BELLARMINE COLLEGE PREPARATORY v. CITY OF SAN JOSE (1978)

Plaintiff and appellant Bellarmine College Preparatory appeals from a judgment entered after the trial judge determined that there had been no taking or damaging (no inverse condemnation) of its property by defendant and respondent City of San Jose. Respondent cross-appeals from the trial court's determination that it was not entitled to recover any costs. Appellant contends on appeal: (1) that it was denied its constitutional right to a jury trial; (2) that it did not waive its right to a jury trial; (3) that the trial court used the improper measure of damages; (4) that the trial judge applied the incorrect statute of limitation; and (5) that the issue of when the cause of action accrued was a jury question. Respondent contends in its cross-appeal: (1) that the trial court erred in denying its ordinary costs; and (2) that the trial court should have exercised its discretion and determined whether to allow respondent expert witnesses' fees under the terms of section 998 of the Code of Civil Procedure.

On September 17, 1973, appellant caused a complaint for inverse condemnation to be filed in the Superior Court of Santa Clara County naming respondent City of San Jose as defendant. The complaint contains the following allegations: Appellant is a nonprofit education institution operated by the Society of Jesus (the Jesuits) which offers strictly college preparatory courses. Respondent has for a public use and purpose maintained and operated the San Jose Municipal Airport. The center of appellant's campus is 820 yards to 1,040 yards from the landing and takeoff strips of the airport. In the last few years the airport has expanded so as to continuously expand the noise easement and injury to appellant's property. The increasing number of large commercial jet-engined aircraft using the airport has created a severe adverse impact and effect upon the instructional and educational process taking place at appellant's campus. The operation of the airport requires respondent to acquire an easement since there has been a taking of appellant's land for the public use. Because of the intensity of the air-noise easement, there is virtually no reasonable economic use or value left in the property other than a minimal use. The value of appellant's property is $8,690,000.¹ Therefore appellant seeks judgment in the amount of $8,690,000, plus costs, attorneys' fees and expert witnesses' fees.

Respondent answered and essentially denied the allegations contained in the complaint.

Trial commenced before the Honorable John R. Kennedy on February 4, 1975. A jury was impaneled to consider the issues of damages if and when the time arose. After the evidence of the issue of liability was presented the matter was submitted to the trial judge. On April 30, 1975, the trial judge's memorandum of decision was filed in which he stated he had concluded that appellant's property had not been taken or damaged for public use by respondent. Findings of fact and conclusions of law were filed.

Judgment was entered in favor of respondent on June 30, 1975. Appellant's motion for new trial was denied on September 22, 1975. Appellant filed a timely notice of appeal. Respondent filed a cross-appeal from the order granting appellant's motion to tax respondent's costs.

FACTS

Appellant enjoys a reputation of being one of the finest academic secondary schools in the State of California. Appellant is a nonprofit educational institution operated by the Society of Jesus, more popularly called the Jesuits, and staffed by members of that society and by lay persons. It operates a boys' high school on a campus of approximately 17 acres in San Jose. The school is located approximately 2,000 feet west of the center line of the takeoff and landing path of planes operating out of the San Jose Municipal Airport and about 3,000 feet south of the extreme southerly edge of the runway. Appellant has been located at its present site since 1926. Sustained growth and development began in the 1940's, and most of the buildings presently in use were constructed between 1948 and 1966. Appellant was operating at its capacity at the time of trial and had 1,150 students enrolled. The school has been turning down applicants ever since 1945, and each year thereafter has had more applicants than openings.

The San Jose Municipal Airport is owned and operated by respondent. The airport was opened in October 1948 and the first scheduled air carrier operations began in January of 1949. Jet-powered propeller driven aircraft (turboprops) had operated at San Jose for many years. Then, in 1966, pure jet aircraft began operating on a regularly scheduled basis.

Yearly operations by large, commercial jet-powered aircraft have been as follows:

However, while the number of commercial jet operations did not increase between 1969 and 1974 the number of passengers did. In other words the jet aircraft in these years have been gradually replaced with larger planes.

The only runway capable of accommodating jet aircraft is runway 30L-12R. The last extension to this runway was completed in 1968. The airport operates under a preferential runway policy so that, if possible, landings approach the airport from the south and takeoffs occur toward the north. This configuration, which is used approximately 85 percent of the time, causes the least noise impact in the populated area south of the airport. When wind conditions dictate, landings approach the airport from the north and takeoffs occur toward the south. This configuration prevails approximately 15 percent of the time.

In late 1971, the airport management and the major airlines operating out of the airport cooperated in eventually adopting certain new takeoff and landing procedures which were intended to reduce the noise impact area south of the airport. Aircraft landing from the south were henceforward to avoid close-in circling or turning maneuvers, but were instead to use a straight-in approach. Also, a two-segment approach was instituted which kept the plane higher for a longer period of time prior to touchdown. A high-angle southerly takeoff procedure was also inaugurated. This procedure required planes to climb to an altitude of 3,000 feet before instituting a turn, and the effect of it was to encourage pilots to climb to 3,000 feet as soon as possible.

Appellant's expert, Oliphant, testified that the noise abatement techniques instituted actually increased both the peak level and the duration of aircraft noise at appellant. Oliphant was of the opinion that the high angle takeoff would require the pilot of a jetliner to increase the engine pressure ratio. Respondent's experts testified that it did not require the use of more power for the high angle takeoff and in fact if the engine pressure were increased to the setting testified to by Oliphant, it would destroy the engine.

Several of appellant's teachers testified that during a southerly takeoff they would have to cease talking altogether and it would take several minutes to regain the students' attention. The school principal and eight teachers testified on direct examination that because of the heavy rainfall during the winter months of 1972-1973 there was an increase in the number of southerly takeoffs of jet aircraft. All of appellant's witnesses agreed that southerly takeoffs made the loudest noise and were the most disruptive. Southerly landings were also considered disruptive but not to the same extent. This was likewise true for northerly takeoffs and landings.

The community noise equivalent level (CNEL) is a mathematical computation intended to evaluate and predict the effects of aircraft noise upon people. It takes into account the kinds and types of airplanes, the number of operations, and the distribution of operations between day, evening and nighttime. The CNEL at appellant for each year from 1969 through 1974 was just about 63. According to state standards, a CNEL of 63 is within limits deemed compatible with schools. (Cal.Admin.Code, tit. 21, §§ 5005, 5014.)

There was no evidence that because of the interruptions in classroom activities due to noise from jet aircraft that enrollment was decreasing, teachers were quitting or that there was a downward trend in alumni contributions.

Both appellant and respondent called two real estate appraisers. The respondent's appraisers could find no evidence of a diminution in market value of appellant's property attributable to noise. One of them conducted a study on market trends of residential property exposed to aircraft noise as compared to residential property not exposed to aircraft noise and found no lesser trend in the area exposed to airplane noise around the school. He used residential property as a basis for comparison, since he lacked any data on schools to make such a comparison, because technical studies and knowledgeable experts equated the noise impact upon residences in the same category as noise impact upon schools. Both of the appellant's appraisers did find diminution of market value.

RIGHT TO A JURY TRIAL

Appellant's main argument on appeal is that it was denied its constitutional right to a jury trial.

Article I, section 19 of the California Constitution provides in part: “Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner.”

The term “inverse condemnation suit” is applied to an action by an owner to recover damages for injury to his property from some public undertaking or other activity by an agency with power to condemn. (Cothran v. San Jose Water Works (1962) 58 Cal.2d 608, 614, 25 Cal.Rptr. 569, 375 P.2d 449, cert. den. 372 U.S. 938, 83 S.Ct. 885, 9 L.Ed.2d 768.) Inverse condemnation is one of two devices for insuring that the taking or damaging of private property for public use will be compensated. (Klopping v. City of Whittier (1972) 8 Cal.3d 39, 43, 104 Cal.Rptr. 1, 5, 500 P.2d 1345, 1349.) “The other procedure is eminent domain, the significant difference being that in the latter the public authority takes the initiative whereas in the former it is the property owner who commences litigation.” (Id.) The constitutional guarantee of compensation extends to both types of cases. (Id.)

However, some consequential damage must be suffered without compensation. In City of Oakland v. Nutter (1970) 13 Cal.App.3d 752, 769, 92 Cal.Rptr. 347, 357, Justice Sims quoted from Eachus v. Los Angeles, etc. Ry. Co. (1894) 103 Cal. 614, 617, 37 P. 750, to demonstrate this principle as follows: “‘The constitution does not … authorize a remedy for every diminution in the value of property that is caused by a public improvement. The damage for which compensation is to be made is a damage to the property itself, and does not include a mere infringement of the owner's personal pleasure or enjoyment. Merely rendering private property less desirable for certain purposes, or even causing personal annoyance or discomfort in its use, will not constitute the damage contemplated by the constitution; but the property itself must suffer some diminution in substance, or be rendered intrinsically less valuable, by reason of the public use. The erection of a county jail or a county hospital may impair the comfort or pleasure of the residents in that vicinity, and to that extent render the property less desirable, and even less salable, but this is not an injury to the property itself, so much as an influence affecting its use for certain purposes; but whenever the enjoyment by the plaintiff of some right in reference to his property is interfered with, and thereby the property itself is made intrinsically less valuable, he has suffered a damage for which he is entitled to compensation.”’

In inverse condemnation cases involving noise from an airport, a property owner will only be compensated if the noise from the airport causes a substantial interference with the use and enjoyment of his property. The court in Aaron v. City of Los Angeles (1974) 40 Cal.App.3d 471, 483-484, 115 Cal.Rptr. 162, 170, certiorari denied 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822, stated this proposition as follows: “The municipal owner and operator of an airport is liable for a taking or damaging of property when the owner of property in the vicinity of the airport can show a measurable reduction in market value resulting from the operation of the airport in such manner that the noise from aircraft using the airport causes a substantial interference with the use and enjoyment of the property, and the interference is sufficiently direct and sufficiently peculiar that the owner, if uncompensated, would pay more than his proper share to the public undertaking.”

The trial judge in the instant case determined that the noise from the San Jose Municipal Airport did not cause a substantial interference with the use and enjoyment of appellant's property.² Since the trial judge made this determination the issue of compensation to be awarded appellant was never submitted to the jury. Appellant contends on appeal that the trial judge merely should have determined if there was sufficient evidence from which a jury could determine that there had been a substantial interference with the use and enjoyment of its property. Appellant is arguing that the trial judge should not have weighed the evidence on the issue of substantial interference.

The procedure in inverse condemnation cases in this state has long been for the trial judge to determine liability—whether there has been a substantial interference with the use and enjoyment of a person's property—and for the jury to determine the compensation if the court finds there is liability. (People v. Ricciardi (1943) 23 Cal.2d 390, 144 P.2d 799.) “The question of substantial interference with access is one to be determined by the trial judge and only if he finds from the evidence that there was a substantial impairment is the amount of compensation to be awarded a jury question.” (Wagner v. State of California ex rel. Pub. Wks. (1975) 51 Cal.App.3d 472, 479, 124 Cal.Rptr. 224, 228.) “Whether the interference is substantial enough to meet this standard is a mixed question of fact and law for the trial judge to determine.” (Aaron v. City of Los Angeles, supra, 40 Cal.App.3d 471, 484, 115 Cal.Rptr. 162, 171; United Cal. Bank v. People ex rel. Dept. Pub. Wks. (1969) 1 Cal.App.3d 1, 6, 81 Cal.Rptr. 405.) Nor is the role of the trial judge in an inverse condemnation case merely to decide whether there is sufficient evidence from which a jury could find substantial interference. Plaintiffs in Wagner v. State of California ex rel. Dept. Pub. Wks., supra, 51 Cal.App.3d 472, 124 Cal.Rptr. 224, made the same contention on appeal after the trial judge determined there was no substantial interference. The court in Wagner stated that plaintiffs' “argument misstates the law.” (Id., at p. 479, 124 Cal.Rptr. 224.)

Next appellant argues that the trial judge improperly considered whether there had been a diminution in market value of appellant's property. Appellant contends that the proper measure of damages was replacement cost or cost of necessary modifications because appellant's property is devoted to a special use, to wit, a school. If the court had determined that there was liability or substantial interference with appellant's use and enjoyment of its property, the measure of compensation suggested by appellant undoubtedly would have been the correct one.³ However, the trial judge in the instant case determined there was no liability.

From the language found in Aaron, it can be seen that a trial judge must find three things present before he determines there is liability in an inverse condemnation case: (1) There must be substantial interference with use and enjoyment of the property; (2) there must be a resulting measurable diminution in the market value of the property; and (3) the effect of noise upon the property must be so peculiar and so direct that the owner, if uncompensated, would pay more than his fair share to the public undertaking. (Aaron v. City of Los Angeles, supra, 40 Cal.App.3d 471, 484, 115 Cal.Rptr. 162.) Therefore, in order to demonstrate liability, it is necessary to show that a measurable diminution in market value occurred even though this may not be the measure of damages.

Nor can a right to a jury trial be predicated on a claim that the aircraft in flight noise from the airport constituted a nuisance.⁴ In San Diego Unified Port Dist. v. Superior Court (1977) 67 Cal.App.3d 361, 377, 136 Cal.Rptr. 557, the court held that plaintiffs, a group of 936 homeowners and a church, could not recover damages in tort for nuisance from the defendant for harm caused by aircraft in flight, since it was not alleged that the flying aircraft did not comply with federal laws and regulations, and federal laws and regulations preempted local control of aircraft in flight. In the instant case appellant did not allege in its complaint that the airplanes taking off from the San Jose Municipal Airport did not comply with federal laws and regulations and therefore did not state a cause of action for nuisance.

Appellant spends a considerable amount of effort demonstrating that it did not waive its right to a jury trial. Obviously, since appellant had no right to a jury trial on the issue of liability, it is unnecessary to determine whether it waived a jury trial.

STATUTE OF LIMITATIONS

Appellant argues that the trial judge improperly applied a one-year statute of limitation. However, appellant argues that even if the one-year statute of limitation is applicable to the instant case, the question of when its cause of action accrued was a question of fact for the jury to determine. In his memorandum of decision the trial judge stated since he had determined that there was no liability, “the defense of the Statute of Limitations raised by defendant is moot, nonetheless the Court declares this defense to be valid and had there been a taking or damaging of plaintiff's property, plaintiff's claim was barred by the Statute of Limitations.”

It is unnecessary to address the issue of the applicable time period in which to bring the action in the instant case, because the trial judge determined the merits of action and found no liability. Even if this court should determine that the trial judge applied the wrong statute of limitation to the instant case or that a jury question was presented on when the cause of action accrued, the judgment would have to be affirmed on the ground that the trial judge determined there was no liability. Or in the words of the trial judge “the defense of the Statute of Limitations … is moot․”

CROSS-APPEAL

Ten days before the matter was originally scheduled for trial, respondent served upon appellant an offer to compromise which provides: “TO THE PLAINTIFF AND TO ITS ATTORNEYS OF RECORD: [¶] YOU AND EACH OF YOU ARE HEREBY NOTIFIED that pursuant to the provisions of Section 998 of the Code of Civil Procedure, defendant herein offers to compromise the above-entitled proceeding by allowing judgment to be taken against said defendant in the sum of ONE HUNDRED EIGHTY THOUSAND ($180,000.00), without interest until date of judgment, plus costs, disbursements and expenses allowable under C.C.P. § 1246.3 in an amount to be fixed by the Court. This offer is expressly conditioned upon plaintiff formally granting and conveying to defendant, in perpetuity, the air easement and noise easement which your complaint alleges the defendant has taken.” This offer was not accepted by appellant.

Following entry of judgment, respondent filed a memorandum of costs in the amount of $163,512.88. This sum represented monies expended for filing fees, reporters' fees (depositions and partial transcript costs), process servers' fees, witness and mileage fees and expert fees. Appellant moved to tax portions of respondent's cost bill challenging the cost of the partial reporter's transcript and the expert fees. The trial court denied respondent any costs. Respondent filed a cross-appeal from the order granting appellant's motion to tax respondent's costs.

Respondent contends in its cross-appeal that since it was the prevailing party in the trial court, the trial court erred in denying respondent ordinary court costs. Respondent further contends that since it made an offer to compromise pursuant to section 998 of the Code of Civil Procedure which was rejected and thereafter appellant failed to obtain a more favorable judgment, it is entitled to have the court exercise its discretion and determine whether it should receive expert fees.

ORDINARY COSTS

The rules governing the recovery of costs in eminent domain proceedings are generally applicable to inverse condemnation suits.⁵ (Heimann v. City of Los Angeles (1947) 30 Cal.2d 746, 752-753, 185 P.2d 597, overruled on other grounds in County of Los Angeles v. Faus (1957) 48 Cal.2d 672, 680, 312 P.2d 680; Peabody v. City of Vallejo (1935) 2 Cal.2d 351, 380, 40 P.2d 486.) In eminent domain cases it is clear that an owner has a constitutional right to full compensation for his property. (Cal.Const., art. I, § 19.) The courts have determined in order for a property owner to receive full compensation, he must be free of costs in eminent domain proceedings. (In re Redevelopment Plan for Bunker Hill (1964) 61 Cal.2d 21, 69-70, 37 Cal.Rptr. 74, 1389 P.2d 538, cert. den. 379 U.S. 899, 85 S.Ct. 185, 13 L.Ed.2d 174.) The constitutional consideration applies with particular force in inverse condemnation cases. “In cases instituted by the property owner the reason for allowing him costs in case of recovery is even stronger than in condemnation cases, for in the former, instead of an offer of compensation or suit to condemn, there has been a wrongful taking and damaging of private property without permission of the owner or effort to first compensate him, in consequence of which the owner has been forced to initiate the litigation. If costs should be assessed against him, his recovery would be diminished by that amount and he would be to that extent deprived of the full measure of compensation to which he is justly entitled.” (Heimann v. City of Los Angeles, supra, 30 Cal.2d at p. 753, 185 P.2d at p. 601.)

“Property owners are, of course, not constitutionally entitled to costs in inverse condemnation actions if they are unable to prove that there has been a taking or damaging of their property by the defendant governmental entity. [[[[Citation.] In such a circumstance the constitutional doctrine of full compensation underlying the award of costs is plainly inapplicable to owners who initiated the unsuccessful litigation.” (City of Los Angeles v. Ricards (1973) 10 Cal.3d 385, 391, 110 Cal.Rptr. 489, 492, 515 P.2d 585, 588.) On the other hand, where the plaintiff has suffered some, though minimal damages, the fact that he cannot recover substantial damages does not deprive him of his right to trial and appeal costs. (Id.)

In the instant case the trial court found that appellant had not sustained its burden of proof that the jet aircraft operating in and out of the San Jose Municipal Airport had caused a substantial interference in the use and enjoyment of appellant's property and a diminution in market value of the property. The court therefore concluded that there had been no taking or damaging of appellant's property for public use. Since there was no taking or damaging in the instant case, appellant has no constitutional right to be free from costs. That is, if there had been a taking or damaging of the property, appellant would have had a constitutional right to full compensation which could not be reduced by requiring him to pay costs. However, since there was no taking in the instant case, the usual rules in regard to costs apply. These costs include the fees for taking and transcribing depositions and costs of service of process. (Code Civ.Proc., §§ 1032a, 1032b.) In addition to these ordinary costs, respondent sought to recover the costs of the transcription of certain witnesses' testimony during trial. Government Code section 69953 provides that the prevailing party is entitled to recover the cost of transcription where the transcriptions are “ordered by the court.” The trial judge never considered this issue because he felt respondent was not entitled to any costs. The record is unclear if the trial judge ordered any testimony to be transcribed. Since this case must be remanded for determination of costs, the trial court should determine the issue at that time.

CODE OF CIVIL PROCEDURE SECTION 998

Section 998 of the Code of Civil Procedure provides: “(a) The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section. [¶] (b) Not less than 10 days prior to commencement of the trial as defined in subdivision 1 of Section 581, any party may serve an offer in writing upon any other party to the action to allow judgment to be taken in accordance with the terms and conditions stated at that time. If such offer is accepted, the offer with proof of acceptance shall be filed and the clerk or the judge shall enter judgment accordingly. If such offer is not accepted prior to trial or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given in evidence upon the trial. [¶] (c) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment, the plaintiff shall not recover his costs and shall pay the defendant's costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court, in its discretion, may require the plaintiff to pay the defendant's costs from the date of filing of the complaint and a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, the preparation or trial of the case by the defendant. [¶] (d) If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment, the court in its discretion may require the defendant to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, the preparation or trial of the case by the plaintiff, in addition to plaintiff's costs. [¶] (e) Police officers shall be deemed to be expert witnesses for the purposes of this section; plaintiff includes a cross-complainant and defendant includes a cross-defendant. Any judgment entered pursuant to this section shall be deemed to be a compromise settlement. [¶] (f) The provisions of this chapter shall not apply to an offer which is made by a plaintiff in an eminent domain action. [¶] (g) The costs for services of expert witnesses for trial under subdivisions (c) and (d) shall not exceed those specified in Section 68092.5 of the Government Code.”

Respondent argues, given its offer of compromise which was rejected and thereafter appellant obtained a less favorable judgment, the trial court should have exercised its discretion and determined whether it was entitled to costs covering the services of its expert witnesses.

It should first be noted that section 998 does not apply to eminent domain actions. The reason for this limitation of section 998 seems clear. If the trial court could exercise its discretion and award the government agency the cost of expert witnesses, the property owner would not receive full compensation for his property. The same rule must attach in inverse condemnations if the trial judge determines there has been a taking or damaging of property. However, under the proposition stated in City of Los Angeles v. Ricards, supra, 10 Cal.3d 385, 391, 110 Cal.Rptr. 489, 515 P.2d 585, section 998 would apply to inverse condemnation actions in which it is determined that there has been no taking or damaging.

The trial court found the offer pursuant to section 998 to be fatally defective stating: “Neither the offer nor the pleadings contain any measurable standards, or any method of derving measurable standards, from which a meaningful air and noise easement could be delineated. The Court finds, therefore, that the City's offer under 998 is uncertain and indefinite to the point of being fatally defective. The effect of the uncertainty and indefiniteness is to render the offer of compromise a nullity.”

In determining whether the offer was too uncertain or indefinite to be a valid offer of compromise under section 998, it is necessary to look to the principles applied to contracts. (Ward v. Superior Court (1973) 35 Cal.App.3d 67, 69, 110 Cal.Rptr. 501; Distefano v. Hall (1968) 263 Cal.App.2d 380, 385, 69 Cal.Rptr. 691.) As a general principle “‘The law does not favor but leans against the destruction of contracts because of uncertainty; and it will, if feasible, so construe agreements as to carry into effect the reasonable intentions of the parties if that can be ascertained.”’ (Cal. Lettuce Growers v. Union Sugar Co. (1955) 45 Cal.2d 474, 481, 289 P.2d 785, 790; Wong v. Di Grazia (1963) 60 Cal.2d 525, 539, 35 Cal.Rptr. 241, 386 P.2d 817.) As stated in Corbin: “We must not jump too readily to the conclusion that a contract has not been made from the fact of apparent incompleteness. People do business in a very informal fashion, using abbreviated and elliptical language. A transaction is complete when the parties mean it to be complete… [[[[¶] Even though certain matters are expressly left to be agreed upon in the future, they may not be regarded by the parties as essential to their present agreement. Furthermore, the terms left for future settlement may be within definite and prescribed limits․ [¶] Two persons may fully agree upon the terms of a contract, knowing that there are other matters on which they have not agreed and on which they expect further negotiation. Such an expectation does not prevent the agreement already made from being an enforceable contract․” (1 Corbin on Contracts, § 29, pp. 82, 86-95.)

In Carlson v. Richardson (1968) 267 Cal.App.2d 204, 72 Cal.Rptr. 769, the court held that a land sale contract which contained an incomplete description of the property was sufficiently certain if a competent surveyor would be able to locate the property and establish the boundaries from the description given. Parol evidence is admissible to connect a sufficient description of what was intended to be conveyed with the actual description. (Vezaldenos v. Keller (1967) 254 Cal.App.2d 816, 823, 62 Cal.Rptr. 808.) In the context of the instant case there was available competent evidence to describe statistically the number of planes arriving and departing from the San Jose Municipal Airport or the easement could be described in terms of the noise level (e. g., the community noise equivalent level). There is no dispute but the offer was definite as to the amount or any other of its terms.

Since the offer to compromise was valid, the case must be remanded to the trial court for it to exercise its discretion on whether to allow respondent costs for its experts. (Code Civ.Proc., § 998.)

We affirm the judgment, but remand for proper determination of respondent City of San Jose's costs.

FOOTNOTES

FOOTNOTE.  

1.  Appellant filed a claim for damages in the amount of $8,690,000 with the city council of respondent on May 30, 1973. This claim was rejected on June 11, 1973.

2.  Appellant does not contend on appeal that this finding is not supported by substantial evidence.

3.  Respondent does not dispute that the measure of damages suggested by appellant would have been an appropriate one to apply in the instant case.

4.  It should be noted that appellant only appears to state a cause of action for inverse condemnation. Since appellant alludes to the fact that it might have been entitled to a jury trial because the noise level from the San Jose Municipal Airport constituted a nuisance, it is necessary to look at this contention.

5.  Section 1036 (formerly 1246.3) of the Code of Civil Procedure sets out the costs that may be recovered by a successful property owner in an inverse condemnation action as follows: “In any inverse condemnation proceeding brought for the taking of any interest in real property, the court rendering judgment for the plaintiff by awarding compensation for such taking, or the attorney representing the public entity who effects a settlement of such proceedings, shall determine and award or allow to such plaintiff, as a part of such judgment or settlement, such sum as will, in the opinion of the court or such attorney, reimburse such plaintiff for his reasonable costs, disbursements and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of such proceeding.” Section 1036 does not apply to eminent domain proceedings and therefore in direct condemnation cases attorneys' fees and expert witnesses' fees are not recoverable. (City of Los Angeles v. Beck (1974) 40 Cal.App.3d 763, 767, 115 Cal.Rptr. 569.)

WHITE,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

TAYLOR, P. J., and ROUSE, J., concur.