People By and Through Dept. of Public Works v. Jarvis

• Decision Date: 23 June 1969
• Citation: 79 Cal.Rptr. 175,274 Cal.App.2d 217
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Acting By and Through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Appellant, v. James Alvin Peterson JARVIS et al., Defendants and Respondents. Civ. 24662.

Page 175

79 Cal.Rptr. 175

274 Cal.App.2d 217

The PEOPLE of the State of California, Acting By and Through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Appellant, v. James Alvin Peterson JARVIS et al., Defendants and Respondents.

Civ. 24662.

Court of Appeal, First District, Division 4, California.

June 23, 1969.

Hearing Denied Aug. 20, 1969.

Harry S. Fenton, Chief Counsel, Sacramento, Holloway Jones, Deputy Chief Counsel, Jack M. Howard, Edward L. Doyle, Richard S. Levenberg, William R. Edgar, San Francisco, for appellant.

Pioda, Leach, Stave, Bryan, & Ames, Burt L. Talcott, Salinas, for respondents.

RATTIGAN, Associate Justice.

In this action in eminent domain, the Department of Public Works (acting on behalf of the People and hereinafter called the 'department') condemned certain portions of a ranch for highway purposes. The department appeals from the judgment entered after a jury trial and verdict, asserting that the trial court erred (1) in denying the department's motion for leave to amend the complaint to add an 'excess condemnation,' (2) in ruling and commenting upon evidence relative to a comparable sale, and (3) in proceedings wherein the court entered judgment for severance damages in an amount less than that fixed in the verdict. None of these contentions can be sustained; we affirm the judgment.

The action was directed to the acquisition of portions of a right-of-way for a new freeway section of U.S. Highway 101, a state highway, in a rural area of Monterey County. Respondent's ¹ ranch originally consisted of 346.37 acres, lying to the west of former highway 101. The old highway ran from north to south; the northeast portion of the Jarvis ranch directly abutted it for a distance of 1,749 feet. The ranch residence and other buildings were on the northeast portion, close to the highway. Along the 1,749-foot stretch of frontage on the highway, several driveway-type openings provided vehicular access from the highway to the buildings and to the rest of the ranch, most of which was farmland further west from the highway and to the west and southwest of the buildings.

The new freeway, which also runs generally from north to south, is located a short distance west of former highway 101. The condemnation took 9.98 acres of the Jarvis ranch, in two parcels: 'Part One,' 2.83 acres from the extreme southeast corner of the ranch, and 'Part Two,' 7.15 acres immediately west of the ranch buildings. The taking of Part Two completely bisected the northeast portion of the ranch on a north-south axis, leaving 3.33 acres (the 'easterly remainder' of the ranch, where the residence and other buildings are located) east of the freeway and still fronting on former highway 101.

The remaining 333.06 acres (the 'westerly remainder,' which was and still is irrigated farmland used for the production of row-crop vegetables) is west of the freeway. The easterly remainder still has vehicular access to former highway 101, but the freeway separates it from the westerly remainder and blocks all access to the latter from former highway 101 or from the easterly remainder.

The Motion for Leave to Amend the Complaint

The complaint was filed on January 13, 1964. It alleged among other things that the proposed acquisition had been authorized and directed by a condemnation resolution adopted by the California Highway Commission on October 30, 1963. The resolution, which was set forth in the complaint, referred to the acquisition of Parts One and Two only. Respondent answered on February 10, 1965, but alleged neither the value of the property described in the complaint nor his damages; it was stipulated at the time that he could amend the answer to plead these items when ascertained. He did so on January 28, 1966, at or after a pretrial conference held on that date. Meanwhile, pursuant to notice filed on May 21, 1965, the department moved for leave to amend the complaint.

The motion was made pursuant to a supplementary resolution which had recently (on March 24, 1965) been adopted by the Highway Commission, authorizing an expanded condemnation of respondent's property by amending the 1963 resolution to that effect. As shown by the 1965 resolution (which was served and filed with the department's notice of motion), the proposed amendment would increase the scope of the original acquisition by adding the 3.33-acre easterly remainder to the 7.15--acre Part Two (increasing the latter to 10.48 acres). The resolution stated, and it was alleged in the proposed amendment, that the additional acquisition was necessary 'in order to alleviate possible severance damages due to separation of owner's homesite (the easterly remainder) from remaining agricultural land (the westerly remainder).' (Bracketed words added.)

In a declaration filed in opposition to the motion, respondent alleged that the easterly remainder was not to be used for highway purposes, and that its newly-proposed condemnation had been contrived for the purpose of coercing a settlement. The trial court denied the motion.

The department moved for reconsideration. Respondent opposed this motion with a declaration by one of his attorneys. The declarant alleged in substance that, had the easterly remainder been included in the original condemnation and its acquisition thus anticipated, respondent could have physically moved the ranch residence and other buildings across the proposed right-of-way, but that such action would now require substantially greater expense because construction of the new freeway had commenced; that respondent had obtained an appraisal of Parts One and Two by experts, but that the easterly remainder had not been appraised because it had not been included in the original condemnation; and that a newly-required appraisal thereof would involve additional and considerable expense to respondent. The trial court denied reconsideration on July 7, 1965. On appeal, the department contends that denial of leave to amend was error.

We disagree. Moving for leave to amend the complaint, the department sought to exercise its power of 'excess condemnation' (People ex rel. Dept. of Pub. Wks. v. Superior Court (1968) 68 Cal.2d 206, 209--213, 65 Cal.Rptr. 342, 436 P.2d 342), as to the easterly remainder, pursuant to Streets and Highways Code section 104.1. ² This power, and the constitutionality of section 104.1, are no longer in question: both have been upheld during the pendency of this appeal. (People, etc. v. Superior Court, Supra, at p. 210, 65 Cal.Rptr. 342, 436 P.2d 342.) In the present case, though, the department sought to exercise the power against the easterly remainder, not in the first instance, but under an enabling highway commission resolution adopted more than fourteen months after the action had been commenced. Since this could be effected only by amending the complaint pursuant to the belated authorization, the exercise of the power in 1965 was subject to the trial court's discretion as to the amendment of pleadings.

The court's discretion was derived from Code of Civil Procedure section 473, ³ which the department explicitly cited in support of its motion for leave to amend. The policy of great liberality in permitting amendments at any time under section 473 is well established, but when an order granting or denying leave to amend is attacked on appeal an additional policy applies: the reviewing court will uphold the trial court's action unless an abuse of discretion is clearly shown. (2 Witkin, California Procedure (1954) Pleading, § 594, pp. 1605--1606; Plummer v. Superior Court (1963) 212 Cal.App.2d 841, 843, 28 Cal.Rptr. 294 ('manifest or gross' abuse of discretion must be shown).) The trial court is entitled to be 'skeptical of late claims' (Plummer v. Superior Court, Supra, at p. 844, 28 Cal.Rptr. 294); and long-deferred presentation of a proposed amendment, without a showing of excuse for the delay, is a significant factor in support of the trial court's discretionary denial of leave to amend. (Moss Estate Co. v. Adler (1953) 41 Cal.2d 581, 586, 261 P.2d 732.)

The Supreme Court, upholding the power of excess condemnation under Streets and Highways Code section 104.1 (in People, etc. v. Superior Court, Supra, 68 Cal.2d 206, 65 Cal.Rptr. 342, 436 P.2d 342), stated that the power can be exercised only if--and not unless--the trial court 'finds' that the excess taking is justified in order to avoid 'excessive severance or consequential damages'; such finding, the court pointed out, provides assurance that the taking will be for a public use and precludes the State 'from using the power of excess condemnation as a weapon to secure favorable settlements.' (Id., at p. 210, 65 Cal.Rptr. at p. 345, 436 P.2d at p. 345.) The requisite finding is necessarily one of fact, to be supported by evidence. While the requirement of such finding does not mean that the department must plead evidentiary facts in support of the necessity of an excess condemnation in a complaint therefor, its (the department's) burden differs where it invokes the trial court's discretion in seeking to add an excess condemnation by amending the complaint.

The department's motion for leave to amend here (which explicitly invoked the trial court's discretion under Code of Civil Procedure section 473) was supported only by the bare--and conclusionary--statement (appearing in the highway commission's 1965 resolution and in the proposed amendment to the complaint) that the belatedly-proposed excess condemnation of the easterly remainder was 'necessary in order to alleviate possible severance damages' to respondent's homesite. No factual showing was made in support of the assertion of 'necessity,' and the department offered no excuse for the delay in making it. Against this meager presentation, respondent offered evidence to the effect that the excess condemnation was unnecessary, that the delay in proposing it was inexcusable, and that the proposed amendment would impose...