PARKING AUTHORITY OF THE CITY OF SACRAMENTO,, Plaintiff and Respondent, v. GEORGE P. NICOVICH et al., Defendants and Appellants.
Civ. Nos. 13401, 13552
Third Dist.
May 16, 1973
420, 421, 422, 423, 424, 425, 426, 427, 428, 429, 430, 431, 432, 433, 434, 435
James P. Jackson, City Attorney, G. Richard Brown, Deputy City Attorney, McDonough, Holland, Schwartz, Allen & Wahrhaftig, McDonough, Holland, Schwartz & Allen and Milton L. Schwartz for Plaintiff and Respondent.
Desmond, Miller & Desmond and Richard F. Desmond for Defendants and Appellants.
OPINION
DAVID, J.*—Defendants appeal from the judgment entered July 8, 1971, awarding them $116,000 as compensation for their real property, condemned in fee for public parking purposes. Their complaint is that the award does not include “moving expenses,” damages by reason of relocation of their business, alleged loss in value to an assertedly unique auto parts inventory, loss of customers and business goodwill and costs of advertising in relation to the move.
Under the applicable law and the circumstances, defendants’ rights to compensation became fixed as of the date of trial. (
Under the law then applicable, the court properly excluded proof in support of the so-called moving expenses and other consequential damage items. Neither
Special affection for the property is excluded. (Los Angeles Gas & Elec. Corp. v. Etienne (1927) 83 Cal.App. 645 [257 P. 123].) An award for damages to business is not authorized, nor is an award for loss of earnings. (City of Long Beach v. Wright (1933) 134 Cal.App. 366, 379 [25 P.2d 541].)
Over the years, the movement to cut down the damnum absque injuria saddled upon the condemnee has gained momentum. As of July 1, 1972, the effective date of amended
There is a general presumption that statutory changes do not apply retroactively, unless the Legislature expresses an intent that they do so. (Wilke & Holzheiser, Inc. v. Dept. of Alcoholic Bev. Control (1966) 65 Cal.2d 349, 371 [55 Cal.Rptr. 23, 420 P.2d 735].) In this instance, the general intent is expressed to the contrary in
Prior to July 1, 1972,
Defendants make an additional claim, asserting that at the time of the taking of their property, the state Legislature required the payment of moving expenses, and other consequential damages in other designated property acquisitions. Hence, it is urged, equal protection of the laws demands that such detriments be compensated in all cases, including theirs.
In 1969, the Legislature enacted an expanded authorization for relocation assistance, adding
By California Statutes (1971), chapter 1574, all of such special acts were repealed, and compensation is provided for in all cases to the extent provided by
It is true that
Regarding this guarantee, the Supreme Court stated in Professional Fire Fighters, Inc. v. City of Los Angeles (1963) 60 Cal.2d 276, 288-289 [32 Cal.Rptr. 830, 384 P.2d 158]: “Of course, the authority and duty to ascertain the facts which will justify class legislation lies with the Legislature and not with the courts (In re Herrera, 23 Cal.2d 206 [143 P.2d 345]) and the Legislature is vested with a wide discretion in adopting classifications to which any particular statute is made applicable (Johnson v. Superior Court, supra, 50 Cal.2d 693 [329 P.2d 5]; State of California v. Industrial Acc. Com., 48 Cal.2d 365 [310 P.2d 7]), and every presumption is in favor of its validity [citations].”
The permissive authority granted simply vested in the named public entities the power to make expenditures for the purposes specified. It was no different from any other grant of power to local governments. It has long been held that the grant of powers to such agencies creates no rights in the citizenry to demand their exercise.
“When a legislative classification is questioned, if any state of facts reasonably can be conceived that would sustain it, there is a presumption of existence of that state of facts, and the burden of showing arbitrary action rests upon the one who assails the classification.” (People v. Western Fruit Growers (1943) 22 Cal.2d 494, 507 [140 P.2d 13].)
If, as defendants contend,
Since
It is a matter of common knowledge, and hence of judicial notice, that highway construction (such as the Hollywood Freeway), and redevelopment (such as that on Bunker Hill, Los Angeles) resulted in the displacement of thousands of persons from dwellings and business establishments, both tenants and landowners. Eminent domain awards, depleted by costs of moving and relocation, were insufficient to supply those displaced with equivalents of the properties from which they had been displaced. Often, this was entirely unavailable. A natural disaster, perhaps, could not have created more personal havoc. Construed together, the provisions of
Quoting Miller v. Wilson (1914) 236 U.S. 373, 382-384 [59 L.Ed. 628, 631-632, 35 S.Ct. 342], affirming Matter of Application of Miller (1912) 162 Cal. 687 [124 P. 427], the United States Supreme Court has held: “The legislature is not debarred from classifying according to general considerations and with regard to prevailing conditions; otherwise, there could be no legislative power to classify. . . . [T]he legislature is not bound, in order to support the constitutional validity of its regulation, to extend it to all cases which it might possibly reach. Dealing with practical exigencies, the legislature may be guided by experience. [Citations.] It is free to recognize degrees of harm, and it may confine its restrictions to those classes of cases where the need is deemed to be the clearest.” As it is with classification for regulation, we deem the power no less extensive in dealing with civil problems arising from the displacement of persons.
In life, and in law, there are many situations where advantages are received or withheld, and where persons do not qualify for them by narrow margins of time or circumstance. But in this instance, sympathy cannot expand the rights precisely created by the code.
It has been argued that the Legislature, in providing for relocation costs occasioned by the exercise of eminent domain, has thus made its own interpretation of the
The Legislature made this abundantly clear. In
This suggests another reason why the mandatory provisions of
In respect to the matters under consideration—removal costs—the statutory development is to be observed in juxtaposition to the pertinent court decisions. In 1965, in Town of Los Gatos v. Sund, 234 Cal.App.2d 24 [44 Cal.Rptr. 181], the court considered the condemnee‘s claim for moving costs. There, as in the instant case, it was pointed out that the Legislature had expanded the elements of damage to be recovered in eminent domain as to some items.
Nevertheless, it was held that there was no constitutional right to recover such costs, under either the state or federal Constitutions. Referring to Oakland v. Pacific Coast Lumber etc. Co., supra, 171 Cal. 392, the court stated (p. 27): “The decision related to damages for loss of business, and not to moving costs, but the principle is the same, namely, that the Constitution simply requires payment for taking or damaging property. The compensation is ‘for the property, and not to the owner.’ (Monongahela Navigation Co. v. United States, 148 U.S. 312 [13 S.Ct. 622, 37 L.Ed. 463]; Pacific Gas & Elec. Co. v. Chubb, 24 Cal.App. 265, 267 [141 P. 36].)”
Concluding the opinion in Town of Los Gatos v. Sund, supra, 234 Cal.App.2d at page 28, the court declared: “[W]e believe that in view of the cases cited above, this argument is one to be addressed to the Legislature. We have taken note of appellants’ plea that incidental losses affect an ever-increasing multitude of people as eminent domain is more widely used (see Eminent Domain Valuations in An Age of Redevelopment: Incidental Losses, 67 Yale L.J. 61, 63-64) but it is not for us to change the established law.”
In Klopping v. City of Whittier (1972) 8 Cal.3d 39, 51, footnote 4 [104 Cal.Rptr. 1, 500 P.2d 1345], the Supreme Court stated in part: “However, the Legislature may by statute include in the final award certain costs and expenses not required by the Constitution. (Cf. County of Los Angeles v. Ortiz (1971) 6 Cal.3d 141, 144-145 [98 Cal.Rptr. 454, 490 P.2d 1142]; compare Central Pacific R. Co. v. Pearson (1868) 35 Cal. 247, 263, overruled on other grounds in County of Los Angeles v. Faus, 48 Cal.2d 672, 680 [312 P.2d 680]; Town of Los Gatos v. Sund (1965) 234 Cal.App.2d 24, 28 [44 Cal.Rptr. 181], with
There is no warrant, in view of such statements, to conclude that the Legislature, in enacting statutes allowing additional recovery for detriments associated with the eminent domain proceeding, expanded the constitutional requirements of
The damages contemplated by
The Legislature, having the power to provide for payment of additional items of claimed detriment, did so in various instances. If in the exercise of the right of eminent domain, the tracks of any railroad, street or interurban railway are required to be removed, it is provided by
Separately (consolidated with No. 13401) defendants appeal from disallowance of items claimed as costs, by their supplemental memorandum of costs.
The judgment as noted above was entered on July 8, 1971. Defendants desired to remain on the property. A stipulation was made that they would deliver possession of the property on or before December 1, 1971, and would pay rent to plaintiff until possession was surrendered; defendants were permitted to withdraw the sum awarded them by the judgment, without prejudice to their appeal. Subsequently, defendants sought to be relieved from the stipulation and sought an order allowing them to remain in possession for additional time, since plaintiff refused to extend the time by stipulation; plaintiff obtained an order to show cause why defendants should not be held in contempt for failure to surrender the premises. A series of hearings followed, during which defendants’ gradual removal from the premises was noted. On February 1, 1972, defendants apparently having completed their move, they withdrew their motion to remain in possession and plaintiff Parking Authority withdrew the order to show cause re contempt.
Defendants’ supplemental cost bill included attorney‘s fees and expenses for witnesses who testified during their legal skirmishes, in which they sought to prolong their stay and to avoid being held in contempt. The trial court properly disallowed such items as costs. (1) They were not made necessary to secure just compensation for the taking accomplished by eminent domain. (2) The matter having been determined by mutual dismissals, defendants were not prevailing parties, entitled as such to costs. (3) If the award of costs was discretionary, the trial judge determined their claim adversely. (4) The arrangement to remain upon the premises, paying rent, was a contractual arrangement, not at all a part of the eminent domain procedure. (5) Attorney‘s fees are not allowable in these holdover proceedings. (Cf. County of Los Angeles v. Ortiz (1971) 6 Cal.3d 141 [98 Cal.Rptr. 454, 490 P.2d 1142]; Klopping v. City of Whittier,
The order taxing and disallowing costs to defendants on their supplemental memorandum of costs is affirmed.
The judgment is affirmed.
Janes, J., concurred.
FRIEDMAN, Acting P. J.—I dissent from that portion of the majority opinion which denies the landowners’ claim for consequential damages described in
The decision of this appeal involves more that an isolated case of a retail establishment‘s moving expenses. It involves the scope and application of the entire range of relocation expenses provided by the Government Code chapter entitled “Relocation Assistance.”
Over the years the Legislature supplied statutory authority for paying the condemnation-caused relocation expenses of a few selected commercial enterprises. (See, e.g.,
On April 6, 1970, the present condemnation suit was filed. In that same year the Legislature amended the relocation law to eliminate the restriction to Los Angeles County. (Stats. 1970, ch. 983.) The 1970 amendment became effective November 23, 1970. The 1970 law did not amend
In May 1971 this case went to trial; the trial date became the “valuation date” for fixing the defendants’ compensation in damages. (
Were it so minded, the Legislature might by statute interpret
Constitutional guarantees of equality and uniformity do not prevent statutory classifications reasonably related to a legitimate public purpose. (Hayes v. Superior Court, 6 Cal.3d 216, 223 [98 Cal.Rptr. 449, 490 P.2d 1137].) There is no intrinsic difference between a municipal utility district, for example, and a public parking district warranting diversity in the grant or denial of relocation expenses. There are no intrinsic differences among condemnees justifying discrimination by the litmus of the condemner‘s benevolence or parsimony.
If, conceivably, fertile imagination can conjure up a rational basis for these discriminations, the Legislature has not troubled to describe it. Not a word, not an implication, in any of these statutes explains why the Legislature gave condemning agencies a blank check to discriminate among landowners. In all deference, I suggest that the majority opinion stretches judicial notice past the breaking point in finding stressful conditions in Los Angeles County meriting special financial benefits for landowners in that county. A court cannot create “constitutional facts” in that manner. (U. S. v. Carolene Products Co., 304 U.S. 144, 153-154 [82 L.Ed. 1234, 1242-1243, 58 S.Ct. 778]; 16 C.J.S., Constitutional Law, § 97, p. 356.) I prefer to take “judicial notice” that a condemnee in San Joaquin or Del Norte County is no less damaged by a highway condemnation than a Los Angeles landowner; that a condemnee displaced by a public parking facility is no different from one displaced by a state highway.
As the majority opinion points out, the 1971 Legislature expressed its intention against retroactivity of the 1971 law‘s mandatory provisions. We should be less concerned with the Legislature‘s intent than that it obey the Constitution. The question is not one of retroactivity at all, for the 1971 amendment to
Moreover, the word “may” in
Construed to avoid unconstitutionality, the relocation expense provisions of the Government Code, as amended in 1970, must be applied as a governing rule of damages in condemnation trials characterized by a valuation date following the effective date of the 1970 amendments, November 23, 1970. The trial court therefore erred in denying defendants the opportunity to adduce evidence of their moving expenses.
A petition for a rehearing was denied June 4, 1973, and appellants’ petition for a hearing by the Supreme Court was denied July 12, 1973. Mosk, J., was of the opinion that the petition should be granted.