of the property." To the extent Horner argues the trial court should have instructed the jury on the admissibility in evidence of Roach's testimony, he misconstrues the proper functions of the trial court and jury. The trial court, and not the jury, decides whether certain evidence is admissible. The jury then weighs the evidence admitted at trial in deciding the questions of fact before it (e.g., in this case what loss, if any, of business goodwill did Horner suffer because of CalTrans's condemnation of the Property). Accordingly, it would have been improper for the trial court to instruct the jury on certain rules for admissibility of evidence.
In any event, assuming arguendo the trial court erred by admitting any or all of Roach's testimony as discussed above, Horner does not carry his appellate burden to show it is reasonably probable he would have obtained a more favorable result had that evidence been excluded. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 570-571; Agarwal v. Johnson, supra, 25 Cal.3d at p. 951; People v. Watson, supra, 46 Cal.2d at p. 836.) In fact, he makes no substantive argument showing how, based on the weight of other evidence in this case, he probably would have obtained a more favorable verdict had Roach's testimony on those issues been excluded. (Cucinella v. Weston Biscuit Co. (1954) 42 Cal.2d 71, 82; Santina v. General Petroleum Corp. (1940) 41 Cal.App.2d 74, 77; Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.)
V
Payne's Testimony
Horner contends the trial court erred by admitting Payne's videotaped deposition testimony, while excluding portions of his counsel's cross-examination of Payne at the deposition.
A
On July 12, 2007, because CalTrans had just learned Payne, one of the Property's owners, would be unavailable to testify during the trial that had been delayed until August, it requested permission from the trial court to videotape his deposition and then present that videotaped testimony at trial. The court granted the request, continued the case so Payne could be deposed, and asked counsel to work out the dates for the deposition and trial. Following Payne's deposition, the trial court heard and ruled on the parties' objections to certain portions of his testimony. At trial, the admissible portions of Payne's videotaped deposition testimony were played for the jury.
B
Horner argues the trial court erred by admitting certain portions of Payne's deposition testimony on direct examination by CalTrans. He argues the court should have excluded Payne's testimony that had it not been for CalTrans's condemnation of the Santee property, he would have terminated the Property's leases and developed it for commercial office or similar use. Although Horner argues that testimony was highly speculative and unsupported by other evidence, Payne's testimony regarding his future plans for the Property--had it not been condemned--was properly admitted by the trial court. Any lack of supporting documentation or other evidence regarding Payne's future plans affected the weight, and not the admissibility, of his testimony.
Horner's citation to Attisha regarding the presumption that a property's present use is its highest and best use does not show otherwise. During the goodwill valuation phase of the trial, one factual issue for the jury was whether Horner had a reasonable expectation of continued tenancy at his current rent. Payne's testimony regarding his future plans was relevant on that issue.
Payne's testimony regarding his future plans for the Property was relevant to valuation of Horner's business goodwill and did not address the issue of causation decided in the entitlement phase of the trial. Payne's testimony regarding his future plans to develop the Property was relevant on the factual issue of whether Horner had a reasonable expectation of continued tenancy of the Property at his current rent of $1,350 per month, which issue affected the valuation of his business goodwill.
Horner contends Payne's testimony that he believed Horner's rent of $1,350 per month was "below market" was irrelevant. Payne testified that amount of rent (i.e., $1,350 per month) was below market and he continued that low rent because CalTrans had notified him it was going to take the Property, which information he disclosed to his tenants. That testimony was again relevant on the factual issue of whether Horner had a reasonable expectation of continued tenancy of the Property at his current rent of $1,350 per month, which issue affected the valuation of his business goodwill. Payne's testimony was not admitted on the issue of bonus value, which was not involved in the valuation of Horner's lost goodwill.
Horner also apparently argues Payne's testimony that Horner's rent was below market was inadmissible because Payne was not timely designated as an expert witness by CalTrans and Payne's opinion was not timely disclosed to him. However, Horner does not cite any apposite authority in support of his argument. In any event, an owner of real property generally may testify regarding its value without being designated as an expert witness. (Evid. Code, § 813, subd. (a)(2).) Therefore, Horner does not persuade us CalTrans was required to designate Payne as an expert witness and disclose his opinion on the rental value of the Property.
We conclude Horner has not carried his burden on appeal to show the trial court abused its discretion by admitting portions of Payne's deposition testimony. (People v. Waidla (2000) 22 Cal.4th 690, 717-718 [abuse of discretion standard of review generally applies to trial court's rulings on admissibility of evidence]; City of San Diego v. Sobke, supra, 65 Cal.App.4th at p. 396.)
C
Horner also argues the trial court erred by excluding portions of his counsel's cross-examination of Payne at deposition. Although Horner fails to cite to the record regarding particular portions of Payne's deposition cross-examination testimony he asserts were erroneously excluded, it appears he primarily complains the trial court improperly excluded evidence of Payne's pretrial settlement with CalTrans on his separate claim for loss of the Property taken in condemnation. Horner argues that evidence was admissible to show Payne's bias and therefore would have impeached his credibility. However, the record supports a conclusion by the trial court that there was nothing in the nature of or contained in Payne's settlement that would lead a reasonable person to infer he had any interest in favoring CalTrans in Horner's lost goodwill case. (Cf. Moreno v. Sayre (1984) 162 Cal.App.3d 116, 126.) Furthermore, the court could have concluded that evidence may have had the potential of confusing the jury. (Evid. Code, § 352.) Horner has not shown the court abused its discretion by excluding evidence of Payne's settlement with CalTrans. (People v. Waidla, supra, 22 Cal.4th at pp. 717-718.)
Although Horner also apparently argues the trial court erred by excluding his cross-examination of Payne regarding other issues, he does not provide either citations to the record or any substantive analysis to support his arguments. Accordingly, we deem those arguments waived for purposes of appeal. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.)
D
Assuming arguendo the trial court erred by admitting or excluding portions of Payne's deposition testimony, Horner does not present any substantive analysis showing he would have obtained a more favorable result had the trial court not so erred. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 570-571; Agarwal v. Johnson, supra, 25 Cal.3d at p. 951; People v. Watson, supra, 46 Cal.2d at p. 836.) His conclusory assertion of prejudice is insufficient to carry his burden on appeal. (Niko v. Foreman, supra, 144 Cal.App.4th at p. 368.)
VI
Compensation for Loss of Vehicles and Equipment
Horner contends the trial court erred by granting CalTrans's motion to preclude him from seeking compensation for trucks, trailers, and other movable personal property.
A
In the condemnation action, Horner sought compensation of $89,149 for the difference between the retail value and quick sale value of his trucks, trailers, and other movable personal property. Before trial, CalTrans filed an in limine motion to preclude Horner from seeking compensation for trucks, trailers, and other movable personal property (e.g., movable storage containers). It argued the trial court, and not the jury, should decide the issue of whether Horner was entitled to claim compensation for such personal property. CalTrans also argued its condemnation of the Property did not cause Horner's movable personal property to change character or destroy its value and he had acknowledged there had not been any liquidation or quick sale of that personal property.
After the evidentiary phase of the goodwill trial, the trial court heard arguments on and then granted CalTrans's motion. The court stated:
"The Court finds that being compelled to sell these various items of equipment does not necessarily mean that they were quick sales or distressed sales lower than the value of the equipment.
"This case is very distinguishable from [Baldwin Park Redevelopment Agency v. Irving (1984) 156 Cal.App.3d 428 (Baldwin)], and the Court finds that the condemnation in this case did not change the nature of the equipment. And the evidence does not support that there is an $87,000 loss necessarily compensable. This is not an issue to go before the jury."
B
"The general rule is that the Constitution does not require compensation for personal property not affixed to the condemned realty. [Citation.] Movable items of personal property are not 'taken' by the public entity when it condemns real property or a business...." (County of San Diego v. Cabrillo Lanes, Inc. (1992) 10 Cal.App.4th 576, 583.) "Presumably, [movable personal property] will, or should be, removed by its owner when the realty is acquired [citation] and is thus not 'taken' by the public entity when it condemns real property or a business." (Chhour v. Community Redevelopment Agency (1996) 46 Cal.App.4th 273, 283.) There is an exception to that general rule of noncompensability "only where personal property is 'damaged or destroyed by the physical appropriation of a portion of the owner's property'.... [Citation.]" (City of Carlsbad v. Rudvalis, supra, 109 Cal.App.4th at p. 687, quoting Baldwin, supra, 156 Cal.App.3d at pp. 435-436.)
C
In his opening brief, Horner argues in summary fashion:
"The issue in eminent domain proceedings is not what the taker has gained but what the owner has lost. [Citing Baldwin.] There was no evidence to dispute that Mr. Horner would not have sold his trucks but for the condemnation. The trial court had ruled in the entitlement trial that Mr. Horner through no fault of his own did not relocate. The record is clear that he had no site [on] which to store his vehicles. Supra. Thus under Baldwin Mr. Horner was entitled to compensation for the loss of his trucks."
We are not persuaded Horner was entitled, as a matter of law, to compensation for his alleged loss on the sale of his movable personable property. Personal property generally is not considered to be "taken" on condemnation of real property or a business even if that personal property would not have been sold but for the condemnation. (County of San Diego v. Cabrillo Lanes, Inc., supra, 10 Cal.App.4th at p. 583.) Therefore, although the trial court in this case found during the entitlement phase that Horner had no reasonable option for relocation of his business, the inability to relocate his business did not, as a matter of law, entitle him to compensation for any loss he allegedly suffered on the sale of his trucks, trailers, and other movable personal property. Rather, Horner would have been entitled to compensation only had his movable personal property been damaged or destroyed by the physical appropriation of the Property or his business. (City of Carlsbad v. Rudvalis, supra, 109 Cal.App.4th at p. 687; Baldwin, supra, 156 Cal.App.3d at pp. 435-436.)
As the trial court concluded, because Horner did not show CalTrans's condemnation of the Property or his business changed the character of his movable personal property, Baldwin was inapposite. In Baldwin, the owner of a condemned automobile wrecking and parts business sought compensation for the loss in value of her inventory that had to be sold for scrap value instead of at retail because her business could not be relocated. (Baldwin, supra, 156 Cal.App.3d at p. 434.) In contrast, the record shows that in this case Horner was not required to conduct a quick sale of his movable personal property and, instead, had ample opportunity to sell that property to obtain its full market value. In November 2005, CalTrans gave Horner notice of its intent to take the Property and his business in condemnation. In March 2006, CalTrans filed its eminent domain action for condemnation of the Property. In November, the trial court issued a writ of possession to remove Horner from the Property. In December, Horner was removed from the Property. Therefore, Horner had a period of over one year to prepare for and complete the removal and/or sale of his movable personal property. CalTrans's condemnation action did not, as a matter of law, require Horner to conduct a quick sale of his movable personal property or otherwise obtain a sale price less than its full market value. Rather, he had ample opportunity to sell his movable personal property for its full market value. Furthermore, there is nothing in the record showing Horner's movable personal property did not have the same character and same value after the condemnation action as it had before the condemnation action. Alternatively stated, there is no evidence to support a conclusion that CalTrans's condemnation action damaged or destroyed the value of Horner's movable personal property. (City of Carlsbad v. Rudvalis, supra, 109 Cal.App.4th at pp. 687, 690; Baldwin, at pp. 435-436.) The trial court correctly concluded Horner was not entitled to compensation for any loss in value of his movable personal property and therefore did not err by granting CalTrans's motion on that entitlement issue.
VII
Cumulative Prejudice
Horner contends the cumulative effect of the trial court's errors was so prejudicial that he probably would have obtained a more favorable result had those errors not occurred. However, because we have concluded the trial court did not err as Horner asserts, there are no errors that could have a cumulative prejudicial effect. In any event, assuming arguendo the court had erred as Horner asserts, we nevertheless are unpersuaded by Horner's argument that he probably would have obtained a more favorable result had those errors not occurred. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 570-571; Agarwal v. Johnson, supra, 25 Cal.3d at p. 951; People v. Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment is affirmed. CalTrans is entitled to costs on appeal.
WE CONCUR: NARES, Acting P. J., McINTYRE, J.