County of Los Angeles v. Ortiz

• Citation: 98 Cal.Rptr. 454,490 P.2d 1142,6 Cal.3d 141
• Court: United States State Supreme Court (California)
• Decision Date: 30 November 1971
• Parties: , 490 P.2d 1142, 68 A.L.R.3d 538 COUNTY OF LOS ANGELES, Plaintiff and Respondent, v. Manuel A. ORTIZ et al., Defendants and Appellants. COUNTY OF LOS ANGELES, Plaintiff and Respondent, v. Benjamin BAIM et al., Defendants and Appellants. COUNTY OF LOS ANGELES, Plaintiff and Respondent, v. Shulen MOSKOWITZ et al., Defendants and Appellants. L.A. 29899. In Bank

Page 454

98 Cal.Rptr. 454

6 Cal.3d 141, 490 P.2d 1142, 68 A.L.R.3d 538

COUNTY OF LOS ANGELES, Plaintiff and Respondent, v. Manuel A. ORTIZ et al., Defendants and Appellants.

COUNTY OF LOS ANGELES, Plaintiff and Respondent, v. Benjamin BAIM et al., Defendants and Appellants.

COUNTY OF LOS ANGELES, Plaintiff and Respondent, v. Shulen MOSKOWITZ et al., Defendants and Appellants.

L.A. 29899.

Supreme Court of California,

In Bank.

Nov. 30, 1971.

Phill Silver and Robert M. Silver, Hollywood, for defendants and appellants; Kaplan, Livingston, Goodwin, Berkowitz & Selvin, Herman F. Selvin, Berverly Hills, Daniel S. Carlton, Redding, Richard F. Desmond, Desmond, Miller, Desmond & West, Sacramento, Irving Loube, Oakland, William T. Ivey, Jr., Merced, Alfred P. Chasuk, Malovos & Chasuk, Mountain View John E. Thorne, San Jose, James E. Cox, Martinez, Gary Rinehart, San Francisco, Fadem & Kanner, Gideon Kanner, Beverly Hills, Jackson, Turner, Endeman & Mulcare, Jesse S. Jackson, Jr., Burlingame, Ronald L. Endeman, La Mesa, Ronald J. Mulcare, San Francisco, O'Neill & Huxtable, Francis H. O'Neill, and Richard L. Huxtable, Los Angeles, as amici curiae on behalf of defendants and appellants.

John D. Maharg, County Counsel, A. R. Early, Asst. County Counsel, and Charles Vinson Tackett, Deputy County Counsel, for plaintiff and respondent; Evelle J. Younger, Atty. Gen., James E. Sabine, Asst. Atty. Gen., Lloyd Hinkelman and Dan G. Lubbock, Deputy Attys. Gen., Roger Arnebergh, City Atty. (Los Angeles), Peyton M. Moore, Jr., Asst. City Atty., Norman L. Roberts, Deputy City Atty., Harry S. Fenton, Sacramento, Joseph A. Montoya and Charles E. Spencer, Jr., Los Angeles, as amici curiae on behalf of plaintiff and respondent.

MOSK, Justice.

In these consolidated cases the County of Los Angeles instituted proceedings in eminent domain to acquire property owned by defendants. In each trial defendants called an appraiser as an expert witness and introduced into evidence a report prepared by him. Subsequently, defendants sought to tax as costs against the county the fee charged by the expert witness for his testimony and report. The county objected to the allowance of these items, and the trial court found in its favor. On this appeal defendants assert that the county must pay the fees of the expert witness by virtue of the prohibition of the United States Constitution and the California Constitution against the taking of private property for public use without just compensation. (U.S.Const., Amend. V; Cal.Const., art. I, § 14.) ¹

Debating the proposal that a defendant in a condemnation action should be entitled to recover his nonstatutory litigation costs has been an academic exercise of ancient vintage in this state. ² Section 1255 of the Code of Civil Procedure provides, as it has since 1872, that in an eminent domain proceeding 'Costs may be allowed or not * * * in the discretion of the Court.' However, the term 'costs' in this context has been held in an unbroken line of cases to refer only to ordinary costs of suit, such as sheriff's and jury fees, and not to the fees of experts or attorneys. (E.g., City of Los Angeles v. Agardy (1934) 1 Cal.2d 76, 82, 33 P.2d 834; City of Los Angeles v. Abbott (1932) 217 Cal. 184, 196, 17 P.2d 993; Coburn v. Townsend (1894) 103 Cal. 233, 236, 37 P. 202; San Jose etc. R.R. Co. v. Mayne (1890) 83 Cal. 566, 570, 23 P. 522; People v. Bowman (1959) 173 Cal.App.2d 416, 418--419, 343 P.2d 267; County of Los Angeles v. Hale (1958) 165 Cal.App.2d 22, 28--29, 331 P.2d 166; City of Los Angeles v. Vickers (1927) 81 Cal.App. 737, 740, 254 P. 687; Pacific Gas etc. Co. v. Chubb (1914) 24 Cal.App. 265, 267--269, 141 P. 36; Lincoln Northern Ry. Co. v. Wiswell (1908) 8 Cal.App. 578, 581--582, 97 P. 536; see La Mesa-Spring Valley School Dist. of San Diego County v. Nobuo Otsuka (1962) 57 Cal.2d 309, 313, 19 Cal.Rptr. 479, 369 P.2d 7.)

The Legislature's intention to exclude litigation costs as an element in the recovery of costs in eminent domain proceedings becomes manifest by reference to analogous statutory provisions. Section 1255a of the Code of Civil Procedure provides that in the event of abandonment of a condemnation proceeding the defendant may be entitled to recover all necessary expenses incurred, including attorneys' fees. The purpose of the section is to remedy the injustice which would occur if an unduly acquisitive condemner, dissatisfied with an award, brought successive lawsuits against the landowner in an attempt to obtain a lower judgment. (City of Los Angeles a Abbott, supra, 217 Cal. 184, 200, 17 P.2d 99o.) The section has been amended a number of times since its original enactment in 1911 but no provision has been added for the payment of litigation costs in circumstances other than abandonment.

An even more cogent indication of legislative intent is the enactment of section 998 of the Code of Civil Procedure in 1969. In essence the section provides that if a party rejects a settlement offer prior to trial and subsequently at trial fails to obtain a judgment more favorable than the offer, the court may order him to pay the cost of services of expert witnesses reasonably necessary in the preparation of the case. The section specifically excludes application to eminent domain actions.

Defendants do not seriously dispute the foregoing indicia of legislative intent but, rather, they assert that just compensation under both the federal and state Constitutions depends upon judicial, not legislative, determination, that the statutory provisions allowing costs in eminent domain proceedings must be enhanced by the constitutional requirement of just compensation, and that to require a landowner to pay any portion of his litigation expenses would unconstitutionally deprive him, to the extent of such expenditures, of the just compensation to which he is entitled.

No one can gainsay that the amount to be paid for property taken by the government is, under the Constitution, a matter for the courts rather than the Legislature, and this applies also to the measure of damages awarded for the taking of the subject property. (United States v. New River Collieries (1923) 262 U.S. 341, 343--344, 43 S.Ct. 565, 67 L.Ed. 1014; Seaboard Air Line Ry. v. United States (1923) 261 U.S. 299, 304, 43 S.Ct. 354, 67 L.Ed. 664; Monongahela Navigation Co. v. United States (1892) 148 U.S. 312, 327, 13 S.Ct. 622, 37 L.Ed. 463; see B. & O.R. Co. v. United States (1936) 298 U.S. 349, 368, 56 S.Ct. 797, 80 L.Ed. 1209.) Our problem involves a substantial variant of the foregoing premise: whether the constitutional admonition necessarily requires that a condemner pay the defendant's litigation costs in addition to the value of the property appropriated.

Authorities both in this state and elsewhere are, with one exception, ³ in accord with the view that the constitutional requirement for just compensation does not compel a condemner to pay a condemnee's litigation costs. (E.g., Dohany v. Rogers (1930) 281 U.S. 362, 368, 50 S.Ct. 299, 74 L.Ed. 904; ⁴ United States v. 2,353.28 Acres of Land, etc., State of Fla. (5th Cir. 1969) 414 F.2d 965, 972; United States v. 15.3 Acres of Land (M.D.Pa.1957) 158 F.Supp. 122, 125; Frustuck v. City of Fairfax (1964) 230 Cal.App.2d 412, 416, 41 Cal.Rptr. 56 (inverse condemnation); City of Los Angeles v. Vickers, supra, 81 Cal.App. 737, 739, 254 P. 687; Pacific Gas etc., Co. v. Chubb, supra, 24 Cal.App. 265, 267--268, 141 P. 36; State v. McDonald (1960) 88 Ariz. 1, 352 P.2d 34o, 350--351; City of Ottumwa v. Taylor (1960) 251 Iowa 618, 102 N.W.2d 376, 378; North America Realty Co. v. City of Milwaukee (1926) 189 Wis. 585, 208 N.W. 489; see La Mesa-Spring Valley School Dist. of San Diego County v. Nobuo Otsuka, supra, 57 Cal.2d 309, 313, 19 Cal.Rptr. 479, 369 P.2d 7; see also cases collected in 30 C.J.S. Eminent Domain § 386, pp. 442--443, and 4A Nichols on Eminent Domain (rev.3d ed. 1971) § 14.249.) The overwhelming weight of authority thus supports the trial court's disallowance of the expert witness fees.

Defendants, in urging us to hold that the trial court ruled erroneously, rely primarily upon City and County of San Francisco v. Collins (1893) 98 Cal. 259, 33 P. 56. In that case the plaintiff county refused to pay any of the landowner's statutory costs after the trial of a condemnation action in which judgment was rendered in the county's favor. It was held that the power of the Legislature to provide for the payment of costs in a condemnation action was limited by the just compensation provision of the California Constitution and that '(t)o require the defendants * * * to pay any portion of their costs necessarily incidental to the trial of the issue on their part, or any part of the costs of the plaintiff, would reduce the just compensation awarded by the jury, by a sum equal to that paid by them for such costs.' (98 Cal. at p. 262, 33 P. at p. 57.)

While the expansive rhetoric quoted above understandably lends comfort to defendants, it is essential to keep in mind that only ordinary costs such as statutory witness fees and jury fees were at issue in Collins. The landowners did not claim, as do defendants here, that they were entitled to additional expenses over and above those provided by statute. We do not interpret Collins to be sufficiently elastic to stretch beyond the facts to which it relates.

The experience of two other jurisdictions is instructive. In Wisconsin and Louisiana early cases had contained broad expressions similar to that contained in Collins, also in a factual context of costs specified as recoverable by statute. (Stolze v. Milwaukee & L.W.R. Co. (1902) 113 Wis. 44, 88 N.W. 919, 924; Westwego Canal & T. Co. v. Louisiana Highway Com'n. (1942) 200 La. 990, 9 So.2d 389, 392--393.) In both jurisdictions defendants in subsequent condemnation proceedings relied upon such general language to justify seeking assessment of costs, such as attorneys' fees, not...