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

CITY OF LOS ANGELES v. COLE et al. Appeal of DE ACOSTA et al.

Civ. 14702.

Decided: October 03, 1945

Burr & Smith and Philip Grey Smith, all of Los Angeles, for appellants. J. H. O'Connor, Co. Counsel, and S. V. O. Prichard, Asst. Co. Counsel, both of Los Angeles, for respondent.

This is an action in eminent domain, C.C.P. § 1237, instituted to acquire 12 parcels of land in the Los Angeles Civic Center for a new alignment of certain streets therein. This appeal was taken by the defendants interested in Parcels 5, 9 and 11, located upon the top of what is known as Fort Moore Hill, which overlies the North Broadway Tunnel and is immediately adjacent to and northerly from the Hall of Justice in Downtown Los Angeles. Because this appeal, in the main, presents questions of law, we shall refer to the facts only in so far as and when such reference becomes necessary in connection with the legal question raised in regard thereto.

After the cause was at issue, a trial was had before a jury as to the market value of the real estate owned by appellants, or in which they had interests. At such first trial, the jury returned verdicts as to the market value of the respective parcels here in question. Thereafter and before any findings were signed or judgment rendered, respondent herein filed a motion for a new trial which was granted. A second trial was had, also before a jury, which returned verdicts as to the market value of the respective parcels hereinbefore referred to. The court thereafter signed findings which were filed and a judgment was rendered and entered. Appellants moved for a new trial. They also moved the court to have the second trial in its entirety declared void and to have the jury's verdict and the judgment set aside. Both of said motions were denied. From the judgment and order denying each of the aforesaid motions, appellants prosecute this appeal.

We shall first give consideration to appellants' claim that the entire second trial proceedings were void and should have been set aside because respondent's motion for a new trial in the original proceedings was premature and the court was therefore without power to grant the same. In that regard, the record reflects that the motion of respondent, City of Los Angeles, for a new trial was filed within ten days following the verdict of the jury on the single issue of the market value of Parcels 5, 9 and 11 in the proceedings for condemnation. No findings of fact, conclusions of law, or final judgment had been written, filed, or entered by the court, as to the proceedings had at such first trial.

Section 659 of the Code of Civil Procedure, which makes provision for filing a notice of motion for new trial, reads:

‘The party intending to move for a new trial must, either before the entry of judgment or within ten (10) days after receiving written notice of the entry of the judgment, file with the clerk and serve upon the adverse party a notice of his intention to move for a new trial, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court or both. Said notice shall be deemed to be a motion for a new trial on all the grounds stated in the notice. The time above specified shall not be extended by order or stipulation.’

The words ‘either before the entry of judgment or’ were added to the foregoing section in 1923. In using the words ‘before the entry of judgment,’ the Legislature must have realized and considered that the ‘entry of judgment’ presupposes a ‘trial’, and that no judgment can be entered until there has been a trial in the true sense, which obviously means that all the issues necessary to authorize a judgment have been determined. As was said in Bell v. Marsh, 80 Cal. 411, 414, 22 P. 170, ‘A case has not been tried until all the issues have been disposed of * * *.’ A ‘trial’ contemplates that all the issues raised by the pleadings must be disposed of. Where only a part of the issues are disposed of, how can it be said that there has been a trial so far determinative of the issues that the appropriate judicial conclusion thereof by judgment is authorized?

‘Where an action embraces several issues, some of which are tried by the court and some by a jury, a notice of intention to move made after return of the verdict but before the decision of the remaining issues tried by the court, is premature.’ 20 Cal.Jur. 172, and cases there cited.

We are convinced that the provisions of section 1241 of the Code of Civil Procedure require the court to determine the fact that the necessity for subjecting the property to the public use sought existed, and that a judgment of condemnation is not authorized immediately upon return of a verdict by the jury which assessed the damages to the defendants. Hinshaw v. Superior Court, 45 Cal.App. 105, 107, 187 P. 41. In other words, the verdict of the jury upon the single issue of damages does not constitute a decision of the action. Where several issues are embraced within an action, some of which are tried by the court and some by the jury, a notice of intention to move for a new trial is premature when filed after the jury verdict on the issues submitted to the jury but prior to the decision on the issues tried by the court, and such notice confers upon the court no power to act upon a motion subsequently made pursuant to the notice. Barnes v. Foley, 189 Cal. 226, 227, 207 P. 885; In re Estate of McKenna, 138 Cal. 439, 440, 71 P. 501.

That, in condemnation cases, the court is required to make findings upon the issues of fact (except those relating to compensation) such as use and public necessity, was the holding in Vallejo & Northern R. Co. v. Reed Orchard Co., 169 Cal. 545, 556, 147 P. 238; and in Hinshaw v. Superior Court, supra. Sections 1256 and 1257 of the Code of Civil Procedure make the rules of practice of Part II of the same code applicable to condemnation actions and, as findings of fact were not waived in the proceedings in the first trial, they were required. Sec. 632, C.C.P. Under section 657 of the Code of Civil Procedure, an application for a new trial may be made by ‘the party aggrieved’ and ‘until the findings are signed and filed there is no decision, and nobody is ‘aggrieved,’ within the meaning of section 657 of the Code of Civil Procedure.' Root v. Daugherty, 201 Cal. 12, 14, 255 P. 181, 182; Dominguez v. Mascotti, 74 Cal. 269, 270, 15 P. 773. Furthermore, the case of Root v. Daugherty, just cited, as well as Estate of Barker, 207 Cal. 112, 276 P. 992; Middleton v. Finney, 214 Cal. 523, 527, 6 P.2d 938, 78 A.L.R. 1104; Reeve v. Jahn, 9 Cal.2d 244, 250, 70 P.2d 610; Cloud v. State Terminal Co., 22 Cal.App.2d 568, 570, 71 P.2d 600, all decided since the 1923 amendment to section 659 of the Code of Civil Procedure, decisively hold that, in cases where, as in the instant one, findings of fact are required, a motion for a new trial instituted by the filing of a notice of intention prior to the signing and filing of findings of fact and conclusions of law is ‘premature and ineffectual for any purpose.’

Respondent contends that, under the provisions of section 659 of the Code of Civil Procedure prior to the 1923 amendment, although patent error existed in the jury trial of the issue of market value in condemnation proceedings, the court was ‘under the grim necessity of wasting its time in trying the remaining issues to the point of entering judgment before the error could be corrected’, and that it was ‘to avoid this stupid waste of previous court time that section 659 of the Code of Civil Procedure was amended by adding the words ‘either before the entry of judgment or’'. However, as heretofore pointed out, in the cited cases, the appellate tribunals of this state disagree with respondent's reasoning and uniformly hold that where, after the return of the verdict of the jury, there remains something more for the court to do, then the ‘trial’ is not completed upon the coming in of the verdict; no valid judgment can be entered by the court pursuant to the jury's verdict; and, consequently, there having been no decision of the cause, the proceedings for a new trial are prematurely taken. In re Estate of Green, 25 Cal.2d 535, 154 P.2d 692, relied upon by respondent, in our opinion supports appellants' position, because, in that case, all of the issues involved were submitted to and decided by the jury and nothing remained for the court to do but to enter judgment upon the verdict. In the case just cited, the court speaks approvingly of the holding in the cases cited herein, where, as in the case at bar, all of the issues were not submitted to the jury. Had the Legislature intended the construction contended for by respondent of the 1923 amendment to section 659 of the Code of Civil Procedure, it could very easily have provided therefor by appropriate language. It must be assumed that the Legislature was cognizant of the case of Root v. Daugherty, supra, decided in 1927, and of cases subsequently decided interpreting the 1923 amendment to section 659 of the Code of Civil Procedure, and yet the Legislature has taken no steps to alter or change the pertinent code section.

Finally, respondent contends that appellants are estopped to make any claim that jurisdiction was lacking in the second trial, for the reasons that: (1) Appellants abandoned their appeal from the order granting a new trial in the first proceedings; (2) appellants expressly requested the court to engage in the second trial; (3) appellants freely participated in such trial without any objection; and (4) appellants thereby caused respondent considerable expense. If the order granting a new trial was void, appellants had a right to rely upon that contention and to forego the expense of an appeal. If, as decided in Root v. Daugherty, supra, and numerous other cases therein cited, proceedings for a new trial taken prematurely are a nullity and ineffectual for any purpose, it was not within the power of any of the litigants to invest the court with jurisdiction by consent, waiver, agreement or acquiescence. Jurisdiction to pass upon a motion for a new trial depended upon timely service of the notice of intention to move for a new trial. Such jurisdiction could not otherwise be conferred. A void order remains without effect as completely as if never entered. Title Insurance Co. v. California Development Co., 171 Cal. 173, 152 P. 542; Peters v. Anderson, 113 Cal.App. 158, 297 P. 76; Abelleira v. District Court of Appeal, 17 Cal.2d 280, 289, 109 P.2d 942, 132 A.L.R. 715; Middleton v. Finney, supra, 214 Cal. at page 528, 6 P.2d 938, 78 A.L.R. 1104. Because of what we have herein stated, it must be held that the trial court erred in denying appellants' motion to declare void the entire proceedings had at the second trial; the judgment entered therein must be reversed with directions to the court below to proceed from the point at which the jury returned verdicts in said first trial of the action. Because the purported order granting a new trial in the original trial was made without jurisdiction, is void and without effect as completely as if it were never entered, it becomes unnecessary in remanding the cause to make any order in connection therewith.

By reason of the orders we must make herein, it is possible that, at the conclusion of the proceedings yet to be had in the first trial, a new trial may eventually properly be granted; and we are therefore impelled to give consideration to the remaining two questions raised on this appeal to the end that the court may be guided thereby should a new trial finally ensue.

The first of these claimed errors is that the court erred in giving to the jury at the request of plaintiff two instructions: The challenged instructions read:

‘You are instructed that the price paid by plaintiff condemnor for other property is not a proper basis for determining the market value of the property here in question. Such sales are not a fair criterion of value for the reason that they are in the nature of a compromise. The fear of the one party or the other to take the risk of legal proceedings ordinarily results in the one party's paying more or the other party's taking less than is considered to be fair market value of the property. For these reasons such sales are not proper evidence of value in any case, whether in a proceeding by the same condemning party, or otherwise.’

‘You are instructed that the price fixed by an agreement between the owner of property and a public corporation seeking to condemn his land by virtue of eminent domain cannot be taken as a criterion of the market value of other land in the vicinity. The price so fixed by compromise, when there can be no other purchaser and the seller has no option to refuse to sell and can only elect between the acceptance of the price offered and the delay, uncertainty and trouble for legal proceedings of an assessment, is not a reasonable or fair test of just compensation for the defendant's property. It is in no sense a sale in the market.’

In this regard, the record reflects that plaintiff produced three, and the defendants here involved, two market value witnesses. The difference in the appraisals of these witnesses was largely a difference in the matters which they took into consideration in arriving at their opinions. We think it may fairly be said that the expert witnesses produced by these defendants based their opinions as to market value mainly upon the transactions (as far as sales were concerned) by which one or the other of the interested governmental agencies had acquired property within the Civic Center area either by purchase or condemnation. Indeed, appellants very frankly state in their briefs that ‘These purchases by the City of Los Angeles and other governmental entities formed a large part of the basis for the opinions of the experts called by the appellants. * * *’ On the other hand, the expert witnesses called by plaintiff City and who gave their opinions as to the market value of the parcels involved, expressly excluded these purchases by governmental agencies within the Civic Center area from their consideration as a basis for their expressed opinions, although they had familiarized themselves with the nature and details of these transactions. Appellants were allowed to cross-examine respondent's witnesses at length as to the latters' knowledge of such transactions and thereby adduced from the witnesses on cross-examination the price paid and other details concerning such transactions.

Appellants contend that the aforesaid instructions given to the jury were both erroneous and prejudicial, but, as stated by respondent, the first of these instructions ‘is a paraphrase of a quotation made by our Supreme Court in the case of City of San Luis Obispo v. Brizzolara, 100 Cal. 434, at page 436 [34 P. 1083], from Mr. Lewis in his treatise on Eminent Domain. The first sentence of the instruction is merely a rephrasing of the first sentence of the quotation made, and the final three sentence are a precise reproduction of this statement approved by our Supreme Court’; while ‘the second instruction to which objection is made is likewise in part a paragraphrase and in part a precise quotation from the statements of our Supreme Court in the same Brizzolara case [100 Cal.] on page 436 [34 P. 1083]’. Whatever may be the holding in some other states, we are persuaded that, upon the authority of the case of San Luis Obispo v. Brizzolara, 100 Cal. 434, 34 P. 1083, it must be held as the rule in this state that evidence of sales of neighboring parcels is not admissible unless such sales were voluntary on both sides, and that it is not competent for either party in a condemnation proceeding to put in evidence the amount paid by a condemning party to the owners of adjacent lands, however similar they may be to that in controversy, whether the payment was made as a result of a voluntary settlement, an award, or verdict of a jury, because, for the reasons stated in the Brizzolara case, supra, that the price paid under such circumstances is not a fair test of true market value. This rule is also followed in some other jurisdictions. Pittsburgh, C., C. & St. L. R. Co. v. Gage et al., 286 Ill. 213, 121 N.E. 582, 586; Metropolitan St. R. Co. v. Walsh, 197 Mo. 392, 94 S.W. 860, 863; Cleveland, etc., R. Co. v. Smith, 177 Ind. 524, 97 N.E. 164, 173; Sawyer v. Boston, 144 Mass. 470, 11 N.E. 711; MacNaughton v. Commonwealth, 220 Mass. 550, 108 N.E. 357.

The instructions, however, as given are open to criticism in that they did not advise the jury of the further rule announced in the Brizzolara case, supra, that, while evidence of the character to which we have here adverted is not admissible as evidence in chief, such evidence is admissible by way of cross-examination ‘for the purpose of testing the fairness or honesty of an opinion which the witness may have given upon his direct examination in relation to the value of the property involved in the action’ [100 Cal. 434, 34 P. 1084]. As heretofore noted, in the instant action, such testimony was permitted on cross-examination of respondent's witnesses and the jury should have been advised that they were entitled to take the same into consideration for the aforesaid limited purpose. Reclamation District No. 730 v. M. Inglin, 31 Cal.App. 495, 500, 160 P. 1098, and cases therein cited.

Furthermore, section 1872 of the Code of Civil Procedure, as amended by Statutes of 1937, pages 1605, 1606, provides that an expert witness may, upon his direct examination, state the reasons for the opinions given by him. It is the present market value of the land that constitutes the measure of damages, and not its special value in use to the owner or to the parties seeking to condemn. ‘Market value’ is the highest price in terms of money which the land will bring if exposed for sale in the open market with a reasonable time allowed to find a purchaser buying with knowledge of all the uses and purpose to which it is adapted and for which it is capable of being used. The true test is not value for a special purpose, but value in view of all the purposes to which the property is naturally adapted. 10 Cal.Jur. 338, 339. As is said in 29 Corpus Juris Secundum, Eminent Domain, § 137, at page 974: ‘The market value of property injured or taken for public use is commonly defined as the price it will bring when offered for sale by one who desires, but is not required, to sell, and is sought by one who desires, but is not required, to buy, after due consideration of all the elements reasonably affecting value.’

The instructions as framed might well have been considered by the jury as prohibiting them from considering such testimony, even that elicited upon cross-examination, for any purpose whatsoever. Should a new trial eventually be had, the instructions in question should be reframed to comply with the views herein expressed. That is to say, the jury should be advised that, under section 1872 of the Code of Civil Procedure, an expert witness may state the reasons for his opinion, and also of the rule with reference to cross-examination concerning specific transactions had by the condemning parties concerning acquisition of neighboring properties and the limited purpose for which such testimony is received. However, the jury should also be instructed as to the foregoing rule announced in the Brizzolara case, supra, that purchases by the condemning parties in the affected area cannot be considered by them as a criterion of true market value.

Finally, appellants insist that the court erred in refusing to permit them to prove the physical characteristics of a certain hill and tunnel in connection with the use to which the pertinent parcels of land could be put on said hill. It appears from the record that appellants called as a witness Albert C. Martin and, while engaged in qualifying him as an expert construction engineer, respondent's counsel interrupted to inquire ‘for what purpose counsel is attempting to qualify’ Mr. Martin. Outside the presence of the jury and in answer to the aforesaid inquiry, appellants' counsel stated:

‘I propose to show that this man is thoroughly familiar with the geology and the character of the underlying structure under these subject parcels for the purpose of bringing out first the physical structure of Fort Moore Hill; secondly, the location of the tunnel in that physical structure; and thirdly, the amount of support offered by that structure for anything that may be put upon the hill in the way of an apartment house or other building in connection with the highest and best use already testified to and what effect, if any, that may have on the tunnel structure. In other words, the sum and substance of it is to bring before the jury the physical facts and some information concerning the effect of the tunnel in the situation.’

After further discussion, it was stipulationed that the foregoing statement made by appellants' counsel be considered as an offer of proof, to which offer of proof respondent's counsel objected upon the ground that any testimony ‘relative to the nature and character of structure of the hill, its possibility of supporting a six story building, or any other kind of a building, is absolutely beyond the point in this case and is incompetent and not a proper part of defendants' affirmative case, but is anticipatory and in the nature of rebuttal when there is nothing to rebut, and on that basis we object to any examination of the witness along those lines.’ The objection was sustained.

Appellants contend that the evidence was admissible because ‘the jury might well question whether the subject properties would be capable of sustaining the type of apartment houses or other buildings for the highest and best use since the tunnel under the hill at North Broadway was within approximately 50 feet of all of them and comparatively close to the surface. The jury was entitled to this information and without it they would have no way of knowing whether such construction on the subject property was possible, or whether it would be too costly.’ In other words, appellants argue that they were entitled to prove the geology and similar physical characteristics of the hill to support the opinion given by their expert witnesses as to the possible use to which the land could reasonably be put.

Respondent, on the other hand, urges that appellants' expert witnesses were permitted to freely testify concerning their opinions as to the highest and best use of the property under condemnation and that no questions were asked on cross-examination which ‘even remotely suggest that the present properties were not adaptable for the highest and best use thus indicated by defendants' witnesses, either by reason of any geological or structural defects in the land which would render it either dangerous or unsuitable for such a purpose.’ Therefore, urges respondent, until there was interjected into the case some suggestion that the things which appellants' witnesses had testified constituted the highest and best use for all property could not be built upon the hill, ‘what this witness is doing is merely to anticipate a possible defense and this is an attempt to offer rebuttal before there is anything to rebut’.

We are not in accord with respondent's reasoning. The proffered testimony of Mr. Martin was not rebuttal in character but was simply coroborative of testimony given by other expert witnesses produced by appellants. The testimony with reference to the geology and similar characteristics of the property sought to be condemned tended to show conditions actually affecting the use of such property. Regarding the rule with respect to the consideration of all circumstances and conditions which may reasonably affect the market value of real property, the court said in City of Beverly Hills v. Anger, 127 Cal.App. 223, 228, 15 P.2d 867, 868: ‘In ascertaining the market value of real property, any evidence which tends to show the physical condition of the property, the purpose for which it is employed, or any reasonable use for which it may be adapted, is competent.’ It was error to exclude the evidence contained in the foregoing offer of proof.

The attempted appeal from the order denying defendants' motion for a new trial is dismissed. For the reasons herein stated, the judgment appealed from is reversed, and the cause remanded with directions to the court below to grant defendants' motion to declare void the entire proceedings had upon the second trial herein, and to proceed to an orderly conclusion of the first trial in conformity with the views herein expressed, from that stage of the proceedings whereat, in such first trial, the jury returned verdicts on the issues submitted to them.

WHITE, Justice.

YORK, P. J., and DORAN, J., concur.