Taper v. City of Long Beach

• Decision Date: 08 March 1982
• Citation: 129 Cal.App.3d 590,181 Cal.Rptr. 169
• Parties: Sydney Mark TAPER, etc., Plaintiff and Respondent, v. CITY OF LONG BEACH, a municipal corporation, Defendant and Appellant. CITY OF LONG BEACH, a municipal corporation, Plaintiff and Appellant, v. Sydney Mark TAPER, etc., et al., Defendants and Respondents. Civ. 21589.
• Court: California Court of Appeals Court of Appeals

Page 169

181 Cal.Rptr. 169

129 Cal.App.3d 590

Sydney Mark TAPER, etc., Plaintiff and Respondent, v. CITY OF LONG BEACH, a municipal corporation, Defendant and Appellant.

CITY OF LONG BEACH, a municipal corporation, Plaintiff and Appellant, v. Sydney Mark TAPER, etc., et al., Defendants and Respondents.

Civ. 21589.

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

March 8, 1982.

As Modified on Denial of Rehearing April 1, 1982.

Hearing Denied June 9, 1982.

[129 Cal.App.3d 594] Robert W. Parkin, City Atty., Arthur Y. Honda, Deputy City Atty., Long Beach, and Edwin P. Martin, Santa Ana, for City of Long Beach.

George Deukmejian, Atty. Gen., N. Gregory Taylor, Asst. Atty. Gen., and Robert G. Collins, Deputy Atty. Gen., for State of California.

Meserve, Mumper & Hughes, Hodge L. Dolle, Sr., Hodge L. Dolle, Jr., and Judith P. Meyer, Los Angeles, for Sydney Mark Taper, trustee.

OPINION

KAUFMAN, Associate Justice.

These are appeals from judgments in coordinated actions in eminent domain and inverse condemnation.

Procedural History

On February 7, 1977, Sydney Mark Taper as testamentary trustee of the Barry Hugh Taper Trust, later joined as a party plaintiff by Barry Hugh Taper, (collectively the Tapers) filed an action in the Los Angeles Superior Court against the City of Long Beach (City) seeking damages for inverse condemnation, for unreasonable delay in instituting eminent domain proceedings and other oppressive conduct, and for breach of statutory duty under Government Code sections 7267.5 and 7267.6, ¹ all in respect to a parcel of oceanfront property in Long Beach. ² (For convenience, the inverse condemnation action will be referred to as the inverse action.) On August 9, 1977, also in Los Angeles Superior Court, City filed an action in eminent domain in respect to the same property, naming as defendants the inverse action plaintiffs and, in addition, the State of California (the State). ³ (For convenience, the eminent domain action will be referred to as the direct action.) The two cases were coordinated pursuant to Code of Civil Procedure section 404 et seq., in the Orange County Superior Court.

The coordination judge issued a preliminary trial conference order bifurcating the trial of the actions and designating a number of issues to be tried by the court separately and in advance of the other issues. The questions of de facto taking and the existence of public pathway and recreational easements over the property were tried first. At the conclusion of the first phase trial the court made numerous findings and conclusions favorable to the Tapers, including that there had been a de facto taking of the property as of November 30, 1976, and that City and the State were estopped from asserting public recreational or pathway easements over the property.

The second phase was a jury trial in the inverse action of the fair market value of the property. Pursuant to the court's determination that City and the State were estopped from asserting public recreational or pathway easements over the property, evidence of the existence of such easements and argument concerning the effect they would have on the value of the property was largely foreclosed. The jury returned a verdict of 2.9 million dollars.

On July 5, 1979, judgment was entered in the inverse action purporting to adjudicate that: (1) City had de facto acquired and inversely condemned the Taper property as of November 30, 1976, and on that date became the owner in fee simple; (2) the Tapers were entitled to just compensation in the amount of 2.9 million dollars and costs; and (3) City was estopped from asserting or claiming any implied dedication or ownership of public recreational or pathway easements over the property. In two subsequent orders the court awarded plaintiffs prejudgment interest at the statutory rate, attorney fees of $600,000 and other costs of $120,310.51. City timely appealed from the judgment and, later, from the order for fees and costs as an order after judgment. (Code Civ.Proc., § 904.1, subd. (b).)

On June 15, 1979, judgment was entered in the direct action providing that City and the State were estopped from claiming implied dedication or ownership of public recreational or pathway easements over the property and that: "As to all remaining issues, the cause is dismissed with prejudice[;] entry of said dismissal to be stayed or abated until entry of final judgment in favor of Sydney Mark Taper and Barry Hugh Taper [in the inverse action] ... and payment of all sums due pursuant to [that] final judgment ...."

On August 15, 1979, City filed a notice of appeal from the judgment in the direct action. Meanwhile on August 1, City had served notice of its abandonment of the direct action and on August 21, the Tapers moved the court for an order vacating the abandonment. The Tapers' motion was granted by a minute order dated September 24, 1979. On November 21, 1979, City petitioned this court for a writ of mandate to annul the order setting aside the abandonment. On February 20, 1980, the City's petition for mandate was denied without opinion. City's petition for hearing was denied March 20, 1980, by the California Supreme Court. No appeal was taken by City from the order setting aside its abandonment of the condemnation action.

Contentions and Conclusions

On its appeal from the judgment in the inverse action City first contends the determination that its conduct constituted a de facto taking of the property is contrary to law and not supported by substantial evidence. Secondly, it contends that the court prejudicially erred in several evidentiary rulings in the valuation trial, particularly in excluding evidence of public recreational and pathway easements and their effect on the property's value, which rulings stemmed from the court's earlier determination that City was estopped from asserting the existence of such easements. On its appeal from the order awarding attorney fees and costs in the inverse action City contends that the award is excessive and erroneously includes attorney fees for services in both the inverse action and the direct action.

On their appeals from the judgment in the direct action both City and State contend that the determination they are estopped from asserting the existence of public recreational and pathway easements is legally erroneous and unsupported by substantial evidence. In connection with its appeal from the judgment in the direct action City also urges that we review the order vacating its purported abandonment of the action, notwithstanding the fact that no appeal has been taken from that order.

We conclude that the determination that City and State are estopped from asserting the existence of public pathways and recreational easements is unsupported by the evidence and legally erroneous and that therefore the exclusion of evidence of their existence and their effect on value was also erroneous. We further conclude that while substantial evidence supports the trial court's finding of a taking or at least of a compensable damaging, there is no substantial evidence to support the determination that the taking was of the fee. Thus, reversal of both judgments is required. However, we also conclude that the order vacating City's purported abandonment of the condemnation action was appealable as an order after judgment and, not having been appealed, has become final. In view of these determinations, we conclude finally that when jurisdiction is restored to the trial court, the direct action should proceed and that plaintiffs may obtain in that action any relief warranted by the court's determination that City engaged in unreasonable precondemnation conduct.

Facts

The property in question consists of approximately 3.5 acres of unimproved and unoccupied oceanfront land in the City of Long Beach. The bulk of the property lies at street level atop a shoreline bluff (this portion is referred to as the upland property); the remainder consists of sandy beach frontage at the base of the bluff (this portion is referred to as the beach property). The western edge of the upland property is bordered by a city park. The property was, and at all times through the time of trial remained, zoned multiple residential (R-4) with no height or density limitation.

After acquiring the property in 1961, Barry Hugh Taper discovered that the beach property was subject to an easement for street purposes granted the City in 1929 by The Alamitos Land Company, one of Taper's predecessors in interest. The easement which was never formally utilized by the City was granted "for street purposes only" and was subject to reversion if not so used. In November 1961 The Alamitos Land Company quitclaimed its reversionary interest to Taper. Taper then submitted an application to the city council to vacate the street easement, and the application was granted.

In 1963, Taper and City entered into a written agreement (hereafter referred to as the 1963 Agreement), apparently with the intent to settle the status of title to the fee and mineral rights in the beach property. The agreement provided that Taper would release and quitclaim all interest in the beach property to City and that, upon acceptance of Taper's quitclaim deed, the City would in turn quitclaim back to Taper its interest in the beach property reserving and excepting all rights to drill, explore and produce oil, gas, hydrocarbon substances and minerals lying more than 200 feet below the surface of the land. The agreement further provided that the entire property would be developed in accordance with a plan attached to the agreement or a similar plan of development "acceptable to and [which has] received the prior written approval of the City Manager of the City of Long Beach." The latter provision was made expressly for the benefit of the City and was made binding on Taper, his successors and assigns as a covenant running with the land for a period of 25...