(Santa Clara County Super. Ct. No. CV119575)
The opinion of the court was delivered by: Rushing, P.J.
CERTIFIED FOR PUBLICATION
Dennis E. Baca appeals a judgment entered in an action for eminent domain commenced by the City of Livermore. On appeal, Mr. Baca asserts the trial court erred in excluding all of his proffered evidence of permanent and temporary severance damages related to the takings during in limine motions. Mr. Baca argues the court's exclusion of all of his evidence was tantamount to granting a non-suit in favor of City of Livermore. In addition, Mr. Baca claims the trial court erred in its definition of the project, including work by the State of California, which was not a party to this condemnation action. Mr. Baca urges this court to reverse the judgment.
STATEMENT OF THE FACTS AND CASE
In this action for eminent domain, respondent City of Livermore (City) sought three takings of portions of commercial property owned by appellant, Dennis Baca (Baca). Baca owns the Airport Executive Center in Livermore, consisting of four separate parcels, each containing a commercial building completed in 2005. The buildings are located between Kitty Hawk Road to the west, and Rutan Road to the east, with East Airport Boulevard fronting a portion of all four buildings.
In order to raise the intersection of Kitty Hawk Road and East Airway Boulevard in the City of Livermore, the City sought takings along the front of two of Baca's commercial properties: a partial fee simple of 300 square feet, a 15,000 square foot slope and drainage easement, and a five-year temporary construction easement.
Baca's two commercial properties that are the subject of the taking slope downward from the buildings to Kitty Hawk Road and East Airway Boulevard. The City's construction project to raise the intersection will reverse the slope of the two Baca properties, changing the elevation to slope inward from the roadway down toward the buildings.
In April 2008, the City filed a complaint to exercise the power of eminent domain to acquire interests in Baca's commercial property. In September 2008, Baca filed an answer requesting additional compensation for the property interest, but not challenging the taking. Baca sought permanent severance damages in the amount of $1,317,016. Baca sought temporary severance damages in the amount of $501,286.
In May 2009, the matter proceeded to trial. The court began evidentiary hearings in limine to determine if Baca's proffered evidence in support of his severance damages was sufficient. After 10 days of hearings, the court granted the City's in limine motions, and excluded all of Baca's evidence of temporary and permanent severance damages.
In August 2009, Baca and the City entered into a stipulated judgment with the understanding that Baca would appeal the evidentiary rulings. Baca subsequently filed a notice of appeal.
This appeal relates to the trial court's exclusion of all of Baca's proffered evidence in support of permanent and temporary severance damages in the City's action for eminent domain. The court's ruling was made after a 10-day hearing on motions in limine. At the conclusion of the hearing, the court ordered all of Baca's proffered evidence excluded, effectively granting a non-suit in favor of City.
During oral argument counsel for the City was asked if he could point to any eminent domain case that was disposed of by in limine motions. He forthrightly answered that he could not. Nor can we.
"In limine motions are designed to facilitate the management of a case, generally by deciding difficult evidentiary issues in advance of trial." (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1593.) As case law recognizes, however, motions in limine also can function as "an objection to any and all evidence on the grounds [the] pleadings [are] fatally defective" for failure "to state a cause of action." (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 27.) In such cases, the in limine motion "operate[s] as a general demurrer to [the] complaints or a motion for judgment on the pleadings." (Ibid.; see Amtower v. Photon Dynamics, Inc., at p. 1593.) "Alternatively," where such motions are granted "at the outset of trial with reference to evidence already produced in discovery, they may be viewed as the functional equivalent of an order sustaining a demurrer to the evidence, or non-suit." (Edwards v. Centex Real Estate Corp. at p. 27.) "A motion for non-suit or demurrer to the evidence concedes the truth of the facts proved, but denies as a matter of law that they sustain the plaintiff's case." (Id. at pp. 27-28.) When, as in the present case, the court's order excludes all evidence on a particular claim and, as a result, operates as a motion for non-suit, we review the court's order de novo, examining the record in the light most favorable to the party offering the evidence. (Dillingham-Ray Wilson v. City of Los Angeles (2010) 182 Cal.App.4th 1396, 1403.) In such cases, "all inferences and conflicts in the evidence must be viewed most favorably to the nonmoving party." (Amtower v. Photon Dynamics, Inc., supra, 158 Cal.App.4th at p. 1595.)
Here, the trial court ruled all of Baca's proffered evidence to support his claims of temporary and permanent severance damages was inadmissible, thereby granting a non-suit in favor of the City. We are wary of the practice of disposing of a claim through the use of in limine motions, particularly in an eminent domain action, where a trial on the issue of damages is mandated by the Constitution. Because the court granted a non-suit in this case, we review the evidentiary rulings de novo.
Permanent Severance Damages
When property acquired by eminent domain is part of a larger parcel, compensation must be awarded not only for the part that is taken, but also for the injury, if any, to the part remaining. (Cal. Const., art. I, § 19; Code Civ. Proc., § 1263.410, subd. (a).) Such "severance damages" are measured by subtracting the fair market value of the remainder property after the taking from its value before the taking. (Code Civ. Proc., 1263.410; City of San Diego v. Neumann (1993) 6 Cal.4th 738, 745; Contra Costa Water Dist. v. Vaquero Farms, Inc. (1997) 58 Cal.App.4th 883, 903.) The claimed loss in market value must directly and proximately flow from the taking. Thus, recovery may not be based on "speculative, remote, imaginary, contingent, or merely possible" events. (City of Hollister v. McCullough (1994) 26 Cal.App.4th 289, 297.)
Baca sought permanent severance damages for the loss in value to the remainder of his property from the change in the building's view and curb appeal, the change in drainage, the deeper utility line and resultant increased cost to service the line, and the greater risk of traffic hazards as a result of the project.
The trial court excluded all of Baca's proffered evidence supporting his severance damages on the basis that the evidence was conjectural and speculative. In so ruling, the court stated the legal reasoning upon which it relied: "The court's understanding of severance damages is that not all damaging interferences with property rights are actionable. And a determination must be made as to whether there is an actionable interference with a property right, or to use another term, substantial impairment. [¶] . . . [¶] Once the court finds that the taking has substantially impaired the property owner's rights, it is for the jury to determine the effect of the impairment, if any, on the property's market value."
The court's statement above that it must find the "taking has substantially impaired the property owner's rights," before evaluating whether the evidence should be presented to the jury to determine whether the taking should be compensated, demonstrates its misapplication of the standards for admissibility of evidence in an eminent domain action. In Metropolitan Water Dist. of Southern California v. Campus Crusade for Christ. Inc. (2007) 41 Cal.4th 954 (Metropolitan Water), the Supreme Court considered the respective roles of the court and the jury in determining a party's entitlement to severance damages. (Id. at pp. 970-973.) The Supreme Court held that a trial court "must make certain determinations that are a predicate to the award of severance damages." (Id. at p. 972.) For example, the court noted, "[W]hat constitutes the larger parcel (for purposes of determining severance damages) 'is essentially a question of law for the determination of the court' [citation]; whether separate parcels may be aggregated and considered as one larger parcel is 'an issue of law to be decided by the trial court' [citation]; and whether a taking has substantially ...