Brumer v. Los Angeles County Metropolitan Transportation Authority, B074822

• Decision Date: 24 July 1995
• Docket Number: No. B074822,B074822
• Citation: 36 Cal.App.4th 1738,43 Cal.Rptr.2d 314
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 5816, 95 Daily Journal D.A.R. 9847 Stanley BRUMER, et al., Trustees, Plaintiffs and Appellants, v. LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, Successor to the Los Angeles County Transportation Commission, Defendant and Respondent.

Page 314

43 Cal.Rptr.2d 314

36 Cal.App.4th 1738, 95 Cal. Daily Op. Serv. 5816,

95 Daily Journal D.A.R. 9847

Stanley BRUMER, et al., Trustees, Plaintiffs and Appellants, v. LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, Successor to the Los Angeles County Transportation Commission, Defendant and Respondent.

No. B074822.

Court of Appeal, Second District, Division 7, California.

July 24, 1995.

Certified for Partial Publication. ^*

As Modified on Denial of Rehearing Aug. 14, 1995.

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

Nossaman, Guthner, Knox & Elliott, James C. Powers and Abraham C. Meltzer, Los Angeles, for defendant and respondent.

JOHNSON, Associate Justice.

This appeal arises from an action for inverse condemnation. Plaintiffs' complaint alleged an impairment of access from their property onto Flower Street caused by the construction of the Long Beach-Los Angeles Rail Transit Project known as the "Blue Line." The trial court found no substantial impairment of access and denied relief. We affirm.

FACTS AND PROCEEDINGS BELOW

Plaintiffs, Stanley Brumer and Gloria M. Brumer, as trustees of the Brumer Living Trust, are the owners of property located at the northeast corner of Flower Street and Venice Boulevard in Los Angeles (the Property). The property extends for 50 feet along Flower Street and 150 feet along Venice Boulevard. The back of the property extends 50 feet along Pembroke Lane.

The property is improved with a one-story commercial building consisting of eight stores. Two of the stores front on Flower Street. The building covers the entire property. There is no driveway access to, or parking area on the property.

Prior to construction of the Blue Line, cars on Flower Street could travel directly past plaintiffs' property. At that time limited street parking was also available on Flower Street. However, street parking in front of plaintiffs' property was virtually nonexistent. A portion of the frontage was consumed by the pedestrian crosswalk at the corner of Venice Boulevard and Flower Street. In addition, there was a fire hydrant in front of plaintiffs' property. Thus, prior to construction of the Blue Line, legal street parking across the plaintiffs' 50 foot frontage on Flower Street was prohibited except for perhaps at the northern most edge of plaintiffs' property where there was space to park a single car.

Defendant, Los Angeles County Metropolitan Transportation Authority, as successor to the Los Angeles County Transportation Commission, installed rails for the Blue Line in the traffic lane of Flower Street which passes directly in front of plaintiffs' property. This lane is now for the exclusive use of the Blue Line, and curbside traffic or parking is no longer available. Traffic on Flower Street is now one-way.

The Blue Line rails are installed at grade level, flush with the existing street. However, plaintiffs' property is now separated from vehicular traffic on Flower Street by a metal guard rail at the edge of the sidewalk to protect pedestrians and prevent jaywalking, two sets of metal rail lines and a raised concrete divider which separates the rail lines from the regular vehicular traffic. Neither the concrete strip nor the pedestrian guard rail extend into the Venice Boulevard/Flower Street intersection. Vehicular and pedestrian traffic on Venice Boulevard and Pembroke Lane remain unchanged.

In November 1990, plaintiffs filed suit for inverse condemnation. Their complaint alleged their easement of access to Flower Street had been substantially impaired by construction of the Blue Line. Plaintiffs asserted they previously had direct access to Flower Street from their property but now the property abuts the Blue Line right of way. This change, plaintiffs alleged, denied them all vehicular access to and from the property on Flower Street.

Defendants moved for summary judgment on the ground the privilege of curbside parking was not an actionable impairment of access as a matter of law. Plaintiffs opposed the motion, asserting their loss of access to Flower Street constituted a substantial impairment of their easement of access as owners of property abutting Flower Street. The trial court's tentative ruling was to grant the motion for plaintiffs' failure to assert any specific impairment of vehicular access. However, at oral argument on the motion on December 23, 1991, plaintiffs' counsel suggested the impairment of vehicular access to the property could also include the loss of possible future driveway access. The court continued the hearing to allow the parties to present supplemental briefing on the issue. Ultimately the court denied defendant's motion for summary judgment on the ground there remained a triable issue of mixed law and fact regarding the extent to which the traffic island and guard railing on the sidewalk constituted a general impairment of access.

In April 1992, defendant made a motion in limine to narrow the issue at trial to whether plaintiffs had been deprived of a future right to driveway access, the only factually specific impairment articulated by the plaintiffs. The trial court denied the motion but ordered plaintiffs to submit a summary of their specific claims of loss or impairment of access.

Plaintiffs continued to rely on their generalized claim to an easement of access directly onto the street abutting their property. The trial court granted defendant's renewed motion in limine to restrict the evidence of impairment at trial to interference with future construction of a driveway on the Flower Street side of the property.

Trial was to the court, which found no substantial impairment of access. In its oral ruling from the bench the trial court stated: "Well, let me just say--save you some time, even were we not following the limited ruling or the limited scope of evidence that this hearing took on because of Judge Gold's ruling, I--a simple viewing of the exhibits and taking all of the exhibits into question would lead this court, I think any court, to conclude that there has been no impairment of access in this case under any circumstances.

"But focusing merely on vehicular access, this court finds that there has been no loss of ability for vehicular access. Under the policy guidelines and the ordinances cited by, or introduced by, counsel for the defense and of which has taken [sic] judicial notice, it's still possible for the plaintiff to apply for a driveway and to obtain--either obtain vehicular access under the policies enunciated in the guidelines or to have a finding that the vehicular access is adequate, either on the Venice side or the Pembrook Lane [sic] access, but I don't find that there is any actionable impairment of access in this case.

"Even the plaintiffs' expert has said that he totally disregarded the driveway situation with respect to this subject property and looked only to the loss of future assemblage as the measure of damages. And that testimony is in the record. There was no objection to that or, if there were, the court let that testimony in. But I think it's highly speculative and the court, therefore rejects that testimony."

Plaintiffs appeal from the judgment, claiming the trial court erred because the physical facts establish a substantial impairment of access as a matter of law. In addition, they contend the trial court committed reversible error in granting defendant's motion in limine to exclude all evidence of impairment except with regard to future construction of a driveway onto the property.

DISCUSSION

I. IT WAS NOT ERROR TO FIND NO ACTIONABLE IMPAIRMENT OF ACCESS.

Plaintiffs contend the undisputed physical facts establish an actionable interference with their easement of access to Flower Street as a matter of law.

California appellate decisions have long recognized a property owner enjoys property rights in the street upon which his or her land abuts. Among these rights is an easement of access in such street. (People This easement consists of the right to get into the street upon which the landowners' property abuts and from there, in a reasonable manner, to the general system of public streets. (See Bacich v. Board of Control, supra, 23 Cal.2d 343, 351, 355, 144 P.2d 818; People ex rel. Dept. of Public Works v. Ayon (1960) 54 Cal.2d 217, 223, 5 Cal.Rptr. 151, 352 P.2d 519; 7 Miller & Starr, Cal.Real Estate (2d ed. 1990) Inverse Condemnation, § 23.8, pp. 614-615; 3 Manaster & Selmi, Cal.Environmental Law and Land Use Practice, Constitutional Controls, § 68.20[a], p. 68-47; 14 Dankert, Cal.Real Estate Law & Practice, Condemnation Practice, § 512.32, p. 512-28.2.)

ex rel. Dept. of Public Works v. Symons (1960) 54 Cal.2d 855, 860, 9 Cal.Rptr. 363, 357 P.2d 451; People ex rel. Dept. of Public Works v. Russell (1957) 48 Cal.2d 189, 195, 309 P.2d 10; Bacich v. Board of Control (1943) 23 Cal.2d 343, 349-350, 144 P.2d 818; People v. Ricciardi (1943) 23 Cal.2d 390, 397, 144 P.2d 799; Rose v. State (1942) 19 Cal.2d 713, 727-728, 123 P.2d 505; Eachus v. Los Angeles Consolidated Elec. Ry. Co. (1894) 103 Cal. 614, 617-619, 37 P. 750; 7 Miller & Starr, Cal.Real Estate (2d ed. 1990) Inverse Condemnation, § 23.8, pp. 614-615; 3 Manaster & Selmi, Cal.Environmental Law and Land Use Practice, Constitutional Controls, § 68.20[a], p. 68-47; 14 Dankert, Cal.Real Estate Law & Practice, Condemnation Practice, § 512.32, p. 512-28.2.)

"To designate the right, however, is not to delineate its precise scope. Not every interference with the property owner's access to the street upon which his property abuts and not every impairment of access, as such, to the general system of public streets constitutes a taking which entitles him to compensation. Such compensation must rest upon the property owner's showing of a substantial impairment of his right of access to the general system of public streets.... [p] Substantial impairment cannot be fixed by...