P. v. Livingston

Filed 3/27/0 P. v. Livingston CA2/86

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County.

Joseph R. Kalin, Judge. (Retired Judge of the L.A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Michael O. Collins for Defendants and Appellants.

Bruce A. Behrens, Chief Counsel, Linda Cohen Harrel, Deputy Chief Counsel, and William H. Rittenburg for Plaintiff and Respondent.

Defendants Mark and Monica Livingston (appellants) appeal from an eminent domain judgment after jury trial, determining their damages from realtor Department of Transportation (respondent) as $9,030. We conclude that none of appellants' contentions is meritorious, and affirm the judgment.

FACTUAL BACKGROUND

In March 2000, respondent filed a complaint in eminent domain, seeking to acquire a temporary easement over the southerly five feet of appellants' residential property in La Verne, for purposes of constructing a sound wall for the Route 30 state highway, also designated Interstate 210 (hereafter freeway), which was to be opened adjacently. In their answer, appellants alleged entitlement to, among other compensation, severance damages with respect to the remainder of their property, under Code of Civil Procedure section 1263.410. (Undesignated section references are to that code.)

Appellants' case ultimately proceeded to verdict together with four others, involving other La Verne properties subject to the same type of condemnation claims. In its special verdict with respect to appellants, the jury found just compensation to be $752, plus $3,478 for improvements damaged or destroyed during construction, and $4,800 for interference with use of the residence and yard. The jury further found that no severance damages, nor any benefits to the property, had been caused by the taking, or by the construction of the project. The judgment repeated these findings, but rendered a net award to respondent, because appellants had previously withdrawn about twice the amount of their damages from respondent's deposit of probable compensation (see §§ 1255.010, 1255.210 et seq.).

Because appellants' several assignments of error arise from separate elements of the proceedings, we reserve further recitation of relevant facts to the discussion of these issues.

DISCUSSION

1. Propriety of the Finding of No Severance Damages.

Appellants' first two contentions are somewhat cryptic, as their titles, set forth below, reflect.^[1] Respondent treats them as raising a challenge to the sufficiency of the evidence to support the verdict. Were that so, the claims would be subject to rejection as waived, because of appellants' failure to set forth all material evidence in their opening brief. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (Rutter 2005) ¶¶ 8.70 - 8.71, p. 8-31.) We believe, however, that the issues raised are best understood as asserting a legal defect in the verdict with respect to severance damages. After explaining this claim, we find it to be without merit.

Certain rules and definitions frame the controversy. Severance damages are recoverable in cases in which the property condemned is part of a larger parcel. The owner then is entitled not only to compensation for the property taken, but also to compensation â€