San Francisco Unified School District v. Board of National Missions

• Decision Date: 30 November 1954
• Docket Number: No. 16099,16099
• Citation: 276 P.2d 829,129 Cal.App.2d 236
• Court: California Court of Appeals Court of Appeals
• Parties: SAN FRANCISCO UNIFIED SCHOOL DISTRICT, a political subdivision of the State of California, Plaintiff, Respondent and Appellant, v. The BOARD OF NATIONAL MISSIONS etc., et al., Defendants, Hong Mow, Defendant, Appellant and Respondent.

Page 829

276 P.2d 829

129 Cal.App.2d 236

SAN FRANCISCO UNIFIED SCHOOL DISTRICT, a political subdivision of the State of California, Plaintiff, Respondent and Appellant, v. The BOARD OF NATIONAL MISSIONS etc., et al., Defendants, Hong Mow, Defendant, Appellant and Respondent.

No. 16099.

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

Nov. 30, 1954.

Phil F. Garvey, San Francisco, for Hong Mow.

Dion R. Holm, City Atty., City and County of San Francisco, Norman Sanford Wolff, Deputy City Atty., San Francisco, for San Francisco United School District.

BRAY, Justice.

In a condemnation action tried without a jury defendant appeals from the judgment awarding him $17,500. Plaintiff appeals from the portion of the judgment awarding defendant $47.09 costs, and from the order made after judgment allowing such costs.

Questions Presented.

Defendant's appeal: 1. By failing to object to its introduction may defendant now claim error as to certain evidence? 2. Is the award grossly inadequate and unsupported? 3. Should view of premises by trial judge be disregarded?

Plaintiff's appeal: May plaintiff, after the time prescribed by law to move to tax costs has expired, raise the question that defendant's cost bill was filed too late?

Record.

Plaintiff school district sought to condemn defendant's three story brick residence and lot in Chinatown, San Francisco. Defendant's four real estate experts placed a value thereon of $29,000, $27,500, $27,500 and $27,000 respectively. Plaintiff's three experts valued the property at $14,000, $14,900 and $16,000 respectively. After viewing the property itself the trial court fixed the value at $17,500.

1. Failure to Object.

Defendant's main contention is that the court erred in allowing testimony of specific sales of comparable property, in claimed violation of the rule of People v. La Macchia, 41 Cal.2d 738, 264 P.2d 15. We see no reason for considering this contention because at no time did defendant object to such evidence. Moreover, before any of plaintiff's value witnesses had testified, defendant in the examination of two of his own witnesses, Reeves and Hulting, elicited the same type of testimony. Having failed in the trial court to object to the introduction of such evidence it is too late for him to question it now.

'The record discloses no objection was made to any of these questions nor was a motion made to strike the answers; therefore they will not be considered for the first time on appeal. It is well established that for a party to take advantage of alleged error in the admission of improper testimony, it is necessary that he object to its admission when it is offered. Kershaw v. Tilbury, 1932, 214 Cal. 679, 8 P.2d 109; Balkwill v. City of Stockton, 1942, 50 Cal.App.2d 661, 123 P.2d 596; 11 So.Cal.Law Rev. 413.' Mullanix v. Basich, 67 Cal.App.2d 675, 682, 155 P.2d 130, 134; see also 3 Cal.Jur.2d § 156, p. 634.

Some of the questioning upon the subject was by the trial judge. This does not obviate the necessity for making seasonable objection. People v. Parker, 80 Cal.App.2d 128, 135, 181 P.2d 16; People v. Silva, 67 Cal.App. 351, 357, 227 P. 976; 3 Cal.Jur.2d § 156, p. 635.

2. The Award.

Defendant's main basis for contending that the award is unsupported is that the award is based upon inadmissible evidence. The evidence being admitted without objection is evidence for all purposes. 'Although this evidence was technically incompetent, it was admitted without objection. It must therefore be given as much weight in this court, in reviewing the question of the sufficiency of the evidence, as if it were competent. [Citations.]' Parsons v. Easton, 184 Cal. 764, 769, 195 P. 419, 421.

Defendant secondly contends that in arriving at their valuations plaintiff's witnesses failed to consider two claimed elements of fair market value. The first claimed element is the distinctive location of the property, it being in Chinatown and more suitable and desirable for occupancy by Chinese than locations elsewhere. Defendant's experts testified that this fact was an important element in estimating market value. There can be no question that if this factor did influence market value it must be taken into consideration. Plaintiff concedes this. In fact plaintiff's witness Smith testified he considered that factor; that properties in Chinatown sold for 'a little more than they are worth,' and in his market value estimate of $16,000 he had included $2,000 for that factor. While the other two of plaintiff's witnesses did not mention this factor they did testify that in fixing their values they took into consideration other sales in the neighborhood. Defendant's witnesses placed a much higher value on this factor than did Smith. However, it was the court's province to decide that conflict. We cannot assume that the court, in fixing value, ignored the fact that five witnesses considered it a factor. Possibly the court's figure of $17,500 which was $1500 higher than the highest estimate of plaintiff's witnesses reflected the factor in question.

The second element claimed to have been ignored by the court is the low value of today's currency. This contention is a bit obscure, inasmuch as all of the witnesses were testifying to today's market value. That the court had in mind that the value to be determined is today's value is shown by the court's remark when defendant was cross-examining one of plaintiff's witnesses, Rezos. Defendant asked Rezos if in arriving at his figure of $14,500 he took into account 'the depreciated value of the currency and the depreciated purchasing power of the money at the present time.' In overruling plaintiff's objection the court stated that there was no question but that 'You have to determine every value today on the basis of today's money value. Everybody knows that. You can answer that.' The witness replied: 'I used the market value as a basis. I used what other similar properties were selling for, using today's money, today's currency.'

Each of the experts of both parties was carefully examined to establish his particular expertness in Chinatown real estate. All testified to strong general knowledge of the area and the realty in it. Each inspected the premises. All considered other sales, although none based his opinion entirely on the value of other specific property testified to at the trial. Moreover, by stipulation of the parties, the judge made an independent inspection. What he saw was "independent evidence that can be taken into consideration in determining the issues of the case." Otey v. Carmel Sanitary Dist., 219 Cal. 310, 26 P.2d 308, 309, quoting from Hatton v. Gregg, 4 Cal.App. 537, 540-542, 88 P. 592. The parties stipulated 'that whatever the Court sees and observes will be considered as independent evidence in the case.' Our power 'begins and ends with a determination of whether there is any substantial evidence contradicted or uncontradicted, which will sustain the findings made or the judgment rendered.' Wheeler v. Gregg, 90 Cal.App.2d 348, 371, 203 P.2d 37, 51. There is such substantial evidence here.

As said in City of Fresno v. Hedstrom, 103 Cal.App.2d 453, 461, 229 P.2d 809, 813, quoting from Employees' Participating Ass'n v. Pine, 91 Cal.App.2d 299, 303, 204 P.2d 965: "'Questions of value are almost always matters of opinion, and evidence thereon usually goes no further than to give the court more or less general ideas on the subject. From the evidence thus received a trial court must draw its own conclusions of value by a process of balancing and reconciling, if possible, the varying opinions. * * *"'

3. View of Premises.

As stated, it was stipulated that the trial judge might view the premises. In his opening brief defendant stated that there was nothing in the record to show that the judge did so 'and the amount of the award clearly indicates to appellant that he did not view the subject property.' Thereafter plaintiff moved this court for leave to produce the judge's affidavit showing that he did view the premises. Upon the hearing we granted that motion. Defendant now contends that this court had no power to do so because he claims (1) the grounds upon which the motion was to be made are not stated in the notice of motion; (2) granting such motion was a miscarriage of justice. It should be pointed out that in granting the motion both of those grounds could have been raised, and the action of this court in granting that motion is final and cannot now be attacked. So far as a miscarriage of justice is concerned, it would have been such had this court not permitted the record to show the true facts as to whether the trial judge had complied with the stipulation. While the motion was made under section 956a, Code of Civil Procedure, strictly speaking it was not a motion to produce additional evidence. It was actually a motion to augment the record here to show what was before the trial court. This...