City of Fontana v. Rieben

Filed 5/16/06  City of Fontana v. Rieben 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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 San Bernardino County.  Mary E. Fuller, Judge.  Affirmed.

            Law Offices of Brian C. Ostler and Brian Charles Ostler, Sr., for Defendants, Cross-Complainants and Appellants.

            Best Best & Krieger, Kendall H. MacVey and Adam S. Towers for Plaintiff,

Cross-Defendant and Respondent.

1.  Introduction

            Defendants, Charles S. Rieben and Nancy Rieben, appeal from a condemnation judgment in favor of the City of Fontana, awarding the Riebens just compensation of $46,826.31.

            On appeal, we hold defendants were not entitled to precondemnation damages and they waived their right to challenge the taking and to any deficiencies in the amount of the deposit of probable compensation.  In addition, we hold the court properly found part of the property was subject to dedication as a condition of development.  Finally, we uphold the denial of defendants' motion for litigation expenses.

2.  Factual and Procedural Background

            The subject property (the part acquired) is 11,913 square feet, or .273 acres, of 2.11 acres of undeveloped property purchased by defendants in 1996 for investment purposes.  Except for one brief effort to list it for sale, defendants did not try to develop, lease, or sell the property.  During the course of proceedings, the expert estimates for just compensation ranged between zero value and $125,000.

            In December 2001, Fontana proposed defendants grant a right of way easement to the city in exchange for proposed capital street, sewer, and storm drain improvements in connection with widening Sierra Avenue.  After defendants declined the proposal, Fontana offered to buy the part acquired for $3,000.  Defendants countered with an offer to sell for $20,000.

            Instead, Fontana adopted a resolution of necessity and, on November 1, 2002, filed a condemnation action against the property.  Fontana deposited $2,000 as just compensation, based on an appraisal of the entire parcel being zoned for single family residential use.  An order for possession was filed on November 12, 2002.

            In January 2003, defendants answered the complaint and filed a cross-complaint for inverse condemnation, alleging causes of action for unreasonable condemnation delay and conduct.  Defendants assert Fontana had announced its intention to condemn the property in 1996 but delayed initiating condemnation proceedings, rendering the property unmarketable.

            In August 2003, Fontana's appraiser submitted alternative values for the property based on residential development:  either $2,000 for the part acquired if it was dedicated as a condition of development; or $22,500 for the part acquired, plus $7,000 severance damages, if dedication was not required.  Defendants' appraiser valued the part acquired at $27,000, also based on residential development, plus $3,000 for a temporary construction easement.

            In October 2003, defendants submitted a final settlement demand of $29,999.  (Code Civ. Proc., § 1250.410.)  Fontana made a final offer of $27,000.  A pending settlement for $28,500 collapsed when Fontana amended its general plan and changed the zoning for the property from residential to commercial, increasing the value of the property.

            Based on commercial, not residential use, defendants filed supplemental valuation data, increasing the amount for the part taken to $108,000, plus $3,000 for the temporary easement, $10,000 severance damages, and $1,800 for annual costs and taxes.  Defendants' appraiser increased the value of the taking to $98,000, plus the temporary construction cost of $3,000.

            Fontana's appraiser again submitted alternative values for the property based on commercial development:  either $2,000 for the part acquired if it was dedicated as a condition of development; or $77,500 for the part acquired if dedication was not required.

            Before trial, Fontana made another final offer of $77,400.

            In a bifurcated trial, the court first ruled that â€