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County of Glenn v. Patrick Foley

November 26, 2012


(Super. Ct. No. 09CV00676)

The opinion of the court was delivered by: Butz , J.

County of Glenn v. Foley CA3


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Following the grant of a motion in limine to exclude the testimony of the defense appraiser in this action for eminent domain, the parties stipulated to a valuation of the real property in the amount the appraiser for plaintiff County of Glenn (the County) had set, and the trial court entered judgment in accordance with this stipulation. Defendant Patrick Foley, trustee of a marital trust holding fee title to the subject property, filed a timely notice of appeal.*fn1

Foley contends the use of a motion in limine to eviscerate his case violated his right to a jury trial; the trial court's reliance on evidence outside the record to grant the motion was error; and the substantive bases for the ruling were incorrect. We agree with the latter point and shall reverse the judgment with directions to the trial court to deny the motion in limine.


The County submitted the following facts in support of its July 2010 motion in limine. It has been renting nearly 200 acres on Foley's property for use as a landfill since 1971. In 2008, the Board of Supervisors determined that the County should acquire a fee interest in the existing leased land (which was nearing capacity) along with additional acreage around it (to enlarge it and maintain a buffer zone), and to take title to incidental acreage that would otherwise become landlocked as a result of the County's acquisition of the landfill, expansion zone, and buffer zone. It therefore filed the eminent domain action in February 2009, seeking to acquire approximately 439 acres.

As described in the report of the defense expert, Gregory House, the subject property at issue is located in a rural agriculturally productive area that is "well-suited to a variety of crops, including fruit and nut orchards" if "sufficient irrigation is available and soil quality is not a limitation." In the area generally surrounding the subject property, the agricultural uses include rice, row crops, olive orchards, almond orchards, and livestock grazing (which is the current use for the subject property adjacent to the present landfill). The soil ratings for the property are II to IV on one scale (I being the best, and V to VIII being unsuitable for agriculture) and an average of 39.5 on the other scale (100 being optimal). Well water sufficient to sustain 400 acres of olives is available at a cost of about $245,000. Because "the anticipated return from an orchard use compared to grazing exceeds the cost to develop the necessary irrigation supply, . . . the highest and best use of the subject [land] is orchard land such as olives."

House identified seven comparable sales in the period of 2006 to 2008.*fn2 He provided a description of his methodology for adjusting the value of quantitative and qualitative variances between these otherwise comparable orchard properties and the subject property. For five of the properties, he had to assign a quantitative value to improvements (buildings, personal property, existing orchards, or the presence of a gas well in one instance) "if sufficient data [were] available to reliably determine an appropriate quantitative adjustment" and then deduct this from the sales price.*fn3 He also applied qualitative factors (e.g., topography and soil quality) to adjust the prices.*fn4 Calculating the resulting price per acre (and deducting the costs of developing an irrigation supply), House believed the reasonable value of the subject property was approximately $1.7 million.

In contrast, the County's expert, Ray Howard, believed the status quo of grazing land was the best and highest use of the gently rolling topography of the subject property. In support of this conclusion, Howard noted only that the soil types present on the subject property generally lent themselves to pasture use; he did not discuss whether a conversion to orchards was feasible. Based on the sales price of nine comparable plots of grazing land, Howard set the reasonable value of the subject property at approximately $637,000.

In its motion in limine, the County contended that House's valuations of the "non-land components" on the comparable properties was a violation of Evidence Code section 822, subdivision (a)(4) (hereafter section 822(a)(4)).*fn5 It also contended that the other properties were not comparable with the subject property and thus did not comply with section 816, which sets forth foundational criteria for comparable sales, including the requirement that other properties be "sufficiently alike" in "character, size, situation, usability, and improvements." The County asserted that improvements, irrigation, or an ability to grow row crops made all the other properties used by House unsuitable as comparable sales.

In its initial ruling, the trial court agreed that House's adjustments to the values of the comparable properties violated section 822, citing Emeryville Redevelopment Agency v. Harcros Pigments, Inc. (2002) 101 Cal.App.4th 1083 (Emeryville). In response to a request for "clarification" from the County regarding the alternative basis for its motion in limine (§ 816), the trial court issued an amended ruling in which it concluded the subject property's character (rolling hills, without irrigation) was not comparable to the other sales on which "plaintiff" (sic) relied, because it was not cost-effective to improve the property for olive orchards.*fn6 This prompted another letter from the County pointing out that the court's ruling had confused "plaintiff" with defendant. The trial court then issued a "corrected amended ruling," reiterating that "plaintiff's expert has indicated in his deposition that the properties that defendant's expert used are not sufficiently similar in nature to the subject property ...

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