PEOPLE DEPARTMENT OF PUBLIC WORKS v. Mary E. Donovan, Defendant and Appellant.*

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

PEOPLE of the State of California, acting by and through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, v. GANGI CORPORATION, a corporation, et al., Defendants, Mary E. Donovan, Defendant and Appellant.*

Civ. 19379.

Decided: July 31, 1961

Johnson, Thorne, Speed & Bamford, by John E. Thorne, San Jose, for appellant. Holloway Jones, Jack M. Howard, Joseph F. DeMartini, Lee Tyler, San Francisco, Robert E. Reed, Sacramento, of counsel, for respondent.

From an order striking defendant's affidavits supporting her motion for new trial, an order denying a new trial, and the judgment in this eminent domain proceedings, defendant Donovan appeals.

Defendant Mary E. Donovan owned an L-shaped parcel of land containing 15,714 square feet. As a part of a freeway and under these proceedings, the state took possession of the land as of October 14, 1958. The trial commenced November 9, 1959. During the trial it developed that defendant had owned the property since May 1954, at which time the property consisted of the land, a frame barn, small storage shed, and a large metal barn. Later, under a permit from the city of San Jose, she moved three sections of an old house onto the property and placed the structure on blocks. She made some improvements on the structures but they remained uninhabited and without necessary utilities. The buildings were used by defendant only for storage of used furniture and antiques. The only access to the property was by an easement some 34 feet wide and approximately 161 feet long. Since 1942 the property had been zoned R–1. It appears from the evidence the use of the property was nonconforming. The property was near a civic center but there had been no activity before the taking of it by the plaintiff to either rezone the property to a less restricted use or for its acquisition for use as part of the civic center. There was no testimony that the city of San Jose contemplated a change of zoning affecting defendant's property. However, the property had enhanced in value from the date of purchase by reason of the possibility of the development.

There were three opinions given as to the market value of the property. Defendant testified it had a market value of $35,000, but her expert testified to a figure of $29,000. The expert testifying on behalf of the plaintiff gave a figure of $8,500. The jury's award was $13,500.

In rebuttal, defendant sought to introduce the testimony of an expert who had made an appraisal for the plaintiff, but whose testimony was not introduced by plaintiff. This expert had been subpoenaed by defendant. The court allowed this defense witness to testify he had made an appraisal for plaintiff but did not allow him to testify further as to that appraisal.

Following the entry of the judgment, defendant moved for a new trial and filed affidavits in support of the motion. By order of court the affidavits were ordered stricken from consideration on the motion for new trial, and the court denied defendant's motion for new trial. The affidavits were from some of the jurors who had tried the case, and defendant's counsel. They were all to the point that the court has misled the jury into believing they could consider only R–1 zoning on the property, and that had the jurors known they could consider probable zoning changes, the verdict might have been in a larger amount. Included in the affidavit of defendant's counsel were statements that prior to trial plaintiff had advised counsel for defendant that the plaintiff's witness would testify the value of the property was in the neighborhood of $15,000, whereas in fact at the trial the plaintiff's witness testified the value was $8,500. It would appear that defendant's counsel is claiming surprise, which he could have guarded against had he known the testimony would have had the variance as described.

Defendant Donovan states the issues on this appeal as follows: (1) Was the jury improperly instructed as to the use for R–1 zoning purposes only and was this a failure to instruct the jury it could consider uses to which the land might be put in the reasonably foreseeable future? (2) Should the trial court have considered the affidavits submitted in ruling upon a motion for new trial? (3) Was there error in (a) permitting plaintiff's appraiser to testify as to a legal definition of market value, (b) permitting hearsay testimony from the same witness that he considered only R–1 zoning because he had heard the city council state they would not change the zoning, and (c) failing to instruct where evidence is available to a party and is not produced, the jury may consider that if it were produced it would be adverse to the party failing to produce it?

The order striking the affidavits and the order denying the motion for new trial are not appealable orders, since they are not encompassed within the matters appealable. City of Los Angeles v. Glassell, 203 Cal. 44, 262 P. 1084; Edlund v. Los Altos Builders, 106 Cal.App.2d 350, 235 P.2d 28; Code Civ.Proc. § 963. The appeal from these orders will be and hereby is ordered dismissed. Davenport v. Waite, 175 Cal.App.2d 623, 346 P.2d 501.

Defendant having appealed from the judgment, this court is not precluded from reviewing the trial court's discretion in ruling on the motion for new trial and striking the affidavits. Hamasaki v. Flotho, 39 Cal.2d 602, 248 P.2d 910; Bank of America National Trust & Savings Ass'n v. Lamb Finance Co., 179 Cal.App.2d 498, 3 Cal.Rptr. 877.

The jurors' affidavits were to the point they were instructed as to R–1 zoning and had they been allowed to consider other coning, the verdict would have been higher. Defendant admits these affidavits may not be used to impeach the verdict but despite this prohibition contends the affidavits should have been considered by the trial court in ruling on the motion for new trial. No authority is cited supporting this statement, nor have any been found. Kollert v. Cundiff, 50 Cal.2d 768, 329 P.2d 897, sets forth the rule which guides us here in the use of jurors' affidavits:

‘It is the general rule in California that affidavits of jurors may not be used to impeach a verdict. See People v. Sutic, 41 Cal.2d 483, 495, 261 P.2d 241 [coercion of a juror by the others to subscribe to a verdict]; People v. Evans, 39 Cal.2d 242, 250, 246 P.2d 636 [evidence received out of court]; People v. Gidney, 10 Cal.2d 138, 146, 147, 73 P.2d 1186 [bailiff discussed case and probable sentence with jurors]; People v. Azoff, 105 Cal. 632, 39 P. 59 [evidence received out of court]; People v. Zelver, 135 Cal.App.2d 226, 235–236, 287 P.2d 183 [juror ‘coerced’ and ‘intimidated’ by other jurors]; Maffeo v. Holmes, 47 Cal.App.2d 292, 295, 117 P.2d 948 [independent investigation by some jurors]; People v. Giminiani, 45 Cal.App.2d 535, 539, 114 P.2d 392 [jury informed by bailiff that a defendant had a bad reputation with the police].

‘An exception to the general rule is made by statute where ‘any one or more of the jurors have been induced to assent to any general or special verdict * * * by a resort to the determination of chance. * * *’ Code Civ.Proc., § 657, subd. 2. Another exception, recognized by judicial decision, is that affidavits of jurors may be used to set aside a verdict where the bias or disqualification of a juror was concealed by false answers on voir dire. E. g., Williams v. Bridges, 140 Cal.App. 537, 35 P.2d 407.' 50 Cal.2d at pages 772–773, 329 P.2d at page 899.

There was no abuse of discretion by the trial judge in striking these affidavits.

In part, the affidavit of defendant's counsel was based on ‘belief.’ This would have no evidentiary value on the motion for new trial. Schomaker v. Provoo, 96 Cal.App.2d 738, 216 P.2d 562; Stickel v. San Diego Elec. Ry. Co., 32 Cal.2d 157, 195 P.2d 416. The portion based on belief was properly stricken, as was the balance of the affidavit, as will be hereinafter reflected. The remaining portion of the affidavit is based on surprise in that defendant had, prior to trial, been offered a higher price, i. e., $17,000, and defense counsel had been informed plaintiff's expert would testify to a valuation of $15,000, whereas his testimony at trial was to a valuation of $8,500.

Section 657, Code of Civil Procedure, states:

‘The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

‘3. Accident or surprise, which ordinary prudence could not have guarded against; * * *’

If defendant was surprised by this testimony, she failed to assert this point during the trial and did not raise it until the motion for new trial was made. She is governed by the rule announced in Kauffman v. De Mutiis, 31 Cal.2d 429, 432, 189 P.2d 271, 273:

‘* * * However, where a situation arises which might constitute legal surprise, counsel cannot speculate on a favorable verdict. He must act at the earliest possible moment for the ‘right to a new trial on the ground of surprise is waived if, when the surprise is discovered, it is not made known to the court, and no motion is made for a mistrial or continuance of the cause.’ (Baker v. Berreman, 61 Cal.App.2d 235, 142 P.2d 448, 451; Bailey v. Richardson, 66 Cal. 416, 5 P. 910; Heath v. Scott, 65 Cal. 548, 4 P. 557; Dewey v. Frank Bros. & Co., 62 Cal. 343; Ferrer v. Home Mut. Ins. Co., 47 Cal. 416; Delmas v. Martin, 39 Cal. 555; Doyle v. Sturla, 38 Cal. 456; Schellhous v. Ball, 29 Cal. 605; Turner v. Morrison, 11 Cal. 21; Bradbury Estate Co. v. Carroll, 98 Cal.App. 145, 276 P. 394; Denvir v. Judson Frt. Forwarding Co., 86 Cal.App. 369, 260 P. 846; 1 Haynes, New Trial, sec. 76 et seq.; 20 Cal.Jur. 69, 74; 39 Am.Jur. 158.)'

Also, there is no showing by defendant that the result of the trial would have been any different had she not been surprised, if surprise was present. Plaintiff's witness testified he had previously appraised the property at $15,000 some months before the property was taken by the plaintiff, but afterwards he discovered factors which he considered detrimental to value, causing him to reduce his appraisal. This evidence of his change of position was before the jury for it to consider in weighing his testimony.

In McNary v. Hanley, 131 Cal.App. 188, 20 P.2d 966, appellant sought a new trial on the ground of surprise. His affidavit reflected a witness had testified from the witness stand contrary to prior written statements. The prior statements were produced during the trial for the jury to consider in weighing his testimony. There, as in the instant case, no showing was made that the testimony would have been any different on a new trial. The court said, 131 Cal.App. at page 190, 20 P.2d at page 967:

‘* * * Appellant must show facts which he can produce on a retrial that would establish a different result from the present judgment. That he has not done.’

Defendant objects to an instruction given to the jury which directed its attention to the R–1 zoning of the property and that the court stated R–1 zoning was for single family residences only. The evidence in this case does not show there was any other practical use except single family residences available to defendant's land. It is true the jury had before it an ordinance which would allow in an R–1 zone uses other than a single family residence, but the evidence precluded as a practical matter uses set forth in the ordinance except single family residences. For example, the ordinance allowed a use in an R–1 zone, without special permit, of a golf course. It cannot be seriously argued that there was any possibility of the land being used for a golf course or that on 15,714 square feet of land a golf course, even a miniature course, could be constructed. To have instructed the jury on other uses allowed within the R–1 zone would have been useless and of no aid to the jury.

If the zoned uses of the land were for other than single family residences and were so remote, conjectural or speculative as to have no effect upon the minds of the jurors, it would be of no use to instruct upon this point. It may be noted that the ordinance describing R–1 use was in evidence and available to the jury.

In an argumentative admixture defendant contends the court should have given an instruction submitted by her regarding zoning and use. To this point, plaintiff cites Long Beach City High School Dist. of Los Angeles County v. Stewart, 30 Cal.2d 763, 185 P.2d 585, 173 A.L.R. 249. The submitted and refused instruction reads as follows:

‘You are instructed that in determining the highest and best use of defendants' property that you are not limited by the use presently being made of the property, nor by the particular zoning presently on the property, but you should consider the uses for which the land is adapted and for which it is available and the reasonable probability that the zoning will be changed for the use to which said land is adapted and available.’

To have given this instruction would in part have duplicated other instructions properly given. One of the serious defects in the proposed instruction would have been to tell the jury it could speculate as to zoning changes in the future, but how far distant in the future is not defined nor is the hypothetical new zone classified. Under the proposed instruction, the jury could have speculated and conjured up a zone which is the least restricted of all zoning classifications.

There was no evidence as to any possibility that the governing body of the city of San Jose would change or were contemplating a change of zone for this property. Evidence that the property had enhanced in value by reason of the civic center and that the city of San Jose was inactive on any changes of zone until it had decided upon further plans as to its civic center does not perforce require an instruction such as that suggested by defendant. The Stewart case, cited by defendant, confirms this opinion and sets the limitation upon the evidence to be introduced upon this point, and the instruction to be given if such evidence is introduced, by stating:

‘The rules thus enunciated appear to be common sense rules which should govern in fixing market value in cases involving zoning ordinances. In other words, the general rule is that present market value must ordinarily be determined by consideration only of the uses for which the land ‘is adapted and for which it is available.’ The exception to this general rule is that if the land is not presently available for a particular use by reason of a zoning ordinance or other restriction imposed by law, but the evidence tends to show a ‘reasonable probability’ of a change ‘in the near future’ in the zoning ordinance or other restriction, then the effect of such probability upon the minds of purchasers generally may be taken into consideration in fixing present market value.' Long Beach City High School Dist. of Los Angeles County v. Stewart, supra, 30 Cal.2d at pages 768–769, 185 P.2d at page 588.

Defendant's proposed instruction goes beyond the evidence in this case, and thus runs afoul of the rule in the Stewart case.

Plaintiff's expert on valuation gave a definition of fair market value which was the standard upon which he was giving his opinion as to the market value of defendant's property. Defendant objects to the expert's giving a definition of market value because she says it is a legal term which cannot be given by any one other than a legal expert. Also, in her briefs defendant's objections go to the point that the definition is an incorrect one. Defendant concedes the question for the jury to determine and fix was the market value of her property. It was proper for the jury to have before it a standard or basis for the opinion given by the expert witness. In re Jack's Estate, 115 Cal. 203, 46 P. 1057. Even though the definition given by the expert was incorrect, the jury could weigh this in arriving at its verdict. If he based his opinion as to market value on a definition inconsonant with a correct legal definition of market value, the jury could consider this in determining the expert's competency and the weight to be given his testimony. There was no error in allowing him to give the definition upon which he based his opinion. The court properly instructed the jury as to the legal definition of market value. The jury had a right to receive the evidence of the opinion of the witness, the basis upon which he gave his opinion, the reasons and factors that made up the whole of his testimony.

An integral part of an expert's work is to obtain all possible information, data, detail and material which will aid him in arriving at an opinion. Much of the source material will be in and of itself inadmissible evidence but this fact does not preclude him from using it in arriving at an opinion. All of the factors he has gained are weighed and given the sanction of his experience in his expressing an opinion. It is proper for the expert when called as a witness to detail the facts upon which his conclusion or opinion is based and this is true even though his opinion is based entirely on knowledge gained from inadmissible sources. McElligott v. Freeland, 139 Cal.App. 143, 33 P.2d 430; Betts v. Southern Cal. etc. Exchange, 144 Cal. 402, 77 P. 993; Hammond Lumber Co. v. County of Los Angeles, 104 Cal.App. 235, 285 P. 896; Glantz v. Freedman, 100 Cal.App. 611, 280 P. 704; Covina Union High School District of Los Angeles County v. Jobe, 174 Cal.App.2d 340, 345 P.2d 78; National Bank of Commerce v. City of New Bedford, 175 Mass. 257, 56 N.E. 288.

Next, defendant complains the trial court did not give an instruction that where evidence is available to a party and is not produced, the jury may consider that if it were produced, it would be adverse to the party failing to produce it. Since plaintiff had an expert who appraised defendant's property but who was not called to testify on behalf of plaintiff, defendant believes the court should have instructed the jury that when one has evidence available and does not produce it, the jury may consider the unproduced evidence would be adverse to the party so failing. It is conceded that no instructions offered and refused are now available, and there is some suggestion that they were destroyed by the trial judge. However, defendant made no effort, by way of agreed statement or showing in the court below, to remedy this omission from the record on appeal. It is an appellant's duty to present a record which adequately presents his case. Further, the instruction would have served little purpose here. The issue is not one of determining simply whether a particular fact exists or does not exist. Rather, the issue here is one of value, as to which the testimony varied from $8,500 to $35,000. At most, it would give the jury the right to infer that some figure exceeding $8,500 would have been fixed as the value of the property by the uncalled witness. Thus even if the instruction were proper here, its benefit to defendant would, at least, be speculative, vague and uncertain. Prejudice cannot be found in its refusal.

Judgment affirmed.

McCABE, Justice pro tem.

DRAPER, Acting P. J., and SHOEMAKER, J., concur.

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