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Court of Appeal Upholds Eminent Domain Law's Special Legal-Issues Motion Procedure

By: Bradford B. Kuhn

In 2001, aiming to streamline eminent domain litigation and reduce the need for trials, the Legislature enacted Code of Civil Procedure section 1260.040. Under that law, at least 60 days before trial parties to an eminent domain action may bring a motion requesting the judge to decide any evidentiary or legal issue affecting the determination of compensation. In Dina v. People ex rel. Department of Transportation 2007 Cal.App.LEXIS 932 -- the first published Court of Appeal opinion addressing the validity of this procedure -- a Court of Appeal in Los Angeles upheld the statute's constitutionality and explained how it can be applied, including its use to determine liability in an inverse condemnation action.

Section 1260.040's motion procedure can be particularly beneficial to public agencies which can use the procedure to have a judge, rather than a jury, determine complex or tricky evidentiary or legal issues that could be missed or confused by a jury. And by addressing these issues prior to the valuation trial, agencies can promote early settlement discussions and achieve resolutions of key disputes.

This procedure has generally been used for determining issues such as public use or contamination liability before the valuation trial, but what else can this be used for? Some examples:

  • The existence of a larger parcel for determining severance damages
  • Impairment of access
  • Probability of a zone change
  • Whether fixtures or equipment constitute improvements pertaining to realty
  • Entitlement to compensation for goodwill
  • Determination of liability for inverse condemnation
  • Entitlement to precondemnation damages as a result of the government's excessive delay or unreasonable conduct

More detail on the Dina case:

The California Department of Transportation (Caltrans) extended the I-210 freeway adjacent to the homes of Sharon Dina and David and Joann Whiteley in the City of La Verne. The property owners claimed that as a result of the noise and vibrations from the freeway construction, their homes suffered structural damage and erosion, including cracks in the patio and garage floors. They filed complaints for inverse condemnation, nuisance and negligence.

Caltrans brought a motion to dismiss the inverse claim pursuant to section 1260.040 based on the lack of evidence demonstrating that the freeway construction caused the damage to the homes. Both parties submitted their own expert reports and declarations as to evidence of liability. The court examined the factual issues and ruled that the property owners' evidence was insufficient to demonstrate that construction of the freeway caused physical damage to their property. As a result, the court granted Caltrans' motion to dismiss the inverse claim.

On appeal, the property owners argued that section 1260.040 was limited to the resolution of discrete legal issues and that the court could not weigh competing evidence in order to resolve liability. The Court of Appeal upheld the trial court's decision to allow use of section 1260.040 as the basis for a motion to dismiss. The Court of Appeal concluded that in the context of an outcome-determinative ruling, the motion was akin to a motion for nonsuit, and the Court of Appeal reviewed the case using the standard of review applicable to appeals from the granting of nonsuit, reviewing the record in the light most favorable to the nonsuited party. Doing so, the Court of Appeal concluded that much of the property owners' evidence was inadmissible and that any remaining admissible evidence offered by the property owners was insufficient to support their claim for inverse condemnation. The Court upheld the trial court's ruling.

Bradford B. Kuhn is an Associate in the Eminent Domain Practice Group and can be reached at

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