Baldwin Park Redevelopment Agency v. Irving

• Decision Date: 25 May 1984
• Citation: 156 Cal.App.3d 428,202 Cal.Rptr. 792
• Court: California Court of Appeals Court of Appeals
• Parties: BALDWIN PARK REDEVELOPMENT AGENCY, A Redevelopment Agency, Plaintiff and Respondent v. Dennis N. IRVING, Megan F. Irving, Defendants and Appellants. Civ. 69604.

Page 792

202 Cal.Rptr. 792

156 Cal.App.3d 428

BALDWIN PARK REDEVELOPMENT AGENCY, A Redevelopment Agency, Plaintiff and Respondent v. Dennis N. IRVING, Megan F. Irving, Defendants and Appellants.

Civ. 69604.

Court of Appeal, Second District, Division 2, California.

May 25, 1984.

Rehearing Denied June 13, 1984.

Hearing Denied July 26, 1984.

J. Robert Flandrick, Gen. Counsel, Richards, Watson, Dreyfuss & Gershon, A Professional Corp., Richard Richards, Quinn M. Barrow, Los Angeles, for plaintiff and respondent.

Thorpe, Sullivan, Workman & Thorpe, Henry K. Workman, John J. Dee, Los Angeles, for defendants and appellants.

COMPTON, Justice.

In December 1979, plaintiff Baldwin Park Redevelopment Agency (Agency) commenced this action in eminent domain to condemn and acquire certain real property owned in fee by defendants Megan and Dennis Irving. The case was subsequently bifurcated to permit a separate trial on the legal issue of whether defendants could establish a sufficient foundation to submit to the jury the matter of compensation for loss of business goodwill, as provided for in Code of Civil Procedure section 1263.510. ¹ The court determined that a sufficient foundation had been laid in relation to the business enterprise Baldwin Auto Wreckers and Parts, owned and operated by defendant Megan Irving.

Jury trial commenced in May 1982, at which time the Agency moved the court in limine to exclude all evidence relative to the value of the inventory maintained by defendant Megan Irving's business. The motion was granted and the matter proceeded to trial. The total just compensation awarded for the taking was $599,875 including the sum of $35,000 for loss of business good will.

Defendant Megan Irving appeals and assigns as error the trial court's granting of the in limine motion excluding evidence of the devaluation of the business inventory allegedly caused by the condemning of the real property. ²

Before proceeding to a discussion of the facts and legal issues raised by the instant case, we briefly address the Agency's contention that the appeal must be dismissed for defendant's failure to timely file her notice of appeal from the interlocutory judgment entered August 20, 1982. Here, defendant's notice of appeal, filed December 9, 1982, erroneously referred to the "Final Order and Judgment in Condemnation." It is well settled that in eminent domain proceedings it is the interlocutory decree which determines the rights of the parties and fixes the amount of compensation to be paid by the condemnor. Although termed an "interlocutory judgment," it is final for purposes of appeal. (City of Santa Barbara v. Superior Court (1966) 240 Cal.App.2d 612, 614, 49 Cal.Rptr. 798; S.F. Unified School Dist. v. Hong Mow (1954) 123 Cal.App.2d 668, 670, 267 P.2d 349.)

Relying on City of Oakland v. Williams (1924) 67 Cal.App. 701, 228 P. 669, the Agency argues that since no appeal was taken from the interlocutory decree within the time limits prescribed by Rule 2(a) of the California Rules of Court, the judgment had become final several weeks before defendant filed her notice of appeal. The Agency concludes, of course, that this court is without jurisdiction and has no choice but to dismiss the appeal. We disagree.

Rule 2(a) of the California Rules of Court provides as follows: "Except as otherwise specifically provided by law, a notice of appeal shall be filed within 60 days after the date of mailing notice of entry of judgment by the clerk of the court pursuant to section 664.5 of the Code of Civil Procedure, or within 60 days after the date of service of written notice of entry of judgment by any party upon the party filing the notice of appeal, or within 180 days after the date of entry of the judgment, whichever is earliest, unless the time is extended as provided in rule 3."

Here, the record reveals that neither the Agency nor the clerk served a notice of entry of the interlocutory judgment on defendant. As a result, defendant had 180 days from August 20, 1982, the date of entry of the interlocutory decree, within which to file a notice of appeal. Consequently, the notice filed December 9, 1982, was timely if the reference to the wrong order is not fatal.

The rule has long been established that an incorrectly framed notice of appeal will be construed to refer to the correct appealable order assuming that the intention of the appellant is clear. (City of Los Angeles v. Aalbers (1977) 67 Cal.App.3d 80, 82-83, 136 Cal.Rptr. 396; see also 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, §§ 355, 336, pp. 4312-4315.) Based upon our review of the record, we have no difficulty ascertaining defendant's intention; neither, we are sure does the Agency. It is manifest that the Agency has suffered no prejudice and would not have proceeded differently had defendant properly identified her appeal as being from the interlocutory decree of condemnation rather than the final judgment.

Having concluded that the Agency's position is without merit, we now turn to the substantive issues posed by defendant's appeal.

The subject property, situated in the northwest corner of the City of Baldwin Park, consists of two parcels approximately 6.2 acres in size. Surrounded largely by unimproved realty, the majority of the property--roughly four acres--was occupied and used by Baldwin Auto Wreckers and Parts as a "junk yard." The remaining acreage served as a place of business for Baldwin Towing Service, owned and operated by defendant Dennis Irving.

For the most part, Baldwin Auto Wreckers engaged in the acquisition and dismantling of automobiles for eventual sale as parts and/or scrap metal. Except for several crudely constructed structures and a trailer, the property itself contained some four hundred vehicles in various stages of disrepair. These vehicles and their component parts constituted the "inventory" of the business.

Operating from its Baldwin Park location since 1953, the business derived the vast majority of its customers from the local community and from those living within a 12 mile radius of the property. Approximately 80% of the company's total sales was directly attributable to repeat business.

When defendant was notified by the Agency of the proposed taking, she commenced a search for the purpose of locating a replacement site upon which to continue the business. The search initially was limited to the immediate area of the subject property, but was gradually enlarged beyond the geographic radius from which the vast majority of business was generated. Despite defendant's extensive efforts, no sites were discovered which could be adapted for use by the company.

Based upon the foregoing, the trial court, during the legal issue phase of the proceedings, concluded that Baldwin Auto Wreckers and Parts possessed a good will value which would be lost by the taking of the subject property, and that such loss could not have been reasonably prevented.

As previously noted, immediately prior to the valuation trial, defendant offered to prove that the replacement value of the inventory was $312,000, without considering profit, and that because of her inability to relocate the business she was required to sell her stock at scrap value for approximately $50,000. Sometime after the condemnation proceedings were commenced, the Agency warned defendant that if the inventory was not disposed of, it would charge back to the business the cost of removing the automobiles and parts from the premises. The Agency's motion to exclude such evidence was, of course, granted and the matter proceeded to trial.

The essential question to be resolved on this appeal is whether the condemnor's conduct entitles defendant to an award of damages for the value of her business inventory less the amount obtained at the salvage sale. The Agency maintains that such personal property is, as a matter of law, non-compensable in an action for condemnation of real property and that as a consequence defendant may not be indemnified for the loss allegedly incurred here. We have concluded, however, that since the condemnatory act in and of itself resulted in the devaluation of her stock in trade, she is entitled to be compensated for the loss of the property in question.

The power of government to take private property against the wish of the owner has ancient antecedents. Properly called expropriation, this taking is referred to in the Bible, practiced by the Romans, restricted by the Magna Carta, and assumed to exist by the Bill of Rights. Under the United States Constitution and the California Constitution, article I, section 19, however, just compensation is required when property has been "taken or damaged."

As we recently noted in City of Los Angeles v. Tilem (1983) 142 Cal.App.3d 694, 702, 191 Cal.Rptr. 229, "[t]he concept of 'taking' has with time changed from the notion of a physical seizure to that of a diminution of the owner's rights and attributes of ownership. The question in eminent domain proceedings therefore is not what the taker has gained, but what the owner has lost. (See People v. La Macchia (1953) 41 Cal.2d 738 ; City of Los Angeles v. Property Owners (1982) 138 Cal.App.3d 114, 120, ; United States v. General Motors Corp. (1945) 323 U.S. 373, 377-378 [65 S.Ct. 357, 359-360, 89 L.Ed. 311]; Agins v. Tiburon (1979) 24 Cal.3d 266 , affd. 447 U.S. 255 [100 S.Ct. 2138, 65 L.Ed.2d 106] (1980).)"

The ultimate goal in any condemnation proceedings is, of course, to determine constitutionally required "just compensation." (Redevelopment Agency v. First Christian Church (1983) 140 Cal.App.3d 690, 697, 189 Cal.Rptr. 749.) It has long been recognized that neither federal nor state constitutional provisions make any distinction between real property and personal property with respect to this requirement. (City of Oakland v. Oakland Raiders (1982) 32 Cal.3d 60, 67, 183 Cal.Rptr. 673, 646 P.2d 835; Sutfin v. State of California (1968) 261 Cal.App.2d...