City of Palm Springs v. Miller

Filed 1/29/07 City of Palm Springs v. Miller CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Christopher J. Sheldon and Lawrence W. Fry, Judges.^[1] Affirmed.

Ronald Miller, in pro. per., for Defendant and Appellant.

Woodruff, Spradlin & Smart and M. Lois Bobak, for Plaintiff and Respondent.

The City of Palm Springs (the City) brought a condemnation action against landowners to acquire property for a project to expand the operating capabilities of the Citys regional airport. Ronald Miller (Miller) is one of those landowners. The only issue tried was the value of Millers property that was taken. The jury determined that the value was $209,500. Miller appeals.

I. PROCEDURAL BACKGROUND AND FACTS

During the 1990s, the City undertook a project to expand the operating capabilities of the Citys regional airport, including an extension of the runway. In October 1998, the city council adopted a resolution determining that it was necessary to acquire Millers property in order to implement noise abatement measures that were a part of the overall airport expansion project. Millers property was located adjacent to the airport.

The City filed an eminent domain action to acquire Millers property on March 26, 1999. On May 4, upon motion by the City, the trial court entered an order allowing the City to deposit the amount of probable compensation ($196,000) with the State Treasurer so that the City could obtain prejudgment possession of the property. The City deposited such amount, and Miller withdrew it in October 1999.

When the eminent domain action was first filed, Miller was represented by Duff Murphy, an attorney with the law firm of Oliver, Vose, Sandifer, Murphy & Lee. On September 12, 2002, Murphy filed a motion to be relieved as counsel. Murphy advised the trial court that he had received four separate letters from Miller accusing him (Murphy) of numerous misrepresentations, breaches of professional duties, and professional incompetence. The last letter from Miller threatened a lawsuit against Murphy if he did not immediately comply with seven specific demands. Murphy advised the trial court that the continuous allegations of misconduct made it impossible for him to continue to represent Miller. The trial court granted Murphys motion. Approximately five months later. Miller filed a motion to reconsider the ruling. The court denied Millers motion for reconsideration.

In his answer to the eminent domain complaint, Miller alleged an entitlement to loss of goodwill in connection with a business that he claimed he had been conducting on the subject property. In August 2001, the City filed a motion for summary adjudication of the goodwill claim. The City argued that Miller was not entitled to loss of goodwill, because the business that he claimed he had been conducting on the property was not legally permitted. The trial court granted the Citys motion. Therefore, the only issue left for trial was the value of the real property taken by the City.

Before trial commenced, Miller advised the court that his expert appraiser would not appear unless he first was paid approximately $7,700. Miller stated that he did not have the money. The trial court appointed an independent appraiser, Robert Lea, to prepare an independent appraisal. Miller agreed to use Leas appraisal in lieu of his previously retained expert appraiser.

Trial in this case began on February 2, 2004. During trial, Miller sought to present his own opinion regarding the value of his property. After allowing the City to voir dire Miller regarding the basis of his opinion, the court sustained the Citys objection and excluded Millers testimony. The court concluded that Miller had not established any legitimate basis for his opinion, which appeared to be an adoption of the opinion expressed by Millers prior expert appraiser. At the conclusion of the trial, the jury determined that the total value of the property taken by the City was $209,500. The City deposited with the court the difference between the jury award and the amount of probable compensation previously deposited, plus interest. Judgment was entered in May 2005. Miller appeals.

II. EXCLUSION OF BUSINESS GOODWILL CLAIM

Prior to Code of Civil Procedure^[2]section 1263.510, subdivision (a), loss of goodwill was not recoverable in eminent domain proceedings. (Chhour v. Community Redevelopment Agency (1996) 46 Cal.App.4th 273, 278.) Section 1263.510, subdivision (a), changed that rule to allow recovery, provided that the property owner demonstrates the presence of four threshold conditions; namely, that a goodwill loss is caused by the taking, that the loss could not be prevented by relocation, that the loss will not include relocation expenses, and that the loss will not be duplicated by compensation otherwise awarded to the owner. ( 1263.510, subd. (a).)

In the instant action, Miller sought damages for the goodwill value of his limousine business. However, the City moved for summary adjudication of this issue, arguing, [T]he undisputed facts demonstrate that the property rights taken by the City do not allow for [Millers] limousine business use. Absent such a property right, [Miller] can establish no entitlement to operate the [b]usiness in the first instance, much less to the receipt of goodwill damages derived from the loss thereof. Agreeing with the City, the trial court granted its motion for the following reasons: (1) [Millers] claim for goodwill compensation has no merit because [his] limousine business use is not legally permitted in the zone in which the subject property . . . is situated [citations], (2) [Millers] claim for goodwill compensation has no merit because there is no causal relation between the taking of the property interests at issue in this action and the purported loss of goodwill. [Citation.]

On appeal, Miller contends the trial court erred by refusing to permit him to present evidence of, and seek an award for, loss of goodwill. He argues that he presented evidence from which the jury could have found that he sustained such losses. We disagree.

To begin with, we note that Miller fails to offer any citation to the record or legal authority to support his contention. Instead, he merely submits that [t]he City acknowledged that [he] had a valid business goodwill claim since it hired its own appraiser. Given the fact that [he] operated his limo business within public view, had members of the public actually order service on-site, and that the operation was done with the blessing of elected City officials and airport officials, [he] should have been entitled to present the issue of loss of business goodwill to the jury. Having failed to support his argument with citation to the record or to legal authority, we may deem it to be waived. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768; Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 109; Akins v. State of California (1998) 61 Cal.App.4th 1, 17, fn. 9.)

We recognize the fact that Miller is appearing without the benefit of legal counsel. Nonetheless, we are unable to ignore the rules of procedure just because we are aware of such fact. When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys [citations]. Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney [citation]. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639, fn. omitted; see also Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284-1285.)

Notwithstanding the above, we agree with the City. A fundamental precondition to an award of damages for lost goodwill is a vested, legally enforceable property interest. (San DiegoMetropolitan Transit Development Bd. v. Handlery Hotel, Inc. (1999) 73 Cal.App.4th 517, 532 [as a matter of law the expectation of a lease renewal is speculative and cannot provide a foundation for a goodwill award].) Without such interest, the condemnees interest is nothing more than speculation. Here, Miller did not establish that he had a legal right to operate a limousine business on the property taken by the City. The zoning did not allow the establishment of a limousine business. Miller failed to obtain a determination from the Citys planning commission that a limousine business was a similar use to other uses permitted in the zone. And, Miller failed to obtain a land use permit, a variance, or other legislative or administrative determination that would have allowed a limousine business to operate on the property.

Although Miller argued that the City knew that he was operating a limo business on his property, such argument is irrelevant. As the City notes, the laxity of enforcement or acquiescence in an illegal use cannot serve as a basis for enforcement of a zoning code. (City of Fontana v. Atkinson (1963) 212 Cal.App.2d 499, 509 [no vested right to violate a city ordinance may be acquired by continued violations].) Moreover, the license agreement between Miller and the City states that the license gave Miller the right to operate a limousine company at the [a]irport. The business license issued by the City to Miller lists the business address of the limousine business as 3400 East Tahquitz Canyon Way, the address of the airport. The address of the property condemned by the City was 1750 Sharon Road. A tax return filed by Miller also showed the business address of the limousine service to be the Palm Springs Regional Airport.

For the above reasons, we find that the trial court properly excluded Millers goodwill claim.

III. MOTION TO BE RELIEVED AS COUNSEL

In early July 2002, Miller sent a 13-page letter to Murphy, his attorney of record. The letter set forth approximately 57 separate allegations of misconduct by Murphy, including an allegation of ineffective assistance. Miller threatened to file a lawsuit against Murphy if Murphy did not immediately comply with a series of seven demands set forth by Miller. Approximately two months later, Murphy filed a motion to withdraw as Millers counsel of record. At the time of the motion, an arbitration had taken place, a request for trial de novo had been filed, and there was no pending trial date.

During hearing on the motion to withdraw, Murphy stated that the July 2002 letter from Miller was the fourth such letter that Miller had sent over the course of the litigation. Murphy stated that virtually every decision made or action taken in the case had been met with an allegation of misrepresentation, breach of professional duty, and/or the threat of litigation by Miller. Murphy advised the trial court that the continuous allegations of misconduct and the continuous threats of malpractice made it impossible for him to continue representing Miller.

In response, Miller explained his financial situation, discussed the Internal Revenue Services (IRS) lien on the property, and asked where he would be able to find another lawyer. The trial court noted there was not a declaration from Miller stating that no lawyer would take the case. After taking the matter under submission, the trial court granted Murphys motion.

On appeal, Miller faults the trial court for granting Murphys motion to be relieved as counsel of record. He argues, If the trial court believed in fairness, it could not have ignored the very real possibility that [he] would not be able to find replacement counsel. Miller points out that his financial situation was not good and the IRS had filed a Notice of Levy in the case. Thus, [a]ny reasonable person would realize that . . . no replacement counsel would take the case without a large retainer upfront. Again, other than mere claims based on speculation, Miller has offered no citation to the record to support a finding that he contacted several attorneys and was denied representation.^[3]

The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court. [Citation.] (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) On the record before this court, we cannot find any abuse of discretion in allowing Murphy to withdraw as counsel.

IV. DATE OF VALUATION OF THE PROPERTY

California law provides three dates for valuation of the property taken: (1) the date of the commencement of the action if brought to trial within one year ( 1263.120); (2) the date the probable compensation is deposited in court ( 1263.110); or (3) the date of the commencement of trial if the matter is not brought to trial within one year of the date the action was filed unless the delay was caused by the defendant, in which case the date of valuation is the date of commencement of the proceeding ( 1263.130). (Saratoga Fire Protection Dist. v. Hackett (2002) 97 Cal.App.4th 895, 900-901.)

In May 1999, the City obtained an order allowing it to deposit the amount of probable compensation with the court pursuant to section 1255.010. The City deposited such amount on May 6. Section 1263.110, subdivision (a), in relevant part, provides: Unless an earlier date of valuation is applicable under this article, if the plaintiff deposits the probable compensation in accordance with [section 1255.010, et seq.] . . . the date of valuation is the date on which the deposit is made. Because the City deposited such amount on May 6, 1999, the trial court used that date as the date of valuation. ( 1263.110, subd. (a); City of Santa Clarita v. NTS Technical Systems (2006 137 Cal.App.4th 264, 271.)

Miller contends that because there were more than 26 continuances of the trial, never at [his] request, he should have been allowed to present evidence to show that since May 6, 1999, the value of his property had substantially increased. ( 1263.130 [Subject to Section 1263.110, if the issue of compensation is not brought to trial within one year after commencement of the proceeding, the date of valuation is the date of the commencement of the trial unless the delay is caused by the defendant, in which case the date of valuation is the date of commencement of the proceeding].) According to Miller, there are nearly five years of property appreciation, coupled with a strong real estate boom in the Palm Springs area, which was not considered.

Although Miller claims that he is not to blame for the 26 continuances of the trial date, he has failed to provide this court with a citation to the record to show where the evidence supporting his claim can be found. We are not required to make an independent, unassisted search of the record to ascertain facts to support an appellants contention; to the contrary, [i]t is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations. [Citations.] If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived. [Citation.] (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 768.)

V. JUDGMENT IN CONDEMNATION

In one sentence, Miller contends that since he was precluded from testifying as an expert witness on his own behalf and due to the fact that the trial court excluded the issue of loss of business goodwill from the jury, the judgment in condemnation should be thrown out and a new trial ordered since justice was not served. Again, Miller fails to support his argument with citation to the record or to legal authority. Thus, we deem it to be waived. (Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 768; Schubert v. Reynolds, supra, 95 Cal.App.4th at p. 109; Akins v. State of California, supra, 61 Cal.App.4th at p. 17, fn. 9.)

Even if we were to reach the merits, we reject it. Millers testimony of the value of his property was based on the opinion of an expert whose testimony had been previously excluded. To the extent Miller offered his own opinion, it was based on improper materials and the opinions of others (i.e., his son, realtors, and newspaper ads) not identified in his statement of valuation. Because Miller was unable to provide any legitimate basis for his opinion regarding valuation, the trial court properly excluded his testimony. (Contra Costa Water Dist. v. Bar-C Properties (1992) 5 Cal.App.4th 652, 661 [The generally recognized right of an owner to testify is not absolute. In stating an opinion as to the value of property, an owner is bound by the same rules of admissibility as any other witness.].)

VI. CITYS MOTION TO TAX COSTS

Miller cites to section 1268.710, which provides: The defendants shall be allowed their costs, including the costs of determining the apportionment of the award made pursuant to subdivision (b) of [s]ection 1260.220, except that the costs of determining any issue as to title between two or more defendants shall be borne by the defendants in such proportion as the court may direct. Acknowledging that his memorandum of costs could be viewed as being untimely, Miller contends that the trial court should have considered the validity of his costs and not granted the Citys motion to tax costs. Once again, we are faced with a claim without support. Miller has not directed our attention to any documents, nor are we able to locate such relevant documents in the record, which pertain to this issue. Without any legal or factual basis for reviewing his claim, we deem it to be waived. (Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 768; Schubert v. Reynolds, supra, 95 Cal.App.4th at p. 109; Akins v. State of California, supra, 61 Cal.App.4th at p. 17, fn. 9.)

VII. DISPOSITION

The judgment is affirmed. The City is to recover its costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

KING

J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

^[1]Judge Sheldon heard the motion for summary adjudication. Judge Fry conducted the motion for reconsideration and the trial.

^[2]All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

^[3]According to the record, it was not until after the courts ruling on October 11, 2002, that Miller began looking for new counsel. More specifically, it appears that the majority of his efforts occurred after January 1, 2003.