Eminent Domain: Trial Court Did Not Abuse Discretion In Denying Litigation Expenses To Defendant Awarded $214,610 Verdict After Plaintiff’s Best $45,000 Pretrial Offer

First District, Division Two Stresses that Mathematical Relation Factor Is But One Factor For Consideration.

     In our December 23, 2008 post on the unpublished opinion of City of Visalia v. Harrah, we reviewed Code of Civil Procedure section 1250.410(b) which allows the award of litigation expenses (including attorney’s fees and costs) to a winning condemnee after consideration of a multi-factored test to gauge the reasonableness of condemner’s pretrial offer, namely, (1) the amount of the difference between the [condemner’s pretrial] offer and the compensation award, (2) the percentage of the difference between the offer and award, and (3) the good faith, care and accuracy in how the amount of the offer and amount of [condemnee’s] demand, respectively, were determined. (Los Angeles County Metropolitan Transportation Authority v. Continental Development Corp. (MTA), 16 Cal.4^th 694, 720, 722 (1997).)

     Recently, the First District, Division 2 had the opportunity to review an award denying litigation expenses to a winning condemnee where the jury awarded the defendant $214,610 and condemner’s best pretrial offer was $45,000 (only 21% of the actual jury award). Condemnee’s final demand was for slightly over $220,000, which was reduced to $150,000 after an unsuccessful mediation.

     The appellate panel in State Route 4 Bypass Authority v. Pomeroy, Case No. A118442 (1^st Dist., Div. 2 May 7, 2009) (unpublished) affirmed the denial order.

     The stage was set when the Court of Appeal observed that the abuse of discretion/substantial evidence review standards were at play. (MTA, supra, 16 Cal.4^th at 719-721.) Defendant/condemnee primarily argued that unreasonableness was shown by the fact that condemner’s pretrial offer was only 21% of what was later awarded by the jury. This argument was flatly rejected, because this mathematical relation is but one factor to be evaluated. (Redevelopment Agency v. Gilmore, 38 Cal.3d 790, 808 (1985); MTA, supra, 16 Cal.4^th at 720, 722 [pretrial offer only 18% of actual award was found reasonable, reversing an intermediate appellate decision that overturned the trial court’s denial of litigation expenses to condemnee].) The appellate panel found that the lower court in Pomeroy had evaluated all the evidence, finding that the condemner was justified in relying on the lower appraisal values of its expert given that the existence of severance damages was highly contested and far from clear. The trial court was in the best position to make the factual call of reasonableness based on its evaluation of the evidence and counsel credibility. (Escondido Union School Dist. v. Casa Suenos De Oro, Inc., 129 Cal.App.4^th 944, 986-987 (2005).)

     BLOG UNDERVIEW—Disgruntled condemnee, in his opening brief, apparently cited to intermediate appellate decisions decided before the Supreme Court’s 1997 MTA decision. This was not a good move, with the Court of Appeal condemning the citation to anachronistic decisions. For all of you practicing appellate law out there, make sure you avoid this mistake in your briefing.