PEOPLE DEPARTMENT OF TRANSPORTATION v. MULLER (1982)

The People, through the Department of Transportation (Department), appeal that part of a judgment in condemnation entered June 15, 1981, which awarded defendants and respondents George H. Muller (Muller), Opal E. Muller, and Muller Veterinary Hospital, Inc. (Hospital) $96,000 for loss of goodwill and $71,524.20 for costs of suit.   The principal focus of this appeal is directed to the award for loss of goodwill, as the parties essentially concede that the validity of this award determines the propriety of the award for costs and fees.   The award for loss of goodwill, entered upon a jury verdict, was made pursuant to section 1263.510 of the Code of Civil Procedure, whose substantive provisions have not been previously construed on appeal.¹  Thus, we consider a novel issue:  whether the evidence presented by the respondents is relevant to the purpose and sufficient to satisfy the express requirements of Code of Civil Procedure section 1263.510.

Statement of Facts

George and Opal Muller held title to the parcel in issue, situate in Walnut Creek, Contra Costa County, since April 1955.   Muller, a veterinarian specializing in veterinary dermatology, built a veterinary hospital on the site and in 1956 began a practice there, eventually employing three other veterinarians.   In 1971 Muller incorporated his practice, forming the respondent Hospital.

Respondents were first notified of the possibility of condemnation in 1972.   On September 1, 1973, the Hospital began leasing the premises owned by the Mullers, the agreed rental comprising a monthly rate plus all property taxes, insurance, and maintenance costs.   Muller, as sole shareholder of the Hospital, transferred 44 percent of his shares in 1974 to two of the other veterinarians employed by the Hospital.   That same year the shareholders entered an agreement adopting the pre-existing lease and obligating Muller to secure a replacement facility in the event of condemnation of the leased premises.   It was agreed at that time that the Hospital would lease the new facility, if any, at an annual rate representing 10 percent of the actual cost of replacement borne by Muller, subject to adjustment at five-year intervals.

In 1978 respondents were notified that condemnation would definitely occur.   Due to the specialized features of a veterinary hospital and the need to stay within a six-mile radius to retain patronage, Muller was unable to locate a suitable replacement facility.   Ultimately, in March 1978, he purchased a parcel less than one mile from the old facility upon which to build a new hospital.

On June 1, 1979, the Department filed its complaint in eminent domain to acquire the subject parcel in connection with a highway project along State Route 680.   The order for possession issued August 31, 1979, with appellant's right of possession effective January 1, 1980.   Muller contracted to build the new facility on September 20, 1979, the cost of which eventually totalled $502,002.03.

In April 1981 a jury trial was had on the issue of compensation.   At the outset, appellant moved to exclude respondents' evidence on the issue of loss of goodwill, arguing that the proposed evidence merely demonstrated an increased operating cost at the new facility, resulting in a loss of net profits for which respondents were not entitled to compensation under Code of Civil Procedure section 1263.510.   The trial court denied the motion, on grounds that loss of goodwill was a question of fact, and respondents were entitled to present evidence to the jury on that issue in an attempt to meet their burden of proof under Code of Civil Procedure section 1263.510.

At the close of the trial, the jury was instructed, inter alia, on the issue of loss of goodwill by a modified version of BAJI No. 11.91,² and subsequently the jury returned its verdict, finding that the value of the property taken was $299,500 and the loss of goodwill was $96,000.   Appellant moved for a new trial on grounds that it was error to deny the motion in limine to exclude respondents' evidence on loss of goodwill, but the court denied the motion.   This appeal followed on July 1, 1981.

Discussion

 Where a jury's finding in an eminent domain proceeding is challenged on appeal, the general scope of review, absent an affirmative showing of prejudicial error, is merely to determine whether the finding enjoys substantial support in the evidence.  (County of San Diego v. Bank of America (1955) 135 Cal.App.2d 143, 149, 286 P.2d 880;  City of Beverly Hills v. Anger (1932) 127 Cal.App. 223, 226, 15 P.2d 867.)

 In this case, the Department first argues that it properly objected at the outset to all evidence presented by respondents on the issue of goodwill.   However, it offers no further argument on appeal that it was error to admit this evidence,³ nor does it make any other suggestion of prejudicial error.⁴  Rather, the core of its argument is that respondents may not be compensated for loss of business profits caused by the increased cost of doing business at new quarters, under the guise of loss of goodwill.   Thus, appellant takes the position that the award is based on evidence insufficient to meet the requirements set forth in Code of Civil Procedure section 1263.510.

 Before examining respondents' evidence, we must first consider the precise requirements of the statute.   There is no liberal construction mandate in the Eminent Domain Law as there is, for example, in the Workers' Compensation Law under Labor Code section 3202.   Nor does Code of Civil Procedure section 1263.510 implement a preexisting constitutional right of compensation which would justify broad interpretation favoring the business owner.  (See Community Redevelopment Agency v. Abrams (1975) 15 Cal.3d 813, 826–832, 126 Cal.Rptr. 473, 543 P.2d 905;  cf. Chester v. Hall (1921) 55 Cal.App. 611, 617, 204 P. 237.)  Code of Civil Procedure section 1263.510 must therefore be construed strictly according to its plain language.  (See Cook v. Superior Court (1936) 12 Cal.App.2d 608, 610–611, 55 P.2d 1227.)

Code of Civil Procedure section 1263.510 was enacted pursuant to the recommendation of the California Law Revision Commission, who in turn adopted the language of section 1016 of the Uniform Eminent Domain Code (UEDC).  (12 Cal. Law Revision Com.Rep. (1974) pp. 1101, 1601, 1839;  13 Cal. Law Revision Com.Rep. (1976) p. 1038;  13 West's U.Laws Ann. (1980) Civ.Proc., Uniform Eminent Domain Code, § 1016, pp. 116–117.)   Although at least one other state has considered adopting this section of the UEDC,⁵ it does not appear that any other state has yet done so.   The comments of the Law Revision Commission and the UEDC for the most part merely emphasize the requirements enumerated and point out the fact that this statute is intended to reverse the widely criticized majority trend in American jurisdictions which denies compensation for the loss of goodwill in eminent domain proceedings.⁶  In sum, we find no authoritative interpretation of the substantive provisions, and little guidance other than the language of Code of Civil Procedure section 1263.510 itself.

 Subdivision (a) of the statute places a specific burden of proof on the owner which, once satisfied, entitles the owner to mandatory compensation.   While four specific requirements are enumerated, they logically form two basic requirements of proof.   Subdivisions (1) and (2) together require proof of causation:  the loss must result from the taking or injury to the remainder, despite reasonable and prudent effort by the owner to prevent or mitigate such loss.  (Code Civ.Proc., § 1263.510, subds. (a)(1) and (2).)   Subdivisions (3) and (4) together require proof of nonduplication of compensation:  the award must be shown not to duplicate compensation from another source, particularly payments made pursuant to Government Code section 7262.⁷  (Code Civ.Proc., § 1263.510, subds. (a)(3) and (4).)   The burden of proof is thus limited in literal terms to showing causation of loss and nonduplication of compensation.

However, goodwill is an intangible, and its loss through condemnation is not self-evident as is the loss of tangible realty.   Necessarily it is essential to prove the existence as well as the value of a loss of goodwill, in contrast to the mere proof of value required where tangible property is taken.  (See Kimball Laundry Co. v. U.S., supra, 338 U.S. 1, 20, 69 S.Ct. 1434, 1445, 93 L.Ed. 1765.)   It would seem, then, that the statute literally omits an a priori requirement, i.e., proof of damage to existing goodwill.

The Law Revision Commission comment to section 1263.510 does, however, speak of “[t]he determination of loss of goodwill,” the burden of which is placed on the owner to prove under the general rules of evidence.  (See fn. 6, supra.)   In its recommendation of the statute, the Law Revision Commission also emphasized that, “in order to assure that the losses are certain and measurable for the purposes of compensation, recovery should be allowed only for the loss of goodwill proved by the property owner and only to the extent that such loss is caused by the acquisition of the property or the injury to the remainder and cannot reasonably be prevented ․”  (12 Cal.Law Revision Com.Rep. (1974) p. 1653, emphasis added.)   These comments reflect the intent of the Legislature in enacting Code of Civil Procedure section 1263.510.  (Rep. of Assem. Com. on Judiciary on Assem. Bills, 3 Assem.J. (1975–1976 Reg.Sess.) p. 5183;  Rep. of Sen. Com. on Judiciary on Assem. Bills, 4 Sen.J. (1975–1976 Reg.Sess.), pp. 6537–6538.)

 A statute must be construed consistently with manifest legislative intent, and the literal meaning of its words must give way to avoid an absurd and contrary result.  (County of San Diego v. Muniz (1978) 22 Cal.3d 29, 36, 148 Cal.Rptr. 584, 583 P.2d 109.)   Accordingly, we find that Code of Civil Procedure section 1263.510, subdivision (a)(1), in accordance with the legislative intent, requires that the owner prove a loss of existing goodwill caused by the taking of the property or the injury to the remainder.

Additionally, the burden of proof set forth in subdivision (a) must be read together with the specific definition of goodwill given in subdivision (b).  The business owner must, in effect, initially prove a measurable loss of “benefits that accrue to [that] business as a result of its location, reputation for dependability, skill or quality, and any other circumstances resulting in probable retention of old or acquisition of new patronage.”   (Code Civ.Proc., § 1263.510, subd. (b).)  Recovery for such measurable loss is then allowed only to the extent that the owner proves that the loss was caused by the taking, despite reasonable mitigation efforts, and that any other compensation awarded for this loss, particularly under section 7262 of the Government Code, has been taken into account in measuring the loss to prevent double recovery.  (Code Civ.Proc., § 1263.510, subd. (a).)

Special attention must be given to the definition of goodwill given in Code of Civil Procedure section 1263.510, subdivision (b), because it imposes a requirement of proof peculiar to eminent domain law.   In other areas of the law, goodwill has been simultaneously determined and valued by means of accounting formulae which do not specifically take patronage into account.⁸  These formulae may be insufficient methods of establishing a prima facie case under Code of Civil Procedure section 1263.510, because of the special need to prove measurable damage to factors having a probable beneficial effect on patronage.

The potential inadequacy of simply adopting a formula common to other types of proceedings is demonstrated by the facts of this case.   The respondents, in presenting their evidence on the issue, relied on a variation of the capitalization of excess earnings approach.   First, an accountant computed average net earnings in both the “before” and “after” condition by subtracting salaries, rental, and other expenses from the gross earnings.   He then further subtracted a 12 percent return on tangible property and capitalized the remainder at 15 percent.   He testified that in the “after” condition, a substantial increase in rent and taxes left no excess earnings, thus “evaporat [ing]” the capitalized excess earnings of $175,980, which he had computed in the “before” condition.   Specifically, the rent and taxes paid by the Hospital annually had gone from $24,798 to $59,000.

This witness made a passing reference to a decrease of office calls in the new facility, but did not testify that this decrease was attributable solely to the taking.   He also testified that the taking resulted in some changes in the staff, as well as a new location with less desirable access and visibility, but he did not testify that these changes in effect constituted damage to circumstances which had benefited patronage.   The gist of his testimony was simply that increased costs had eliminated excess profits.

A second expert, a veterinary practice management consultant, testified to the same effect using a substantially similar method, and arrived at a loss of goodwill valued at $200,000.   Again, while he stated that the old site was superior in terms of access, this was in no way linked with a measured damage to the business' ability to retain or acquire patronage.   Rather, he testified that the loss was determined solely by the increased costs.

 Finally, testimony on the issue was given by Muller.   First, he related his efforts to prevent loss of goodwill by relocating in the same area of his established patronage and described the unavoidable expenses and increased costs incurred in doing so.   Yet he did not testify that patronage was adversely affected by the taking despite these efforts.   Instead, he related how, despite these efforts, the old facility and location were superior in certain respects, only one of which may fairly be characterized as a circumstance resulting in the probable retention of old or acquisition of new patronage.⁹  This one circumstance was location:  the old facility and its sign were visible to motorists on the adjacent freeway.   Muller testified that the location had been selected chiefly for that reason, because high visibility was advantageous to the acquisition of patronage when he first began to practice in that area.   At the time of the taking, however, the practice in that area had already been established for over 20 years, and a long-established professional practice cannot reasonably be said to rely on its location to any great degree, as if it were a service station.   In any event, Muller did not testify as to any actual effect on patronage due to this change of circumstance.¹⁰

 While Muller's testimony on the loss of the benefit of location may be regarded as some evidence of loss of goodwill,¹¹ it is insufficient by itself to support the jury's finding.   This is due to the fact that the evidence produced by respondents on the value of the loss of goodwill makes no attempt to ascertain the damage to “probable retention of old or acquisition of new patronage” resulting from the loss of this benefit.   In other words, the method used by respondents to value their loss of goodwill relies entirely upon the increased operating costs of the new facility and bears no relation whatever to the evidence on the loss of benefits which probably contributed to patronage.¹²  The respondents' evidence is therefore at best uncertain and speculative;  as such, we find it insufficient as a matter of law to sustain the award based on the jury's finding of loss of goodwill.¹³

In regard to the award for litigation expenses made pursuant to Code of Civil Procedure section 1250.410,¹⁴ the trial court's determination that appellant's final offer of $310,000 was unreasonable was based on the fact that appellant failed to include any amount for loss of goodwill, and its offer thus comprised only 78 percent of the total award.   Because of our determination that respondents' evidence was insufficient as a matter of law to sustain the award for loss of goodwill, we find that no offer for loss of goodwill was necessary.  (See City of Fresno v. Shewmake (1982) 129 Cal.App.3d 907, 914, 181 Cal.Rptr. 451.)   The respondents essentially concede that appellant's offer of $310,000 cannot otherwise be deemed unreasonable in light of the award of $299,500 for loss of the property.   Accordingly, we find that the award of litigation expenses under Code of Civil Procedure section 1250.410 also cannot be sustained.

That portion of the judgment awarding respondents $96,000 for loss of goodwill and $71,524.20 for litigation expenses is vacated.   In all other respects, the judgment is affirmed.   Respondents to recover their costs on appeal.

FOOTNOTES

1.   Code of Civil Procedure section 1263.510, enacted in 1975 as part of the Eminent Domain Law and operative since July 1, 1976, provides as follows:  “(a) The owner of a business conducted on the property taken, or on the remainder if such property is part of a larger parcel, shall be compensated for loss of goodwill if the owner proves all of the following:“(1) The loss is caused by the taking of the property or the injury to the remainder.“(2) The loss cannot reasonably be prevented by a relocation of the business or by taking steps and adopting procedures that a reasonably prudent person would take and adopt in preserving the goodwill.“(3) Compensation for the loss will not be included in payments under Section 7262 of the Government Code.“(4) Compensation for the loss will not be duplicated in the compensation otherwise awarded to the owner.“(b) Within the meaning of this article, ‘goodwill’ consists of the benefits that accrue to a business as a result of its location, reputation for dependability, skill or quality, and any other circumstances resulting in probable retention of old or acquisition of new patronage.”

2.   BAJI No. 11.91 (1976 Revision) (6th ed. 1977), as modified, was given to the jury as follows:  “The owner of a business conducted on the property being taken is entitled to recover compensation for the loss, if any, of business goodwill.“The term ‘goodwill,’ as used in this instruction, means the benefits that attach to a business as a result of its location, its reputation for dependability, skill or quality, and any other circumstances resulting in probable retention of old patronage or acquisition of new patronage.“In order to establish a loss of goodwill, the burden of proof is on the owner to prove each of the following by a preponderance of the evidence:“1. That the loss of goodwill will be caused by the taking of the property being taken.“2. That the loss cannot reasonably be prevented by a relocation of the business or by taking steps and adopting procedures that a reasonably prudent person would take and adopt in preserving the goodwill.“3. That the compensation for the loss will not be duplicated in the compensation otherwise awarded to the owner.“By a preponderance of the evidence is meant such evidence as, when weighed with that opposed to it, has more convincing force and the greater probability of truth.   In the event that the evidence is evenly balanced so that you are unable to say that the evidence on either side of the issue preponderates, then your finding upon that issue must be against the owner.”

3.   We note here that the special rules for valuation set forth in Evidence Code sections 810–823 may be used where the trial court deems them appropriate, but only the general rules of admissibility restrict the evidence which may be offered on the issue of loss of goodwill.  (Cal.Law Revision Com. com. to Code Civ.Proc., § 1263.510, 19A West's Ann.Code Civ.Proc. (1982 ed.) p. 87;  14 Cal.Law Revision Com.Rep. (1978) p. 118.)   On the other hand, Code of Civil Procedure section 1263.510, subdivision (a), clearly places the burden of proof on the owner, contrary to the general rule expressed in Code of Civil Procedure section 1260.210.   Thus, in enacting Code of Civil Procedure section 1263.510, the Legislature recognized the need for a relatively liberal rule of admissibility in proving the loss of goodwill, an intangible asset comprised of numerous factors, as well as the need to counterbalance this rule by placing the burden of proof on the owner.   As such, we find no affirmative showing of error in initially allowing respondents to present their evidence, discussed infra.

4.   The only instruction on the issue requested by the Department, BAJI No. 11.91, was given by the court, so of course it may not assert error on the ground that jury instruction on the issue was inadequate.   (See 4 Witkin, Cal. Procedure (2d ed. 1971) Trial, § 194, p. 3013.)   It may nonetheless be worthwhile to point out that, while BAJI No. 11.91 correctly expresses the right to compensation for loss of goodwill as it is set forth in Code of Civil Procedure section 1263.510, this instruction is of little use in guiding the jury's evaluation of such loss, if any is found to exist.   It has been elsewhere observed that the issue of compensation for such an intangible asset, when left to the jury's determination, requires not only solid evidence to establish the loss, but also concrete instruction as to computation of the compensation due.   (Kimball Laundry Co. v. U.S. (1949) 338 U.S. 1, 20, 69 S.Ct. 1434, 1445, 93 L.Ed. 1765.)

5.   See Masterman and Tully, Compensation for Business Loss [in] Eminent Domain Proceedings (1976) 20 Boston Bar J. 3, 4.

6.   The Law Revision Commission comment to Code of Civil Procedure section 1263.510, which is substantially the same as the comment to Uniform Eminent Domain Code section 1016, is set forth as follows:  “Section 1263.510, which is the same in substance as Section 1016 of the Uniform Eminent Domain Code, is new to California eminent domain law.   Under prior court decisions, compensation for business losses in eminent domain was not allowed.   See, e.g., City of Oakland v. Pacific Coast Lumber & Mill Co., 171 Cal. 392, 153 P. 705 (1915);  but see Community Redevelopment Agency v. Abrams [15 Cal.3d 813, 126 Cal.Rptr. 473, 543 P.2d 905], (hearing granted by Supreme Court 1974).  Section 1263.510 provides compensation for loss of goodwill in both a whole or a partial taking.   Goodwill loss is recoverable under Section 1263.510 only to the extent it cannot reasonably be prevented by relocation or other efforts by the owner to mitigate.“The determination of loss of goodwill is governed by the rules of evidence generally applicable to such a determination and not by the special rules relating to valuation in eminent domain contained in Article 2 (commencing with Section 810) of Chapter 1 of Division 7 of the Evidence Code.   See Evid.Code § 811 and Comment thereto.   Thus, the provisions of Evidence Code Sections 817 and 819 that restrict admissibility of income from a business for the determination of value, damage, and benefit in no way limit admissibility of income from a business for the determination of loss of goodwill.   Notwithstanding Section 1260.210, the burden of proof is on the property owner under this section.“Section 1263.510 compensates for goodwill loss only to the extent such loss is not compensated by Government Code Section 7262 (moving expense and moving losses for relocated business or farm operations;  in lieu payments for business or farm operation that cannot be relocated without a substantial loss of patronage).   See also Sections 1263.010 (no double recovery), 1263.410 (offset against benefits to remainder).”  (Cal.Law Revision Com. com. to Code Civ.Proc., § 1263.510, 19A West's Ann.Code Civ.Proc., supra, p. 87.)

7.   Government Code section 7262, subdivision (c), provides, in pertinent part:  “(c) Any displaced person who moves or discontinues his business or farm operation who elects to accept the payment authorized by this subdivision in lieu of the payment authorized by subdivision (a), shall receive a fixed relocation payment in an amount equal to the average annual net earnings of the business or farm operation, except that such payment shall not be less than two thousand five hundred dollars ($2,500) nor more than ten thousand dollars ($10,000).   In the case of a business, no payment shall be made under this subdivision, unless the public entity is satisfied that the business cannot be relocated without a substantial loss of patronage and is not a part of a commercial enterprise having at least one other establishment not being acquired, which is engaged in the same or similar business․”

8.   One commentator, calling for the adoption of statutory formulae in California, observed that at present there appear to be as many formulae as there are accountants, adding, however, that they fall roughly into four categories.  (Bruch, The Definition and Division of Marital Property in California:  Towards Parity and Simplicity (1982) 33 Hastings L.J. 769, 811–813, fn. 164.)   In the first, commonly called the “excess earnings capitalization” method, average annual net earnings are computed for a base period of several years, and from this a hypothetical normal return on the investment in the business' tangible assets is deducted.   The remainder, deemed to be the return realized on the business' intangible assets, is then capitalized at a given percentage rate, to arrive at the present value of the business' intangible assets, or goodwill.   Two other approaches, termed “gross income” and “net income,” arrive at goodwill by multiplying the gross or net income of a business for a given period by a factor generally accepted in that particular field of business.   The fourth approach, termed “residual” or “market value,” refers to that value a willing purchaser of the business would pay, over and above the value attributable to tangible assets.  (Id., at pp. 811–812, fn. 164;  Maleck, Loss of Business Goodwill in Eminent Domain Proceedings (1978) 53 State Bar J. 32, 33;  Bergman, The Valuation of Goodwill (1977) 53 L.A.Bar J. 87, 91–94.)The focus of Code of Civil Procedure section 1263.510, subdivision (b), on circumstances which have a “probable” beneficial effect on a business' patronage, is consistent with the traditional definition of goodwill as “the sum total of those imponderable qualities which attract the customers of a business ․”  (Grace Bros. v. Commissioner of Internal Revenue (1949) 173 F.2d 170, 175–176;  see also Bus. & Prof.Code, § 14100.)   Nevertheless, it contrasts with the accounting methods which consider only excess profits, income, or residual market value.

9.   The other stated circumstances are as follows.   Muller testified that the old site had more parking spaces, yet he did not state that the resulting loss affected patronage;  rather, it required an additional cost of renting space for that purpose adjacent to the new facility.   He testified that the old facility had more dog runs, yet he also said that those at the new facility were adequate and were merely inconvenient in terms of maintenance.   He said that the old nonresidential neighborhood was more compatible, but the stated result was only an additional cost of soundproofing the new facility.   He testified that access was poorer at the new location, but again he expressed this merely as an inconvenience.

10.   Respondents argue on appeal that the old location of the Hospital was per se a compensable “benefit” under Code of Civil Procedure section 1263.510, subdivision (b), measurable by the fact that it allowed them to operate in less costly quarters.   This position requires an improper reading of subdivision (b), which clearly enumerates location as one example of “circumstances resulting in probable retention of old or acquisition of new patronage.”   Location is thus not invariably an element of goodwill, but only in the sense that it benefits the patronage of a given business.

11.   Further testimony by Muller may also be deemed evidence of a loss affecting patronage for purposes of this discussion.   Muller stated that he attempted to sell his interest in the Hospital to several other employee veterinarians prior to the taking, but the threat of condemnation and its resulting increase in the Hospital's operating costs caused the others to back out of the sale.   Two of these employees, evidently frustrated in their desire to set up their own practice through the purchase of Muller's interest, not only backed out of the negotiations but left the Hospital's employment, taking clients with them.

12.   For this reason also, respondents' argument as to the propriety of their use of the excess earnings method in order to prove and value loss of goodwill must ultimately fail on these facts.   It is true that Code of Civil Procedure section 1263.510 does not limit the use of possible methods by specifying a “proper” formula.   It may also be noted that a variation of respondents' method, perhaps due to its relative ease and logical accuracy in determining goodwill by reference to earnings not otherwise attributable to tangible assets, has elsewhere been proposed as a model statutory formula for determining loss of goodwill through eminent domain.  (HSLRB Draft (1966) 3 Harv.J.Legis. 445, 445–446, 454.)   The statutory definition of goodwill set forth in Code of Civil Procedure section 1263.510, subdivision (b), however, appears to render respondents' method irrelevant, in that the method shows a loss due solely to increased costs at new quarters, a loss therefore not attributable to any damage to “circumstances resulting in probable retention of old or acquisition of new patronage.”Of course, we do not say that the excess earnings method is per se unacceptable to prove a loss of goodwill under Code of Civil Procedure section 1263.510, for conceivably under different facts it might properly measure damage to circumstances having a probable beneficial effect on patronage.   However, we note that the Law Revision Commission comment to section 1263.510 emphasizes the admissibility of evidence of business income to determine loss of goodwill.  (See fn. 6, 2d par., supra.)   This appears to recognize that a method using gross income will most obviously reflect a business' level of patronage and changes therein.

13.   Respondents offer one further argument:  that the award for loss of goodwill should be sustained as recovery for expenses incurred in mitigating damage to goodwill.  Code of Civil Procedure section 1263.510, subdivision (a), paragraph (2), however, limits recovery to compensation for goodwill lost despite mitigation efforts, including expense, and the statute nowhere provides for such consequential damages in addition to the compensation for the loss of goodwill.

14.   Code of Civil Procedure section 1250.410 provides in pertinent part:  “․ (b) If the court ․ finds that the offer of the plaintiff was unreasonable and that the demand of the defendant was reasonable viewed in the light of the evidence admitted and the compensation awarded in the proceeding, the costs allowed ․ shall include the defendant's litigation expenses․”

BARRY–DEAL, Associate Justice.

WHITE, P.J., and SCOTT, JJ., concur.