People ex rel. Department of Public Works v. Donovan

• Citation: 369 P.2d 1,57 Cal.2d 346,19 Cal.Rptr. 473
• Court: California Supreme Court
• Decision Date: 20 February 1962
• Parties: , 369 P.2d 1 The PEOPLE ex rel. DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, v. Mary E. DONOVAN, Defendant and Appellant. S. F. 20842.

Page 473

19 Cal.Rptr. 473

57 Cal.2d 346, 369 P.2d 1

The PEOPLE ex rel. DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, v. Mary E. DONOVAN, Defendant and Appellant.

S. F. 20842.

Supreme Court of California, In Bank.

Feb. 20, 1962.

Rehearing Denied March 21, 1962.

Johnson, Thorne, Speed & Bamford and John E. Thorne, San Jose, for defendant and appellant.

Holloway Jones, Jack M. Howard, Joseph F. DeMartini, San Francisco, Lee Tyler, Palo Alto, and Robert E. Reed, Sacramento, for plaintiff and respondent.

WHITE, Justice.

This is an appeal by Mary E. Donovan from a judgment entered upon a jury verdict awarding compensation in the amount of $13,500 in an eminent domain proceeding, and from orders striking certain affidavits in support of and denying a motion for a new trial.

Defendant was the owner of a lot located near the City of San Jose-County of Santa Clara Government Center. She purchased the property in 1954, and used it and four dilapidated buildings thereon for storage purposes for her used furniture and antique business. In October 1958, the State of California took possession of the lot for a freeway project. Prior thereto and at that time the lot was zoned R-1 (single family residences) and defendant's use thereof was nonconforming.

At the trial, commenced in November 1959, there was no direct testimony that the City of San Jose contemplated an immediate change of zoning by virtue of the proximity of the property to the government center, although there was evidence of a change in the general character of the neighborhood. The property had enhanced in value during defendant's possession by reason of the possibility of the development of surrounding property. Three opinions of the market value at the time of the taking were submitted. Defendant claimed a value of $35,000, and her expert placed the value at $29,000. Such valuations took into consideration the potential for commercial purposes not permitted by the then current zoning regulation. The plaintiff's loan expert testified that the market value for single family residence purposes was $8,500.

A further expert opinion was offered in rebuttal by the defendant, who subpoenaed as a witness one who had made an appraisal of the property for the state, but who had not theretofore testified. The court, after objection made based on the attorney-client privilege and that the offer was not proper rebuttal evidence, did not permit this witness to testify as to his appraised value.

In its instructions to the jury the trial court stated:

'The amount that you are to fix as the value of the property taken should be the fair market value of the property in view of all of the purposes to which it is naturally adapted. * * * 'In determining the market value of the property taken, you are not limited to a consideration of the use to which the owner was putting the land, but you should take into consideration all the uses to which the property was adapted and for which it was available, including the highest possible use to which it could reasonably be put. * * * Only R-1 is involved here * * * as a matter of law, in this case the Court instructs the jury that at all times referred to in the evidence in this case the only lawful use that could be made of this property was for single family residence.'

The following instruction, submitted by the defendant, was rejected by the court:

'You are instructed that in determining the highest and best use of defendants' property that you are not limited by the use presently being made of the property, nor by the particular zoning presently on the property, but you should consider the uses for which the land is adapted and for which it is available and the reasonable probability that the zoning will be changed for the use to which said land is adapted and available.'

Following entry of judgment defendant moved for a new trial and filed affidavits from some of the jurors to the effect that had they not been led to believe from the instructions given that they could consider only uses to which the property might have been devoted under R-1 zoning, the verdict would have been in a larger amount. Defendant's counsel also submitted an affidavit to the effect that he had believed that plaintiff's witness would place a value of $15,000 on the property, instead of $8,500, thus constituting surprise to defendant. The affidavits were ordered stricken from the record, and the motion for a new trial denied.

The orders striking the affidavits and denying the motion for a new trial are not, as such, appealable orders (City of Los Angeles v. Glassell, 203 Cal. 44, 262 P. 1084; Code Civ.Proc. § 963), and the appeals therefrom should be dismissed since the propriety of such orders are reviewable on an appeal from the judgment. (Davenport v. Waite, 175 Cal.App.2d 623, 346 P.2d 501; Hamasaki v. Flotho, 39 Cal.2d 602, 248 P.2d 910.) It is firmly established in our law that affidavits of jurors may not be used to impeach their verdict (Kollert v. Cundiff, 50 Cal.2d 768, 772-773, 329 P.2d 897), except when the same is allegedly arrived at by lot (Code Civ.Proc. § 657, subd. 2), or where the bias or disqualification of a juror was concealed by false answers on voir dire (Williams v. Bridges, 140 Cal.App. 537, 35 P.2d 407). Although it is urged that the affidavits should have been considered at least for the limited purpose of ruling on the motion for a new trial, no authority or reason is advanced why the general rule is not here applicable. The affidavit of defendant's counsel alleging surprise as to the testimony of plaintiff's expert witness was also properly stricken because of defendant's failure to assert such surprise at the earliest possible moment rather than remain silent at the time the testimony was offered and claim surprise only after the verdict was rendered. (Kauffman v. De Mutis, 31 Cal.2d 429, 432, 189 P.2d 271.)

Defendant complains that plaintiff's expert on valuation gave a definition of fair market value which he utilized in formulating his opinion as to the value of defendant's property, and which definition, defendant complains, is not legally correct. Defendant's objection also goes to the point that the expert was not qualified to define fair market value for the jury, as that is 'a legal matter and it is for the court to decide the law in this case. * * *' But the witness' testimony was not offered for the truth of his assertion of what constituted the meaning of fair market value, and it is proper for a jury to have before it the standard utilized by an expert witness in formulating his opinion as to valuations. (In re Jack's Estate, 115 Cal. 203, 46 P. 1057.) An expert may detail the facts upon which his conclusions or opinions are based, even though his knowledge is gained from inadmissible or inaccurate sources. (Betts v. Southern California etc. Exchange, 144 Cal. 402, 77 P. 993; McElligott v. Freeland, 139 Cal.App. 143, 33 P.2d 430.)

Defendant next contends that the jury was entitled to consider the possibility or probability of prospective zoning changes which might permit use of her lot for other than single family residential purposes. Where there is a reasonable probability that zoning restrictions will be altered in the near future, the jury should consider not only those uses currently permitted, but also other uses to which the property could be devoted in the event of such a change. (Long Beach City High School Dist. of Los Angeles County v. Stewart, 30 Cal.2d 763, 768-769, 185 P.2d 585, 173 A.L.R. 249.) The jury is entitled to and should consider those factors which a buyer would take into consideration in arriving at a fair market value, were he contemplating a purchase of the property (Spring Valley Water Works v. Drinkhouse, 92 Cal. 528, 533, 28 P. 681; Joint Highway Dist. No. 9 v. Ocean Shore Railroad Company, 128 Cal.App. 743, 18 P.2d 413; City of Stockton v. Vote, 76 Cal.App. 369, 244 P. 609), and it is manifest that plausible and probable changes in the character of the neighborhood and in zoning restrictions in an area constitute such factors.

In the case now engaging our attention the property was adjacent to a rapidly expanding county and city government center. A number of properties, testified to by defendant's expert witness, situated similarly to the government center and zoned R-1, to the government center and zoned R-1, had sold recently for inflated prices for uses other than residential. The state's own expert testified that property lying between defendant's property and the government center 'could substantially have a reasonable prospect of going into a better zoning * * *,' although he felt that defendant's property did not have as good a prospect. The state appraiser called as a witness by the defendant testified that the government center development had caused property values to increase generally in the area. There was evidence that the city authorities had considered rezoning the area in which defendant's lot was located, but had rejected any changes, at least temporarily. However, the defendant is not required to show that the zoning authorities were contemplating changes in zoning restrictions. The reasonable probability of a zoning change may be shown by a variety of factors, including neighborhood changes and general changes in land use. The evidence of such changes was present in the instant case.

It is manifest that the defendant's theory of the case was that because of the changes in character which the neighborhood had undergone she could reasonably expect that her property would be upgraded in zoning and use. There was sufficient evidence to support her theory, and she was entitled to an instruction which would have permitted the jury to consider that theory. (Sills v. Los Angeles Transit Lines, 40 Cal.2d 630, 633, 255 P.2d 795; Daniels v. City & County of San Francisco, 40 Cal.2d 614, 623, 255 P.2d 785; San Diego Land & Town Company v....