Verizon of California v. Carrick

 

 

 

 

 

Filed 7/17/14  Verizon of California v. Carrick CA6

 

 

 

 

 

 

 

 

 

 

 

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SIXTH
APPELLATE DISTRICT

 

 
>

VERIZON OF CALIFORNIA, INC.,   Plaintiff and Respondent,       v.   PAUL CARRICK et al.,   Defendants and Appellants.

H038157      (Santa Clara County       Super. Ct. No. CV028324)

 

            This case
concerns a private road that was condemned for a href="http://www.fearnotlaw.com/">subterranean easement to install
telephone cable. The Summit Road Association (SRA), is a group of people who
maintain the private road with donations from and the efforts of its 140 landowner
members. 

Judgment was entered in this case
following a jury trial to determine just compensation.  All of the the individual landowners whose
property was affected by the condemnation have been fully compensated.  However, the SRA appeals the court’s decision
that it did not have a compensable interest in the property that was
condemned.   

Statement of the Facts and Case

            In October
2004, respondent Verizon California, Inc. (Verizon) filed a complaint in
eminent domain.  Verizon sought to place
underground fiber-optic telephone cables along Summit
Road between Los Gatos
and Gilroy.  The area at issue is privately owned by the
owners of the property through which the road passes.  The complaint names the record owners of the
properties in which Verizon sought to condemn an easement; the SRA was not
named as a defendant in the original complaint.  On October
15, 2004, Verizon secured an order for prejudgment possession,
allowing it to begin installing cable along Summit
Road.

            On March 7,
2005, the SRA filed a motion to vacate the order of prejudgment possession on
the ground that Summit Road was “owned and maintained by the SRA.”  On December 1, 2005, Verizon filed a “href="http://www.fearnotlaw.com/">First Amended Complaint” adding the SRA
as a defendant because the SRA claimed a property interest in the road.

            In October
2006, the SRA filed a verified answer to the “First Amended Complaint” in which
it stated it was “the owner in interest of certain fees simple on behalf and as
assignees from SRA Defendants of all fees simple absolute described in
[Verizon’s] pleadings….”  (Emphasis
omitted.)  The SRA also asserted it was
“entitled to mitigation damages for . . . that section of Summit
Road that the SRA is entrusted to maintain.”

            Half of the
defendants, including the SRA opposed the proposed condemnation.  The remaining defendants named in the “First
Amended Complaint” settled with Verizon or opted to allow a default to be
entered.

            In its
opposition to the condemnation, the SRA argued that Verizon’s proposed project
was subject to the provisions of Public
Utilities Code section 625.  The
court conducted a bench trial on this issue and in August 2007, the court
ordered Verizon to comply with the code section.  In response, Verizon sought an order from the
California Public Utilities Commission (CPUC) finding that the proposed
condemnation served the public interest.

            In June 2008,
the CPUC issued an order finding that Verizon’s proposed project served the
public interest.  The SRA filed an
application for reconsideration with the CPUC that was denied.  In addition, the SRA filed a href="http://www.fearnotlaw.com/">petition for writ of review with the
California Supreme Court that was also denied.

            In a
bifurcated trial in 2009, the court determined that Verizon had the right to
exercise eminent domain to condemn a subterranean utility easement along Summit
Road.  The
court also found that Verizon could condemn a temporary construction easement.

            At the time
for jury trial on the issue of compensation for the taking, Verizon filed a href="http://www.mcmillanlaw.us/">motion in limine to exclude the valuation
testimony of the SRA’s appraiser, Chris Pedersen.  One of the grounds for the motion was that
the SRA did not own a compensable interest in the property being condemned.

            The court
conducted a hearing pursuant to Evidence Code section 402 to determine what testimony
Chris Pedersen could offer at trial. 
Following the hearing, the court determined that the SRA did “not have a
viable property interest in the property affected by the taking,” because the
SRA did not own any real property.  The
court allowed Chris Pedersen to testify at trial, but only to the quantum of
mitigation damages suffered by the property owners as a result of the
condemnation. 

            During
trial, Chris Pedersen testified, allocating 100 percent of the damages to the
individual property owners.  In December
2010, the jury returned a verdict and awarded compensation to the
landowners.  The court entered judgment
on April 12, 2011, and
Verizon deposited monies with the court to cover the award.

            In September
2011, the landowners filed an application to withdraw their share of the funds
on deposit.  The landowners also filed a
motion requesting additional prejudgment interest.  The parties agreed that Verizon would pay $25,967.25
to the landowners to cover all claims of prejudgment interest by them.    

            On January 6, 2012, the parties agreed
that Verizon’s payment would resolve any outstanding issues regarding
compensation to the landowners, and that the money would be paid into the
client trust account of counsel for the landowners.  The judge signed the order on January 12, 2012.

            The SRA
filed a notice of appeal.

Discussion

            On appeal,
the SRA asserts the trial court erred in deciding in limine that the SRA did
not have a compensable interest in the condemned property.  The SRA argues that an in limine motion was
not a proper procedure to make a determination of standing, and that it could
assert its claim under associational standing regardless of the actual
ownership of the property at issue.      

In Limine Motion

The SRA argues that Verizon’s
motion to limit the testimony of its appraiser, Chris Pedersen, was not a
proper mechanism for the court to ultimately decide the SRA did not have a
compensable interest in the property being condemned. 

The SRA cites a decision of this
court, Amtower v. Photon Dynamics, Inc.
(2008) 158 Cal.App.4th 1582 (Amtower)
to support its argument that the issue of standing should not have been decided
in limine.  In Amtower, this court criticized the increasingly frequent “use of in
limine motions as substitutes for summary adjudication motions, motions for
judgment on the pleadings, or other dispositive motions authorized by statute.”
 (Id.
at p. 1588.)  This court published
the Amtower opinion “to express our
concerns surrounding the proliferation of such shortcut procedures.”  (Ibid.)
 There, this court observed: “The better
practice in nearly every case is to afford the litigant the protections
provided by trial or by the statutory processes.”  (Ibid.)  The SRA argues it should have been entitled
to a full evidentiary hearing on the issue of whether the SRA had standing to
seek compensation.

While this court criticized the use
of in limine motions for dispositive issues, it did not set forth a blanket
prohibition on such use.  Specifically,
this court did not reverse the judgment in Amtower,
finding that “the trial court’s unorthodox procedure does not warrant reversal
because plaintiff could not have prevailed under any circumstances.”  (Amtowner,
supra, 158 Cal.App.4th at p. 1588.)

Here, we reach the same conclusion.  In making its
determination regarding the SRA’s standing to seek compensation, the court was
presented with ample evidence, including the testimony of Chris Pedersen, the
SRA’s own expert that the SRA did not own any property.  The court also had statements of the
president of the SRA, Ken Moore that the SRA does not hold any ownership
interest in the road, and owns no real property.  Finally, the court had the statements of the
lead landowner defendant, Paul Carrick, that he never assigned any property
interest to the SRA.  The court’s
conclusion that the SRA did not have a compensable interest in the condemned
property was supported by substantial evidence.

Moreover,
the SRA cannot demonstrate any prejudice from the court’s decision.  After ruling that Chris Pedersen could
not testify about the SRA’s ownership of property, the court allowed him to
testify about the total mitigation damages suffered by the property
owners.  Mr. Pedersen testified during
trial allocating 100 percent of the mitigation damages to the property
owners.  Following trial, the jury
awarded compensation to the property owners for the condemnation.  The parties stipulated to prejudgment
interest, and a judgment was entered.     


“[W]e cannot reverse the judgment
of dismissal based on . . . alleged [procedural] error … unless we are
convinced that that ruling resulted in a miscarriage of justice . . . .”  (People
v. Edward D. Jones & Co. (2007) 154 Cal.App.4th 627, 634; see Cal.
Const., art. VI, § 13.)  There was no
miscarriage of justice in this case.  All
of the property owners were compensated by Verizon for the condemnation.

 

 

Associational
Standing

            The
SRA argues in the alternative that regardless of the issue of whether it owned
the condemned property, it could seek compensation under the principle of
associational standing.  

Associational standing applies
where the association is seeking “declaratory or injunctive relief which would
inure to the benefit of the . . . organizations’ members.”  (County of San Luis Obispo v. Abalone
Alliance (1986) 178 Cal.App.3d 848, 863-864, fn. omitted.)  By contrast, when an association seeks
damages for harm supposedly suffered by its members, associational standing is
inappropriate, because an award of damages necessarily requires the
participation of individual members in the lawsuit.  (Ibid.)

          Here,
the SRA was seeking to assert a claim for just compensation during the jury
trial.  (See, e.g., Citizens Utilities
Co. v. Superior Court (1963) 59 Cal.2d 805, 816 [the property owner in an
eminent domain action “is entitled to a jury trial on the issue of just compensation”].)  This claim necessarily requires the
participation of the individual landowners affected by the condemnation.  Indeed, the mitigation damages were
attributed 100 percent to the individual landowners during trial, and they were
compensated accordingly.  There are no
grounds upon which the SRA can assert associational standing in this case.

In conclusion, the SRA has not
shown that the court erred in its ruling on the in limine motion.  The court acted within its inherent
discretion in considering the motion. (See, e.g., Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 284 [“[a]
court has inherent equity, supervisory, and administrative powers, as well as
inherent power to control litigation and conserve judicial resources”].)  Moreover, the court’s conclusion that the SRA
did not have a compensable interest in the condemned property was supported by
substantial evidence.  Finally, the SRA
has not been prejudiced by the court’s ruling, because all of the mitigation
damages it sought were attributed to the individual landowners during trial,
and all of the landowners were compensated by Verizon for the condemnation.  

>Disposition

The judgment is affirmed.

 

 

 

 

                                                                        ______________________________________

                                                                                                RUSHING, P.J.

 

 

 

 

 

 

WE CONCUR:

 

 

          

 

 

 

____________________________________

PREMO, J.

 

 

 

 

 

 

____________________________________

ELIA,
J.