Shortly before trial, the Agencies moved to dismiss Plaintiffs' claims by filing a motion under
We reverse. The Agencies now concede Code of Civil Procedure section 1260.040 applies by its terms and enactment in title provisions governing eminent domain only to eminent domain proceedings, not inverse condemnation actions. As we explain, we reject the Agencies' request that we "import [ section 1260.040 ] into the body of inverse condemnation law as a matter of judicial development." In doing so, we disagree with Dina v. People ex rel. Dept. of Transp. (2007)
I
FACTS AND PROCEDURAL HISTORY
Interstate 5 (I-5) is a freeway that runs north and south through a residential area in the City of San Clemente (City). Plaintiffs own four separate properties on the east side of I-5 near its intersection with El Camino Real. Three of the properties are single-family homes and the fourth is a small hotel. Approximately 600 feet separate the northernmost and southernmost of Plaintiffs' properties, with other residential and commercial properties located among and between Plaintiffs' properties. The terrain gently slopes up from where El Camino Real runs under I-5 toward Plaintiffs' properties and beyond.
Under Streets and Highways Code section 215.5, CalTrans maintains a system for identifying and prioritizing locations for the possible installation of sound walls along California's freeways. Under this system, CalTrans conducts progressively more detailed studies of the locations. Construction begins when funding becomes available and the location satisfies all established criteria.
In 1999, CalTrans measured the freeway noise on the west side of I-5 opposite Plaintiffs' properties after receiving complaints from area residents. The measurements, however, did not meet the 67-decibel threshold required for further action. In 2001, CalTrans again measured the freeway noise in the residential area west of I-5 after receiving further complaints. This time, the measurements exceeded the 67-decibel threshold in at least two locations. CalTrans therefore referred the matter to OCTA, which placed it on a waiting list of areas to undergo further noise and engineering analysis to determine whether constructing a sound wall could feasibly reduce noise west of I-5.
In January 2004, the Agencies completed the "Traffic Noise Impact Technical Report" (Noise Impact Report) for the west side of I-5, and concluded construction of a sound wall could achieve the
In 2008, that location rose to the top of the waiting list. Through a cooperative agreement with CalTrans, OCTA hired an engineer to prepare the construction plans for the wall based on the size, location, and other specifications identified in the approved Scope Report. Using those plans, the Agencies completed construction of the wall in September 2012.
As approved by the Scope Report and constructed, two overlapping walls were constructed along the west side of I-5. The first is a 14- to 16-foot tall masonry wall that runs along the El Camino Real onramp to southbound I-5 and further south along the freeway's western shoulder until it meets an existing sound wall south of El Camino Real. The second wall is 14 feet tall and extends approximately 860 feet along the western shoulder where I-5 crosses over El Camino Real. The wall is constructed of masonry block before and after it crosses the freeway's bridge over El Camino Real. The portion on the bridge is constructed of Paraglass, which is a clear Plexiglas-type material. Paraglass was used on the bridge because (1) it is much lighter and the Agencies were concerned the bridge could not support the weight of a 14-foot tall masonry wall, and (2) a masonry wall would have required closing several traffic lanes for an extended period while the mortar cured. According to Plaintiffs, Paraglass is much more reflective of sound and light than masonry blocks. Plaintiffs' properties are located approximately 365 to 480 feet from the Paraglass portion of the wall on the opposite side of I-5 and most have a direct line of sight to the wall.
In 2011, while the wall was under construction, some Plaintiffs and other residents from the east side of I-5 complained to the City that the wall increased the freeway noise on the east side of I-5. The City hired a consultant to determine whether the wall increased the noise on the east side, but it did not hire the consultant until after the Agencies began construction. The consultant therefore did not take any sound readings for the noise levels east of I-5 before construction began. The consultant measured the noise levels before and after construction of the Paraglass portion of the wall, and concluded "it appears that the presence of the soundwall has increased the freeway noise level in the residential community [east of I-5] by 0.9 to 2.1 [decibels]." But the consultant explained there were a number of factors affecting the noise levels that could not be accounted for in the analysis, and therefore the consultant could not definitively conclude the sound wall
In January 2015, the Agencies filed two motions under Code of Civil Procedure section 1260.040 seeking to dismiss Plaintiffs inverse condemnation and nuisance claims. The Agencies argued Plaintiffs' inverse condemnation claim failed because they could not establish the essential element that the sound wall imposed a direct, substantial, and peculiar burden on Plaintiffs' properties that differed from the burden imposed on other properties in Plaintiffs' neighborhood. The Agencies argued Plaintiffs' nuisance claim failed because they could not overcome two different statutory immunities. First, the Agencies claimed they were immune from liability under Civil Code section 3482 because the sound wall was designed and constructed under the express authority of Streets and Highways Code sections 90 et seq. and 215.5. Second, the Agencies asserted they were entitled to design immunity under Government Code section 830.6.
In support, the Agencies asked the trial court to judicially notice (1) the minutes from two of the City's council meetings showing Plaintiffs and several other City residents complained about the increased noise allegedly caused by the wall, and (2) another lawsuit that 20 other property owners filed against the Agencies making the same claims as Plaintiffs. The Agencies also submitted Plaintiffs' deposition testimony and discovery responses showing Plaintiffs' claims regarding the wall's impacts were similar to the complaints of other residents in Plaintiffs' neighborhood. Finally, the Agencies submitted declarations from the engineer who designed the wall and the other supervisors who approved the wall to show it was designed according to the Agencies' established procedures and the wall's design was reasonable.
Plaintiffs argued that Civil Code section 3482's immunity did not apply because the relevant Streets and Highways Code provisions authorize the Agencies to construct sound walls to reduce freeway noise, not
In support, Plaintiffs filed the expert witness declarations of an acoustical expert and a civil engineer to show the wall increased the amount of noise and dust for Plaintiffs' properties, and the wall's design was unreasonable because it did not consider the impact on Plaintiffs' properties on the opposite side of the freeway. Plaintiffs also filed the declaration of a real estate appraiser who opined about the negative effect the sound wall had on Plaintiffs' property values. Plaintiffs also submitted their deposition testimony to show the wall's impact on them, the deposition testimony of the Agencies' engineers regarding the wall's design, CalTrans' protocols for noise analysis, the sound measurements taken by the City's consultant, and various sound measurements CalTrans took. Plaintiffs opposed the Agencies' judicial notice request, and asked the court to judicially notice a voluntary dismissal filed in the lawsuit that was the subject of the Agencies' request. The Agencies filed numerous evidentiary objections challenging Plaintiffs' declarations.
In July 2015, the trial court granted the Agencies' motions. On the inverse condemnation claim, the court found Plaintiffs "cannot meet their burden [of] showing the injuries suffered were 'peculiar' to their properties. They cannot show they suffered a unique and peculiar damage 'not such as is common to all property in the neighborhood.' " The court pointed to the many noise complaints by other area residents, the many other properties interspersed between and among Plaintiffs' properties, and the testimony by one Plaintiff that many other neighbors besides Plaintiffs suffered increased noise and dust. On the nuisance claim, the court concluded Civil Code section 3482's immunity applied because the Streets and Highways Code authorized the
Based on its ruling, the trial court entered judgment for the Agencies and this appeal by Plaintiffs followed.
II
DISCUSSION
Code of Civil Procedure Section 1260.040 Does Not Provide for a Nonsuit or Other Dispositive Motion to Resolve Liability In Limine in Inverse Condemnation Actions, and We Decline to Judicially Create Such a Procedure
Plaintiffs challenge the Agencies' reliance on Code of Civil Procedure section 1260.040 as authority for a case-dispositive in limine motion to resolve the issue of a public entity's takings liability in an inverse condemnation action.
Eminent domain and inverse condemnation are related but distinct areas of law. "Both eminent domain proceedings and inverse condemnation actions implement the constitutional rule that private property may not be 'taken or damaged' ( Cal. Const., art. I, § 19 ) for public use without just compensation. But 'inverse condemnation and eminent domain proceedings are not identical. A property owner initiates an inverse condemnation action, while an eminent domain proceeding is commenced by a public entity. [Citation.] Eminent domain actions typically focus on the amount of compensation owed the property owner, since by initiating the proceeding the government effectively acknowledges that it seeks to "take or damage" the
Contrary to their position below, the Agencies now concede section 1260.040"does not directly apply to inverse condemnation actions" because it "is found in Title 7 of the Code of Civil Procedure, which is called 'Eminent Domain Law.' " As the Agencies acknowledge, the Law Revision Commission comments "introducing the original Eminent Domain Law state that '[t]he provisions of the Eminent Domain Law are intended to supply rules only for eminent domain proceedings. The law of inverse condemnation is left for determination by judicial development.' [Citation.]" ( Chhour v. Community Redevelopment Agency (1996)
The Agencies observe that "the judiciary and the Legislature frequently cross-pollinate" in the areas of inverse condemnation and eminent domain ( Chhour , supra ,
We begin with the text of the statute. Subdivision (a) of section 1260.040 provides, "If there is a dispute between plaintiff and defendant over an evidentiary or other legal issue affecting the determination of compensation ,
"The primary purpose of statutory construction is to ascertain the Legislature's intent." ( California School Employees Assn. v. Governing Bd. of South Orange County Community College Dist. (2004)
Here, the words the Legislature chose to employ in section 1260.040 do not reflect an intent to create a procedure for determining a public entity's liability in eminent domain or inverse condemnation proceedings. Instead, the statute is plainly aimed at "issue[s] affecting the determination of compensation." ( § 1260.040, subd. (a).) Liability is not mentioned and we may not "insert what has been omitted" from a statute. (§ 1858; Security Pacific National Bank v. Wozab (1990)
Nevertheless, in Dina , the court found it "reasonable" to construe section 1260.040, subdivision (a), "as permitting the trial court to adjudicate the question of the Department [of Transportation]'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?' " ( Dina , supra ,
But Dina also found "it ... equally reasonable to construe the statute as providing a more limited procedure, given that it 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" affecting compensation or liability. ( Dina , supra ,
We are not persuaded by Dina 's approach. In our view, section 1260.040 offers no basis for a dismissal or other case-dispositive motion because it includes no words to that effect. Nor do we see in section 1003 a means to bootstrap such a mechanism because that general provision does not address or mention case-terminating procedures. While section 1003 does define an application for an order as "a motion," it does not give statutory authorization to every request a party makes. Instead, the fact that sections 1260.040 and 1003 are both silent on the weighty subject of case disposition suggests neither are to be employed for that purpose.
In like manner, the absence of any mention of "liability" in section 1260.040 suggests the Legislature did not intend that section as a means to determine a public entity's inverse condemnation liability. Dina did not analyze whether the Legislature intended section 1260.040 to apply to inverse
Under that authority, the Agencies request that we "import" section 1260.040 into inverse condemnation jurisprudence and construe it to authorize case-dispositive in limine motions on legal issues affecting liability. As discussed, we do not believe the words of the statute support that approach; nor does the broader statutory framework or legislative history.
Section 1260.040 originated in the Law Revision Commission's recommendation
By enacting Assembly Bill No. 237 (2001-2002 Reg. Sess.) (AB 237) in 2001 (Stats. 2001, ch. 428, § 9),
Notably, the Legislature knew how to enact pretrial procedures governing takings liability when it wanted to do so in eminent domain proceedings. While liability is not ordinarily at issue in such proceedings, the legislative history supporting AB 237 recognized that "[e]xisting law provides for the resolution by the court of disputes on matters of law, such as the [eminent domain public entity] plaintiff's right to take the subject property , prior to jury trial on the issue of just compensation." (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d Reading analysis of AB 237 as amended Aug. 28, 2001, p. 4; accord, Sen. Com. on Judiciary, com., supra , at pp. 758-59, italics added.) Thus, section 1260.110 provides now and at the time AB 237 was enacted: "(a) Where objections to the right to take are raised, unless the court orders otherwise, they shall be heard and determined prior to the determination of the issue of compensation. [¶] (b) The court may, on motion of any party, after notice and hearing, specially set such objections for trial." (Italics added.) In turn, section 1250.360 specifies the grounds on which a property owner may challenge the public entity's right to take the property (e.g., "plaintiff is not authorized by statute to exercise the power of eminent domain for the purpose stated in the [eminent
The Agencies argue interpreting section 1260.040's pretrial motion procedure to extend to public entity liability serves the Legislature's intended purpose of promoting settlements, and therefore should apply to inverse condemnation cases. To be clear, we see no objection to applying section 1260.040 to resolve legal issues regarding compensation to foster settlement in inverse condemnation cases. But a laudable general policy goal of promoting settlement does not displace the words of the statute. Moreover, the manner in which a section 1260.040 motion functions does not lend itself to promoting settlement in the liability context. Instead, it operates either as a bludgeon to end the plaintiff's case or a nullity that does nothing to reduce the scope of a trial if the plaintiff establishes a prima facie case of liability.
Continuing the nonsuit analogy, Dina observed: "Stated similarly, '[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 judgment in the plaintiff's favor.' [Citation.]" ( Dina , supra ,
In our view, nonsuit is not the most apt analogy. A nonsuit is a trial motion; it is not available before trial as Dina contemplated. (See § 581c [nonsuit may be made "[o]nly after, and not before, the plaintiff has completed his or her opening statement"].) The case-dispositive pretrial procedure Dina authorized under section 1260.040 is more similar to a defendant's motion for summary judgment. A defendant moving for summary judgment meets its burden of showing a cause of action has no merit if it shows that one or more elements of the cause of action cannot
Whether nonsuit or summary judgment is more applicable, we find it difficult to conceive that in three brief words ("other legal issue"), the Legislature intended to create a new dispositive procedure reproducing the safeguards, entire statutory framework, and extensive caselaw governing either a nonsuit motion or a summary judgment motion. But even assuming arguendo that is true, the procedure enacted in section 1260.040 does not serve the Legislature's purpose of promoting settlement when applied to determining liability in inverse condemnation cases. It may be of use in narrowing compensation issues before trial, thereby fostering settlement, as demonstrated by the cases the Agencies rely on, where one or more theories of compensation may not be available to the property owner as a matter of law or for lack of prima facie evidence. But these cases provide no support for use of section 1260.040's motion procedure to narrow liability issues to foster settlement; instead, they involved compensation issues.
Thus, in City of Perris v. Stamper (2016)
Similarly, in Los Angeles Unified School District v. Pulgarin (2009)
Moreover, even accepting the proposition that a motion under section 1260.040 may foster settlement by paring or clarifying as a matter of law the proper measure of compensation the property owner may seek, the same is not true of a motion concerning the public entity's liability. A public entity incurs liability when it takes or damages private property. " 'Property is "taken or damaged" within the meaning of article I, section 19 of the California Constitution, so as to give rise to a claim for inverse condemnation, when: (1) the property has been physically invaded in a tangible manner; (2) no physical invasion has occurred, but the property has been physically damaged ; or (3) an intangible intrusion onto the property has occurred which has caused no damage to the property but places a burden on the property that is direct, substantial, and peculiar to the property itself.' " ( Boxer , supra ,
" 'When, as here, the conduct of a public entity results in an intangible intrusion onto the plaintiff's property that does not physically damage the property, the question whether there has been a "taking or damaging" of the property sufficient to support a cause of action for inverse condemnation is more difficult. In these circumstances the plaintiff must [show] that the intrusion has resulted in a burden on the property that is direct, substantial, and peculiar to the property itself.' " ( Boxer , supra ,
As demonstrated here and in Dina , a trial court's decision on a pretrial motion on the issue of liability does nothing to encourage the parties to work toward settlement, as contemplated in section 1260.040, subdivision (b), which enables the court to postpone "the date of final offers and demands of the parties and the date of trial in an eminent domain proceeding" so the parties may "engage in further proceedings before trial in response to its ruling on the motion." Instead, if the public entity defendant in an inverse
Similarly, if the inverse condemnation plaintiff prevails on the motion because he or she as the property owner is able to make a prima facie liability showing, then nothing has been achieved for
Of course, rather than awaiting trial, a public entity defendant that fails to prevail on a section 1260.040 motion disputing liability might be tempted to file a summary judgment motion. But that would be a waste of judicial resources, redundant to the motion the trial court heard and denied. For this reason, in addition to the lack of support in the statutory text and legislative history, we part company with Dina in interpreting section 1260.040 to authorize pretrial liability determinations. Dina rejected the plaintiffs' argument there that "disposition of their claims was limited to a motion for summary judgment." ( Dina , supra ,
But as we have explained, a trial court's decision on a motion filed under section 1260.040 to determine the public entity's liability in an inverse condemnation action does not narrow that question of liability to foster
In Amtower , the court catalogued and lamented the use of "nontraditional in limine motions [resulting] in a court's dismissing a cause on the pleadings," noting that "[a]ppellate courts are becoming increasingly wary of this tactic." ( Amtower , supra , 158 Cal.App.4th at pp. 1593-1594,
We conclude reversal is necessary here. The Commission in recommending AB 237's adoption explained that the purpose of its pretrial procedures was to foster settlement. Accordingly, "[t]here must be sufficient time for the parties to examine any valuation data exchanged, focus on the nature of their dispute, and obtain judicial resolution of any irreconcilable disagreements over legal issues. Resolution of legal issues in a timely fashion will help pave the way for a resolution of the proceeding without the need for trial." (Recommendation, supra , 30 Cal. L. Revision Com. Rep. at p. 586, italics added.) Instead of pursuing that course, the Agencies seized on section 1260.040 as a purported means to short-circuit the case on liability
Dina further allowed the public entity defendant to utilize section 1260.040 as the basis for its motion to dismiss the plaintiffs' nuisance and negligence claims as a matter of law. In our view, to apply section 1260.040 to allow a trial court to adjudicate any companion causes of action in an inverse condemnation complaint is beyond the scope of the section and its legislative intent. Under well-established law, Plaintiffs here were entitled to a jury trial on their nuisance cause of action, absent a summary judgment motion and ruling disposing of their claims. (§ 592; Farrell v. Ontario (1919)
III
DISPOSITION
The judgment is reversed and the matter remanded for further proceedings not inconsistent with this opinion. The Plaintiffs are entitled to their costs on appeal.
WE CONCUR:
BEDSWORTH, ACTING P. J.
IKOLA, J.
Notes
Plaintiffs are Evan Weiss, Belinda Henry, Michael Hayes, Micheale Hayes, Ross Shaw, Debbie Shaw, and 1819 MSC, LLC (collectively, Plaintiffs).
The owners of two additional properties east of I-5 were plaintiffs in the trial court, but they have not joined Plaintiffs in appealing from the trial court's judgment.
All further statutory references are to the Code of Civil Procedure.
Section 1230.010 provides, "This title shall be known and may be cited as the Eminent Domain Law."
We grant the Plaintiffs' unopposed motion to take judicial notice of AB 237's legislative history.
As Dina observed, "Even when the question of liability in an inverse condemnation proceeding involves the resolution of factual issues, there is no right to a jury trial." (Dina , supra ,