This case was last updated from Los Angeles County Superior Courts on 06/06/2019 at 02:11:52 (UTC).

COUNTY OF LOS ANGELES VS 8400 S VERMONT AVENUE LP ET AL

Case Summary

On 12/08/2017 COUNTY OF LOS ANGELES filed a Property - Eminent Domain lawsuit against 8400 S VERMONT AVENUE LP. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is DANIEL S. MURPHY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6141

  • Filing Date:

    12/08/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Eminent Domain

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DANIEL S. MURPHY

 

Party Details

Plaintiff and Petitioner

COUNTY OF LOS ANGELES

Defendants and Respondents

8400 S. VERMONT AVENUE L.P.

8430 S. VERMONT AVE. LLC

SASSON LERNER LLC

8528 S. VERMONT AVE LLC

VERMONT DEVELOPMENT LLC

8400 S. VERMONT AVE. LLC

VERMONT AVE L.P.

EVERTRUST BANK

UNTIED STATES INTERNAL REVENUE SERVICES

FIDERLITY NATIONAL TITLE COMPANY

STATE OF CALIFORNIA BOARD OF EQUALIZATION

UNITED STATES INTERNAL REVENUE SERVICE

VERMONT ENTERTAINMENT VILLAGE LLC

FIDELITY NATIONAL TITLE COMPANY

722-728 S. BROADWAY L.P.

8300 S. VERMONT AVE. L.P.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

BERGMAN GREGORY M.

WICKMAN MARY C COUNTY COUNSEL

Defendant Attorneys

JAKUBOWSKI KARYN ALYCIA

CUMMINGS CHARLES D. ESQ.

KROLIKOWSKI CHARLES

RUBIN JACK M

FRANDZEL ROBINS BLOOM & CSATO L.C.

 

Court Documents

Unknown

1/25/2018: Unknown

Minute Order

1/25/2018: Minute Order

Minute Order

2/5/2018: Minute Order

DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT IN EMINENT DOMAIN

2/8/2018: DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT IN EMINENT DOMAIN

NOTICE OF CASE MANAGEMENT CONFERENCE

2/15/2018: NOTICE OF CASE MANAGEMENT CONFERENCE

NOTICE OF CASE MANAGEMENT CONFERENCE

2/15/2018: NOTICE OF CASE MANAGEMENT CONFERENCE

DEFENDANTS' EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MONIQUE KING-VIELAND

3/20/2018: DEFENDANTS' EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MONIQUE KING-VIELAND

Unknown

4/9/2018: Unknown

DEFENDANTS' OPPOSITION TO PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF'S MOTION FOR PREJUDGMENT POSSESSION

4/16/2018: DEFENDANTS' OPPOSITION TO PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF'S MOTION FOR PREJUDGMENT POSSESSION

JOINT CASE MANAGEMENT STATEMENT ADDENDUM

4/18/2018: JOINT CASE MANAGEMENT STATEMENT ADDENDUM

ORDER ON MEDIA REQUEST TO PERMIT COVERAGE

4/23/2018: ORDER ON MEDIA REQUEST TO PERMIT COVERAGE

NOTICE OF ENTRY OF ORDER RE MOTION FOR PREJUDGMENT POSSESSION

4/30/2018: NOTICE OF ENTRY OF ORDER RE MOTION FOR PREJUDGMENT POSSESSION

Ex Parte Application

10/26/2018: Ex Parte Application

Minute Order

10/26/2018: Minute Order

Other -

12/14/2018: Other -

Other -

12/14/2018: Other -

Other -

12/14/2018: Other -

Other -

12/14/2018: Other -

101 More Documents Available

 

Docket Entries

  • 05/21/2019
  • Answer; Filed by 8300 S. Vermont Ave., L.P. (Defendant); 8400 S. Vermont Ave.,LLC (Defendant); 8400 S. Vermont Avenue, L.P. (Defendant) et al.

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  • 05/16/2019
  • Notice of Lien; Filed by 8400 S. Vermont Avenue, L.P. (Defendant)

    Read MoreRead Less
  • 04/26/2019
  • at 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Hearing on Motion - Other

    Read MoreRead Less
  • 04/26/2019
  • at 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Hearing on Motion - Other

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  • 04/26/2019
  • at 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Hearing on Motion - Other

    Read MoreRead Less
  • 04/15/2019
  • at 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Hearing on Motion to Compel Discovery (not "Further Discovery") - Not Held - Taken Off Calendar by Party

    Read MoreRead Less
  • 03/25/2019
  • Ex Parte Application (to Continue Trial; and Proposed Order); Filed by County of Los Angeles (Plaintiff)

    Read MoreRead Less
  • 03/22/2019
  • at 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Hearing on Ex Parte Application (to Continue Trial; and Proposed Order) - Held

    Read MoreRead Less
  • 03/22/2019
  • Stipulation and Order to use Certified Shorthand Reporter

    Read MoreRead Less
  • 03/22/2019
  • Minute Order ( (Hearing on Ex Parte Application to Continue Trial; and Propos...)); Filed by Clerk

    Read MoreRead Less
155 More Docket Entries
  • 01/22/2018
  • SUMMARY OF THE BASIS FOR APPRAISAL OPINION CONDUCTED BY MASON & MASON-ACTION IN EMINENT DOMAIN

    Read MoreRead Less
  • 01/18/2018
  • Disclaimer; Filed by Defendant/Respondent

    Read MoreRead Less
  • 01/18/2018
  • DISCLAIMER OF THE UNITED STATES OF AMERICA

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  • 01/17/2018
  • Disclaimer; Filed by Defendant/Respondent

    Read MoreRead Less
  • 01/17/2018
  • DISCLAIMER OF DEFENDANT CALIFORNIA DEPARTMENT OF TAX AND FEE ADMINISTRATION

    Read MoreRead Less
  • 12/14/2017
  • Disclaimer; Filed by Fiderlity National TItle Company (Defendant)

    Read MoreRead Less
  • 12/14/2017
  • DEFENDANT FIDELITY NATIONAL TITLE COMPANY'S DISCLAIMER OF INTEREST IN RESPONSE TO PLAINTIFF'S COMPLAINT IN EMINENT DOMAIN

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  • 12/08/2017
  • SUMMONS

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  • 12/08/2017
  • PLAINTIFF COUNTY OF LOS ANGELES' COMPLAINT IN EMINENT DOMAIN

    Read MoreRead Less
  • 12/08/2017
  • Complaint; Filed by County of Los Angeles (Plaintiff)

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Tentative Rulings

Case Number: BC686141    Hearing Date: January 06, 2020    Dept: 32

COUNTY OF LOS ANGELES,

Plaintiff,

v.

8400 S. VERMONT AVENUE, L.P.; et. al.,

Defendants.

Case No.: BC686141

Hearing Date: January 6, 2020

[TENTATIVE] order RE:

(1) Motion to compel deposition of marqueece harris-dawon

(2) motion to increase deposit

BACKGROUND

Plaintiff County of Los Angeles (“County”) commenced this eminent domain action on December 8, 2017. Through this action, the County seeks to acquire the fee simple title in sixteen adjacent assessor’s parcels (“Property”), located on the 8400 and 8500 blocks of South Vermont Avenue, for construction and operation of the Vermont and Manchester Transit Priority Joint Development Project.

On January 3, 2020, the Court ruled pursuant to CCP section 1260.040 that Sasson Defendants[1] are not entitled to precondemnation or Klopping damages.

MOTION TO COMPEL[2]

Sasson Defendants move pursuant to CCP section 1987.1 to compel City Councilmember Marqueece Harris-Dawson (“Harris-Dawson”) to comply with a “testimony only” deposition subpoena (“Subpoena”). Sasson Defendants claim that they need to depose Harris-Dawson to show that the County engaged in “unreasonable conduct prior to condemnation” and thereby substantiate their Klopping damages claim.

CCP section 1987.1(a) states in pertinent part: “If a subpoena requires the attendance of a witness …, the court may, upon motion reasonably made by [a party], … make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (CCP § 1987.1(a).)

The City and County separately oppose this motion. The City and County argue that this motion is without merit because, inter alia, (1) Sasson Defendants’ motion is untimely and (2) Sasson Defendants lack good cause to take Harris-Dawson’s deposition. These two reasons are well-taken.

A. Timeliness of Motion

The City and County argue that Sasson Defendants’ motion is untimely because it was made after the discovery motion cut-off date.

“Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” (CCP § 2024.020(a).) A trial court cannot hear and grant a propounding party’s belated motion to compel discovery without first deciding whether discovery should be reopened for that purpose. (See Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1586 (citing CCP § 2024.050).) To reopen discovery, the propounding party must make a motion. (CCP § 2024.050(a).) The motion must be accompanied by a meet-and-confer declaration. (Ibid.) In exercising its discretion to grant or deny this motion to reopen, the court shall take into consideration several factors including (1) the necessity and the reasons for the discovery, (2) the diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier, and (3) any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party. (CCP § 2024.050(b).)

On March 22, 2019, pursuant to the parties’ written stipulation, the Court continued the trial in this action from June 18, 2019 to October 22, 2019 and continued all pending pretrial dates based upon the new trial date. (G. Bergman Decl. ¶ 6, Ex. C.) On July 12, 2019, the Court heard and granted in part Sasson Defendants’ ex parte application to continue the trial and discovery cut-off dates. (G. Bergman Decl. ¶ 7, Ex. D.) The Court continued the trial to February 4, 2020, the present trial date, but did not move the discovery cut-off dates. (Ibid.) At the hearing, the Court reminded the parties that “continuing the trial does not change any of the discovery cut-off dates.” (G. Bergman Decl. Ex. D, p. 4.)

After the Court continued the trial date to February 4, 2020, the parties agreed to continue the discovery cut-off date to October 30, 2019. (G. Bergman Decl. ¶ 8, Ex. E.) The parties’ agreement was reflected in email correspondence between counsel. (See CCP § 2024.060.) Their agreement is silent with respect to a continuance of the discovery motion cut-off date. Accordingly, the discovery motion cut-off date remained October 7, 2019 pursuant to the Court’s March 22, 2019 order.

Sasson Defendants served Harris-Dawson with the Subpoena on August 4, 2019. (Robinson Decl. ¶¶ 3-4, Ex. B.) On August 13, 2019, a City of Los Angeles attorney informed Sasson Defendants’ counsel that Harris-Dawson would not appear for deposition pursuant to the Subpoena. (Rubin Decl. ¶ 10.) Counsel for the City and Sasson Defendants’ exchanged correspondence regarding the taking of Harris-Dawson’s deposition through September 10, 2019. (Rubin Decl. ¶¶ 12-14.) Sasson Defendants brought the instant motion on December 11, 2019.

Here, because the discovery motion cut-off date was set to, and not moved from, October 7, 2019, Sasson Defendants’ discovery motion brought on December 11, 2019 is untimely and cannot be heard unless the Court reopens discovery. Sasson Defendants are not entitled to have discovery reopened because they have not brought a motion for the same nor demonstrated that the statutory factors weigh in favor of reopening discovery. (CCP § 2024.050.)

Sasson Defendants argue that the Court should not enforce the discovery motion cut-off date because the parties have not been operating off those dates and enforcing that date would thus lead to an inequitable result. The Court is unpersuaded. The parties were unquestionably cognizant of these cut-off dates because they entered into a written agreement to extend the discovery cut-off date. (G. Bergman Decl. Ex. E.) Given the situation, equity favors enforcing the parties’ express agreement and the statutory cut-off dates.

B. Good Cause

The City and County argue that the Sasson Defendants have failed to show that Harris-Dawson’s deposition testimony is reasonably necessary to litigate this action. The Court agrees.

“The general rule in California and federal court is that agency heads and other top governmental executives are not subject to deposition absent compelling reasons. (Contractors’ State License Bd. v. Superior Court (2018) 23 Cal.App.5th 125, 131.) “The general rule is based upon the recognition that ‘an official’s time and the exigencies of his everyday business would be severely impeded if every plaintiff filing a complaint against an agency head, in his official capacity, were allowed to take his oral deposition. Such procedure would be contrary to the public interest, plus the fact that ordinarily the head of an agency has little or no knowledge of the facts of the case.’ ” (Nagle v. Superior Court (1994) 28 Cal.App.4th 1465, 1468.) An exception will be made to this rule only when the deposing party makes two showings: (1) the government official has direct personal factual information pertaining to material issues in the action and (2) the information to be gained from the deposition is not available through any other source. (CSLB, supra, 23 Cal.App.5th at 132.)

Sasson Defendants assert that an exception to the apex doctrine exists because they need to depose Harris-Dawson to substantiate their Klopping damages claim. However, the Court recently ruled that Sasson Defendants are not entitled to Klopping damages. Thus, irrespective of whether Harris-Dawson has direct personal factual information regarding the County’s alleged unreasonable precondemnation conduct, that information is not pertinent to a material issue in this action.

C. Conclusion

For the foregoing reasons, Sasson Defendants’ motion to compel is DENIED.

MOTION TO INCREASE DEPOSIT[3]

Sasson Defendants move for a court order requiring the County to increase its probable compensation deposit to $62,000,000 or some other reasonable amount determined by the Court.

A. Legal Standard

To obtain possession of condemned property prior to judgment in an eminent domain action (CCP § 1255.410(a)) and/or set the property’s date of valuation (CCP § 1263.110 (a)), the condemnor must deposit with the State Treasury the “probable amount of compensation, based on an appraisal, that will be awarded in the proceeding.” (CCP §§ 1255.010.)

Determining the “probable amount of compensation” involve an approximation of the compensation that a jury will ultimately award the condemnee for the property taken. (See generally CCP § 1255.010(b).) “The measure of this compensation is the fair market value of the property taken.” (CCP § 1263.310.) “The fair market value of the property taken is the highest price on the date of valuation that would be agreed to by a seller being willing to sell but under no particular or urgent necessity for so doing, nor obliged to sell, and a buyer, being ready, willing, and able to buy but under no particular necessity for so doing, each dealing with the other with full knowledge of all the uses and purposes for which the property is reasonably adaptable and available.” (CCP § 1263.320(a).) Under the Eminent Domain statutes, “the fair market value of property taken has not been limited to the value of the property as used at the time of the taking, but has long taken into account the ‘highest and most profitable use to which the property might be put in the reasonably near future, to the extent that the probability of such a prospective use affects the market value.’ ” (Metropolitan Water Dist. of So. California v. Campus Crusade for Christ, Inc. (2007) 41 Cal.4th 954, 965.)

“At any time after a [probable compensation] deposit has been made…, the court shall, upon motion of … any party having an interest in the property for which the deposit was made, determine or redetermine whether the amount deposited is the probable amount of compensation that will be awarded in the proceeding.” (CCP § 1255.030(a).) This motion “shall be supported with detail sufficient to indicate clearly the basis for the motion,” including (1) the date of valuation, highest and best use, and applicable zoning of the property, (2) the principal transactions, reproduction or replacement cost analysis, or capitalization analysis, supporting the motion, and (3) the compensation for the property and for damages to the remainder separately stated, and the calculations and a narrative explanation supporting the compensation, including any offsetting benefits. (Ibid.)

“If the [condemnor] has taken possession of the property and the court determines that the probable amount of compensation exceeds the amount deposited, the court shall order the amount deposited to be increased to the amount determined to be the probable amount of compensation.” (CCP § 1255.030(c).)

B. Background Facts

On December 13, 2017, the County deposited with the State Treasurer the sum of $15,700,800. (B. Bergman Decl. ¶ 3, Ex. A.) The County represented that this deposit constituted the amount of probable compensation that Sasson Defendants would receive for the Property. (Ibid.) The County based this probable compensation calculation on an appraisal performed by Frances Wolfe Mason (“Mason”) of Mason & Mason. (B. Bergman Decl. Exs. A-B.)

Since that deposit was made, the parties have obtained different appraisers who have furnished different Property appraisals. The County’s appraiser, John Ellis (“Ellis”), calculates the fair market value of the Property as of the date of valuation, December 13, 2017, as $17,980,000. (B. Bergman Decl. ¶ 7, Ex. F.) Sasson Defendants’ appraiser, Michael Waldron (“Waldron”), calculates the fair market value of the Property as of the date of valuation to be $62,346,480. (B. Bergman Decl. ¶ 8, Ex. G.)

On the day that this motion was filed, the County filed a second notice of deposit. The County’s notice reflects that the County deposited with the State Treasurer an additional sum of $2,279,400 to match Ellis’s appraisal of the Property.

C. Discussion

This motion requires Sasson Defendants to make one essential showings: the amount deposited by the County is not the probable amount of compensation that will be awarded in the proceeding. (See People v. Mixon (1990) 225 Cal.App.3d 1471, 1479 (“On all motions the burden is on the moving party…”).)

Sasson Defendants have not met their burden of proof because Sasson Defendants have not proffered a persuasive reason to discredit Ellis’s expert appraisal. Rather, Sasson Defendants have devoted their brief to (1) attacking Mason’s appraisal, an appraisal which is no longer relevant given the County’s retention of Ellis and supplemental deposit, and (2) discussing the merits of Waldron’s appraisal without explanation as to why it is superior to Ellis’s. Absent a showing or explanation as to why Waldron’s appraisal is stronger evidence, the Court will not infer that his appraisal carries more weight than Ellis’s.

This conclusion holds notwithstanding the County’s failure to submit a comprehensive copy of the Ellis appraisal. The court file and the history of this litigation plainly reflect that the County has retained an expert appraiser with comparable qualifications to Waldron’s. Sasson Defendants admit that Ellis will testify that the value of the Property is $17,980,000. (Mot. at 17.) Granting this motion and ordering the County to deposit millions of more dollars simply because the County did not submit that appraisal would elevate form over substance and be fundamentally inequitable.

Sasson Defendants’ motion to increase the deposit is DENIED.


[1] The Sasson Defendants are 8400 S. Vermont Avenue LP; 8300 S. Vermont LP; Sasson Lerner, LLC; 8430 S. Vermont Ae. LLC; 8400 S. Vermont Avenue LLC; 8528 South Vermont Avenue LC; Vermont Development LLC; and Vermont Entertainment Village, LLC.

[2] Sasson Defendants’ requests for judicial notice are GRANTED. (Evid. Code § 452(d), (h).) Sasson Defendants’ objections to the Brian J. Bergman, Greg Bergman, and Harris-Dawson Declarations are OVERRULED.

[3] Sasson Defendants’ and the County’s requests for judicial notice are GRANTED. (Evid. Code § 452(c), (d).)

Sasson Defendants’ objections to the Brian J. Bergman Declaration and the County’s objections to the Krolikowski Declaration are OVERRULED.

Case Number: BC686141    Hearing Date: January 03, 2020    Dept: 32

COUNTY OF LOS ANGELES,

Plaintiff,

v.

8400 S. VERMONT AVENUE, L.P.; et. al.,

Defendants.

Case No.: BC686141

Hearing Date: January 3, 2020

[TENTATIVE] order RE:

MOTIONs for a legal issue determination pursuant to ccp § 1260.040

BACKGROUND

Plaintiff County of Los Angeles (“County”) commenced this eminent domain action on December 8, 2017. Through this action, the County seeks to acquire the fee simple title in sixteen adjacent assessor’s parcels (“Property”), located on the 8400 and 8500 blocks of South Vermont Avenue, for construction and operation of the Vermont and Manchester Transit Priority Joint Development Project.

REQUEST FOR JUDICIAL NOTICE

The County’s requests for judicial notice are GRANTED. (Evid. Code § 452(d), (h).)

OBJECTIONS

Sasson Defendants’[1] objections to the Ellis and Gibson Declarations are OVERRULED.

Sasson Defendants’ objections to the Bergman Declaration in support of severance damages motion are SUSTAINED as to Nos. 4 and 5 and OVERRULED as to the remainder. Sasson Defendants’ objections to the Bergman Declaration in support of precondemnation damages are OVERRULED.

The County’s objections to the Duenas, Krolikowski, Sasson, and Waldron Declarations are OVERRULED in full.

DISCUSSION

The County moves pursuant to CCP section 1260.040 for three legal issue determinations against the Sasson Defendants precluding them from recovering (1) severance damages, (2) precondemnation or Klopping damages, and (3) additional precondemnation appraisal fees.

A. Legal Standard

The parties dispute the legal standard governing this motion.

CCP section 1260.040 provides in pertinent part: “If there is a dispute between plaintiff and defendant over an evidentiary or other legal issue affecting the determination of compensation, either party may move the court for a ruling on the issue.” According to Law Revision Commission comments annotating CCP section 1260.040, this statute “is intended to provide a mechanism by which a party may obtain early resolution of an in limine motion or other dispute affecting valuation.” Hence, “[t]he procedure should be limited to resolution of legal issues that may affect compensation, such as what constitutes the larger parcel, or the probability of a zoning change; it should not be used to ascertain just compensation.” (Dina v. People ex rel. Dept. of Transportation (2007) 151 Cal.App.4th 1029, 1042 (citing Law Revision Commission recommendation for assembly bill to section 1260.040).)

Relying on Dina, the County contends that the Court can resolve this motion notwithstanding the presence of disputed facts. (Mot. re: Larger Parcel, p. 9.) Relying on Dina as well, Sasson Defendants contend that the Court must treat this motion similar to a nonsuit motion: “the trial court arguably weighs the evidence submitted by the parties, but ultimately the responding party’s evidence must be taken and deemed true and all inferences must be construed in favor of the responding party.” (Opp. re: Larger Parcel, p. 13.)

These arguments raise two essential questions: (1) whether CCP section 1260.040 permits resolution of the three issues identified by the County and (2) if so, whether the Court can resolve contested factual disputes under this statute.

There are two published cases assessing CCP section 1260.040 in detail: Dina, supra, 151 Cal.App.4th 1029 and Weiss v. People ex rel. Dept. of Transportation (2018) 20 Cal.App.5th 1156. Both cases concerned inverse condemnation claims. The California Supreme Court has granted review of Weiss. Consequently, while review is pending, Weiss “has no binding or precedential effect, and may be cited for potentially persuasive value only.” (CRC Rule 8.1115(e)(1).)

The first question is whether CCP section 1260.040 permits resolution of the three issues identified by the County. This is an eminent domain case so the eminent domain statutes, including CCP section 1260.040, indisputably govern. By its plain language, CCP section 1260.040 grants the trial authority to determine “an evidentiary or other legal issue affecting the determination of compensation.” The meaning of “an evidentiary or other legal issue affecting the determination of compensation” has not been defined by case law. In Dina, the appellate court noted that the statute was ambiguous as to whether it permitted a trial court to determine the “legal issue” of liability in an inverse condemnation action. (Dina, supra, 151 Cal.App.4th at 1041.) The appellate court explained that the language gave rise to two reasonable, albeit contradictory, constructions: (1) the trial court could adjudicate the question of the public entity’s liability for inverse condemnation because “[w]hat could affect the determination of compensation more than whether or not the plaintiffs have a valid cause of action?” and (2) the trial could not adjudicate this question because the statute “is silent with respect to the trial court’s ability to weigh evidence or enter judgment on the basis of its ruling on the evidentiary or legal issue.” (Id. at 1041.) The Dina court elected to construe section 1260.040 “broadly to permit the [trial] court to determine the legal issue of liability in an inverse condemnation action.” (Id. at 1043.) According to the Dina court, this interpretation “comported with the purpose of the” statute’s assembly bill “to facilitate resolution of condemnation cases without trial.” (Ibid.)

This logic applies with greater force here. The determination of Sasson Defendants’ entitlement to (1) severance damages, (2) precondemnation damages, and (3) additional precondemnation appraisal fees will clearly affect the ultimate determination of compensation — that is, how much payment Sasson Defendants will receive in this action. Corroborating this conclusion, the Law Revision Commission expressly concluded that this statutory procedure could be used for issues “such as what constitutes the larger parcel,” the focal point of a severance damages issue. (Dina, supra, 151 Cal.App.4th at 1042.) Furthermore, like Dina, this interpretation comports with the statute’s legislative intent because resolving these issues may facilitate settlement of this case by clarifying what damages the County is liable for in this action.

The second question is whether the Court can resolve contested factual disputes under CCP section 1260.040. In Dina, the trial court weighed evidence in determining pursuant to section 1260.040 that the public entity was not liable for inverse condemnation. (Dina, supra, 151 Cal.App.4th at 1039.) The appellate court affirmed the trial court’s decision, but the appellate court did not clearly endorse the trial court’s weighing of evidence. Instead, the appellate court analogized the procedure established in section 1260.040 to a nonsuit motion because of concerns with “the absence of a bench trial.” (Id. at 1045.) Pursuant to a nonsuit motion’s standard of review, the appellate court explained that “[a] trial court may grant a nonsuit only when, disregarding conflicting evidence, viewing the record in the light most favorable to the plaintiff and indulging in every legitimate inference which may be drawn from the evidence, it determines there is no substantial evidence to support a judgment in the plaintiff's favor.” (Id. at 1047.) Applying this standard, the appellate court reached the same conclusion as the trial court because it found that no substantial evidence supported a judgment in the property owner’s favor — the public entity submitted several exhibits and expert declarations in support of its motion and, in turn, the property owner submitted expert declarations that lacked foundation and were thus inadmissible. (Id. at 1048.)

Dina is not binding with respect to how the Court should evaluate the nonliability issues identified by the County in this motion. (See State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 614 (“Cases are not authority for propositions not considered therein.”).) Even so, Dina persuasively indicates that a non-suit motion legal standard should apply because, like in Dina, the Court’s resolution of these issues in the County’s favor would deny Sasson Defendants their right to present evidence more comprehensively at a bench trial. The deprivation of this right militates strong procedural safeguards similar to those applied in the context of a motion for nonsuit or motion for summary judgment. (Weiss, supra, 20 Cal.App.5th at 1172 (finding motion for summary judgment a more appropriate analogy to the procedures afforded by section 1260.040).) Weiss strengthens this conclusion. In disapproving Dina’s use of section 1260.040 to adjudicate liability, the Weiss court instructs: “Evidentiary disputes are generally for the trier of fact to resolve, but section 1260.040’s formulation (‘[an]other legal issue’) recognizes they may constitute a legal issue for the court to resolve as a matter of law, as when the question is whether a party has offered prima facie evidence to support its position.” (Weiss, supra, 20 Cal.App.5th at 1172 (emphasis added).) Per Weiss, CCP section 1260.040 authorizes courts to resolve factual issues only when they can be “resolve[d] as a matter of law.”

In view of Dina and Weiss, the Court concludes that it must evaluate the County’s motion based on a nonsuit motion legal standard.[2]

B. Larger Parcel

The County moves for a legal issue determination that there is no “larger parcel” that would allow the jury to award severance damages to Sasson Defendants in this action.

“When property acquired by eminent domain is part of a larger parcel, compensation must be awarded not only for the part that is taken, but also for the injury, if any, to the part remaining.” (City of Livermore v. Baca (2012) 205 Cal.App.4th 1460, 1465 (citing CCP § 1263.410(a).) Such compensation is commonly called “severance damages.” (Ibid.)

“Traditionally, three requirements must be met to establish that the land remaining to the owner after condemnation is part of a ‘larger parcel’: (1) unity of title; (2) contiguity of the parcels; and (3) unity of use.” (City of San Diego v. Neumann (1993) 6 Cal.4th 738, 745.) The County is not challenging unity of title. (Mot. at 11.) In this action, Sasson Defendants undisputedly own the Property and the parcels allegedly constituting the remainder property — (1) 8521 S. Vermont Avenue, Los Angeles and (2) 8529 S. Vermont Avenue, Los Angeles (collectively, “Additional Properties”). The County is challenging whether the Property and Additional Properties meet the contiguity and unity of use requirements.

1. Unity of Use

“Unity of use has been defined as ‘a connection or relation of adaptation, convenience, and actual and permanent use (such) as to make the enjoyment of the parcel taken reasonably and substantially necessary to the enjoyment of the parcels left, in the most advantageous and profitable manner in the business for which they are used.’ [Citation.] Unity of use does not exist where the condemned parcel and the remaining parcel are used separately [Citations], but is not necessarily defeated by the fact that the remaining parcel is not put to any independent use.” (People ex rel. Dept. of Public Works v. Nyrin (1967) 256 Cal.App.2d 288, 294-95.)

In City of San Diego v. Neumann (1993) 6 Cal.4th 738, the California Supreme Court rejected the argument that the unity of use requirement always necessitates present unity of use. According to the California Supreme Court, “separate legal parcels may be aggregated and considered as one ‘larger parcel’ when the owner establishes a reasonable probability that all of the contiguous commonly owned lots will be available for development or use as an integrated economic unit in the reasonably foreseeable future.” (Neumann, supra, 6 Cal.4th at 741.)

The County argues that no unity of use exists between the Property, on the one hand, and 8521 and 8529 Vermont (“Additional Properties”), on the other hand.

The County explains that the present uses of the Property and Additional Properties were dissimilar as of the date of valuation, December 13, 2017. (CCP § 1263.110 (stating that date of valuation is the date that the public entity deposits probable compensation).) On the date of valuation, the Property was vacant, unimproved land. Conversely, 8521 Vermont was improved with a vacant single tenant commercial building (Duenas Depo. p. 138), and 8529 Vermont was improved with a two-story structure (Duenas Depo. p. 30). The bottom floor of 8529 Vermont was commercial and vacant; the top floor was residential and possessed approximately eight residential units. (Ibid.) Of these eight units, one was occupied by a tenant. (Duenas Depo. pp. 27-28.)

The County also claims that a unity of use of the Property and Additional Properties was not reasonably probable in the reasonably foreseeable future. According to Sasson Defendants’ PMK Jennifer Duenas (“Duenas”), Sasson Defendants purchased the Additional Properties with the intent of demolishing them and constructing a larger development — the Vermont Entertainment Village (“VEV”). (Duenas Depo. pp. 35-36.) Duenas contacted structural engineers to figure out what was needed to demolish the structures and received estimates. (Duenas Depo. p. 36.)

The Additional Properties would have made up “Phase II” of this proposed development. Sasson Defendants contracted with an architect who drafted a schematic of the Phase II development. (Duenas Depo. p. 103.) Sasson Defendants were using the schematic to convince others to support the development. (Ibid.) At the time of the Property’s taking, Sasson Defendants had not hired a company to conduct a market feasibility study for Phase II. (Duenas Depo. p. 79.) Sasson Defendants also did not own all the properties contemplated for inclusion within Phase II. (Duenas Depo. p. 68.)

The County also submits a report from its trial appraiser, John Ellis (“Ellis”). (Bergman Decl. ¶ 13, Ex. H.) Ellis concludes in pertinent part that the Phase II properties and the Property “do not satisfy the test of commonality of use or commonality of highest and best use.” (Bergman Decl. Ex. H, p. 7.) Ellis does not explain this opinion in any detail. (Ibid.)

In opposition, Sasson Defendants lay claim to the Neumann expansion of the unity of use requirement. Eli Sasson (“Sasson”), the owner directly or indirectly of the Property and the Additional Properties, declares that for the last 50 years, he has been buying, developing and managing properties of all types in and around City of Los Angeles (“City”). (Sasson Decl. ¶ 2.) Sasson declares that he purchased the Property and Additional Properties over the course of several years with the vision of building a commercial development in the area given its “high population density and the lack of retail, dining and pharmacy services.” (See Sasson Decl. ¶¶ 3-4.)

Duenas declares that beginning in 2014, she moved forward with processing and obtaining development entitlements from the City to construct VEV on the Property. (Duenas Decl. ¶ 3.) While the Property was being entitled, Duenas began locating and purchasing additional properties nearby to integrate with VEV as part of Sasson Defendants’ Phase II plan. (Duenas Decl. ¶ 6.) As part of these efforts, Duenas purchased the Additional Properties. (Ibid.) After these purchases, Sasson Defendants created and began to implement a plan to vacate the few tenants still residing on the properties and to prepare them for Phase II. (Duenas Decl. ¶ 8.) This plan was cut short because of the County’s eminent domain action. (Ibid.) Duenas stresses that the Additional Properties were purchased for their land value as the properties’ improvements held no value whatsoever. (Duenas Decl. ¶ 7.)

Michael Waldron (“Waldron”) is a real estate appraiser retained by Sasson Defendants to review and analyze the subject properties. (Waldron Decl. ¶ 2.) Waldron investigated whether the Additional Properties constituted part of the same larger parcel as the Property at the date of valuation. (Waldron Decl. ¶ 7.) Waldron personally inspected the Property and the Additional Properties and investigated, inter alia, their highest and best uses, general plan, and zoning designations. (Ibid.) Based on his investigation, Waldron found that (1) the Property and Additional Properties are under the same ownership umbrella, (2) the Property and Additional Properties share the same general plan (Community Commercial) and zoning designation of C2-2, (3) the owner of the Additional Properties were moving forward with an integrated development referred to as Phase II of VEV and was taking steps to vacate tenants; (4) the Additional Properties are located across the street and have close proximity to the Property, (5) the market demand for commercial uses is extremely high in this area, (6) the parcels share the same highest and best use for commercial and/or mixed-use development, (7) the City already approved the entitlements for the Property and the Additional Properties would not need the same level of entitlements; (8) the older improvements located on both the Property and the Additional Properties do not contribute any value over and above value of the land, and (9) the Additional Properties are worth more as an integrated unit with the Property than alone. (Waldron Decl. ¶ 7.) Based upon these findings, Waldron opines that the Additional Properties are part of the Property’s larger parcel and that it was reasonably probable that an integrated development would have materialized but for the County’s taking of the Property. (Waldron Decl. ¶ 8.)

Accepting Sasson Defendants’ evidence as true and disregarding the County’s conflicting evidence (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 650 (nonsuit legal standard)), the Court concludes that Sasson Defendants’ evidence is sufficient to support a finding of prospective unity of use between the Property and Additional Properties. The reasonable probability of Sasson Defendants’ effectuating Phase II and the temporal proximity of constructing such a development are questions of fact more properly suited for a bench trial.

2. Contiguity

Contiguity between the condemned property and the remaining property is “ordinarily essential” to obtain severance damages. (People v. Ocean Shore R.R. (1948) 32 Cal.2d 406, 423.) But strict contiguity requirement is not required. (See Neumann, supra, 6 Cal.4th at 747.) “Constructive contiguity” may exist where the properties are not physically contiguous but they share unity of use. (City of Los Angeles v. Wolfe (1971) 6 Cal.3d 326, 335 (noting that unity of use is the “principal test”).) In general, “[e]xceptions have been recognized ... to the rule of strict physical contiguity w[h]ere the factual situation was found to warrant such an exception.” (Neumann, supra, 6 Cal.4th at 747.)

The County asserts that the Property is not physically contiguous to the Additional Properties because they are separated by a seven-lane thoroughfare, Vermont Avenue. The County asserts that constructive contiguity is not present because the parcels do not share a strong, actual, and existing unity of use.

The Court disagrees. This is another clear-cut question of fact given that “the factual situation” sometimes warrants exceptions. An exception may be warranted in this case for several reasons. First, Sasson Defendants have made a ponderable showing of a prospective unity of use. Because prospective unity of use is now an accepted means of satisfying the unity of use requirement, prospective unity of use is presumably probative in assessing a constructive contiguity claim. Second, Ellis opined that the Property is a “larger parcel,” despite being bisected by a street and several alleys. (See Bergman Decl. Exs. A; H, p. 4; see Wolfe, supra, 6 Cal.3d at 334 (noting that California Supreme Court has found contiguity despite bisection of lands by a public highway in People, By and Through Department of Public Works v. Thompson (1954) 43 Cal.2d 13).) This opinion indicates that the presence of a bisecting street is not fatal to a finding of contiguity. Rather, whether a bisecting street negates contiguity because of its size or traffic level is another factual issue. Third, Ellis explained that he based his contiguity finding on his belief that “physical proximity satisfies the question about physical contiguity.” (Ellis Depo. p. 80.) In response, Waldron notes that the Additional Properties are closer in proximity to some parcels comprising the Property than some parcels of the Property are to each other. (Waldron Decl. ¶ 7.) This physical proximity weighs in favor of a finding of contiguity.

The County responds that prospective unity of use evidence is only appropriate where the properties in question are strictly contiguous. The County notes the holding in Neumann is limited to contiguous property. In Neumann, the California Supreme Court acknowledged that its holding in Ocean Shore precluded examination of prospective unity of use “when the property involved is noncontiguous.” (Neumann, supra, 6 Cal.4th at 753.) But the County’s argument begs the question: does Neumann’s endorsement of the examination of prospective unity of use extend to properties that are constructively, as opposed to strictly, contiguous? The holding in Ocean Shore provides no clear answer as it did not discuss constructive contiguity (nor would it have done so as it predated Thompson and Wolfe). In the Court’s view, there is no principled reason to distinguish strictly contiguous parcels of property from constructively contiguous ones for purposes of the Neumann prospective unity of use doctrine. In both instances, the parcels are “contiguous” for purposes of the law and reasonably warrant severance damages under the right circumstances.

3. Conclusion

The County’s motion is DENIED. The issue of whether there is a “larger parcel” entitling Sasson Defendants to severance damages issue must be tried by the Court. [3]

C. Precondemnation Damages

The County moves for a legal issue determination prohibiting the Sasson Defendants from seeking any precondemnation or Klopping damages. The County asserts that it did not engage in unreasonable conduct or delay prior to condemnation and disputes that any such conduct caused the Property to suffer a diminution in market value.

In Klopping v. City of Whittier (1972) 8 Cal.3d 39, the California Supreme Court held that “a condemnor could be held liable for damages for the adverse economic impact on private property resulting from precondemnation delay and/or unreasonable conduct.” (Contra Costa Water Dist. v. Vaquero Farms, Inc. (1997) 58 Cal.App.4th 883, 895.) To prove Klopping damages, a condemnee must demonstrate that (1) “the public authority acted improperly either by unreasonably delaying eminent domain action following an announcement of intent to condemn or by other unreasonable conduct prior to condemnation,” and (2) “as a result of such action the property in question suffered a diminution in market value.” (Klopping, supra, 8 Cal.3d at 52.) Whether the condemnor has acted unreasonably is a question of fact to be determined by the court. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 897.)

1. Pre-Condemnation Unreasonable Conduct

Sasson Defendants are pursuing Klopping damages on the ground that the County engaged in unreasonable precondemnation conduct. (Opp. at 16.) Sasson Defendants explain that, dating back to May 2016, the County engaged in unreasonable precondemnation conduct by (1) forming a partnership with the City to obstruct the VEV and seize the Property through their “Free the Land” campaign, (2) entering into an undisclosed agreement with the City to take the lead in condemning the Property because the City lacked a sufficient purpose to condemn, (3) contracting with Trifletti Consulting, a land-use consultant, to assist the City in acquiring and controlling the Property, and (4) disregarding its statutory obligations with respect to making required offers of compensation and negotiating in good faith.

Sasson Defendants submit the following pertinent evidence.

In May 2016, Joanne Kim (“Kim”), a Director of Capital Projects for Los Angeles City Councilmember Marqueece Harris-Dawson (“Harris-Dawson”), drafted a memorandum (“Kim Memorandum”) concerning the Property. (Kim Depo. pp. 20-21, 167-68, Ex. 22.) Lamenting the present state of the Property, Kim proposed a three-part strategy to convert the Property “from a major eyesore and public health threat to a vibrant commercial development.” First, “get the lot condemned.” Kim states that the City must bring together “DBS, Fire, LAPD, Sanitation, Street Services, DPH & DPSS (County)” and that “complaints need to go through the roof consistently” to prompt the condemnation. Second, “execute a successful Free the Land campaign.” Kim states that “[l]ocal independent organizations could play an important role by organizing a series of public events and actions to the issue of absentee landowners who contribute to blight, prevent economic vitality and threaten public safety.” Third, “win eminent domain.” Kim explains that “[t]he key to winning eminent domain is to have a legitimate and very clear public purpose for the lot. A pure commercial purpose is not the strongest case for eminent domain.” (Kim Depo. Ex. 22.)

On July 1, 2016, the County through County Supervisor Mark Ridley-Thomas (“Ridley-Thomas”) and the City through Councilmember Harris-Dawson held a news conference on the Property to “discuss efforts to address longstanding blighted and vacant properties throughout Los Angeles that pose a threat to public safety.” (Kim Depo. pp. 83-84, Ex. 7.)

Starting in mid-2016, Sasson Defendants began receiving a “barrage of press releases and articles from the City and/or County about how [] Sasson was ‘holding LA hostage’ and was a generally bad guy because he had not yet started construction of the VEV project on his own private property.” (Duenas Decl. ¶ 6.)

In October 2016, Karly Katona (“Katona”), a former Senior Deputy for County Supervisor Ridley-Thomas, reached out to Lisa Trifletti (“Trifletti”), a land use attorney, for assistance in addressing blight in the Vermont/Manchester area. (Katona Depo. Ex. 3.) In November 2016, Trifletti signed a consulting agreement (“Consulting Agreement”) with the County. (Trifletti Depo. p. 262-63, Ex. 16.) Per the Consulting Agreement, Trifletti was tasked with “provid[ing] project management, and strategic land use, entitlement, interagency coordination, stakeholder engagement, and economic development advice to encourage and support the revitalization of the Vermont/Manchester Area.” (Trifletti Depo. Ex. 16, p. 42.) Among other things, this task included (1) “[a]ssist[ing] City of Los Angeles to acquire and/or control property, including nuisance abatement strategies, to prepare for future redevelopment” at 8524 Vermont Ave., one of the parcels comprising the Property, and (2) “[s]erv[ing] as a liaison for Vermont/Manchester Area revitalization efforts with the City of Los Angeles,” and (3) “[d]irect[ing] zoning enforcement and nuisance abatement efforts, including alley vacations and activate dormant or underutilized city-, former CRA-, county- and state-owned property.” (Trifletti Depo. Ex. 16, pp. 42-43.)

From late 2016 through September 2017, Sasson Defendants received an increased amount of code citations, code enforcement complaints, and nuisance abatement threats directed at the Property. (Duenas Decl. ¶¶ 7-8.)

In the summer of 2017, Katona and Kim formed “some type of agreement” whereby the County would take over the City’s efforts to condemn the Property. (Katona Depo. p. 218.)

Accepting Sasson Defendants’ evidence and reasonable inferences therefrom as true and disregarding the County’s conflicting evidence, Sasson Defendants have shown that the City and County collaborated (to some extent) in condemning the Property. Given this collaboration and the County’s early involvement in addressing blight on the Property, the Court concludes that there is a triable issue of fact as to whether the County engaged in unreasonable precondemnation conduct.[4]

2. Diminution in Market Value

The second element of Klopping damages is that the unreasonable conduct causes the condemned property to suffer a diminution in market value. (Klopping, supra, 8 Cal.3d at 52.) “The measure of damages may be the cost of repairs, the loss of use of the property, loss of rent, loss of profits, or increased operating expenses pending repairs.” (Tilem v. City of Los Angeles (1983) 142 Cal.App.3d 694, 703.) However, “there is no recovery via Klopping for uses and injuries that are only speculative, conjectural, or remote.” (Contra Costa Water Dist. v. Vaquero Farms, Inc. (1997) 58 Cal.App.4th 883, 902.)

In this action, Sasson Defendants assert two types of precondemnation damages: (1) loss of use and (2) loss of profit. (See Bergman Decl. Ex. P.) The County argues that Sasson Defendants are not entitled to said damages because (1) Sasson Defendants cannot show that the County’s purportedly unreasonable conduct caused the Property to suffer a diminution in market value and (2) Waldron’s appraisal calculations are partly inadmissible and wholly meritless.

a. Causation

The County asserts that their purportedly unreasonable conduct did not cause the Property to suffer loss of use or loss of profits damages because the VEV proposed development was not ready to proceed. The County notes that the Sasson Defendants did not purchase three of the 16 parcels comprising the Property until November 15, 2017. (Bergman Decl. Ex. F.) Duenas, Sasson Defendants’ PMK, testified that these parcels were essential to moving the VEV project forward: “when you have entitlements that incorporate certain parcels, you have to own those parcels in order to start construction. So with this [VEV] concept, we were tied to needing those three parcels. If not, we would have had to start all over again back at step [one], which we were really hoping we did not have to do that because we would have lost a lot of time if we would have went back and started all over again.” (Duenas Depo. p. 30.) Duenas testified that Sasson Defendants also needed to obtain a tract map which it could not do until they owned the three CRA parcels. (Duenas Depo. p. 31.) The County notes that these purchases occurred less than a month before the Los Angeles County Board of Supervisors held a hearing and unanimously approved a Resolution of Necessity (“RON”) to condemn the Property on December 5, 2017. (Bergman Decl. ¶ 10, Ex. I.) The County’s argument is persuasive.

In opposition, Sasson Defendants curiously fail to address this critical argument. Perhaps, Sasson Defendants are impliedly asserting that the aforementioned County-City collusion to condemn the Property extends to the CRA, a City entity, and motivated the CRA to delay its sale of the three parcels to Defendants. But this is an untenable inference because it is far removed from any factual predicates. For example, what were the CRA’s interactions with Sasson Defendants? What kinds of dilatory tactics did CRA purportedly engage in to prolong the sale of these parcels? What actions did Sasson Defendants take to consummate the sale of these parcels? As the County points out in reply, the judicial proceedings preceding this sale do not support this inference. In early 2017, CRA offered to sell these three parcels to Sasson Defendants at a price calculated by neutral appraisers. (RJN Ex. 2.) Sasson Defendants declined the offer which allowed the CRA to shop the properties on the open market. (Ibid.) Whatever purported County obstruction occurred, this evidence indicates that County obstruction was not the reason why Sasson Defendants had yet to purchase these three parcels.

Furthermore, Sasson Defendants’ loss of profit and loss of use damages are predicated on the notion that the County’s unreasonable conduct precluded the Property’s use and profits prior to its taking. Given the speculative nature of such damages, such damages “are recoverable where the evidence makes reasonably certain their occurrence and extent.” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773-74 (general rule governing prospective lost profits).) Sasson Defendants have not submitted any evidence estimating how much time would be required to construct this large-scale development and have submitted insufficient evidence showing how the Property would be used and what sorts of profits it would generate if the VEV was built out. Without this basic evidence, the Court cannot determine that unreasonable conduct occurring a few months or a couple years before the taking would cause loss of use or loss of profit damages.

Because Sasson Defendants have not submitted any probative evidence on this issue of causation, the County is entitled to a court order precluding Sasson Defendants from recovering Klopping damages in this action.

b. Waldron’s Appraisal

The County contends that Waldron used an impermissible method to calculate damages for “lost profits.” The Court need not address this argument. The issue raised in this motion is whether the County’s purportedly unreasonable conduct caused Sasson Defendants to lose prospective profits. Assuming arguendo that Waldron employed an improper method of valuation to calculate lost profits, this error would not necessarily establish that Sasson Defendants cannot recover lost profits.

3. Conclusion

The County’s motion is GRANTED. Sasson Defendants are not entitled to precondemnation damages in this action.

D. Precondemnation Appraisal Fees

The County moves for a legal issue determination that Sasson Defendants are not entitled to an award of additional precondemnation appraisal fees in this action.

CCP section 1263.025 states in pertinent part: “A public entity shall offer to pay the reasonable costs, not to exceed five thousand dollars ($5,000), of an independent appraisal ordered by the owner of a property that the public entity offers to purchase under a threat of eminent domain, at the time the public entity makes the offer to purchase the property.”

Pursuant to this statute and upon the request of Sasson Defendants’ counsel, the County paid Sasson Defendants $5,000. (Bergman Decl. ¶ 6, Ex. E.) Sasson Defendants, however, demand additional $5,000 payments, one for each of the entities that own the various parcels comprising the Property. The County contends that this demand is unsupported by CCP section 1263.025 because, inter alia, this statute limits reimbursement to “reasonable costs… of an independent appraisal ordered by the owner of a property” and there is no evidence that Sasson Defendants ordered several independent appraisals. (See Bergman Decl. Ex. D.) The Court agrees.

In response, Sasson Defendants do not contest the merits of the County’s arguments or provide contrary evidence. Instead, Sasson Defendants argue that CCP section 1260.040 does not provide a statutory basis for making this motion. The Court disagrees for two reasons. First, the statute’s plain language does not bear out the Sasson Defendants’ argument. “If there is a dispute between plaintiff and defendant over an evidentiary or other legal issue affecting the determination of compensation, either party may move the court for a ruling on the issue.” (CCP § 1260.040(a).) The issue of whether Sasson Defendants are entitled to additional appraisal fees is a legal issue affecting the determination of Sasson Defendants’ compensation in this action. This is therefore an issue encompassed by this statute. Second, assuming arguendo that this statute was inapplicable, a basic law and motion tenet is that “a trial court may disregard the caption of a motion and instead treat it in accordance with the relief it seeks.” (Hudson v. Superior Court (2017) 7 Cal.App.5th 999, 1011.) The County is plainly seeking a legal determination of whether Sasson Defendants are entitled to additional appraisal fees. Using its inherent power, the Court will entertain and grant this motion. (See Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 288.)

The County’s motion is GRANTED. Sasson Defendants are not entitled to additional precondemnation appraisal fees.


[1] The Sasson Defendants are 8400 S. Vermont Avenue LP; 8300 S. Vermont LP; Sasson Lerner, LLC; 8430 S. Vermont Ae. LLC; 8400 S. Vermont Avenue LLC; 8528 South Vermont Avenue LC; Vermont Development LLC; and Vermont Entertainment Village, LLC.

[2] The County contends that Dina refers to nonsuits to explain the standard of review on appeal, not the legal standard at the trial court level. (Reply re: Klopping Damages, p. 13.) The County contends that, to the contrary, Dina endorses the proposition that a trial court can weigh evidence when making a legal issue determination under CCP section 1260.040. The Court disagrees. It makes no practical sense for the trial court to adopt a legal standard allowing for the weighing of evidence and for the appellate court to adopt a nonsuit standard of review which accepts the nonmoving party’s evidence as true. This would translate to numerous reversals at the appellate level even though the trial court technically committed no errors. The Court does not believe that Dina contemplates such a result.

[3] Citing to City of Oakland v. Pacific Coast Lumber & Mill Co. (1915) 171 Cal. 392, the County asserts that the issue of whether a larger parcel exists is a “matter of law” so the Court can and should decide this issue pursuant to CCP section 1260.040. The Court is unpersuaded. The California Supreme Court’s full explanation for this conclusion is instructive: “[T]his question of fact (namely, whether or not, the probative facts being without controversy, the resultant fact establishes the existence of a parcel from which a portion is to be taken) is essentially a question of law for the determination of the court. It is only the ‘compensation,’ the ‘award,’ which our constitution declares shall be found and fixed by a jury. All other questions of fact, or of mixed fact and law, are to be tried, as in many other jurisdictions they are tried, without reference to a jury. (City of Oakland, supra, 171 Cal. at 397-98 (emphasis added).) In the Court’s view, City of Oakland compels a bench trial for resolving factual questions concerning whether a larger parcel exists. (See also City of Perris v. Stamper (2016) 1 Cal.5th 576, 593 (“[A]ll issues except the sole issue relating to compensation[] are to be tried by the court….”).)

[4] In reply, the County argues that Sasson Defendants have failed to show why the City’s conduct should be imputed to the County. The Court agrees that this is a major evidentiary hurdle that Sasson Defendants likely must overcome to obtain Klopping damages. However, for purposes of this motion which is subject to the deferential nonsuit legal standard, it suffices that Sasson Defendants have shown some precondemnation collaboration of the County and City with respect to the Project. This collaboration includes (1) the July 1, 2016 joint news conference, (2) the Consulting Agreement which appointed Trifletti as a County-City “liaison” and (3) the Katona-Kim agreement by which the County apparently took over the City’s condemnation efforts. In light of this collaboration, it is possible that the Sasson Defendants can show, directly or indirectly, that the County and the City worked together to issue code citations to the Property and brought negative media attention to pressure the Sasson Defendants to sell the Property.