THE PEOPLE еx rel. DEPARTMENT OF TRANSPORTATION, Plaintiff and Respondent, v. HANSEN‘S TRUCK STOP, INC., et al., Defendants and Appellants.
No. A133252
First Dist., Div. Four.
Apr. 24, 2015.
236 Cal. App. 4th 178
Law Offices of Thomas Becker and Thomas Becker for Defendants and Appellants.
Ronald W. Beals, David Gossage, Lucille Baca and Douglas C. Jensen for Plaintiff and Respondent.
OPINION
RIVERA, J.—In eminent domain actions, the law directs the parties to exchange formal settlement proposals prior to trial. (
In this eminent domain action, the proceedings were bifurcated. A statutory offer and demand ($784,000 and $5 million, respectively) were made prior to the first trial. In thаt trial the court was asked to decide whether the property
Prior to the second trial the property owners made an amended, much lower demand, but the condemning agency made no new offer. In the second trial the jury determined the amount of compensation due. It returned a verdict in excess of $2.5 million, which was about 85 percent of the property owners’ amended demand of $2.99 million and more than three times the agency‘s original offer of $784,000.
The property owners made a motion to recover their litigation expenses. Looking only at the offer and demand made before the first trial date, the trial court denied the motion for litigation expenses because the property owners’ demand of $5 million was unreasonable. The property owners appealed the order.
The appeal poses two questions of statutory interpretation. First, when directing the court to consider only the offers and demands made “prior to the date of the trial” to determine entitlement to litigation expenses, does the statute mean the court must consider only offers and demands made prior to the first date set for trial? If it does not, then the second question is, in a bifurcated proceeding, does the statutory phrase “prior to the date of the trial on issues relating to compensation” refer to (a) the trial in which the right to damages is adjudicated, or (b) the trial in which the amount of compensation is adjudicated?
We conclude the statute does not restrict the court to considering only the offer and demand made prior to the first date set for trial. We further hold that, in a bifurcated proceeding, “the trial on issues relating to compensation” means the trial in which the amount of compensation is determined. We will therefore vacate the order denying litigation expеnses and remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
In December 2007, the State of California (the State), through its Department of Transportation, filed a complaint in eminent domain, seeking to condemn a portion of a larger parcel owned by the Hansens,2 for the purpose of building a highway interchange. The Hansens operated a truck stop on the larger
Two months prior to the trial date the State filed a motion to bifurcate the proceedings, seeking separate adjudication of the Hansens’ alleged entitlement to seek damages for impairment of access and loss of goodwill. The court granted the bifurcation request, and ordered that “[t]he jury phase of the trial, to determine the amount of just compensаtion . . . shall immediately follow the court phase of the trial.”
Prior to the March 2009 trial date, the State filed its “Final Offer of Compensation” pursuant to
After several continuances, the court trial on the bifurcated issues was scheduled for September 2, 2009, and the jury trial on compensation was set for an estimated start date of September 17. The bench trial went forward in September, but the court did not issue its decision until October. It ruled that the Hansens “ha[d] proven entitlement to the benefits of the goodwill statute for not only substantial impairment of access and loss of visibility and exposure, but also for impairment of the internal use of [their] property.”
The jury trial on compensation was set for February 22, 2010, but was continued by agreemеnt of the parties to April 19, 2010. Twenty days before the continued trial date, the Hansens filed a second “Final Demand for Compensation.” The new demand was for $2.99 million, comprising $570,000 for the take, $200,000 for goodwill, $340,000 for loss of tangible property and $1.88 million for severance damages. The State did not file a new offer, but did file an acceptance of only the goodwill portion of the new demand, in the amount of $200,000.
The Hansens opposed the acceptance, stating they had no intention of separately settling the component parts of their demand. The State moved for an order overruling the Hansens’ objection, arguing that it had served “a valid and operable acceptance of defendants’ March 30, 2010, revised statutory demand for goodwill compensation,” and that elimination of the goodwill issue will significantly shorten the trial and thus “fulfill the intent and purpose
After two more continuances, the jury trial finally commenced on January 18, 2011. On February 9, 2011, the jury issued a special verdict, which awarded compensation to the Hansens in the sums of $525,122 for the land and improvements, $300,000 for loss of goodwill, $8,000 for vegetation easement, and approximately $1.7 million in damages to the remainder of the property. The total judgment, exclusive of interest, was $2,533,122.
The Hansens filed a motion to recover $345,306 in litigation expenses. The Hansens argued that their final demand of $2.99 million was reasonable and the State‘s final offer of $784,000 was unreasonable, in light of the jury‘s award in excess of $2.5 million.
The State opposed the motion, arguing that only the Hansens’ first demand, in the amount of $5 million, could be considered in determining whether the court should award litigation expenses because the second demand (for $2.99 million) was filed after the trial had commenced, and was therefore untimely.
The Hansens contended that the second demand was timely and argued, further, that the State had waived its objections to the timeliness of the demand by its partial acceptance of the goodwill component of the demand and by its admission that the demand was “in compliance with Section 1250.410.”
The trial judge rejected the waiver argument as unsupported by authority, and agreed with the State‘s position. The court concluded that case law “required” it to use the Hansens’ first demand when evaluating the reasonableness of the parties’ offer and demand, although it believed the “better result” would be that any final offers or demands made 20 days prior to a trial on issues of compensation should be considered. The court found the Hansens’ first demand of $5 million to be unreasonable, and therefore denied the Hansens’ motion to recover litigation expenses. The Hansens appealed from the order denying the motion.
II. THE STATUTORY FRAMEWORK
A. The Current Statute
The purpose of
B. Historical Changes to the Statute
Finally, we note that the 1999 amendment to the statute changed the deadline for filing the final offer and demand from 30 days to 20 days prior to trial. (Stats. 1999, ch. 102, § 1, pp. 1704-1705.)
III. THE STANDARD OF REVIEW
The parties agree the issues presented are questions of law pertaining to the interpretation and application of
IV. ARGUMENTS ON APPEAL
As we have described,
In Highsmith, the condemnor (the City) filed an offer of $250,000 under
The court rejected both arguments. It concluded that “a recital of the demand and offer in a settlement conference statement, or in any other document, is not an adequate substitute for the formal demand and offer contemplated by
Gardella Square essentially followed Highsmith. The appellate court there concluded that “the original trial date was the proper date to use when determining whether the parties’ final offer and demand were reasonable under
The Hansens question both the application and the reasoning of Highsmith and Gardella Square.4 They argue that the later case of Community Redevelopment Agency v. Matkin (1990) 220 Cal.App.3d 1087 [272 Cal.Rptr. 1] (Matkin) controls.
On appeal, the City argued that the property owners’ actions were “antithetical to the spirit and purposes” of the statute because they “gambled on the possibility that trial would not commence” on the dates originally set. (Matkin, supra, 220 Cal.App.3d at p. 1093.) Because the statute is primarily for the property owners’ benefit, the City argued, their failure to file a timely final demand under the statute extinguished their right to seek litigation expenses. (Id. at p. 1093.) The City also cited the holding in Gardella Square for the proposition that the phrase “date of the trial” in
For their part, the property owners argued that Highsmith was no longer good law because the statute was amended the following year, and the phrase “30 days prior to the date of trial” was changed to “30 days prior to the date of the trial on issues relating to compensation . . . .” (Former
The Court of Appeal rejected both arguments. With regard to the City‘s contention it stated, “we see no reason why a condemnee‘s failure to file a demand 30 days before the original trial date should have any bearing on the effect of filing a demand as to a continued trial date. Allowing the condemnee another chance, even after the failure to timely file at an earlier date, does not defeat the purpose of the statute.” (Matkin, supra, 220 Cal.App.3d at p. 1094.) The court distinguished Gardella Square on the ground that, there, the court decided “which trial date—original or continued—was the appropriate one for purposes of determining the reasonableness of the parties’ final
The court also rejected the property owners’ argument that Highsmith was effectively overruled by the 1982 amendment. The court reviewed the legislative history of that amendment and determined there was no indication the Legislature intended to overrule Highsmith‘s conclusion that only offers and demands made before the “date first set for trial” could be considered. (Matkin, supra, 220 Cal.App.3d at p. 1096Id. at p. 1096.)
The court nevertheless ruled in favor of the property owners, as it agreed with their contention that the intent of
The State seeks to distinguish Matkin as applying only to cases where “there was no statutory demand made prior to a previously scheduled trial date,” and argues that “[Matkin] does not in any way authorize basing
In Mindlin, the proceedings were bifurcated, with preliminary issues being decided by the court, including whether the land being condemned was actually in a riverbed, or in a flood control channel, or was subject to flood hazard, which would preclude its development as a commercial property. (Mindlin, supra, 106 Cal.App.3d at pp. 703-704Id. at p. 703.) After the bench trial, which resulted in rulings favorable to the property owner, the parties agreed to the appointment of an independent appraiser, who opined the property was worth $44,200. More than 30 days prior to the valuation trial, the District made additional offers, one for $40,000 (without interest), and a second one for $44,200 with interest, but subject to the District‘s right to appeal on the preliminary issues. The property owner accepted this offer, subject to his right to request litigation expenses. (Id. at p. 704.)
In seeking litigation expenses, the property owner argued that the only “meaningful” offer was the original offer in the amount of $11,500. (Mindlin, supra, 106 Cal.App.3d at p. 717.) The trial court agreed, finding, among other things, that (1) the operative “date of trial” was that which commenced in June (on the preliminary issues), and (2) the District‘s offer submitted before the date of trial was unreasonable and the property owners’ demand was reasonable. (Id. at pp. 718-719Id. at p. 704.)
On appeal, the District argued that the statutory phrase “before the trial” refers only to the valuation phase of the trial, and therefore the operative offers, for purposes of determining reasonableness, were those made after the trial on the preliminary issues and before the valuation trial. (Mindlin, supra, 106 Cal.App.3d at p. 718 consider the possibility of bifurcated proceedings,” the court concluded it could not “rewrite the statute.” (Ibid.) It determined that the phrase “before the trial” was reasonably construed to mean “before the commencement of trial of the eminent domain action including both legal (and possibly preliminary) issues and valuation of the subject property,” and so, “the pertinent offer was that made by the District before the litigation on the preliminary issues commenced. Since the statute was intended to compensate a condemnee unnecessarily put to the expense of litigation (without specifying litigation on the issue of value) it seems in keeping with that intention to allow, under appropriate circumstances, an award of expenses even when the litigation task is that of presenting the condemnee‘s position on preliminary issues; the expense incurred on such issues is as necessary as that incurred with respect to the valuation issue.” (Ibid.)
The Hansens maintain that the State‘s reliance on Mindlin is misplaced because it was decided prior to the 1982 amendment, which newly specified that the operative offer and demand are to be filed prior to the date of “the trial on issues relating to compensation.” Citing Matkin, the Hansens point out that the intention of the amendment was to clarify that, in bifurcated proceedings, the statutory exchange does not occur prior to the trial in which “noneconomic issues” are adjudicated.
In response, the State argues that the phrase “noneconomic issues” pertains only to issues predicate to the condemnation itself, such as “the condemnee‘s objections to the right to take” (also citing Matkin), and that the issues of еntitlement to damages for loss of goodwill and impairment of access are “economic issues directly relating to compensation.” The Hansens counter that the term “compensation” has a particular meaning in eminent domain law, and pertains narrowly to the monetary aspects of the trial; therefore, the operative offer and demand are those timely made prior to the trial in which compensation is determined.
In this appeal we have been asked to elucidate the statute‘s meaning against the backdrop of these somewhat conflicting developments in the case law.
V. DISCUSSION
The Legislature has provided specific directions as to how a court is to decide whether a property owner is entitled to litigation expenses, based upon each party‘s final offer and final demand for compensation. The offer and demand must be made “[a]t least 20 days prior to the date of the trial on issues relating to compensation,” and these “shall be the only offers and demands considered by the court in determining the entitlement, if any, to
While these directions are specific they are not entirely clear. The statute does not define the phrase “trial on issues relating to compensation,” nor does it specify whether the term “date of the trial” means the original trial date, the continued trial date, the actual trial date, or the bifurcated trial dates. Thus, we must first determine whether only the offer and demand made prior to the first date set for trial qualifies under
A. What Offers and Demands Qualify Under Section 1250.410, Subdivision (a) ?
As has been described, the purpose of
We agree that the goal of the statute is to encourage an “early settlement so trial can be avoided,” but we do not agree that this goal would be thwarted by considering, for purposes of
We find the reasoning of Matkin persuasive. There, the court concluded that the statute‘s intentions are carried out “where final offers and final demands are filed at least 30 [(now 20)] days prior to the actual trial, regardless of whether offers and demands were timely filed in connection with previously scheduled trial dates.” (Matkin, supra, 220 Cal.App.3d at p. 1097 (220 Cal.App.3d at p. 1097.)
The Matkin reasoning also aligns with realities of litigation. Trial dates are routinely continued, sometimes multiple times (see, e.g., Highsmith, supra, 123 Cal.App.3d at p. 152 [one continuance]; Gardella Square, supra, 200 Cal.App.3d at pp. 564-565 [two continuances]; Matkin, supra, 220 Cal.App.3d at pp. 1091-1092 [bifurcated proceedings, total of four continuances]). In this case, trial was originally set for March 2009. After the matter was bifurcated it was rescheduled four times, and the court trial did not begin until September 2010. Similarly, the jury trial on valuation and damages was originally set for February 2010, but was continued four times, and trial did not commence until nearly a year later. One can imagine any number of reasons why the parties might have wished to reconsider their offers and demands during that three-year period, including the simple desire
This does not, however, resolve the matter. We must still determine whether, for purposes of
B. In a Bifurcated Eminent Domain Proceeding, What Is “the trial on issues relating to compensation“?
The State argues that the court and jury phases of an eminent domain trial are two parts of a single trial, and therefore “the trial” in this case began at the start of the first bifurcated proceeding, citing City of Santa Barbara v. Superior Court (1966) 240 Cal.App.2d 612 [49 Cal.Rptr. 798] (City of Santa Barbara) and City of Los Angeles v. Cole (1946) 28 Cal.2d 509, 512 [170 P.2d 928] (Cole), overruled on another ground in County of Los Angeles v. Faus (1957) 48 Cal.2d 672, 680 [312 P.2d 680]. Neither case is on point. For example, in City of Santa Barbara, a bifurcated eminent domain action, the court held that a notice of intention to move for a new trial was premature because it was filed after the jury returned a verdict on the question of compensation, but before the trial court rendered its decision on the issues of public use and necessity. (City of Santa Barbara, supra, 240 Cal.App.2d at p. 614; see Cole, supra, 28 Cal.2d at p. 512.) The question of whether the court and jury phases of a bifurcated eminent domain action constitute one trial or two trials did not arise in either case.
Certainly, an eminent domain action is subject to the single judgment rule, and the action is not completed until all issues have been adjudicated. (Cole, supra, 28 Cal.2d at p. 512.) This does not answer the question whether a bifurcated proceeding is one trial or two. We have found no authority on
The State next argues that, even if there are two separate trials, the trial on issues relating to compensation encompasses a trial on any preliminary issue upon which compensation might be predicated, such as adjudication of the right to damages for loss of goodwill and impairment of access. The State asserts, “if ‘the right to claim compensation’ is not ‘an issue relating to compensation,’ then nothing is.”
It is arguable that the plain meaning of the words “issues relating to compensation” can be understood to include any issue that might have relevance to the ultimate question of the property owner‘s compensation. But we must consider, too, the Hansens’ contention that the phrase “issues relating to compensation” has a particular meaning in the context of eminent domain law, and in that context refers only to the valuation and damages portion of the case. The Hansens further argue that the statutory language and history indicate the Legislature contemplated two trials where the proceedings have been bifurcated, and the reference to “the” trial on issues related to compensation can only refer to the trial in which the jury decides how much compensation should be awarded. The Hansens assert, “Since the purpose of Section 1250.410 is to encourage settlement, it is practical and common sense to conclude that the legislative intent was to allow offers and demands prior to the trial when compensation was actually decided, rather than the trial where entitlement to compensation was decided.”
There is no precedent that interprets the phrase “issues relating to compensation” in The California Constitutiоn guarantees to the parties the right to a jury trial on the issue of just compensation. ( Thus, for example, in Oakland v. Pacific Coast Lumber etc. Co. (1915) 171 Cal. 392 [153 P. 705] (Oakland), the property owner argued that the property being taken was actually part of a larger parcel and therefore the owner was entitled to seek damages for the remainder. (id. at p. 396.) At trial the judge decided this question rather than allowing it to be submitted to the jury, for which appellant claimed error. (id. at p. 397.) The Court of Appeal affirmed, stating that “neither the state nor . . . any other person or corporation, exercising the power of eminent domain, is compelled to submit to the dеtermination of a jury every question of fact .... 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.” (id. at pp. 397-398, citation omitted.) Similarly, in People v. Ricciardi (1943) 23 Cal.2d 390 [144 P.2d 799] (Ricciardi), the court concluded it was the judge‘s province to decide whether the property owner was entitled to damages due to impairment of the property owner‘s right of access, because “all issues except the sole issue relating to compensation, are to be tried by the court . . . .” (id. at p. 402, italics added.) “It was therefore within the province of the trial court and not the jury to pass upon the question whether under the facts presented, the defendants’ right of access will be substantially impaired. If it will be so impaired the extent of the impairment is for the jury to determine.” (id. at pp. 402-403.) Finally, in Los Angeles Unified School Dist. v. Casasola (2010) 187 Cal.App.4th 189 [114 Cal.Rptr.3d 318] (Casasola), the property owner was subjected to a penalty for failure to vacate the property in a timely fashion, as had been agreed between the property owner and the school district. The property owners argued on appeal that the trial court erred in not submitting to the jury the question of whether the school district had, by its conduct, waived the penalty provision. (id. at p. 213§ 1263.310
It thus appears that in the parlance of eminent domain, “issues relating to compensation” are those pertaining to the amount of compensation, that is, the fair market value of the property plus the amount of any other damages resulting from the condemnation. The compensation issues do not include other issues of fact or law, such as whether the property owner is entitled to severance damages because the parcel being taken is part of a larger parcel (Oakland, supra, 171 Cal. at pp. 396-397), whether the condemnor has the legal authority to condemn the property (Matkin, supra, 220 Cal.App.3d at pp. 1091-1092), or whether the property owner is entitled to damages for impairment of access (Ricciardi, supra, 23 Cal.2d at pp. 402-403). We therefore conclude that the phrase “the trial on issues relating to compensation” found in
The scant legislative history of the amendment supports this construction. The 1982 amendment replaced the phrase “prior to the date of trial” with “prior to the date of the trial on the issues relating to compensation.” The suggestion to include this language came from the Cоmmittee on Condemnation of the State Bar. As originally proposed, the 1982 amendment provided that the plaintiff would file its final offer “at least 30 days prior to the date of trial” and the defendant was to file its final demand “at least 30 days prior to the date of any valuation trial.” The committee opined, “The problem with that text is the application of its terms to a bifurcated trial. Often the noneconomic issues are tried first, after which there is a trial on the economic issues. [Also, as] presently written the first sentence is unclear as to when the plaintiff has to file an offer [while it] specifies when the defendant has to file a demand.” (Com. on Condemnation of the State Bar of Cal., letter to Terrance Flanigan, State Bar of Cal., in legis. bill file of Assem. Com. on Judiciary, regarding Assem. Bill No. 3274 (1981-1982 Reg. Sess.) Mar. 19, 1982.) Based upon this legislative history, Matkin concluded that the change was intended to “clarify any ambiguity which might result in instances where the condemnation proceedings are bifurcated.” (Matkin, supra, 220 Cal.App.3d at p. 1096.) Condemnation proceedings are commonly bifurcated precisely because, as here, all issues except compensation are tried to the court and the issue of compensation is tried to the jury. (Redevelopment Agency v. Contra Costa Theatre, Inc. (1982) 135 Cal.App.3d 73, 79-80 [185 Cal.Rptr. 159].) As the State itself points out, “a bifurcated trial is the usual practice in eminent domain proceedings, given the separate functions of the judge and the jury in such cases” (citing Marshall v. Department of Water & Power (1990) 219 Cal.App.3d 1124 [268 Cal.Rptr. 559]). It thus follows most logically that the Legislature, in adopting the 1982 amendment, was referring to “the trial” in which compensation is determined.
The State contends the cases (Oakland, Ricciardi, and Casasola) merely hold that juries decide the amount of compensation and courts decide all other “questions of fact and law, including those relating to compensation.” In the State‘s view, the Legislature was presumed to know that issues “related to compensation,” such as the right to severance damages, have always been tried to the court, so when it amended the statute “it clearly did not intend to limit exchanges of demands and offers to the jury phase of a bifurcated proceeding.” But this is simply another way of saying that the issue of a property owner‘s entitlement to severance damages is an issue “relating to compensation” as that phrase is used in
Taking a slightly different approach, the State proffers a broad interpretation of the 1982 amendment by which “the trial on issues relating to compensation” would include a trial on any issues that are relevant to compensation, and would exclude only a trial on issues that are completely unrelated to compensation, such as a challenge to the right to take, or a claim that there was an erroneous determination of public use and necessity. In support, the State points to Matkin, which states that the amendment was added so “the term ‘trial’ [would not be] confused with the proceeding at which noneconomic issues are resolved, such as one relating to the condеmnee‘s objections to the taking.” (Matkin, supra, 220 Cal.App.3d at p. 1096, italics added.)
We do not think this sentence supports the State‘s position. Matkin did not purport to define the distinction between economic and noneconomic issues; it only used the “condemnee‘s objections to the taking” as one example of a noneconomic issue—presumably because in Matkin the condemnee‘s objection to the taking was the preliminary issue. Nothing in the court‘s opinion
The State also claims that if the Legislature wanted the offer and demand to be triggered only by the jury phase of the trial relating to the amount of compensation, “it could have easily done so by narrowly stating ‘trial on the issue of the amount of compensation.’ That it did not do so evidences the legislature‘s intent not to limit exchanges to the jury phase of trial only.”
We know of no rule of statutory construction—and the State cites no authority for its claim—that if the Legislature could have been more explicit, but was not, then the Legislature intended the statute to be more inclusive. Any number of statutes might be made more explicit with additional words, but the courts cannot rely on such theoretical suggestions untethered to legislative history or statutory context in ascertaining legislative intent.
Finally, the State argues that the goal of early settlement is hindered by delaying the statutory exchanges until the compensation phase, such that “all issues but the amount of compensation must be tried without an exchange of offers and demands.” This argument has merit, but we think that in bifurcated proceedings our interpretation more effectively advances the statute‘s central purpose of encouraging settlement. In a bifurcated proceeding, such as here, settlements are less likely to occur if thе parties are required to make their one and only statutory final demand and offer prior to the trial in which the court adjudicates, for example, the property owner‘s entitlement to various categories of damages. It can be safely assumed that the disputed preliminary issues will usually result in dramatically divergent assessments of the amount of just compensation. (See, e.g., Mindlin, supra, 106 Cal.App.3d at pp. 703-704 [prior to determination of whether land could be developed for commercial purposes offer was $11,500 and demand was $60,000].) Therefore, it is only after those preliminary questions are decided that the parties will be able to make a reasonably reliable estimate that encompasses “all compensation” that is due. (
Additionally, if the statutory exchange must be made prior to a bifurcated trial on the type of damages the property owner may claim, then the condemning agency would gain an undue advantage. As we earlier explained, the condemnor‘s offer will be considered “reasоnable” even if it is only a fraction of the jury‘s award if it is based on a reasonable set of legal assumptions. So, for example, courts have found very low offers to be
In this case, the State‘s statutory offer of $784,000 was predicated on its position that the Hansens were not entitled to damages for impairment of access. Assuming arguendo that this position was legally tenable, under the authorities cited above the offer would likely have been considered to be “reasonable” even though it was less than a third of the jury‘s award. Under the State‘s interpretation of the statute—which would lock in that offer for purposes of determining reasonableness—it would have no incentive to make any new settlement offers prior to the trial on compensation. And, in fact, the State made no new offer even after the property owners prevailed on the issue of entitlement to damages, thus forcing the trial on compensation to go forward. The State‘s construction of the law does not advance the cause of settlement.
We do not ignore, nor do we necessarily disagree with, the Mindlin court‘s reasoning in concluding that the final offer and demand must be made prior to the first bifurcated trial: “Since the statute was intended to compensate a condemnee unnecessarily put to the expense of litigation (without specifying litigation on the issue of value) it seems in keeping with that intention to allow . . . an award of expenses even when the litigation task is that of presenting the condemnee‘s position on preliminary issues; the expense incurred on such issues is as necessary as that incurred with respect to the valuation issue.” (Mindlin, supra, 106 Cal.App.3d at p. 718.) But the 1982 amendment, adopted after Mindlin was decided, did “specify[] litigation on the issue of value,” and so Mindlin is no longer apposite.
In sum, we hold that
While we think this interpretation of the law accurately reflects its intent, we are nonetheless troubled by the statute‘s constricted mandate that allows only a single offer and demand to be considered on the issue of reasonableness. As we read and understand the statute, it is at least theoretiсally possible for a condemning agency to set its prelitigation offer under
We observe that this provision—that only one offer and demand can be considered for purposes of entitlement to litigation expenses—was added in the 1982 amendment of the statute. The legislative history indicates that its purpose was to codify the decision in City of Gardena v. Camp (1977) 70 Cal.App.3d 252 [138 Cal.Rptr. 656], which held that offers or demands made after the 30-day cutoff in the statute could not be considered in determining entitlement to litigation expenses. (Id. at p. 258; see id. at p. 254, fn. 1.) A report to the Assembly Committee on the Judiciary explained that, according to the source of the bill, “trial courts are inconsistent in their application of the existing statute and will sometimes consider on the question of entitlement offers or demands made after thirty days before trial. This measure is sought to eliminate the uncertainty and confusion found in the application of the statute.” (Assem. Cоm. on Judiciary, Rep. on Assem. Bill No. 3274 (1981-1982 Reg. Sess.) as amended Apr. 12, 1982.) Thus, while the legislative history expresses concern only about the use of late offers and demands for determining reasonableness, the unequivocal language of the statute goes beyond this concern to limit the court‘s reasonableness determination to a single final offer and demand made at least 20 days prior to the trial on the compensation issues. We, of course, cannot rewrite the statute, but the Legislature may wish to consider whether the scenario set forth above might be avoided, and whether settlement opportunities might be enhanced, if the courts were allowed to consider more than one offer and demand in determining whether the parties were being reasonable throughout the course of the litigation—the kind of determination that is routinely undertaken in the trial courts.9
The order denying the Hansens’ motion for litigation expenses is vacated. The matter is remanded for further proceedings consistent with the views expressed in this opinion.
Ruvolo, P. J., and Reardon, J., concurred.
RIVERA, J.