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District Court of Appeal, Fourth District, California.

GARDEN GROVE SCHOOL DISTRICT OF ORANGE COUNTY, California, Plaintiff and Respondent, v. Jack M. HENDLER et ux., Defendants and Appellants.

Civ. 7350.

Decided: February 25, 1965

Fadem & Graves and Jerrold A. Fadem, Los Angeles, for defendants and appellants. George F. Holden, County Counsel of Orange County, Clayton H. Parker, Asst. County Counsel, and Hayward P. LeCrone, Asst. County Counsel, for plaintiff and respondent.

On September 1, 1961, the plaintiff, Garden Grove School District, filed an action to condemn 3 1/4 acres of land located in Orange County which was zoned R–1 and owned by the defendants, Jack and Margaret Hendler. After the commencement of this action, the Hendlers transferred the property to Max Goldring, who is the present owner of said real property.

On January 15, 1952, Robert Mills leased the property to Goldring for 10 years for $800 per year, plus payment of all taxes and plus a promise to keep the property free of weeds. Under this agreement, Goldring or his nominee was also given an option to purchase the property. On April 18, 1961, four and one-half months before this action in eminent domain was filed, the Hendlers, as Goldring's nominees, purchased the property from Mills for $55,352. Ralph Hendler was Goldring's attorney, but the exact business relationship between Ralph Hendler and Goldring in the real property in question was not entirely clear.

At the trial, the Hendlers called only one expert witness, Mr. Eilken, to testify to the value of the property and to its possible future rezoning. It was Mr. Eilken's opinion that part of the property would be rezoned R–3 and part C–1, and that based on this rezoning the property was worth $120,000.

Plaintiff called three expert witnesses, White, Martin and Mills, who testified to the value and possible rezoning. White testified that the property probably would be rezoned R–3, in which case the value would be $60,000, but in the alternative the property possibly might be rezoned partly R–3 and partly OP (office-professional), in which case the property would have a value of $65,500. Martin, the planning director of the City of Garden Grove, testified that the property might be rezoned R–3 but more likely would be rezoned OP. The trial court also allowed Mills, over objection, to testify that he sold the property to the Handlers on April 18, 1961 for $55,352, and that in his opinion this was a fair price. The issue as to the value of the property on September 1, 1961, the date upon which the action was filed and the summons issued, was submitted to the jury. The jury brought in a verdict of $73,000, which is $7,500 more than the highest appraisal given by the expert witnesses called by the plaintiff. Judgment was entered for $73,000 and it was decreed that the property was condemned for ‘the establishment of school buildings and school grounds for school purposes,’ the taking being necessary for public use.

The Hendlers contend on appeal that Mr. Meline, trial counsel for the plaintiff, committed error by his prejudicial misconduct during the trial of this action, and that this misconduct provides sufficient grounds for reversal of the judgment. In his activities and remarks during the trial, and in his summation to the jury, Meline did conduct himself in a manner which is completely incompatible with the historical dignity and decorous conduct of a judicial proceeding. Justice is not born of buffoonery. It is the product of sober dispassionate analysis of the evidence considered in the light of sovereign law and applicable precedent.

As stated in Sacramento and San Joaquin Drainage Dist. ex rel. State Reclamation Board v. Reed, 215 Cal.App.2d 60, 69, 29 Cal.Rptr. 847, 853:

‘A condemnation trial is a sober inquiry into values, designed to strike a just balance between the economic interests of the public and those of the landowner.’

Granting this to be the spirit and climate of a judicial proceeding, it is generally not the function of an appellate court to be concerned with more than the general guidelines of conduct. The accomplishment of proper decorum is a matter which in broad measure must be left to the sound discretion, wisdom and judicious control of the trial judge. It is only when the record discloses an unconscionable specific departure or such a variance from general propriety as to amount to an obvious denial of legal rights or substantial justice that an actionable issue is presented to an appellate court.

Appellant here complains that during a recess Attorney Meline and his witness White talked with a juror who later became foreman. Appellant complained to the trial judge and a consultation was held in chambers as a result of which the judge held that there had not been sufficient impropriety to merit a mistrial. In achieving the introduction of certain evidence, in alluding to facts not in evidence, and in making representations of fact, Meline made promises of evidence to support or connect which he neglected to fulfill. He alluded to his own personal knowledge in his summation to the jury. He resorted to insulting and derogatory characterizations of defendants and Goldring; he appealed to the jurors' economic self-interest and provinciality and sought by snide remarks and innuendo to impugn the motives and purpose of defendants and Goldring in seeking more for the property than the value testified to by plaintiff's witnesses. To some of this conduct, counsel for defendant failed to object; to some of it, objections were made. Certain of these objections were sustained with instructions; other objections were overruled.

For purposes of the decision in this case, we deem it unnecessary to give specific and detailed attention to each citation of alleged error for although this conduct on the part of Meline was contemptible and could well have been so treated by the trial court, the verdict of the jury does not bear sufficient witness to appellant's contentions that the final result was palpably unjust. Article 6, section 4 1/2 of the Constitution of the State of California provides:

‘No judgment shall be set aside, or new trial granted, in any case, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’

In the present case, the jury awarded the defendants $73,000, which is an amount $7,500 more than the highest value placed upon the property by the expert witnesses called by the plaintiff. It is $17,648 more than the defendants had paid for the property four and one-half months before the action in eminent domain was filed. It therefore cannot be accepted with conviction that the attorney's misconduct ‘resulted in a miscarriage of justice.’ (Cal.Const. art. 6, § 4 1/2, supra) or that the jury was adversely affected in any substantial measure. The amount awarded indicates that the jury made an independent determination of the value of the property in question. (Vaughn v. Jonas, 31 Cal.2d 586, 600–601, 191 P.2d 432.) We find therefore that defendants have failed to sustain their burden of showing that the alleged error was sufficiently prejudicial to have amounted to a miscarriage of justice. (See Vaughn v. Jonas, supra, 31 Cal.2d 586, 601, 191 P.2d 432; People ex rel. Dept. of Public Works v. Miller, 231 A.C.A. 166, 171, 41 Cal.Rptr. 645; Marc Bellaire, Inc. v. Fleischman, 185 Cal.App.2d 591, 596, 8 Cal.Rptr. 650; Grasgreen v. Acme Auto Parks, 165 Cal.App.2d 680, 684, 332 P.2d 337.)

Defendants argue that the court committed error in allowing Mills to testify to the amount defendants paid him for the land under the lease with the option to purchase. It is alleged that the sale was too distant in time from the filing of the present action and that the sale was involuntary.

It was stipulated by the parties that the date of value in the action for eminent domain is September 1, 1961, the date on which the action was filed and the summons was issued. The date on which the value of the property is determined is ‘the date of the issuance of summons.’ (Code Civ.Proc. § 1249; People v. Klopstock, 24 Cal.2d 897, 902, 151 P.2d 641; People ex rel. Dept. of Public Works v. City of Fresno, 210 Cal.App.2d 500, 508, 26 Cal.Rptr. 853.) Whether the amount paid by the defendants to Mills for the property on April 18, 1961, four and one-half months before the issuance of the summons, is admissible is more a question of relevancy than of admissibility and the ‘admission of allegedly relevant evidence on direct examination * * * is a matter subject to trial court discretion * * *.’ (People ex rel. Dept. of Public Works v. Miller, supra, 231 A.C.A. 166, 170, 41 Cal.Rptr. 645, 649.) The sale is sufficiently near in point of time that this court cannot say as a matter of law that the trial judge abused his discretion in allowing the sale price into evidence. The objection that the sale on April 18, 1961 was involuntary because Mills needed the money to close an escrow on some property in Hemet, because Mills wished to avoid a rumored condemnation, and because the market value was decreased due to Goldring's purchase option also presents a question of the weight to be given such testimony. It is apparent that the jury gave little weight to it for it awarded the defendants $17,648 more than the April 18 sales price. Even assuming the admission of the testimony to have been error, it cannot be said, in view of the amount of the award, that the error was fatally prejudicial (Vaughn v. Jonas, supra, 31 Cal.App.2d 586, 600–601, 191 P.2d 432.)

The defendants' final contention is that since the trial court allowed the testimony regarding the April 18, 1961 sale into evidence, the court erred in refusing to allow into evidence the taxes paid under the lease agreement as part of the purchase price. Defendants argue that the $800 per year rent, plus taxes, and plus the cost of keeping the property free of weeds, were costs which were necessary to keep the option in force and should have been considered as part of the purchase price. The court properly excluded the evidence because it was irrelevant. (People ex rel. Dept. of Public Works v. Miller, supra, 231 A.C.A. 161, 170, 41 Cal.Rptr. 645.) These costs were not part of the purchase price, but rather payment for the option privilege and use of the land.

Judgment affirmed.



FINLEY, Justice pro tem.* FN* Assigned by the Chairman of the Judicial Council.

COUGHLIN, Acting P. J., and GERALD BROWN, J., concur.

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