Melamed v. City of Long Beach

• Decision Date: 23 April 1993
• Docket Number: Nos. B056182,B057258,s. B056182
• Citation: 15 Cal.App.4th 70,18 Cal.Rptr.2d 729
• Court: California Court of Appeals Court of Appeals
• Parties: Robert L. MELAMED, as Trustee, etc., et al., Plaintiffs and Respondents, v. CITY OF LONG BEACH, Defendant and Appellant. Robert L. MELAMED, as Trustee, etc., et al., Plaintiffs and Appellants, v. CITY OF LONG BEACH, Defendant and Appellant.

Page 729

18 Cal.Rptr.2d 729

15 Cal.App.4th 70

Robert L. MELAMED, as Trustee, etc., et al., Plaintiffs and Respondents, v. CITY OF LONG BEACH, Defendant and Appellant.

Robert L. MELAMED, as Trustee, etc., et al., Plaintiffs and Appellants, v. CITY OF LONG BEACH, Defendant and Appellant.

Nos. B056182, B057258.

Court of Appeal, Second District, Division 3, California.

April 23, 1993.

Rehearing Denied May 21, 1993.

Review Denied July 15, 1993.

John R. Calhoun, City Atty., and Thomas A. Vyse, Deputy, for defendant and appellant.

Cooper, Epstein & Hurewitz and Richard D. Agay, Beverly Hills, for plaintiff, respondent and appellant.

KLEIN, Presiding Justice.

Defendant and appellant City of Long Beach (the City) appeals a judgment following a grant of summary judgment in favor of plaintiff and respondent Robert L. Melamed, trustee under the William L. Melamed, Sr. 1991 Trust (Melamed).

Melamed appeals from a postjudgment order limiting his award of attorney's fees. The City cross-appeals from the postjudgment order.

SUMMARY STATEMENT

Melamed listed his real property (the Property) for sale at $8,950,000. About 27 months later, Melamed entered into a buy/sell agreement with the City for $8 million. Melamed later discovered the City had appraised his property at $8,690,000 before the sale. Based on that valuation, Melamed sought to recover an additional $690,000 from the City, plus interest. The trial court found for Melamed.

The essential issue presented is whether Government Code section 7267.2 controls this fact situation. ¹ That statute requires a public entity, prior to exercising its power of eminent domain, to offer just compensation in an amount no less than the approved appraisal value of the property.

Because the City purchased the Property in a routine buy/sell transaction, rather than in a precondemnation situation, section 7267.2 by its terms is inapplicable.

The judgment and order therefore are reversed with directions.

FACTUAL AND PROCEDURAL BACKGROUND

Melamed owned the subject real property, a sizeable parcel in the Port of Long Beach. In December 1983, Melamed entered into a listing agreement with Coldwell Banker, offering the Property for sale at $8,950,000.

On March 22, 1985, the City commissioned Christy Petrofanis (Petrofanis) to prepare an appraisal of the Property, which was still unsold. On August 1, 1985, Petrofanis submitted an appraisal of the Property to the City, valuing it at $8,690,000.

Thereafter, the City engaged in negotiations with Melamed for purchase of the Property. It refused to advise Melamed of the amount of the appraisal.

On March 10, 1986, Melamed and the City entered into a real estate purchase agreement (the Agreement) for the sale of the Property for a total purchase price of $8,000,000.

The Agreement contained an attorney's fee clause at Paragraph 11, which states: "In the event of litigation between the parties hereto arising out of this Purchase Agreement or the underlying transaction, the prevailing party shall be entitled to reasonable attorney's fees."

Melamed subsequently learned of the $8,690,000 appraisal. Melamed then demanded the City pay $690,000 in "just compensation" for the Property. That sum represented the difference between the sale price and the higher appraised value. The City rejected the demand.

Melamed then filed suit, pleading causes of action for violation of section 7267.2, fraud, relocation assistance (§ 7260 et seq.), negligence, breach of contract, rescission, and reformation.

The City answered, alleging it had paid Melamed just compensation, and pleading various affirmative defenses.

On January 30, 1989, the City filed a motion for summary judgment, contending section 7267.2 was inapplicable to this transaction because there had been no "taking" of private property. Instead, a willing seller and a willing buyer had negotiated a purchase price in the open market.

On May 3, 1989, Melamed filed a motion for summary adjudication of issues, arguing, inter alia, section 7267.2 required the City to offer him fair compensation in an amount not less than fair market value according to an appraisal approved by the City.

The motions were heard on June 2, 1989. The trial court denied the City's motion ruling "Section 7267.2 ... spells out very specifically the actions which the Governmental entity must take in acquiring property." ²

Therefore, the trial court granted Melamed's motion for summary adjudication and ruled Melamed was entitled to judgment on the first cause of action for violation of section 7267.2, in the amount of $690,000 plus interest. It denied Melamed's request for summary adjudication on his rescission and negligence claims.

On July 25, 1989, the City filed a petition for writ of prohibition and/or mandate, contending the trial court should have granted its motion for summary judgment. (Long Beach v. Superior Court (Oct. 12, 1989) B043516 [nonpub. opn.] ).

The petition was denied by Division Four of this court. The order states: "Given the apparent irreconcilable conflict between the applicable statutory provisions, respondent did not clearly abuse its discretion. (See Babb v. Superior Court (1971) 3 Cal.3d 841, 851 [92 Cal.Rptr. 179, 479 P.2d 379.) ]"

The City also filed a purported appeal from the order granting Melamed's motion for summary adjudication of issues. On January 4, 1990, Division Seven of this court granted Melamed's motion to dismiss the City's appeal. (Melamed v. Long Beach (Jan. 4, 1990) B044229 [nonpub. opn. ).

On January 22, 1991, after Melamed dismissed his remaining causes of action against the City, the trial court entered judgment for Melamed on the first cause of action, and directed the City to pay Melamed $690,000, plus $235,412.87 in interest, together with attorney fees and costs.

On January 31, 1991, the City filed an appeal from the final judgment.

On February 8, 1991, Melamed filed a memorandum of costs. Claiming an entitlement to enhancement of attorney fees for having conferred a benefit upon the public, Melamed sought $370,000 in attorney fees plus $488 in costs.

On March 7, 1991, the trial court awarded Melamed attorney fees in the sum of $167,555.99. On March 22, 1991, Melamed appealed from the postjudgment order restricting the award of attorney fees to that amount.

On March 29, 1991, the City filed a cross-appeal from the postjudgment order for costs.

CONTENTIONS

On the main appeal, the City contends section 7267.2 is inapplicable and confers no benefit upon Melamed.

Melamed argues the City's contention is barred by the law of the case doctrine, and in any event, he is entitled to relief under section 7267.2.

DISCUSSION

1. No merit to Melamed's reliance on law of the case doctrine.

Melamed contends the law of the case doctrine bars reconsideration of the City's contention that section 7267.2 is inapplicable. He relies upon the appellate court's earlier denial of the City's writ petition. In that petition the City challenged the trial court's denial of its summary judgment motion. The argument is without merit.

In Kowis v. Howard (1992) 3 Cal.4th 888, 891, 12 Cal.Rptr.2d 728, 838 P.2d 250, the Supreme Court held the pretrial denial of a writ petition does not establish law of the case unless the denial is accompanied by a written opinion following the issuance of an alternative writ.

Therefore, the summary denial of the City's writ petition, which was accompanied by a brief comment but without issuance of an alternative writ, oral argument, or a full written opinion, does not preclude consideration of the issue on the City's appeal from the final judgment. (Kowis, supra, 3 Cal.4th at pp. 894-895, 12 Cal.Rptr.2d 728, 838 P.2d 250.)

To preclude the City's challenge to the applicability of section 7267.2, Melamed also seeks to rely on the dismissal of the City's earlier, purported appeal from the order granting Melamed's motion for summary adjudication of issues. That order was nonappealable because not all causes of action had been disposed of at the time, and thus, there was no final judgment. Therefore, the purported appeal was properly dismissed on procedural grounds and has no law of the case effect on the instant appeal from the final judgment.

2. Standard of review.

a. Appellate scrutiny of summary judgment.

The purpose of the summary judgment procedure is not to try the issues but merely to discover, through the medium of affidavits, whether there are issues to be tried and whether the parties possess evidence which demands the analysis of trial. (Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 468, 33 Cal.Rptr. 661; Orser v. George (1967) 252 Cal.App.2d 660, 669, 60 Cal.Rptr. 708.)

Because the trial court's ruling on a motion for summary judgment is one of law based upon the papers presented, the appellate court makes an independent determination of their construction and effect. (Larsen v. Johannes (1970) 7 Cal.App.3d 491, 496, 86 Cal.Rptr. 744; Bonus-Built, Inc. v. United Grocers, Ltd. (1982) 136 Cal.App.3d 429, 442, 186 Cal.Rptr. 357; Hayman v. Block (1986) 176 Cal.App.3d 629, 640, 222 Cal.Rptr. 293.)

b. Statutory interpretation is a question of law for this court.

The applicability of section 7267.2 to this case requires interpretation of the statute, which is a question of law for this court's independent determination. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699, 170 Cal.Rptr. 817, 621 P.2d 856; Shoban v. Board of Trustees (1969) 276 Cal.App.2d 534, 541, 81 Cal.Rptr. 112.)

c. Principles of statutory construction.

In addressing the issue at hand we begin with the language of the statute. (Rojo v. Kliger (1990) 52 Cal.3d 65, 73, 276 Cal.Rptr. 130, 801 P.2d 373.) In analyzing section 7267.2, we are mindful of the settled principle in California law that when statutory language is " 'clear and unambiguous there is no need for construction, and courts should not indulge in it.' " [Citation....