Redevelopment Agency v. Tobriner

• Decision Date: 10 October 1989
• Docket Number: No. A039314,A039314
• Court: California Court of Appeals Court of Appeals
• Parties: REDEVELOPMENT AGENCY OF the CITY OF CONCORD, Plaintiff and Respondent, v. Michael TOBRINER et al., Defendants and Appellants.

Page 481

264 Cal.Rptr. 481

215 Cal.App.3d 1087

REDEVELOPMENT AGENCY OF the CITY OF CONCORD, Plaintiff and Respondent, v. Michael TOBRINER et al., Defendants and Appellants.

No. A039314.

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

Oct. 10, 1989.

Certified for Partial Publication ^*

Review Denied Jan. 17, 1990.

Burton Goldstein, Goldstein, Barceloux & Goldstein, San Francisco, Gideon Kanner, Burbank, Janet A. Econome, San Francisco, for defendants and appellants.

Lee C. Rosenthal, Goldfarb & Lipman, San Francisco, Jefferson Frazier, Miller, Star & Regalia, Oakland, for plaintiff and respondent.

WHITE, Presiding Justice.

The individual owners of the separate parcels of land located in the Concord Park and Shop Center on Willow Pass Road in Concord (the Concord Center) appeal from a judgment in condemnation finding that their nonexclusive appurtenant easement rights condemned herein were of no value, and ordering nothing in compensation for the taking thereof by the Redevelopment Agency of the City of Concord (the Agency). The judgment from which this appeal is made was entered at the close of the second trial in this eminent domain proceeding, following our previous remand in Redevelopment Agency v. Tobriner (1984) 153 Cal.App.3d 367, 200 Cal.Rptr. 364, certiorari denied 469 U.S. 882, 105 S.Ct. 250, 83 L.Ed.2d 187 (hereafter Tobriner I ). We affirm.

I

The factual background of the Agency's complaint in eminent domain is set forth in Tobriner I. As stated there, the only property interests which the Agency sought to condemn in bringing this action in eminent domain were nonexclusive easements for parking and automobile and pedestrian ingress and egress held by the appellant owners over an area of real property in the rear portion of the Concord Center parking lot. ¹ This area, some 136,000 square feet in size, was purchased by the Levitz Furniture Company (Levitz) at a state tax delinquency sale. However, appellants' easements prevented Levitz from erecting any structure on its land. Levitz was unable to obtain the necessary unanimous consent of the owners to relinquish their easements and concommitant restrictions over Levitz's parcel. The Agency therefore brought this eminent domain action to condemn appellants' easements. The Agency has not sought to condemn any fee interests in this action. (Tobriner I, supra, 153 Cal.App.3d at pp. 370-371, 200 Cal.Rptr. 364.)

Following a trial in which evidence was presented by expert appraisal witnesses on behalf of both the Agency and appellants, the jury returned a verdict of approximately $750,000 for appellants. The trial court then granted a motion by the Agency for a new trial on the grounds that prejudicial error had occurred at trial because of the court's admission of appraisal evidence offered by appellants based on an invalid method of evaluation. On appeal, this court affirmed both the new trial order and the trial court's denial of the Agency's motion for judgment notwithstanding the verdict. We held that appellants had failed to offer proper valuation evidence under the applicable legal standards for evaluating appurtenant easements in eminent domain proceedings. (Tobriner I, supra, 153 Cal.App.3d at pp. 370-374, 200 Cal.Rptr. 364.)

In our earlier opinion, we reaffirmed that the correct measure of damage for the taking of an appurtenant easement is the diminution in value of the dominant estate by the loss of the easement. We remanded for retrial to give appellants another opportunity "to prepare and present to the jury evidence that specifically and unambiguously addresses the legitimate valuation question before the court: what was the amount of the diminution or depreciation in value of appellants' own separate, individual fee interests in the Concord Center, measured by a comparison of the fair market value of those parcels both before and after the taking." (Tobriner I, supra, at p. 378, 200 Cal.Rptr. 364.) Although we naturally acknowledged that the Agency's evidence of value "is not necessarily the only possible appraisal of those damages," we specifically cautioned that "any evidence sought to be introduced at the new trial of this matter must comply with the standard set forth herein, taking into account only the loss or damage to the dominant estates and not the benefits which may inure to the servient land underlying the easements as a result of the removal of those easements and the restrictions connected therewith." (Ibid.)

On remand, the case was set for a second trial on October 28, 1985. Appellants failed to make their pretrial disclosure of appraisals on the date set for such disclosure, instead moving for a continuance. After initially denying the motion for a continuance, the trial court upon reconsideration granted a continuance to March 24, 1986, on the condition that appellants would be required to pay the Agency $5,000 as reimbursement for costs of trial preparation.

Appellant disclosed their valuation data in February 1986. Mr. Floyd Clevenger, the appellants' expert appraiser at the first trial, was again designated as an expert. His stated opinion of the overall loss was $1,321,242, up from his previous estimate of $1,185,000. Appellants' second designated appraiser, Mr. Desmond Johnson, offered a still higher appraisal of $1,392,000. ² Mr. Fred Doster, the manager of the Concord Center Owners' Association, was also designated as an expert witness by appellants. His valuation statement, purportedly based on the capitalization of income method of evaluating property, offered a $1.6 million loss appraisal.

On March 27, 1986, after the trial date had again been continued at appellants' request, the Agency moved in limine to exclude the testimony of appellants' three designated valuation experts at trial. Pursuant to stipulation between the parties, the trial court heard the testimony of the experts and read their deposition transcripts in considering the Agency's motion. At the end of the hearing, the trial court granted respondent's motion in limine in large part. Appellants then requested a further continuance in order to have another opportunity to undertake a new appraisal and evaluation of the property. This continuance was granted, and the matter was set for trial on October 6, 1986. The date set for exchange of any new valuation data was August 22, 1986. The trial date was subsequently continued to October 21, 1986, by stipulation.

Appellants filed their new statement of valuation data on September 5, 1986, designating, among others, the same three appraisal experts as before. In addition, appellants stated that three of the individual property owners "may testify as to their opinion of value: ... namely, that they have suffered a loss in value and/or damages as a result of the condemnation in an amount at least as great as set forth in [the statements of valuation submitted by Clevenger, Johnson and Doster], based on the information set forth therein and their common and particular knowledge as owners in the Concord Shopping Center." Appellants' revised valuation evidence focused on calculating the projected loss to a single dominant tenement within the Concord Center attributable to its owner's inability to build a hypothetical new highrise development on the dominant tenement, allegedly resulting from the Agency's taking of the parking easements at issue here.

The Agency again filed a motion in limine to exclude virtually all of appellants' proposed evidence. After extensive hearings on the in limine motion, the trial court granted the motion on November 3, 1986, effectively ruling that the expert testimony theretofore submitted by appellants was inadmissible. Appellants requested and were granted two short continuances to confer and to consider their options. At a status hearing on December 2, 1986, appellants sought a 90-day continuance in order to allow new attorneys and new experts to review the matter to produce new valuation evidence. The trial court denied appellants permission to file an entirely new valuation statement leading to a new in limine hearing, on the grounds that appellants had already had ample opportunity to submit evidence in compliance with previous in limine motions and the appellate opinion in Tobriner I. The trial court pointed out that lengthy and extensive in limine hearings had already been had on the issues raised by appellants' proffered evidence; it stated its opinion that "they have had their day in court," and it was time to proceed to trial.

Nevertheless, due to the congested state of its own calendar, the trial court did continue further trial in the case until April 6, 1987. The court ruled that once appellants' own in limine motion to exclude the Agency's appraisal evidence was heard at that time, the matter would proceed immediately to trial; and it specifically ordered that "no party shall hereafter designate any additional experts, exchange any valuation data, or undertake any discovery during the period until trial resumes, and no additional expert testimony will be allowed before the jury other than that which has already been disclosed and evaluated" during the in limine process in April and October 1986. ³

On May 1, 1987, appellants moved for permission to use the testimony of the property owners themselves in lieu of the expert testimony on which appellants had previously relied. In addition, appellants filed offers of proof on behalf of the appraisal experts who had testified in the previous in limine hearings and whose testimony had already been barred. These offers of proof simply repeated the experts' earlier evaluation theories. In the offers of proof with respect to the owners' testimony, it was represented that all of the owners would testify that the value of their property had diminished; nevertheless, only one owner (Mr. David Highiet) offered to testify regarding his estimate of the decrease in the value of his dominant tenement. ⁴

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