People ex rel. Dept. Pub. Wks. v. Hunt

• Decision Date: 28 November 1969
• Citation: 82 Cal.Rptr. 546,2 Cal. App. 3d 158
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Acting By and Through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Appellant, v. Melvin C. HUNT and Frances D. Hunt, Defendants and Respondents. Civ. 25724.

Page 546

82 Cal.Rptr. 546

2 Cal.App.3d 158

The PEOPLE of the State of California, Acting By and Through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Appellant, v.Melvin C. HUNT and Frances D. Hunt, Defendants and Respondents.

Civ. 25724.

Court of Appeal, First District, Division 1, California.

Nov. 28, 1969.

Harry S. Fenton, Chief Counsel, Sacramento, Jack M. Howard, Deputy Chief Counsel, Richard W. Covert, Richard S. Levenberg, San Francisco, for appellant.

Cox & Cummins, Martinez, for respondents; Charles L. Hemmings, Martinez, of counsel.

SIMS, Associate Justice.

The state, through the Department of Public Works, as condemnor, has appealed from an order of the trial court granting the condemnees a new trial after a judgment was entered on a verdict which awarded them the sum of $35,000 for the property taken.The condemnees' notice of intention to move for a new trial incorporated each and every ground set forth in section 657 of the Code of Civil Procedure in substantially the language in which it then read.(SeeStats.1965, ch. 1749, § 1, p. 3922.)The motion was supported by the declaration ¹ of one of the condemnees' attorneys, which alleged a discrepancy between the testimony expected and the testimony given by the condemnor's appraiser which it is contended constituted accident or surprise, and by points and authorities which urged that the motion should be granted because the verdict was against the weight of the evidence which had been received in support of a greater award.A counter-declaration by the attorney for the condemnor evoked a declaration from a second attorney for the condemnees, which, in turn, produced a final declaration on behalf of the condemnor.The condemnor also filed points and authorities on the issue of accident and surprise.

On this record the court made the following order: 'The motion of defendants * * * for new trial as to Parcel 4 in the above-entitled action, having been heretofore argued and submitted to the Court for consideration and decision, now at this time the Court, having considered the same, and being advised in the premises, orders that said motion be granted.'²

The parties agree that the order cannot be affirmed upon the ground of insufficiency of the evidence to justify the verdict because of the failure to state such ground in the order granting the new trial.(SeeMercer v. Perez(1968)68 Cal.2d 104, 109--111, 65 Cal.Rptr. 315, 436 P.2d 315;Frantz v. McLaughlin(1966)64 Cal.2d 622, 624, 51 Cal.Rptr. 282, 414 P.2d 410;Malkasian v. Irwin(1964)61 Cal.2d 738, 744--745, 40 Cal.Rptr. 78, 394 P.2d 822;Aced v. Hobbs-Sesack Plumbing Co.(1961)55 Cal.2d 573, 578--579, 12 Cal.Rptr. 257, 360 P.2d 897.)Nevertheless, despite the failure to comply with the statutory mandate that 'the court shall specify the ground or grounds upon which it is granted and the court's reason or reasons for granting the new trial upon each ground stated'(Code Civ.Proc. § 657), the successful movant is entitled to show that the order should be affirmed on any one of the other grounds presented to the trial court.(Treber v. Superior Court(1968)68 Cal.2d 128, 136--137, 65 Cal.Rptr. 330, 436 P.2d 330;Malkasian v. Irwin, supra, 61 Cal.2d 738, 745, 40 Cal.Rptr. 78, 394 P.2d 822;Grant v. Hall (1969) 274 A.C.A. 680, 683--684, 79 Cal.Rptr. 219;Gaskill v. Pacific Hosp. of Long Beach (1969) 272 A.C.A. 148, 149--150, 77 Cal.Rptr. 373;San Francisco Bay Area Rapid Transit Dist. v. McKeegan(1968)265 Cal.App.2d 263, 269--271, 71 Cal.Rptr. 204;andTagney v. Hoy(1968)260 Cal.App.2d 372, 374--375, 67 Cal.Rptr. 261.)

Where no grounds or reasons are specified in the order the burden is on the movant to advance any grounds upon which the order should be affirmed, and a record and argument to support it.(Gaskill v. Pacific Hosp. of Long Beach, supra, 272 A.C.A. 148, 151--153, 77 Cal.Rptr. 373;Tagney v. Hoy, supra, 260 Cal.App.2d 372, 377, 67 Cal.Rptr. 261.)The condemnees have met this burden and contend that the declarations they filed in the trial court support the order not only on the ground of 'Accident or surprise, which ordinary prudence could not have guarded against'(Code Civ.Proc. § 657, subd. (3)), but also on the ground of 'Irregularity in the proceedings of the * * * adverse party, * * * by which (they were) prevented from having a fair trial.'(Id., subd. (1).)

The gravemen of the condemnees' complaint is that they were given to understand that the condemnor's appraiser would testify to a value of from $33,000 to $35,000, and it was not discovered that his appraisal was $27,200 until he testified on the fourth day of the trial.An examination of the record reflects that it fails to show misconduct, or irregularity in the proceedings of the adverse party which prevented the condemnees from having a fair trial, or any cognizable accident of surprise.The order must be reversed.

Before examining the declarations which were filed with the trial court in support of the motion for new trial(seeCode Civ.Proc. § 658), it is necessary to refer to those facets of the trial which bear on the issues raised by the declarations.

The testimony as to value was as follows: Mrs. Hunt, co-owner of the property, testified that in her opinion there would have been no difficulty in getting the property rezoned for multiple dwelling use at the time it was condemned; that she believed it could have been rezoned, but not as readily, for a gas station; and that in her opinion the highest and reasonable price for the property at that time was between $90,000 and $100,000.

Mr. Hunt, the other co-owner, gave similar testimony and gave a value of $100,000.

Mr. Tully, a licensed real estate broker, who was then employed as a salesman, and who was formerly a developer of service station sites for an oil company, opined that the highest and best use of the property was for 'Some form of commercial use oriented toward the use of the automobile * * * a service station'; and that it was reasonably probable that the property could be put to that use.He valued the property at at least $100,000.

Mr. Soule, a real estate broker and appraiser, based his judgment on the premise that the highest and best use of the property would be for apartments.He testified that his investigation made him feel that rezoning for such purpose would be fully acceptable to the county and the planning commission, and would be a logical extension of existing zoning.He appraised the property at $76,800.

Mr. Anderson, who had retired from a position of selecting service station sites for the same oil company as had employed Mr. Tully, testified in detail concerning the requisites of a good site for a service station and opined that the property was not desirable for that purpose, and would not be bought by an oil company for such use.

Mr. Hamilton, an independent real estate appraiser, testified that on the basis of his investigation there was a possibility that the property could be rezoned for low density multiple housing use, and that the property definitely could not be rezoned for commercial use.He thought the highest and best use was for more or less a speculative purpose for future apartment development with interim use of the residence on the property for a residence by the owner or a tenant.He appraised the land at $1.80 a square foot or a total of $24,000 for such purposes, and the house at a net value of $3,170 for interim use, making an aggregate of $27,170, which he rounded off to $27,200.

In reviewing the issues raised by condemnees' contentions the following rules are applicable: 'We are mindful of the fact that all presumptions favor the order granting a new trial as against the verdict, that the order will be affirmed if it may be sustained on any ground, and that the burden is on the party attacking the order to show an unmistakable abuse of discretion of the part of the trial court in granting a new trial.(Citation.)'(Adkins v. Lear, Inc.(1967)67 Cal.2d 882, 919, 64 Cal.Rptr. 545, 568, 435 P.2d 321, 344(Judgment vacated on other grounds), Lear, Inc. v. Adkins(1969)395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610.See alsoMalkasian v. Irwin, supra, 61 Cal.2d 738, 747, 40 Cal.Rptr. 78, 394 P.2d 822;People ex rel. Dept. of Public Works v. Auburn Ski Club(1966)241 Cal.App.2d 781, 793, 50 Cal.Rptr. 859;State of Cal. ex rel. Dept. of Water Resources v. Natomas Co.(1966)239 Cal.App.2d 547, 566, 49 Cal.Rptr. 64;South Santa Clara, etc., Dist. v. Johnson(1964)231 Cal.App.2d 388, 407, 41 Cal.Rptr. 846;Benwell v. Dean(1964)227 Cal.App.2d 226, 231, 38 Cal.Rptr. 542;Brickell v. Wittmar(1959)175 Cal.App.2d 190, 195, 345 P.2d 494;andWhitfield v. Debrincat(1937)18 Cal.App.2d 730, 733, 64 P.2d 960.)

'Since all intendments are in favor of the action taken by the lower court, the affidavits in behalf of the prevailing party are deemed not only to establish the facts directly stated therein, but all facts reasonably inferred from those stated.(Citation.)'(Brickell v. Wittmar, supra, 175 Cal.App.2d 190, 195--196, 345 P.2d 494, 498.See alsoState of Cal. ex rel. Dept. of Water Resources v. Natomas Co., supra, 239 Cal.App.2d 547, 566, 49 Cal.Rptr. 64;West v. Reigal(1962)208 Cal.App.2d 638, 642, 25 Cal.Rptr. 288;andCameron v. Cameron(1952)110 Cal.App.2d 258, 261, 242 P.2d 408.)In fact the court was free to disregard the facts stated in the declarations filed on behalf of the condemnor.In Tammen v. County of San Diego(1967)66 Cal.2d 468, 58 Cal.Rptr. 249, 426 P.2d 753, the court ruled, with respect to assertions in a declaration submitted for leave to file a late claim against a county as follows: 'The above statement, while uncontradicted by the county, may well have given little or no weight by the trial court, and the court was not bound to accept it as true.In Lohman v. Lohman, 29 Cal.2d 144, 149, 173 P.2d 657 * * *, we held that 'a trial judge is not required to...