Laguna Salada Union Elementary School Dist. v. Pacific Development Co.

• Decision Date: 03 August 1953
• Court: California Court of Appeals Court of Appeals
• Parties: LAGUNA SALADA UNION ELEMENTARY SCHOOL DIST. v. PACIFIC DEVELOPMENT CO. et al. Civ. 15484.

Page 498

259 P.2d 498

119 Cal.App.2d 470

LAGUNA SALADA UNION ELEMENTARY SCHOOL DIST. v. PACIFIC DEVELOPMENT CO. et al.

Civ. 15484.

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

Aug. 3, 1953.

Rehearing Denied Sept. 2, 1953.

Hearing Denied Oct. 1, 1953.

Eli D. Langert, San Francisco, Norman S. Menifee, Redwood City, Antonio J. Gaudio, South San Francisco, for appellants.

Louis B. DeMatteis, Dist. Atty. of San Mateo County, and Keith C. Sorenson, Asst. Dist. Atty., Redwood City, for respondent.

DOOLING, Justice.

This is an appeal by two property owners from a judgment and decree in a condemnation action instituted against appellants by the school district. Two lots owned by Jones were condemned and one owned by Schroyer. Jones owned other contiguous land for which severance damages were sought. The jury awarded Jones $700 for his two lots and no severance damage. It awarded $150 to Schroyer for his one lot.

The trial was set for June 11, 1951. A motion for change of venue was made by both parties and a motion for an order of court appointing expert witnesses was made by Schroyer. Trial was continued to June 18 and the motions were denied on that day. Appellants complain of the denial of the motion to appoint expert witnesses. When the trial began the order of proof was ordered to be as follows: first defendants would put in their evidence of value, second plaintiff would put in its evidence of value, third plaintiff would put on its prima facie case, including public good and necessity after the verdict as to value. Appellants complain of this order of proof. The next four complaints concern certain rulings on the evidence, including the court's ruling that the jury would not view the premises. An objection is made to an instruction given, to misconduct of the court in allegedly forcing a hurried verdict, to the denial of the motion for new trial and that the evidence is insufficient to sustain the verdict.

The motion for the appointment of expert witness was made by Schroyer only on affidavit of his attorney. The affidavit alleges that affiant had been told that if the verdict were over $1,000 plaintiff would abandon the action. This is denied in the counter affidavit. It was further alleged that the property of Schroyer was valued at $7,500 but that the highest offer was $350 and that this variance required the testimony of experts, but if experts were hired by defendant and a low award were made defendant would be deprived of the value of his award. The necessity of experts was denied in the counter affidavit for the reason that the defendants themselves could properly testify as to value and if they had to pay for experts that was an expense that defendants properly and customarily bear. The section upon which this motion was based reads in part 'Whenever it shall be made to appear to any court or judge thereof, either before or during the trial of any action * * * that expert evidence is, or will be required by the court or any party to such action or proceeding, such court or judge may, on motion of any party, or on motion of such court or judge, appoint one or more experts * * *.' Code Civ.Proc. § 1871. Condemnation actions are within the purview of the section. City of Los Angeles v. Clay, 126 Cal.App. 465, 14 P.2d 926. The section confers no absolute right on a party to have an expert appointed; it gives the court discretion. People v. Rickson, 112 Cal.App.2d 475, 246 P.2d 700. In the last cited case the court said, 112 Cal.App.2d at page 479, 246 P.2d at page 703: 'Defendant had full opportunity to examine the expert witness who testified as to his competency and ability. The trial court properly concluded that further expert testimony was not needed to enlighten the court as to the facts. Defendant produced a witness who testified on that subject. In view of all the surrounding facts, no abuse of discretion appears.' In Daly City v. Smith, 110 Cal.App.2d 524, 533, 243 P.2d 46, 51, the court in a condemnation action said: 'Certainly it is not the law that whenever the parties' experts radically differ on the issue of value, the court must, as a matter of law, appoint experts.' Although a defendant may be awarded only a small sum for his property, he may also be awarded a large sum and the court, at the time the motion was made, had no way of telling how much would eventually be awarded and thus no way of telling what proportion the cost of experts would be to the total award. Appellants also point out that the plaintiff might abandon the case if a large award were made and thus defendants would have to pay their costs for their own experts. This difficulty, however, is alleviated to a great extent by the fact that their costs in preparing for trial are collectible, and this includes the preparations made by their experts, which are a large percentage of an expert's fees. Metropolitan Water Dist. of Southern Calif. v. Adams, 23 Cal.2d 770, 147 P.2d 6. This argument would be equally good in any condemnation suit, thus requiring, if it were a good argument, the appointment of experts in all such cases. As the court said in the Daly City case, 'If that were so [the argument as to differences between party employed experts] such experts would have to be appointed in practically every case where expert evidence is admissible. The point is without merit.' It would appear that the point is without merit here also.

We find no error in requiring the case as to value of the property to be heard before the condemnor put on its prima facie case. Appellants' first argument that if they could show, as an initial matter, that there was no necessity for the improvement they would not have had to go to the expense of employing experts, is answered by the fact that the court did find necessity. This question was thereby rendered moot. The only matter for the jury in condemnation cases is the question of value or compensation. People v. Ricciardi, 23 Cal.2d 390, 144 P.2d 799. All else is to be tried to the court. Hence, appellants cannot complain that they were unable to cross-examine as to necessity or power to condemn before the jury as the jury is not required to hear these matters. Nevertheless appellants' second argument on this matter is that the manner in which the improvement is to be constructed is relevant to the question of severance and consequential damages. Apparently appellants contend that they could in no way get in the evidence of the nature and type of improvement planned except by plaintiff first putting on the prima facie case. If appellants contended that the nature of the improvements would increase their consequential damages, the burden was on them to prove it. Although the matter may have been within the singular knowledge of plaintiff there is always a remedy by Code Civ.Proc. § 2055. It has been held that it is proper (or at least not controllable by prohibition proceedings) for the court to reserve the question of necessity until after the verdict of the jury on compensation. The only condition, or reservation, is that the jury must have sufficient information to conclude as to compensation. Beaulieu Vineyard v. Superior Court, 6 Cal.App. 242, 91 P. 1015. The court's dictum in that case is that such procedure is 'not even erroneous, much less in excess of jurisdiction.'

Appellant's witness Riley had...