ORIGINAL PROCEEDING: Petition for Writ of Mandate. (Super. Ct. No. CVCS-091611)
The opinion of the court was delivered by: Blease , Acting P. J.
CERTIFIED FOR PUBLICATION
This petition for writ of mandate by the State Department of Transportation (DOT) arises from an eminent domain action. DOT accepted the property owners' final demand for compensation several days before the scheduled trial date, resulting in a stipulated judgment. Upon motion by the property owners, the trial court awarded litigation expenses to them under Code of Civil Procedure section 1250.410.*fn1 DOT filed this petition to challenge the award of litigation expenses. As we shall explain, we agree with DOT that the trial court's award of litigation expenses is reviewable in this writ proceeding.
DOT contends that section 1250.410 does not permit an award of litigation expenses because the case was resolved before trial in the matter. Section 1250.410, subdivision (b) provides that the trial court may award litigation expenses if it finds "that the offer of the plaintiff [the government] was unreasonable and that the demand of the defendant [the property owner(s)] was reasonable viewed in the light of the evidence admitted and the compensation awarded in the proceeding . . . ." The current case does not involve the situation contemplated by the statute, which assumes there has been evidence admitted at trial and a resulting award of compensation. Consequently, we shall conclude the trial court erred in awarding litigation expenses.*fn2
The underlying eminent domain proceeding commenced in 2009. The parties represent that they exchanged statements concerning the valuation of the property and disclosed expert witnesses in August of 2010. Witnesses were subsequently deposed in September of that year.
Section 1250.410, subdivision (a) provides that at least 20 days before trial on issues of compensation in an eminent domain action, the parties must file their final offer or demand for compensation. DOT and the property owners submitted their final offer and final demand on September 29, 2010, which was 20 days before the scheduled trial date of October 19, 2010. DOT offered $159,000. The property owners demanded $189,000, specifying that the amount did not include interest or costs. DOT submitted a notice of acceptance of the property owners' offer on October 14, 2010, five days before trial. Service was by overnight courier, and the property owners represent that they were notified of the acceptance on the following day.
The parties subsequently entered a stipulation for judgment in condemnation. The judgment entered pursuant to the stipulation specified the property owners would recover the interest due as well as "their costs of suit incurred in this proceeding consistent with statute after defendants file a memorandum of costs." The stipulated judgment did not mention litigation expenses.
Upon motion by the property owners, the trial court entered an order granting litigation expenses in the current proceeding. The court subsequently determined the amount of expenses to be awarded. The court's final ruling awarding costs and fees (including $57,224.50 in attorney's fees) was entered in August of 2011, with service on August 15.
This petition for writ of mandate or prohibition was filed on October 11, 2011. The property owners filed their preliminary opposition on October 21, 2011. We subsequently advised the parties that we were considering issuing a peremptory writ in the first instance and provided additional time to file any further opposition. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 (Palma).) The property owners filed further opposition on November 14, 2011. DOT filed a reply on November 21, 2011.
In their opposition to the petition, the property owners request oral argument. Pursuant to the Palma procedure, a peremptory writ may issue without oral argument. (See Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1243-1244.) Accordingly, the request is denied.