Parker v. City of Los Angeles

• Decision Date: 18 December 1974
• Citation: 43 Cal.App.3d 976,118 Cal.Rptr. 687
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 43 Cal.App.3d 976 43 Cal.App.3d 976, 44 Cal.App.3d 556 Robert S. PARKER et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES, a Municipal Corporation, Defendant and Appellant. Civ. 43765.

Page 687

118 Cal.Rptr. 687

Previously published at 43 Cal.App.3d 976

43 Cal.App.3d 976, 44 Cal.App.3d 556

Robert S. PARKER et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES, a Municipal Corporation, Defendant and Appellant.

Civ. 43765.

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

Dec. 18, 1974.

As Modified on Denial of Rehearing Jan. 15, 1975.

Burt Pines, City Atty., Los Angeles, Milton N. Sherman, Principal Asst. City Atty., and John F. Haggerty, Asst. City Atty., for defendant and appellant.

William F. Powers, Burbank, for plaintiffs and respondents Irwins.

John J. Schimmenti, El Segundo, for plaintiffs and respondents Van Zandts, Harbourn, Fergusons, Frankels, Smiths, Lynns, Parkers and Hainlines.

COBEY, Associate Justice.

Defendant, City of Los Angeles, appeals from a judgment, filed March 8, 1973, awarding to the owners of certain residential properties the sum of $224,370.77 in damages in inverse condemnation. The City also appeals from a minute order of March 27, 1973 denying its motion to strike plaintiffs' cost bill and to tax costs. Both appeals lie. (Code Civ.Proc., § 904.1, subds. (a), (b).)

The award under appeal consists of $160.301 in principal amount and $64,109.37 in interest. To this the trial court has added costs of $79,875.76 composed primarily of attorneys' fees in the amount of $74,646.76 and appraisal fees of $4,775. The gross award is $304,286.13.

This sum is in payment for an avigation easement over, near and around the various properties of plaintiffs, and is in payment as well for the diminution in the fair market values of their properties by reason of the noise and vibration from jet aircraft using the north runway complex of the Los Angeles International Airport.

The City generally contends that the trial court abused its discretion in denying the City's motion for judgment pursuant to Code of Civil Procedure, section 631.8, that plaintiffs' expert evidence in support of the damages awarded was inadmissible, and, in any event, the evidence in support of the damages awarded is insubstantial; that the amount of damages awarded was excessive and should have been allocated between two takings; that the conditional alternative allocations between two takings made by the trial court is unsupported by substantial evidence; that neither prejudgment interest nor attorneys' fees and appraisal fees should have been awarded; and finally, that the amount of attorneys' fees awarded was excessive. ¹

FACTS

Los Angeles International Airport contains four parallel runways. Two of these are located north of the terminal area. To aircraft approaching the airport for landing from the east, or departing the airport to the west, the runways north of the terminal are designated 24L and 24R. They constitute the north runway complex.

On or about June 23, 1967, unrestricted flights, using runway 24L for all types of jet aircraft, commenced. The use of that runway for this purpose since that date has been continuous except for normal interruptions required by periodic maintenance.

On or about June 29, 1970, runway 24R was open for regular use by jet aircraft. Under the City's preferential usage system, 83% Of daily landings and takeoffs of jet aircraft have been, are and will be on and from 24L; the remaining 17% Use and will use 24R.

Between June 23, 1967 and January 1, 1971, there were, on the average, a minimum of approximately 200 takeoffs and landings of jet aircraft daily from and to the north runway complex. The City's forecasts indicate that this use of these runways by jet aircraft will continue.

Aircraft landing on runways 24L and 24R fly directly over the properties of four of the plaintiffs, including the largest property, at heights of approximately 250 to 300 feet. Aircraft taking off from these runways go by six of plaintiffs' properties approximately 1300 to 4000 feet to the south of them at heights ranging from approximately zero to 500 feet.

Jet aircraft, consisting primarily of heavy carriers, taking off from and landing on these runways create substantial noise preceptible to people on the ground at plaintiffs' properties. This noise constitutes a substantial interference with plaintiffs' use and enjoyment of their properties. Since June 23, 1967, flights of jet aircraft to or from these runways over or near to plaintiffs' properties has caused, by reason of the noise and vibration from such flights, substantial damage to the fair market values of their properties.

DISCUSSION

Denial of 631.8 Motion.

The City first contends that the trial court abused its discretion in denying the City's motion for judgment made pursuant to Code of Civil Procedure, section 631.8, at the close of the plaintiffs, case in chief on two grounds--(1) on the basis of the expert evidence no substantial damage had been done to the four multiple residential properties because, according to plaintiffs' evidence, three of them had increased in value, and (2) the comparable sales used by plaintiffs' expert witness in valuing the single family residential properties were quite generally of higher priced homes than the corresponding subject properties.

Neither of these grounds has merit. In regard to the multiple residential properties (apartment houses), plaintiffs' expert witness, John Williams, also testified that the increase that had occurred in their values would have been significantly greater but for the adverse effect of the noise and vibration of jet aircraft. Similarly, plaintiffs' expert witness on the damages to the single family residential properties, Norman Mason, explained that he had selected his comparable sales from that part of Westchester which was unaffected by noise and vibration from the jet aircraft using the airport. This seems to us to have been a reasonable step in ascertaining the diminution in fair market values of the affected properties occasioned by the use by jet aircraft of the north runway complex of the airport. We note in this connection that the City's expert witness on damages, Robert Flavel, used the same approach of affected and unaffected areas in arriving at his opinions as to the amounts of damages plaintiffs had suffered.

The Damages Awarded Were Proper.

The City attacks the testimony and other evidence of plaintiffs' expert witnesses on damages on the basis that their opinions Our review of the record indicates otherwise. The opinions of the two expert witnesses on damages for plaintiffs, namely, the aforementioned John Williams and Norman Mason, were not based on any inadmissible evidence. (See Evid. Code, §§ 814, 816, 818--822.) John Williams, the plaintiffs' expert witness on damages to the fair market values of apartment house properties, based his opinions on a comparison of the values of apartment houses under the flight pattern with those outside of it. He detailed what happened to the fair market values of the subject multiple residential properties following the date of taking, June 23, 1967. He explained that he had chosen the rental income capitalization approach to fair market value (Evid.Code, § 819) because this was the approach that buyers and sellers in the market place rely upon most heavily when valuing in-come-producing properties such as apartment houses. Williams did use, though, in arriving at his opinions regarding the extent of the damages to the fair market values of the various multiple residential subject properties an assumed normal annual rental increase rate of 4 1/2% And likewise an assumed annual average vacancy rate of 3%. These assumed rates were based largely upon the experience of comparably-sized apartment houses, located, however, in Santa Monica near the ocean. As the trial court observed, these apartment houses were not, by reason of their location, particularly comparable to the multiple residential subject properties. That may well be the reason why the trial court awarded damages substantially below those testified to by Williams.

regarding such damages were based on inadmissible evidence. The City also contends that the damage awards themselves are both excessive and rest upon insubstantial evidence.

Norman Mason, plaintiffs' expert witness on damages to the fair market values of the single-family residential properties, had been an active real estate broker in the Westchester area of Los Angeles for well over 25 years at the time of trial. He knew from his brokerage experience that the noise, etc. from the operation of jet aircraft to and from the Los Angeles International Airport had substantial adverse effect upon property values in only a part of Westchester. He therefore based his opinions of the damages done to the fair market values of the subject properties, as to which he testified, upon a comparison of the fair market values of comparable properties within the area of Westchester affected by the jet aircraft noise, etc. with those of properties located outside the affected area. Again, however, the trial court did not accept Mason's opinions regarding the extent of damages done to these fair market values of the subject properties. Its awards were substantially less.

In addition to this expert evidence on damages offered by and through Williams and Mason, the trial court heard owners of the subject properties, together with a few neighbors, testify in some detail on the specific adverse effects upon living conditions on their properties occasioned by the takeoffs and landings of jet aircraft on the north runway complex of the airport.

Finally, the testimony of Bert Lockwood, the assistant manager of the City's Department of Airports, together with the totals of air-carrier movement inbound to and outbound from the airport for the calendar years of 1967 through 1970, furnished substantial evidentiary support for the trial court's findings that between June 23, 1967 and January 1, 1971 there were on the average a minimum of approximately 200 takeoffs and landings...