People ex rel. Dept. of Public Works v. Mascotti

• Decision Date: 16 August 1962
• Citation: 206 Cal.App.2d 772,23 Cal.Rptr. 846
• 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 Respondent, v. Lydia MASCOTTI, also known as Lydia K. Mascotti, Defendant and Appellant. Civ. 25919.

Page 846

23 Cal.Rptr. 846

206 Cal.App.2d 772

The PEOPLE of the State of California acting by and through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, v. Lydia MASCOTTI, also known as Lydia K. Mascotti, Defendant and Appellant.

Civ. 25919.

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

Aug. 16, 1962.

Rehearing Denied Sept. 13, 1962.

See 24 Cal.Rptr. 679.

Hearing Denied Oct. 10, 1962.

Irl Davis Brett, Pasadena, for appellant.

George C. Hadley, San Diego, S. Philip Teresi, Charles E. Spencer, Jr., Los Angeles, Robert E. Reed, Sacramento, of counsel, for respondent.

ASHBURN, Justice.

Condemnation in fee for construction of Santa Monica Freeway. Defendant Lydia Mascotti is owner of property designated as Parcel 3 in the complaint. She appeals from the interlocutory and final judgments rendered after a third trial of the case as to her parcel.

The action was filed and summons issued on July 30, 1957, and the first trial was had within one year from that date, hence the valuation date used in said trial was the date of filing. Defendant's answer, filed in propria persona, raised the issue of a taking for private use, did so in such manner that the judge and counsel understood her contention and tried the case upon the theory that she was claiming that the State was taking part of her Parcel 3 exclusively for private use, namely, leasing a portion of the condemned parcel to a private person for an auto park. She was represented by counsel at the trial. The court sustained objections to defendant's proffered evidence in support of her plea, holding that the resolution of the California Highway Commission authorizing the condemnation was conclusive and the trial of the issue of private use was thereby precluded.

Defendant Mascotti appealed and the judgment was reversed in People v. Nahabedian, 171 Cal.App.2d 302, 340 P.2d 1053, because of error in refusing to try said issue of private use. The opinion, authored by Mr. Presiding Justice White, says in part: 'To us, it is manifest that the trial court confused 'necessity' with 'public use'. Respondent concedes that '* * * the mere declaration by the legislature of a purpose for which property may be taken for a public use is not conclusive and does not preclude a person whose land is being condemned from showing upon the trial that, as a matter of fact, the use sought to be subserved is a private one, or from assailing the complaint on the ground that it so appears therefrom. The character of the use and not its extent, determines the question of public use.' (Emphasis added.) [Citation.] Yet, in the case at bar, the court announced, '* * * so we will know where we stand, I will sustain any objection to the introduction of evidence tending to show * * * the true purpose of the condemnation proceedings'. This was error. There can be no doubt that both the court and counsel for respondent clearly understood that appellant's contention was that the 'real purpose' of the condemnor was to take part of appellant's property not for freeway purposes, but to lease it to Walt's Auto Park for private purposes, without any relation to the freeway project. Certainly, if such contentions could be proved, respondent could not acquire the portion of the property in question, because the latter is without authority in law to acquire the property of a citizen for private use [citations].' (P. 307, 340 P.2d p. 1056.) Also: 'In the case at bar, all efforts of appellant to establish that the taking was not for a public purpose were excluded by the trial court. Here, the court seemingly concluded that the question whether the proposed taking is for a public purpose, was committed to the conclusive determination of an administrative agency of the condemning body. Such is not the law (People ex rel. Department of Public Works v. Lagiss, 160 Cal.App.2d 28, 35, 324 P.2d 926).' ¹ (171 Cal.App.2d p. 308, 340 P.2d p. 1057.) The judgment was reversed and the cause remanded for a new trial. No petition for hearing in the Supreme Court was filed and this decision presumptively became the law of the case to be followed in all subsequent proceedings by both trial and appellate courts (Central Savings Bank of Oakland v. Lake, 201 Cal. 438, 443, 257 P. 521; 4 Cal.Jur.2d § 685, p. 591).

The reversal was in this form: 'The judgment is reversed and the cause remanded for a new trial'; this was general and opened all issues for retrial. (4 Cal.Jur.2d § 666, p. 551.)

Before the second trial defendant, through an attorney, filed a second amended and supplemental answer alleging that the north half of her property was being taken for private use and that the commission was abusing its discretion and acting in bad faith. The case came on for a second trial on April 13, 1960. A division of this court had decided on April 7, 1960, People By and Through Department of Public Works v. Murata, Cal.App., 4 Cal.Rptr. 45, holding that, after reversal of the judgment rendered on the first trial the valuation date would be that of the beginning of the new trial if more than one year after issuance of summons. During this second trial it developed that the Supreme Court had taken the Murata case over and the trial judge naturally was in a dilemma. He withheld the decision as long as he felt justified in doing, and finally applied the Murata rule, rendering judgment on May 16, 1960. The judge granted a new trial on July 14, 1960, in these words: 'Plaintiff's motion for a new trial heretofore submitted June 22, 1960 is granted on the grounds of insufficiency of the evidence to sustain the verdict.' The Supreme Court decided the Murata case on December 13, 1960, and held that the date of summons was the proper valuation date, not that of the second trial. (People ex rel. Department of Public Works v. Murata, 55 Cal.2d 1, 7, 9 Cal.Rptr. 601, 357 P.2d 833.) Counsel discuss at some length the effect of this new trial order.

The notice of motion was that of the People and sought a new trial 'upon the issue of the compensation awarded for the taking of Parcel 3' upon the grounds of excessive damages, insufficiency of the evidence, verdict against law and error in law occurring at the trial. It is not contended by respondent that this was a motion for retrial of a single issue and the judge could not go beyond the motion,--specifically that he could not grant a new trial generally. The rule is that the court is confined to the scope of the notice in granting a new trial (Van Ostrum v. State of California, 148 Cal.App.2d 1, 4, 306 P.2d 44; O'Malley v. Carrick, 60 Cal.App. 48, 51-52, 212 P. 45; Lovett v. Dintzer, 131 Cal.App.2d 165, 166, 280 , p.2d 58), but that is not a universal rule. The court can grant a new trial limited to a certain issue or issues when separable. Hamasaki v. Flotho, 39 Cal.2d 602, 608, 248 P.2d 910, 913: 'The only appeal before us is that from the order granting plaintiffs' motion for a limited new trial. In disposing of this appeal we have jurisdiction to do no more than the trial court itself could have done. * * * The controlling question, therefore, is whether or not the trial court, on plaintiffs' motion for a new trial on the issue of damages only, had power to grant a new trial on all issues.

'This question is analogous to that presented when an appeal is taken from only a part of a judgment. To simplify litigation a party who is aggrieved by a judgment is ordinarily entitled to limit his appeal to the parts thereof with which he is dissatisfied. Similarly, when he is seeking relief in the trial court by way of a new trial, he ordinarily may seek a retrial only of the issues on which the decision has been adverse to him. In either case, however, situations may arise where the issues are so interwoven that a partial retrial would be unfair to the other party. When, as in the present case, for instance, the jury has, by compromising the issues of liability and damages, inextricably interwoven those issues, a retrial of the damages issue alone based on the erroneous assumption that defendant's liability has been determined would be extremely unjust to him. A situation is thus presented where the plaintiff has been aggrieved, but the specific relief he seeks may not be granted without doing an injustice to the defendant. Since the relief requested may not be granted, the trial court, if the issue is presented by motion for a limited new trial, or the appellate court, if the issue is presented by a partial appeal, must do one of two things. It must either deny all relief, or order a new trial on both issues. In the case of partial appeals it is settled that the court may review as much of the judgment as is necessary to give the appellant the relief he seeks even though it is necessary to reverse parts of the judgment with which he has no quarrel and from which neither party has appealed. ...