KLOPPING v. CITY OF WHITTIER

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Court of Appeal, Second District, Division 4, California.

Frank KLOPPING, Jr., et al., Plaintiffs and Appellants, v. CITY OF WHITTIER et al., Defendants and Respondents.

Cifford E. SARFF et al., Plaintiffs and Appellants, v. CITY OF WHITTIER et al., Defendants and Respondents.

Civ. 37985, 37986.

Decided: February 11, 1972

Thomas G. Baggot, Herbert Gall and John U. Gall, Los Angeles, for plaintiffs and appellants. Robert Flandrick, City Atty. (City of Whittier), Martin & Flandrick, and Stephan H. Galton, San Marino, for defendant and respondent, City of Whittier.

On May 11, 1965, the City of Whittier adopted a resolution (pursuant to its ordinance No. 1598) to initiate proceedings looking toward the formation of a parking district. Included among the properties which were to be condemned as part of that proceeding were properties owned by the plaintiffs herein and by other persons not herein parties, including Roxie Aramian. On November 10, 1965, the city initiated the proposed condemnation proceedings against those properties. Subsequently, the city adopted resolutions directing the levy of assessments to pay for the project. Among the property owners to be assessed was a corporation—Alpha Beta Acme Markets, Inc. That corporation began proceedings to enjoin the assessment against it and filed a suit for that purpose on February 23, 1966. Judgment went against the objecting corporation in the trial court and it appealed. In this court, the judgment in favor of the city was affirmed on May 7, 1968 (Alpha Beta Acme Markets, Inc. v. City of Whittier (1968) 262 Cal.App.2d 16, 68 Cal.Rptr. 327.) Petitions for a rehearing and for a hearing in the Supreme Court were denied and the judgment of this court became final on July 7, 1968.

In the meantime, on July 7, 1966, the city had adopted its resolution (No. 3900) which recited that: (1) because of the pendency of the Alpha Beta suit, it was impossible to sell the bonds designed to finance the proposed parking facility; (2) by reason of the lack of funds from that source, the proposed acquisition of property could not proceed; (3) it was not fair to continue the restraining effect of that pending condemnation suit on the properties theretofore sought to be condemned. The resolution then authorized the dismissal of the then pending condemnation action, but recited, in some detail, the firm intention of the city to file new condemnation suits and to proceed with the proposed parking facility as soon as the Alpha Beta suit was terminated.1 Thereafter, on November 16, 1966, the condemnation suit was dismissed. Over the contention of the city that this was a voluntary dismissal under section 581 of the Code of Civil Procedure, Division Two of this court held that it was, in law, an ‘abandonment’ governed by section 1255a of the Code of Civil Procedure (City of Whittier v. Aramian (1968) 264 Cal.App.2d 683, 70 Cal.Rptr. 805). The present plaintiffs and Aramian ultimately recovered a judgment against the city for the costs allowable under subdivision (c) of section 1255a and that judgment has since been satisfied in full.

On July 6, 1967, while both the Alpha Beta and the Aramian suits were still pending, the present plaintiffs filed with the city a claim for damages, based on the passage of the resolution of abandonment and the dismissal that followed. The claim was denied in November of 1967, and the present actions followed.

Demurrers of the city2 were sustained without leave to amend as to any matters occurring prior to the dismissal of the original condemnation suit but amendment was allowed as to matters occurring thereafter. No amendment having been tendered, judgments of dismissal were entered and these appeals followed. Because the two cases turn on the same issues, we consolidated them for decision. For the reasons set forth below, we affirm the judgments.

I

The city contends that the suits are barred by the one-year claim statute involved. We disagree. The cause of action herein involved is not based on the original resolution of intention, nor on the original condemnation action, but either on the resolution of July 7, 1966, or on the dismissal that followed. Clearly, plaintiffs' claims, filed on July 6, 1967, were timely under either theory.

II

The city contends that, by electing not to proceed under subdivision (b) of section 1255a, and by proceeding to claim costs under subdivision (c) of that section, plaintiffs have elected between two remedies and are now limited to what they recovered under the decision in the Aramian appeal above cited. Insofar as plaintiffs are here seeking to collect damages flowing from the abandonment of the original condemnation action, we agree with that contention. Subdivision (b) of section 1255a permits a trial court to set aside the abandonment of a condemnation proceeding on motion of the property owner ‘if it determines that the position of the moving party has been substantially changed to his detriment in justifiable reliance upon the proceeding and such party cannot be restored to substantially the same position as if the proceeding had not been commenced.’ We agree that, insofar as plaintiffs seek now to recover damages for any loss of income or depreciation in value in the period between the filing of the condemnation suit and its abandonment, their sole remedy was to oppose abandonment, thus insuring an award based on the value of the property at the value date. (CodeCiv.Proc. § 1249.)

However, as we read the complaints before us, the actual gravamen of plaintiffs' case is not that the condemnation was abandoned, but that the resolution of July 7, 1966, by its elaborate declaration of an intention to reinstitute condemnation when, and if, the Alpha Beta suit was won on appeal, affected adversely both the income and the market value of their property, so that plaintiffs in the Sarff action lost their property by foreclosure and plaintiffs in the Klopping action face a future condemnation with value to be determined on the depreciated market price brought about by the city's declaration.3

In support of that theory, plaintiffs cite to us a law review article (Webber, The Lost Identity of Blight (1970) 45 Calif. State Bar J. 492, 498), and a number of cases from the federal courts and from other states. However, the cases in California have rejected that theory and, as we read them, hold that the mere fact that a condermning authority announces its intention to condemn in the future, thereby depreciating the value of property between the date of the announcement and the actual filing of the action, is damnum absque injuria. (Consult: Eachus v. Los Angeles, etc., RY. (1894) 103 Cal. 614, 621–622, 37 P. 750. Heimann v. City of Los Angeles (1947) 30 Cal.2d 746, 754, 185 P.2d 597; Hilltop Properties, Inc. v. State of California (1965) 233 Cal.App.2d 349, 356–362, 43 Cal.Rptr. 605.) If that rule is unfair, a change must come from the Legislature or from the Supreme Court and not from us.

III

Since we hold that plaintiffs have no right of action either for damages to the value of their property occurring before the dismissal or for damages occurring as a result of the expressed intention to condemn in the future, we need not discuss the other arguments advanced by the city in support of the judgments below.

The judgments appealed from are affirmed.

APPENDIX

After reciting the history of the parking district project as set forth in the text of the opinion, the resolution of July 7, 1966, proceeded as follows:

‘WHEREAS the filing of said condemnation action has hindered certain of the owners of real property from leasing, renting or selling said property because of the possibility that the same will be taken for parking facilities in accordance with the action on file; and

‘WHEREAS the City Council is of the opinion that it would be for the best interests of the citizens of the City of Whittier and the property owners who are defendants in said condemnation action to dismiss the same so that the property owners shall be free to rent, lease, sell or borrow on said property as they may desire; and

‘WHEREAS the City Council because of the interest and request of a majority of the property owners in said Parking District has no intention of abandoning said project, but because of the delay, caused by the Alpha Beta action, in the sale of the bonds which prevented the availability of funds with which to purchase the properties described in the condemnation action, the City Council is of the opinion that said condemnation action should be dismissed so the parties will not incur additional expense for attorneys' fees, court costs, appraisers' fees, discovery costs and other miscellaneous costs in connection with such litigation, until such time as a final judgment is rendered in the Alpha Beta case,

‘NOW, THEREFORE, BE IT RESOLVED by the City Council as follows:

‘That the City Council desires to honor the request of the owners of a majority of the property area in said Parking District and form the Uptown Parking District No. 2; that because of the report of the Uptown Progress Committee and the petition of the property owners, it appears that the City of Whittier needs the Uptown Parking District #2 which the City Council has heretofore created and established; that the parking lots, walkways and improvements should be constructed; that the future development of the City of Whittier required such improvement and that the general project should not be abandoned.

‘The City Council further finds and determines that the sale of the bonds of said Improvement District necessary to finance the acquiring of the real property and making improvements in said Improvement District cannot be had until the Alpha Beta action is completed and a judgment therein final; that it will be approximately a year if an appeal is taken before said action can be finally determined; that to continue the condemnation action during that period of time would not be fair and equitable to the property owners involved and that said property should be free from the effects of the filing of such action; that until the Alpha Beta action is finally disposed of and the City can issue a ‘No Litigation Certificate’ said bonds cannot be sold and money cannot be obtained for the acquiring of the property and making the improvements thereon; that the City Council proposes as soon as possible to complete the sale of the bonds, obtain the necessary funds and purchase the properties for the parking lots and walkways for said Improvement District.

‘BE IT FURTHER RESOLVED that after considering the Committee report and the desire of the owners of Uptown property the City Council has no intention of abandoning the Uptown Parking District #2 nor the acquiring of the said real property and the improvement thereof; that the City Council will proceed to acquire said properties and improve the same when the money is available therefor; that the City Attorney be and he is hereby authorized and directed to dismiss the action now on file in the Superior Court of Los Angeles County entitled ‘CITY OF WHITTIER, a Municipal Corporation, vs. ROXIE Aramian, et al.’ Action No. 872 677.'

FOOTNOTES

1.  The pertinent language of the resolution is set forth in the appendix to this opinion.

2.  In addition to the City of Whittier, both actions listed a number of fictitious defendants. The Sarff action also joined two individuals who were alleged to be necessary parties plaintiff who had refused to join as such. Only the city appeared and only the city is involved as respondent on this appeal.

3.  While immaterial to the issues on this appeal, we note that a second condemnation suit against the Klopping property was filed on August 21, 1969. The Sarff property, in the meantime, had been lost on foreclosure and the city acquired it by negotiated purchase from the buyers at the foreclosure sale.

KINGSLEY, Associate Justice.

JEFFERSON, Acting P. J., and DUNN, J., concur.