P. v. Lindsey

Filed 5/12/06  P. v. Lindsey 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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.  W. Robert Fawke, Judge.  Affirmed.

            Law Offices of David Allen and David Allen for Defendant and Appellant.

            Bruce A. Behrens, Chief Counsel, Linda Cohen Harrel, Deputy Chief Counsel, William H. Rittenburg, Assistant Chief Counsel, Todd T. Leung, and Robert W. Vidor, for Plaintiff and Respondent.

1.  Introduction

            Defendant and appellant Chris J. Lindsey (the owner) appeals a decision in an eminent domain action below.  The People of the State of California, plaintiff and respondent, acting through the Department of Transportation (the party will be referred to for convenience as the State or Caltrans) sought to acquire a portion of the owner's property for a freeway project.  Part of the property was to be acquired outright; part of the property was to be subjected to a construction easement.  The owner complains that the valuation portion of the eminent domain judgment should be reversed.  He contends that the trial court abused its discretion in refusing him relief from procedural requirements precedent to the nomination and presentation of his expert, he contends that the court erred in granting a directed verdict on valuation, and he attacks the valuation criteria and data. 

            For the reasons which will appear, we affirm the judgment. 

2.  Factual and Procedural History

            On August 6, 2002, the State filed a complaint in eminent domain concerning the owner's property.  The State desired to take some of the property for a Caltrans freeway project; a portion would be condemned outright, and a portion would be subjected to a construction easement.  The State filed its lis pendens the same day.  On August 8, 2002, the State deposited $13,100, based on an appraisal, pursuant to Code of Civil Procedure^[1] section 1255.010, subdivision (a), and requested an order for immediate possession.  The court signed the possession order, permitting Caltrans to take possession as of September 1, 2002. 

            The owner was served with the summons and complaint, notice of deposit, and order for possession on September 6, 2002.  The State dismissed unserved parties, and on December 24, 2002, filed a case management statement requesting a jury trial on the disputed issue of valuation. 

            The owner filed an answer on January 3, 2003.  A case management conference was held on the same date.  The State represented that discovery was nearly complete, and requested trial dates.  Both sides demanded a jury trial and a court reporter.  The parties agreed to a mandatory settlement conference (MSC), to be heard on April 18, 2003.  The trial date was set for May 19, 2003. 

            The State filed its MSC brief on April 11, 2003.  The State claimed that the proper valuation for the portion of property taken was $13,000 for the part permanently taken for the freeway, and $1,000 for the temporary construction easement.  The State denied that there had been any delay damages, and argued that the condemnation improved the remainder of the property, and any severance damages were nominal.  The

condemned land was part of four parcels of the owner's property.  â€