South San Francisco Unified School Dist. v. Scopesi

• Citation: 187 Cal.App.2d 45,9 Cal.Rptr. 459
• Decision Date: 02 December 1960
• Docket Number: No. 19068,19068
• Court: California Court of Appeals Court of Appeals
• Parties: SOUTH SAN FRANCISCO UNIFIED SCHOOL DISTRICT, a unified school district of the County of San Mateo, State of California, Plaintiff and Respondent, v. Antonio SCOPESI and Carlotta Scopesi, Defendants and Appellants.

Page 459

9 Cal.Rptr. 459

187 Cal.App.2d 45

SOUTH SAN FRANCISCO UNIFIED SCHOOL DISTRICT, a unified school district of the County of San Mateo, State of California, Plaintiff and Respondent, v. Antonio SCOPESI and Carlotta Scopesi, Defendants and Appellants.

No. 19068.

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

Dec. 2, 1960.

Field, DeGoff & Rieman, Sidney F. DeGoff, San Francisco, for appellants.

Keith C. Sorenson, Dist. Atty., San Mateo County, Lyle R. Edson, Chief Civil Deputy Dist. Atty., Redwood City, for respondents.

COAKLEY, Justice pro tem.

This is an appeal from a judgment, entered upon a jury verdict in an eminent domain action, awarding appellants the sum of $116,350 for 13.2 acres of their land. The sole issue at the trial was the determination of the fair market value of the subject property.

The alleged error on which the appeal is based was the admission in evidence, over the appellants' objection, of testimony by one of the school district's experts as to the value which he had placed on neighboring property which had been the subject of earlier condemnation proceedings instituted by the respondent herein.

The error complained of arose in this way. Rochex, an expert witness for the District, had testified extensively as to his opinion that the highest and best use of the subject property was its present use, viz., for horticultural purposes. He stated his reasons therefor. He was then asked on direct examination concerning comparable sales in the area. He answered that there had been only one sale of comparable horticultural property in the area and identified the property as the nearby McLellan property. He was asked to give the details of that sale. At that point, counsel for the appellants objected on two grounds. They were: (1) that because the McLellan sale was made under threat of condemnation it was not a voluntary sale and therefore could not be considered a comparable sale; and (2) that a gross price was paid for the land and substantial improvements without any allocation or segregation of the price paid for the land as distinguished from the improvements, and that therefore Rochex' testimony would represent only his opinion as to the value rather than the sale price of the land. In support of the second objection, appellants contended that although an expert witness may testify as to the price for which comparable property was sold (Code Civ.Proc., § 1845.5; County of Los Angeles v. Faus, 1957, 48 Cal.2d 672, 312 P.2d 680) his opinion as to the value of such property in the absence of a sale, or as to the value of the land, alone, where sold together with improvements for a gross or unsegregated price, is not admissible, citing Sacramento, etc., Drainage Dist. v. Jarvis, 1959, 51 Cal.2d 799, 336 P.2d 530; People ex rel. Department of Public Works v. Murray, 1959, 172 Cal.App.2d 219, 342 P.2d 485, and cases from other jurisdictions. The objection was overruled and the witness was permitted to testify that at the request of the instant school district he had made the initial appraisal as to the value of the McLellan land separate and apart from the value of the improvements. He had valued the McLellan land at $6,250 per acre.

Questioned on voir dire as to whether the McLellan sale was a forced sale under threat of condemnation and not a true market value sale, the witness testified that he was a friend of McLellan from school days, that at lunch and on other occasions, both before and after the McLellan sale, he had discussed the sale with McLellan; that in their discussions the price paid for the land had not been segregated from the gross price but that McLellan was satisfied with the gross price.

We find it unnecessary to pass on the merits of either of the appellants' assignments of error because we are satisfied from an examination of the entire record that if error was committed in either of the two particulars urged it was not prejudicial. Such being the case this court may not set the judgment aside. Cal.Const., art. VI, § 4 1/2.

Our conclusion is predicated upon the following summary of the evidence: Antonio Scopesi and Carlotta Scopesi, the property owners and appellants, sought to establish that the highest and best use of the subject property was for industrial purposes. They presented two expert witnesses, each of whom so testified. However, each qualified this aspect of his testimony by stating that the Scopesi property was suitable for industrial use only if considered in conjunction and as a unit with adjoining property owned by Amalia Reichardt. Otto Reichardt, son of Amalia Reichardt, testified as to a discussion with Scopesi eight years earlier in which they concluded that 'our two properties separately did not command the value of the two as a unit, and we therefore agreed that neither party would sell or negotiate without contacting the other.' The subject had been discussed several times in the interim and the understanding had continued to the time of Reichardt's testimony. It had never been reduced to writing. It was a 'gentleman's contract, verbal contract.' Otto Reichardt, with whom the appellants had the understanding, was not the owner of the property but was managing and operating it as a duck farm. On cross-examination Reichardt acknowledged that approximately a month earlier, in another department of the same court, in an eminent domain proceeding involving the Reichardt property, he had testified that the highest and best use of the Reichardt property was as a duck farm. There was an attempt to explain that answer but a colloquy between counsel and court leaves the record without the explanation. The testimony also discloses that before the two properties could be used for industrial purposes other obstacles had to be overcome. These included obtaining a use permit from the city of South San Francisco, and possible installation of a spur track which could not be done without substantial construction costs and obtaining a right of way across the property of a third party.

Scopesi's experts testified to several comparable sales for industrial use at prices ranging from $20,000 to $40,000 per acre. They each fixed the value of the Scopesi property, if sold together with the Reichardt property, at $20,000 per acre or $264,300.

The admissibility of the testimony of the Scopesi experts as to the use of the Scopesi property if joined with the Reichardt property was argued vigorously and extensively in the presence of the jury. Counsel for the District took the position that such testimony was 'hypothetical, conjectural and remote' and should be stricken. Counsel for the appellants insisted that whether or not it was hypothetical, such possible use should be considered by the jury. The testimony was admitted and motions to strike denied.

The court instructed the jury that in determining the highest and best use of the property, and in determining its fair market value for such use, it could...