Hurwitz v. City of Orange

• Decision Date: 24 September 2004
• Docket Number: No. G032479.,G032479.
• Citation: 19 Cal.Rptr.3d 213,122 Cal.App.4th 835
• Court: California Court of Appeals Court of Appeals
• Parties: Mark HURWITZ, Plaintiff and Respondent, v. CITY OF ORANGE, Defendant and Appellant.

19 Cal.Rptr.3d 213

122 Cal.App.4th 835

Mark HURWITZ, Plaintiff and Respondent, v. CITY OF ORANGE, Defendant and Appellant.

No. G032479.

Court of Appeal, Fourth District, Division 3.

September 24, 2004.

David A. DeBerry, City Attorney; Law Offices of Stephen M. McNamara and Stephen M. McNamara for Defendant and Appellant.

Law Offices of Hurwitz & Hurwitz and Michael J. Meade for Plaintiff and Respondent.

OPINION

SILLS, P.J.

I. Introduction: This Case is About A Party Trying to Take Advantage of Its Own Wrong

This is a textbook example of a party trying to take advantage of its own wrong. In this case the opportunistic party is the City of Orange. The wrong is that the city violated a preliminary injunction not to build in a certain area or otherwise interfere with existing parking access enjoyed by a property owner. We will repeat the essence of that statement just in case any reader missed it the first time: The city violated a preliminary injunction not to interfere with the landowner's parking access. It built a permanent cement curb that the injunction specifically precluded it from building, thereby eliminating a driveway swale and thus entirely foreclosing the owner's access to a parking space on his property. Now the city complains because the trial court awarded the property owner damages for the loss of access.

Specifically, the city now claims on appeal that it should be immune from a condemnation award because instead of merely defending a condemnation proceeding brought by the city itself, the landowner should have also filed a proceeding in administrative mandate to ... well, that's the problem — to obtain what relief? When deconstructed, the city is saying that the landowner should have brought an administrative mandate proceeding to prevent what the city had already done and to adjudicate what was going to be adjudicated in the condemnation proceeding already underway. If we were scorekeepers, the city's conduct might be graded this way: Plus 10 for chutzpah, minus 1000 for jumping the gun. Needless to say, the argument is unavailing and we shall affirm the judgment pursuant to the condemnation action awarding the property owner money for the interest taken by the city.

II. Facts and Procedural History

A. The Property: A Guaranteed Parking Spot On a Traffic Circle Surrounding a Charming Plaza Area

The case centers on a condemnation action concerning a certain driveway (well, former driveway, it isn't there anymore) and parking area which is on the Orange Circle in Orange, California.

To paint the picture: The Orange Circle is a large traffic circle in an "old town" section of Orange. The area is redolent of California in the 30s, 40s and maybe 50s. (And clearly not the 60s or later.) It's a location perfect for time travel movies, and in fact the location's credits include The Man Who Wasn't There (2000, set in 1949 Pasadena), Big Mama's House (2000, playing the role of generic small southern town), and a 1998 commercial using the Oscar Meyer Weinermobile (another appeal to nostalgia). Some scenes in Forrest Gump could easily have been filmed there as well.

The circle is created by the intersection of Glassel and Chapman Avenues, not unlike British roundabouts except that in the middle is a park-like plaza with green grass, a fountain, park benches, and trees around which the traffic swirls. There is heads-in parking on the circle for limited time periods.

There are a variety of businesses in the various quadrants. We are concerned with the city's plans for the southwest quadrant, which contains a Cuban restaurant, a coffee house, and, between the coffee house and the next building immediately to its north, a gap which forms a blind alley. The gap is wide enough to easily park a car if one could get to it without having to drive over the curb of a sidewalk. (The gap is actually long enough to accommodate two or three cars if one didn't care about all but one of them being blocked in.)¹

Because of the curve of the circle, the sidewalk area near the coffee house and Cuban restaurant affords a relatively large sidewalk area for dining al fresco and coffee sipping. Today, in 2004, a patron nursing a nonfat iced-mocha half-decafcappuccino half-latte while sitting in a chair on that sidewalk would never think that, for a period extending from the 1920s to 2001, automobiles were able to traverse the current seating area so as to park in the gap, by way of a driveway swale cut into the sidewalk adjacent to the gap. The sidewalk then consisted of brickwork, and the driveway swale led into the circle itself. Today, using the gap for parking is impossible because there is a high curb where the driveway swale used to be, bolted-in city benches between the gap and the most direct path to the street, and more heads-in parking blocking the path a car might use to get in or out of the gap.

The gap of which we have spoken is actually part of the property on which sits a two-story 30s-ish style office building on the other side of the coffee house. The building is owned in fee by defendant and respondent Mark Hurwitz, who has had his law practice there since he was admitted to the bar in 1962. Hurwitz inherited the building from his father, also a lawyer, who practiced law in the building since he bought the property in 1946. There is no dispute in the record that during the 55 years from 1946 to 2001 the gap could be used as a parking space. In fact, there is substantial evidence in the record (old photos of automobiles parked in the gap) that the gap was used as a parking space as early as the 1920s.

B. The Parking Spot Is An Obstacle to the City's Plan to Make the Plaza Area Even More Charming

As alluded to above, enlarging the side-walk area from the way it was and precluding automotive access from the gap across the sidewalk and into the public street that forms the circle makes eminent sense from both the point of view of diners and coffee-sippers, as well as the city. The diners have more space to enjoy their empanadas, paella, or chicken embajador outside in the fresh air; the coffee-sippers could delight in the additional open-air space gazing out upon the plaza inside the traffic circle over a comforting cup of java. And the city almost certainly gains extra sales-tax revenues from the additional business, as well as the general "yuppification" of the whole old town area: all very win-win-win except for Mr. Hurwitz, who loses access to his parking space (or, more precisely, the parking space that came with the building he inherited).

In December 1998 Hurwitz was visited by city officials (a service manager and planning manager) who told him of the city's plans for the southwest quadrant of the circle. He pointed out that he and his father had used the gap for parking with access to the city street since 1946.

Nothing happened then until September 1999, when the city sent a letter telling Hurwitz that if the city's plan for the area were approved, and the driveway would be eliminated and he would no longer be able to park in the gap.

C. The City Offers Nothing to Eliminate the Right to Use the Space for Parking

Negotiations between Hurwitz and the city took place over the next 10 months, but bogged down when the city insisted that Hurwitz had no valid claim for compensation. The city wanted to pay him nothing for the loss of the only guaranteed parking on the circle.

As part of these negotiations, in June 2000 an assistant city attorney sent Hurwitz a letter asserting that use of the gap for parking was currently unsafe, as well as would become more unsafe in the future. ("Vehicular access over a City sidewalk in a crowded pedestrian area is unsafe and will become increasingly more unsafe as more pedestrians are drawn to the area.") The assertion was made a full 10 months before the city would later take matters into its own hands, and was in the context of the city's apologia to the effect that the loss of the ability to park in the space was of no value at all. The city in fact asserted that the renovations would "enhance the value of your property notwithstanding the inconvenience of losing one parking space."

As the trial evidence would later show, there had never been an accident, incident, or complaint regarding use of the gap for parking.

D. The Owner Files Suit to Prevent Loss of the Space and Obtains an Injunction Against Any City Interference, Including The Construction of a Curb

In March 2001 Hurwitz got wind that the city was about to demolish the drive-way and erect a curb in its place. On April 3 he filed a suit for an injunction to stop the city from depriving him of what he asserted was a valuable property right. After the hearing on April 20, the court issued a preliminary injunction on May 2 2001, which by its express terms forbade the city, during the pendency of Hurwitz' action, from "directly or indirectly ... [¶] Demolishing, blocking, barricading, commencing construction upon, eliminating or otherwise interfering with or depriving Plaintiff of the use of the driveway and/or Plaintiff's right of vehicular ingress and egress" in regard to the gap space.

On May 2 the parties modified the injunction to allow the city to do construction "not related to the closing of the driveway or construction of a curb."

E. The City Violates the Injunction and Goes Ahead and Builds a Permanent Curb Anyway

In the latter part of May 2001 the city went ahead and, to use conclusory language, "interfered" with Hurwitz's ability to use the driveway and parking space anyway by building a curb. That is, the city constructed a new curb where the expanded sidewalk would be. It also bolted benches across the new sidewalk, making access from the street to the gap impossible. The city attempted to ameliorate what it had done by installing an "asphalt ramp" a few days after the construction of the curb. There is no dispute that this "asphalt ramp" was temporary and no longer exists....