The opinion
Filed 4/24/26 Flats Management Group v. L.A. County Metro. Trans. Auth. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
FLATS MANAGEMENT GROUP, B333260, B334627
LLC, et al.,
Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. BC691935
v.
LOS ANGELES COUNTY
METROPOLITAN
TRANSPORTATION
AUTHORITY, et al.,
Defendants and Appellants.
APPEALS from orders and a judgment of the Superior
Court of Los Angeles County, Gregory Keosian, Judge. Affirmed
in part, reversed in part, and remanded.
Century Law Group, Edward O. Lear; Evans Kingsbury,
Noreen M. Evans for Plaintiffs and Appellants.
Horvitz & Levy, Robert H. Wright and Mark A. Kressel;
Lewis Brisbois Bisgaard & Smith, Edward E. Ward, Jr. and
Judith J. Steffy for Defendants and Appellants.
____________________
On the southeast corner of Wilshire Boulevard and South
Gale Drive in a bustling Beverly Hills neighborhood sits a single-
story commercial building that has housed various restaurants
and businesses since the 1930s. The physical address of the
building is 8400 Wilshire Boulevard.
Two blocks west, at the corner of Wilshire and La Cienega
Boulevard, is the location for a subway station that the Los
Angeles Metropolitan Transportation Authority (“Metro”) had
been planning for years in the expansion of its Purple Line
westward. Construction on the Wilshire/La Cienega station
began in 2015.
2015 was also the year that a new restaurant hoped to open
at 8400 Wilshire Boulevard. However, because of the ongoing
construction at the Wilshire/La Cienega station, the restaurant’s
owners delayed their plans twice before officially opening in May
2017.
Despite positive reviews, business at the restaurant was
not good.
In January 2018, the restaurant and its landlord sued
Metro, the City of Beverly Hills (“City”), and Skanska Traylor
Shea, the contractor building the station (“Skanska,” and
collectively with Metro and City, “Defendants”), bringing claims
for inverse condemnation, nuisance, negligence, and intentional
interference with contracts.
The restaurant remained open throughout 2018 but closed
in January 2019 due to expenses exceeding revenues.
2
Defendants prevailed at the bench trial on the inverse
condemnation claim. They then moved for a nonsuit on the
remaining claims, and the trial court granted the motions by the
City and Skanska. The court denied Metro’s nonsuit, allowing
the plaintiffs’ remaining claims to proceed against Metro. Then
the jury found Metro negligent and awarded over $4 million in
damages to the plaintiffs. The court denied Metro’s post-trial
motions.
Both sides appealed.
Flats and Simon seek reversal of the trial court’s decisions
on inverse condemnation and granting nonsuit to the City and
Skanska.
City and Skanska moved to dismiss the plaintiffs’ appeal
against them on untimeliness grounds.
Metro asks that we reverse the judgment against it,
contending the trial court erred in denying its motion for
judgment notwithstanding the verdict.
Flats and Simon filed a second appeal, seeking reversal of
the trial court’s post-judgment award of prevailing party costs to
City and Skanska. We consolidated that appeal with the first for
purposes of oral argument and decision.
We grant City and Skanska’s motion to dismiss the Flats
and Simon’s appeal against them. We affirm the trial court’s
decision on inverse condemnation. We reverse its decision
denying Metro’s motion for judgment notwithstanding the verdict
and order it to enter judgment for Metro. We dismiss as moot
Flats and Simon’s second appeal. And we remand for
proceedings consistent with this opinion.
Undesignated statutory citations refer to the Code of Civil
Procedure.
3
I
We recount the facts and procedural history.
A
When Victor Alexandroff was contemplating retirement,
some of his friends found for him what seemed to be an ideal
investment property. Alexandroff, a licensed attorney who had
practiced since 1987 and worked for over 25 years at the Los
Angeles City Attorney’s Office, was looking for a way to
supplement the income he would receive from his pension.
Alexandroff visited the property, located at 8400 Wilshire
Boulevard (“Property”). In his own words, he “fell in love with it.”
Originally built in the 1930’s, the Property, a standalone single-
story art deco building, has one of the oldest liquor licenses in the
state and a history of successful restaurants as tenants, including
a sushi restaurant owned by Matt Damon and Ben Affleck. The
Property’s history, along with its proximity to the Saban Theatre,
which hosted many events, impressed Alexandroff.
While he was still doing due diligence and researching the
Property, Alexandroff learned that Metro was in the process of
expanding its Purple Line and constructing the Wilshire/La
Cienega subway station very close to the Property. He
understood from his research and the papers he read that the
above-ground construction would finish in 2017. Alexandroff
thought that in the long run, it would actually be beneficial to
own property next to the station.
Alexandroff and his wife, through an entity called Simon A.
Management, LLC (“Simon”), purchased the Property at the end
of 2013. At the time of purchase, the Property had, as a tenant
for several years, a popular high-end restaurant named Red
Medicine. Adam Fleischman, a self-taught restaurateur who
4
started the restaurant brands Umami Burger and 800 Degrees
Pizza, had founded Red Medicine as a Beverly Hills destination
restaurant. Alexandroff thought owning the Property would be
“headache free” because Red Medicine would be a good tenant.
Not long after Simon bought the Property, at some point in
2014, Fleischman decided to close Red Medicine to pursue his
other restaurants. But around that time, the Property had
caught the eye of Kyle Schutte, an up-and-coming chef.
Schutte knew Fleischman and had been working with
restaurateurs Lisa Long and Emily Mura-Smith to develop a
restaurant concept they named “The Flats,” which would serve
gourmet flatbreads and sandwiches with an extensive cocktail
selection. Mura-Smith and Long had decades of experience
running restaurants together. They had previously collaborated
with celebrity chef Fabio Viviani, who had appeared on the
television series Top Chef, to open an Italian restaurant.
Schutte believed the Property would be the perfect flagship
location for their restaurant. Long, Mura-Smith, and Schutte
envisioned the restaurant as a concept they could eventually
franchise to other locations. Long and Mura-Smith set up an
entity called Flats Management Group, LLC (“Flats”), to run the
restaurant.
In 2014, Long approached Alexandroff to inquire about
leasing the Property. Alexandroff met with Long and learned of
her history as an experienced restaurateur who had opened
multiple successful restaurants in the past. Given her track
record, Alexandroff decided Long was someone that he wanted to
work with.
Flats signed a lease with Simon in November 2014, and
Alexandroff understood that Long and her team would be doing
5
some renovations at the Property before opening their
restaurant. Fleischman agreed to guarantee the lease for a year.
Long and Mura-Smith were also aware that construction
would begin in 2015 near the Property. Long had experienced
Metro’s expansion of its Red Line near one of her previous
restaurants in North Hollywood. While the construction was
somewhat inconvenient, Long did not feel that it significantly
detracted from her restaurant’s operations. Long did not
anticipate any problems with the construction near the Property
and even touted the Property’s proximity to the Wilshire/La
Cienega station as a potential boon for business to prospective
investors.
Since signing the lease, Long and Mura-Smith continued to
make improvements on the Property, including building out the
walls to make space for large pizza ovens they had imported from
Italy, and getting the necessary permits for their remodeling.
Long invested $875,000 of her own money into the business and
borrowed additional money to help cover the costs. By May 2015,
Long was satisfied with the progress of renovations and hoped to
open the restaurant by the end of the year. Her hope was that
the restaurant would be profitable within two years of opening.
B
At some point in 2015, before the construction began, Long
met Mindy Lake, a community relations officer with Metro.
Lake’s job was to maintain communication with stakeholders in
the community and be the liaison between Metro and Skanska as
Metro continued to expand the Purple Line through Beverly
Hills. In this capacity, she went door-to-door along the path of
the Purple Line extension, introduced herself, and gave people
her contact information so they could reach out if they had
6
questions about the construction. Lake also helped facilitate
monthly meetings in the community to provide updates on the
construction’s progress.
Long told Lake she hoped to open the restaurant in time for
the holiday season in 2015, and Lake responded that this was
“terrific.” From her discussions with Lake, Long believed that
the restaurant’s access to Wilshire Boulevard would be closed for
no longer than two months at a time and that access to Gale
Drive might be “sporadic.”
In late August or September of 2015, Long told Lake she
was worried the restaurant would not be able to open in time for
the holidays because Gale had only limited parking for potential
restaurant patrons, and Flats had not yet gotten its valet permits
from the City. Around this time, there was some construction
near the Property, and Long heard the sound of jackhammers
and saw workers cutting and moving asphalt.
Because of the construction and what Lake had told her,
Long decided to delay the restaurant opening and instead focus
on a second phase of remodeling to elevate the restaurant’s
branding. Long thought Flats might be able to open the
restaurant by spring or summer of 2016.
Through early 2016, construction around the Property
ramped up. The amount of construction caused Long to worry
that opening in April 2016 was not realistic. She was concerned
that people would not be able to access the restaurant from either
Gale or Wilshire. Long decided to push the opening to Christmas
2016. After a meeting with Lake and some other people involved
in the construction around November of 2016, Long decided to
delay the opening again into 2017.
7
In January 2017, Mura-Smith attended one of the monthly
meetings about the construction’s progress. Based on what
Mura-Smith learned at the meeting, Long, Schutte, and Mura-
Smith decided they could open the restaurant in April 2017.
Their understanding was that there would be, at a maximum,
only two months of above-ground construction directly by the
Property. They believed that after April 2017, all construction
would move underground, so they could do a soft opening in April
and officially open in May 2017. Flats began to hire restaurant
staff in March 2017.
By April 2017, however, Metro and Skanska were in the
midst of drilling potholes along Wilshire to install soldier piles
that would go deep underground to support the excavation of the
subway station box. There was still a barrier directly in front of
the Property obscuring its view from certain angles, which would
remain until the end of June 2017.
Throughout April 2017, noise, dust and vibration from the
construction disrupted the ambiance of the restaurant. Patrons
had difficulty finding parking. Many of them left. Nonetheless,
Long felt that she had no choice but to proceed with the May 1,
2017 opening.
By June 2017, Long thought things in front of the
restaurant were looking better. A sidewalk was now open, and
Long felt optimistic. By July 2017, there were two lanes open on
Wilshire, and at least one lane on Gale was open. Flats got a
sidewalk dining permit in the fall of 2017. Sidewalk dining was
up and running for a few months before Flats decided to shut it
down because of the construction noise.
By December 2017, Schutte had left Flats and Long began
to work with other chefs. Long used her payroll from another
8
restaurant to help with Flats’ expenses, which were piling up.
She continued to take out loans, including some with extremely
high interest rates. Long’s efforts kept the restaurant afloat for
several months, and the restaurant garnered positive reviews.
But the restaurant’s revenue was nowhere near what Long and
Mura-Smith had projected. Long, Mura-Smith, and Alexandroff
believed the construction was the reason for the restaurant’s lack
of business.
C
In January 2018, Flats and Simon sued Metro, City, and
Skanska for inverse condemnation, nuisance, negligence, and
intentional interference with contracts. Their complaint alleged
that starting in December 2016, Defendants subjected them to “a
continuing nuisance and profound interference and disruption,”
including obstruction with their free use of the Property;
obstruction of sidewalks and public streets; the placement of
fences near the Property’ entrance; the creation of dust, noise,
vibration, and odors; and impairment of ingress and egress for
both pedestrian and car access. They further alleged Defendants
knew the restaurant “would lose customers and clientele as a
result of their careless and insensitive approach to the
construction of the [subway] segment” and that Defendants
“repeatedly made false representations” about the progress of the
construction and Defendants’ ability to mitigate inconveniences
from the construction.
The restaurant remained open for all of 2018. Sometimes
the restaurant was busy. Construction directly in front of the
restaurant had ceased. But Flats, which had begun paying rent
to Simon in 2014 and had continued to pay rent for over two
years before it officially opened, could no longer pay rent to
9
Simon, despite Alexandroff reducing the rent and returning some
of the $250,000 security deposit.
Simon evicted Flats in January 2019, shuttering the
restaurant.
The Property would remain vacant for over four years.
Alexandroff was not able to rent the Property until March 2023,
when Simon signed a 20-year lease with Panera Bread. The rent
under this lease was substantially below market, and the lease
included a provision that any construction in front of the
Property would further reduce the rent by half.
D
In September 2020, the parties agreed to bifurcate
proceedings: a bench trial for the inverse condemnation claim and
a jury trial for the remaining claims.
The five-day bench trial began in January 2022. In
addition to Long, Mura-Smith, and Alexandroff, Flats and Simon
offered the testimony of restaurateur Adam Fleischman and
Victor Zamora, the president of ZG Valet, a Beverly Hills
company that Flats had hired to assist with parking.
Long, Mura-Smith, and Alexandroff testified about the
ways in which the construction obstructed access to the
restaurant, including a staging area that was directly across the
street. Mura-Smith described trucks constantly coming in and
out of the staging area with large pieces of equipment. Long and
Mura-Smith opined that convenient and consistent access was
necessary for a restaurant to survive. But Long conceded that
access was “intermittent” and was not able to testify as to exactly
how long the construction blocked access to the restaurant.
Zamora testified as to the importance of convenient parking
for restaurants and his unsuccessful efforts to get a valet parking
10
permit for Flats. Instead of a normal valet service, Zamora had
one of his employees stand outside the restaurant and direct
customers to nearby parking facilities.
Fleischman testified about his own experience with the
Property and how it appealed to him for his Red Medicine
restaurant because of its art deco architecture, freestanding
nature, parking lot, visibility on a major street, and beautiful
interior. In his opinion, a successful restaurant in Beverly Hills
would need good visibility from the street, valet parking, and
aesthetic appeal. These qualities enabled Fleischman to operate
Red Medicine for about five years. Fleischman testified that this
meant Red Medicine was successful because “most restaurants
don’t make it past a year or two” and the decision to close Red
Medicine was “elective.”
Defendants presented the testimony of Mohamad Ramlawi,
the Skanska manager responsible for the construction activities
at the Wilshire/La Cienega station, and Mindy Lake.
Ramlawi, a licensed civil engineer who had started his
construction career in 2000, provided an overview of the
construction near the Property and the Purple Line expansion
project more broadly, along with a timeline of the construction.
The entire Purple Line expansion was 3.9 miles. Ramlawi said
that Metro did the same work all along the expansion.
Ramlawi explained that construction on the south side of
Wilshire directly in front of the Property took place over four
months, from March 2017 to June 2017. During this four-month
period, at least two lanes in each direction on Wilshire were open.
In June 2017, construction began on the north side of Wilshire.
Ramlawi also testified that Skanska and Metro were
contractually mandated to maintain access to the Property at all
11
times. There was only one week when they completely closed the
sidewalk in front of the Property.
Ramlawi also described the “decking” process, which began
in September 2017 on Wilshire. Decking enables above-ground
traffic to proceed over underground construction. Decking only
took place on weekends, and entailed Skanska blocking off 120 or
140 feet on Wilshire, removing the pavement, excavating enough
to expose the utilities, covering the hole with a pre-cut deck
panel, and paving it in time for Monday morning traffic. There
was one weekend in December 2017 where Skanska did decking
directly in front of the Property. After that weekend, there was
no further construction activity at the street level in front of the
Property.
Throughout the construction, Ramlawi maintained that it
was possible to get to the Property because Skanska and Metro
never blocked the building or doors. If Skanska and Metro did
close a sidewalk, it “always created a way-finding map that was
distributed to the residents and to the businesses.”
Ramlawi further testified that there were noise limitations
that Skanska and Metro had to respect throughout the
construction process. Skanska used sound blankets to block the
noise from reaching residential areas.
Lake testified that since she began her job in 2014, it was
always possible to access the Property whenever she tried to do
so.
In addition to the witness testimony, the court received into
evidence many photographs of the construction in front of the
Property during the relevant time periods.
In May 2022, the trial court rendered its statement of
decision on the inverse condemnation claim. The court found
12
there was no taking by Defendants. While finding there to be “no
dispute the construction was a major source of aggravation for
[Flats and Simon], especially in light of the fact they were
attempting to establish themselves as a new, up and coming
restaurant,” the court concluded this “appears to be a case of bad
timing, not a case of a taking under either the California or
United States Constitution.”
E
In January 2023, Flats and Simon requested dismissal with
prejudice of their inverse condemnation claim with respect to
Skanska.
The jury trial began in May 2023. The jury heard
testimony from the same witnesses who testified during the
bench trial, with additional witnesses who testified to Flats and
Simon’s alleged damages.
Following Flats and Simon’s case-in-chief, Defendants
moved for nonsuit. On May 24, 2023, the court issued a written
order granting the nonsuit motion as to City and Skanska, but
denying it as to Metro.
After the defense rested, Metro moved for a directed
verdict, which the court denied on the same day.
On May 31, 2023, the jury returned a verdict against Metro
on Flats and Simon’s negligence claim. The jury awarded $1.7
million in damages to Simon and $2.35 million to Flats.
On July 7, 2023, the trial court entered three documents.
First, an order dismissing with prejudice Flats and Simon’s
action against City and Skanska. Second, a minute order
dismissing with prejudice Flats and Simon’s complaint against
City and Skanska and judgment in Flats and Simon’s favor
against Metro for the amount of $4,050,000. Third, the proposed
13
judgment form from Flats and Simon that provided a summary of
the proceedings and verdict, and ordered dismissal with prejudice
of City and Skanska and judgment for Flats and Simon against
Metro for $4,050,000.
On July 19, 2023, Flats and Simon filed a notice of entry of
final judgment.
On August 23, 2023, Metro filed motions for a new trial and
for judgment notwithstanding the verdict. Flats and Simon
opposed both.
On September 19, 2023, the court issued a written order
denying both of Metro’s post-trial motions.
On October 16, 2023, Metro filed a notice of appeal,
checking two boxes from the list of appealable orders on the form:
the July 7, 2023 judgment after jury trial and the September 19,
2023 order denying its motion for judgment notwithstanding the
verdict.
On October 19, 2023, Flats and Simon filed a notice of
appeal, seeking review of the court’s decisions denying their
inverse condemnation claim and granting nonsuit in favor of City
and Skanska. The notice specified that Flats and Simon are
“NOT APPEALING [THE] VERDICT AS TO THE MTA.”
On October 26, 2023, the court held a hearing on the
parties’ dueling motions to tax costs. That same day, the court
issued a minute order granting in part each motion and awarding
prevailing party costs to Flats, Simon, City and Skanska.
On December 6, 2023, Flats and Simon filed a notice of
appeal, seeking review of the court’s order awarding costs to City
and Skanska.
On February 1, 2024, City and Skanska moved to dismiss
Flats and Simon’s appeal against them. Flats and Simon filed
14
their opposition. We deferred deciding the motion until
completion of the briefing in the main appeal.
II
We first address City and Skanska’s motion to dismiss
Flats and Simon’s appeal against them.
In their motion, City and Skanska correctly argue this
appeal is untimely, because the trial court entered an order of
dismissal of the entire complaint as the City and Skanska on July
7, 2023, the clerk served the order that same day, the deadline to
appeal this order was thus 60 days later on September 5, 2023,
and Flats and Simon did not file a notice of appeal until October
19, 2023.
We start by looking at the “one final judgment rule” (see
Code Civ. Proc., § 904.1) before turning to the rule extending the
deadline to file a notice of appeal in certain circumstances (Rule
8.108 of the Rules of Court).
The one final judgment rule means what it says—that
there is generally only one final judgment terminating trial court
proceedings from which an appeal may be taken. (See Code Civ.
Proc., § 904.1; Bank of America v. Superior Court (1942) 20
Cal.2d 697, 701 [“there can be but one judgment in an action no
matter how many counts the complaint contains”].) It is “a
fundamental principle of appellate practice that prohibits review
of intermediate rulings by appeal until final resolution of the
case” to prevent piecemeal dispositions and multiple appeals in
the same case. (Griset v. Fair Political Practices Com. (2001) 25
Cal.4th 688, 697.)
Section 904.1 “provides a list of appealable judgments and
orders” and “permits an appeal in any unlimited civil action to be
taken from any of 14 enumerated filings.” (Meinhardt v. City of
15
Sunnyvale (2024) 16 Cal.5th 643, 652.) “The first such filing,
with exceptions not relevant here, is ‘a judgment, except an
interlocutory judgment.’ ” (Ibid. (citing § 904.1, subd. (a)(1).)
This judgment must be “not intermediate or nonfinal” but must
be the one final judgment. (Morehart v. County of Santa Barbara
(1994) 7 Cal.4th 725, 741 (Morehart).)
Flats and Simon argue the one final judgment rule requires
us to deny City and Skanka’s motion. Their briefing, however,
fails to acknowledge that there are exceptions to the one final
judgment rule. (See, e.g., In re Baycol Cases I & II (Baycol) 51
Cal.4th 751, 760–762 [explaining that in class actions, the “death
knell doctrine” renders appealable an order terminating class
claims but allowing individual claims to continue]; Wong v. Dong
(2025) 112 Cal.App.5th 109, 114–115 [orders granting or denying
an anti-SLAPP motion to strike fall within an exception to the
“one final judgment rule”].)
As City and Skanska note, another exception to the one
final judgment rule exists “in multiparty actions where a
judgment or order resolves all of the issues as to one of the
parties, in which case that judgment or order is appealable as to
that party.” While this type of order is not enumerated in section
904.1 as an appealable order, our Supreme Court has explained it
as follows: “[j]udgments that leave nothing to be decided between
one or more parties and their adversaries, or that can be
amended to encompass all controverted issues, have the finality
required by section 904.1, subdivision (a).” (Morehart, supra, 7
Cal.4th at p. 741.)
Appellate courts have recognized and applied the exception
in situations similar to the one here. (See, e,g., Save Berkeley’s
Neighborhoods v. Regents of University of California (2021) 70
16
Cal.App.5th 705, 714 (Berkeley) [appeal properly taken from an
order disposing of all issues between the plaintiff and two real
parties in interest]; Heshejin v. Rostami (2020) 54 Cal.App.5th
984, 991 (Heshejin) [order of dismissal resolving all issues as to
one set of defendants was appealable]; Martis Camp Community
Assn. v. County of Placer (2020) 53 Cal.App.5th 569, 588
[declining to dismiss appeal taken from trial court order
disposing of all the plaintiff’s claims against one defendant, even
though “unresolved issues remain” between plaintiff and another
defendant]; Ricketts v. McCormack (2009) 177 Cal.App.4th 1324,
1337–1338 (Ricketts) [dismissing as untimely one party’s appeal
from the judgment ultimately entered in the case when she failed
to appeal an earlier appealable order that resolved all of her
claims against the defendant].) We are therefore satisfied that
this final-order-as-to-one-party exception is a sufficiently “bright
line” that signals appealability. (See Baycol, supra, 51 Cal.4th at
p. 761 [“bright lines are essential [in establishing rules of
appealability] to avoid both inadvertent forfeiture of the right to
appeal and excessive protective appeals by parties afraid they
might suffer such a forfeiture”].)
This exception applies here; the July 7, 2023 order
dismissing them with prejudice from Flats and Simon’s complaint
is an appealable order because the order disposes of all claims
against them, is in writing, signed by the court, and filed in this
action. (See Code Civ. Proc. § 581d [“All dismissals ordered by
the court shall be in the form of a written order signed by the
court and filed in the action and those orders when so filed shall
constitute judgments and be effective for all purposes, and the
clerk shall note those judgments in the register of actions in the
case”].) Specifically, the order states, in relevant part, as follows:
17
“The Court having decided that Defendants [CITY] and
[METRO] are not liable for inverse condemnation, judgment is
entered for those Defendants on that claim and Plaintiffs
[FLATS] and [SIMON] shall take nothing by that claim;
“Pursuant to the Court’s May 24, 2023 Order granting in
part defendants’ motion for nonsuit, Defendants [SKANSKA] and
[CITY] are hereby dismissed and Plaintiffs [FLATS] and
[SIMON] shall take nothing by way of their complaint against
Defendants [SKANSKA] and [CITY].”
This July 7, 2023 order was the final appealable order,
under section 904.1(a), as to Flats and Simon’s claims against
Skanska and City. (See, e.g., Berkeley, 70 Cal.App.5th at p. 714;
Heshejin, 54 Cal.App.5th at p. 991; Martis, 53 Cal.App.5th at p.
588; Ricketts, 177 Cal.App.4th at pp. 1337–1338.)
Under the Rules of Court, the corresponding deadline for
Flats and Simon to file a notice of appeal as to their claims
against Skanska and City was September 5, 2023. (Cal. Rules of
Court, rule 8.104(a)(3).) They did not do so until more than a
month later. Accordingly, Flats and Simon’s failure to file a
timely notice of appeal doomed their ability to appeal the court’s
dismissal of their claims against City and Skanska. (See Baycol,
supra, 51 Cal.4th at p. 761 fn. 8 [“California follows a “one shot”
rule under which, if an order is appealable, appeal must be taken
or the right to appellate review is forfeited”]; see also Kinoshita v.
Horio (1986) 186 Cal.App.3d 959, 967 [“If [a] ruling is appealable,
the aggrieved party must appeal or the right to contest it is
lost”].)
In their opposition, Flats and Simon argue their appeal
against City and Skanska is still timely under Rule 8.108 of the
Rules of Court, which describes the various circumstances that
18
extend the time to appeal. Specifically, they cite two of these
circumstances: posttrial motions and cross-appeals of the same
judgment. (See Cal. Rules of Court, rules 8.108(b), (d), (g).)
Posttrial motions, including motions for a new trial and for
judgment notwithstanding the verdict, extend for all parties the
time to appeal from the judgment until “30 days after the
superior court clerk or a party serves an order denying the
motion or a notice of entry of that order.” (Cal. Rules of Court,
rules 8.108(b), (d).) Flats and Simon point out that the document
dismissing City and Skanska also included a judgment in their
favor against Metro, stating: “Plaintiffs [FLATS] and [SIMON]
shall recover from Defendant [METRO] the sum of $4,050,000.00
with interest thereon at the rate of seven percent (7%) per annum
from the date of entry of this judgment until paid.” They urge us
to find that under Rules 8.108(b) and (d), because Metro filed
motions for a new trial and for judgment notwithstanding the
verdict from the July 7, 2023 judgment against it, which also
included the dismissal of City and Skanska, and the trial court
denied both on September 19, 2023, the deadline for Flats and
Simon to appeal from the July 7, 2023 order dismissing City and
Skanska extended from September 5, 2023 to October 19, 2023.
We reject this argument. It would require us to conflate
the order dismissing City and Skanska with the judgment
resolving Flats and Simon’s claims against Metro. Despite being
on the same July 7, 2023 document, these are discrete judicial
actions on separate tracks. There can be multiple appealable
orders on the same document. Flats and Simon are cognizant of
this fact on some level, as their notice of appeal specified that
they were only appealing the dismissal of City and Skanska and
19
the court’s denial of their inverse condemnation claim, and “NOT
APPEALING [THE] VERDICT AS TO [METRO].”
Likewise, as City and Skanska note, Metro filed posttrial
motions on the judgment against it, not the court’s order
dismissing City and Skanska. Thus, Rules 8.108(b) and (d) only
extended the deadline to appeal as to the judgment resolving
Flats and Simon’s claims against Metro, not the order dismissing
City and Skanska. Rules 8.108(b) and (d) only came into play
here because Metro filed posttrial motions on the judgment
against it, and it only applies to Flats and Simon’s claims against
Metro. Thus, Flats and Simon’s appeal against Metro is timely
because it also stems from the court’s judgment resolving their
claims against Metro.
For the same reason, Flats and Simon cannot construe
their notice of appeal against City and Skanska as a cross-appeal
under Rule 8.108(g) from Metro’s notice of appeal. To be clear,
Metro’s notice of appeal applied only to the judgment against it,
and not the order dismissing City and Skanska. All Rule 8.108(g)
could do for Flats and Simon is allow a twenty-day window for
them to file a cross-appeal from the same judgment from which
Metro appealed. And because part of Flats and Simon’s appeal
did pertain to its claims against Metro, Rule 8.108(g) is an
alternative basis to find timely Flats and Simon’s appeal against
Metro. But the rule does not reach the order dismissing City and
Skanska.
Our finding that Flats and Simon’s appeal against City and
Skanska is untimely is consistent with how appellate courts have
ruled on the timeliness of appeals in other contexts involving a
party’s failure to file a timely notice of appeal of an immediately
appealable order. For example, courts have found untimely
20
appeals that were not based on the trial court’s immediately
appealable orders resolving anti-SLAPP motions. (See, e.g. Reyes
v. Kruger (2020) 55 Cal.App.5th 58, 62 [appeal untimely where
“the appellants did not appeal from the order granting the anti-
SLAPP motions but from the judgment of dismissal that followed
later, which they relied on as the appealable order”]; Melbostad v.
Fisher (2008) 165 Cal.App.4th 987, 995–997 [same]; Maughan v.
Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1246–1257
[same].) And in Williams v. Impax Laboratories, Inc. (2019) 41
Cal.App.5th 1060, 1071, the plaintiff’s failure to appeal an
appealable “death knell” order terminating class claims
foreclosed her from later attacking the dismissal of her class
allegations. (Ibid.)
Flats and Simon’s appeal against City and Skanska was
untimely. We therefore grant City and Skanska’s motion to
dismiss that portion of Flats and Simon’s appeal. The trial
court’s dismissal of Flats and Simon’s claims against City and
Skanska will remain undisturbed.
III
We now proceed to the merits of Metro’s appeal and Flats
and Simon’s cross-appeal. First, we examine the court’s
statement of decision on Flats and Simon’s inverse condemnation
claim, which Flats and Simon ask us to reverse. Next, we review
the trial court’s decision to deny Metro’s motion for judgment
notwithstanding the verdict, which Metro contends was
erroneous. Lastly, we address the trial court’s order awarding
costs, which is the subject of Flats and Simon’s second appeal.
A
We affirm the trial court’s inverse condemnation decision
against Flats and Simon.
21
Article 1, section 19 of the California Constitution
guarantees “just compensation” whenever the government takes
or damages private property for a public use. (Weiss v. People ex
rel. Dept. of Transportation (2020) 9 Cal.5th 840, 852 (Weiss).)
An inverse condemnation action is a property owner’s procedure
to vindicate their constitutional right to just compensation after
the government has taken or damaged their property. (Id. at p.
853.) The threshold requirement for a property owner in such an
action is to establish that the government has, in fact, taken or
damaged his or her property before he or she can reach the issue
of “just compensation.” (San Diego Gas & Electric Co. v. Superior
Court (1996) 13 Cal.4th 893, 940 (San Diego).)
The government “takes or damages” property when it (1)
causes physical damage to that property without physically
invading it; (2) physically invades that property in any tangible
manner; or (3) causes an intangible intrusion burdening the
property that is “direct, substantial, and peculiar to the property
itself.” (San Diego, supra, 13 Cal.4th at p. 940.) Whether the
government has “taken or damaged” private property is a mixed
question of law and fact for the trial court to decide. (Weiss,
supra, 9 Cal.5th at p. 865.)
In making its legal conclusion that there was no taking by
City and Metro, the trial court made the following factual
findings. First, the court summarized the conditions facing the
restaurant. It found “[a]ll new restaurants face great
challenges,” and acknowledged Flats and Simon faced many
challenges in the “perfect storm” of “opening a restaurant in the
midst of metro construction on Wilshire Boulevard in the City of
Beverly Hills.” While acknowledging that the “[t]he corner upon
which the restaurant sat acted as a staging area and apparent
22
storage venue for the large machinery and equipment used
during the construction process,” the court also found “this was
not unique to the Flats location. As the construction moved along
Wilshire Boulevard, so did the staging area.”
The court went on to describe the construction as “clearly
messy, dusty, noisy” and observe that it caused vibrations
impervious to the effect of sound blankets, which also temporarily
obscured the visibility of the front of the restaurant. The court
further noted “[m]ost importantly for [Flats and Simon], they
contend access to the restaurant itself was lost due to the closure
of Wilshire Boulevard, as well as [Gale]” and that “[t]hey also lost
street parking, metered parking and access to their own parking
lot at times.”
Next, the court found “[t]he injuries sustained by [Flats and
Simon] were temporary in nature and there was never a total loss
of access.” On this issue, the trial court cited the testimony of
defense witness Ramlawi, who testified “that the above ground
construction on the Flats side of Wilshire Boulevard lasted
approximately four months, of which two to three weeks was in
front of Flats.” The decision additionally noted Long “testified to
only inconsistent access, there was always access through the
front door during construction,” and that when she was
questioned about the construction conditions, “she often
responded she was unaware of how long the conditions were
present.”
1
On appeal from a mixed question of law and fact, we
independently determine applicable legal principles but defer to
the trial court’s factual findings. (Border Business Park, Inc. v.
23
City of San Diego (2006) 142 Cal.App.4th 1538, 1554 (Border
Business Park).)
Flats and Simon bring both legal and factual challenges to
the inverse condemnation decision. We address each in turn.
a
Before tackling the parties’ dispute on the applicable law,
we start with what they agree on: the general legal theory of
what would constitute a taking in this case. Both parties cite our
decision in Today’s IV, Inc. v. Los Angeles County Metropolitan
Transportation Authority (2022) 83 Cal.App.5th 1137, 1167
(Today’s IV), a case we decided a few months after the bench trial
in this case. Like the situation here, Today’s IV involved the
intangible intrusion theory of inverse condemnation. In Today’s
IV, we explained that a substantial impairment of the right of
ingress and egress could support an inverse condemnation claim,
so long as the intrusion upon access resulted in a burden on the
property that is “direct, substantial, and peculiar to the property
itself.” (Id. at p. 1171 [emphasis in original].)
The parties disagree, however, on what exactly a “direct,
substantial, and peculiar” burden would entail. While not using
those exact words, the trial court essentially found that the
access burden on Flats and Simon was not direct, substantial,
and peculiar, because the burden was temporary, not unique to
their property, and never fully deprived them of access. In so
finding, the court relied on the following cases: People ex rel
Department of Public Works v. Ayon (1960) 54 Cal.2d 217, 228
(Ayon); Heimann v. City of Los Angeles (1947) 30 Cal.2d 746, 755
(Heimann), overruled on other grounds by Los Angeles County v.
Faus (1957) 48 Cal.2d 672, 679; and Border Business Park, supra,
142 Cal.App.4th at pp. 1554–1557.) Citing Boxer v. City of Beverly
24
Hills (2016) 246 Cal.App.4th 1212, 1222, the court also found
that “[i]mpairment to visibility does not in and of itself constitute
a taking or compensable damage.”
Flats and Simon argue the trial court defined “access” too
narrowly. Citing Rose v. State (1942) 19 Cal.2d 713, 729 (Rose),
they believe the court should have given more weight to the
property’s history of successful restaurants, and the nature of the
restaurant business in Beverly Hills, which, according to their
witnesses Zamora and Fleischman, requires a high degree of curb
appeal, reliable and convenient parking, and ease of entry. They
cite People v. Ricciardi (1943) 23 Cal.2d 390, 399 (Ricciardi) for
the notion that “[a]n owner also has an easement of reasonable
view of their property from the adjacent roadway.” Flats and
Simon’s definition of a “direct, substantial, and peculiar” access
burden would thus include interference with the visibility of the
restaurant’s storefront and a customer’s ability to locate the
restaurant easily and park nearby or leave their car with a valet.
Defendants counter that Flats and Simon’s proposed
definition of “access” is “contrary to law,” and that the trial court
properly defined “access” as “access to the property as property,
not access to the specific type of business using the property.”
Defendants are right. Courts have consistently used a
literal definition of the word “access” and never defined “access”
differently for business owners facing commercial losses in the
face of public works projects. (See, e.g., Ayon, supra, 54 Cal.2d at
p. 228 [“[i]t is often necessary to break up pavement, narrow
streets and provide inconvenient modes of ingress and egress to
abutting property during the time streets are being repaired or
improved. Such reasonable and temporary interference with the
property owner’s right of access is noncompensable”]; Holloway v.
25
Purcell (1950) 35 Cal.2d 220, 230 [no taking in highway
relocation despite potential loss in business because plaintiffs
were not “deprived of access as abutting owners” and had no right
to the continued flow of traffic past their business
establishments]; Heimann, supra, 30 Cal.2d at p. 756 [“[m]erely
rendering private property less desirable for certain purposes . . .
will not constitute the damage contemplated by the
constitution”]; Today’s IV, supra, 83 Cal.App.5th at pp. 1171–
1172 [“[t]raffic detours and delays cannot be characterized as
burdens that are direct and substantial such that it is not far
removed from a direct physical intrusion”]; Hecton v. People ex
rel. Dept. of Transportation (1976) 58 Cal.App.3d 653, 657
(Hecton) [shopping center owner’s losses of revenue due to
adjacent freeway construction could not support an inverse
condemnation claim because owner still had access and there was
“no authority for the proposition that plaintiffs have a right to
continued availability of a particular clientele that has
patronized in the past the particular commercial ventures
developed by plaintiffs on their property”].)
The cases cited by Flats and Simon do not help them. In
Rose, the plaintiffs sued for inverse condemnation under an
impairment of access theory after a public construction project
near their property turned a 66-foot thoroughfare with four lines
of traffic and 12-foot sidewalks into two “blind” one-way lanes 14
feet wide for vehicular traffic, and 3.6 feet wide for pedestrians on
either side of a 24-foot underpass. (Rose, supra, 19 Cal.2d at pp.
718, 729.) Although the opinion mentions that the plaintiffs’
property was in an “industrial” zone, the nature of the plaintiffs’
business was ultimately incidental to the Supreme Court’s
conclusion that a taking had occurred. (See id. at p. 729.)
26
Instead, the court focused on the fact that several witnesses
testified to the difficulty of gaining access to the property using
the “blind” alleyways and the trial judge’s personal examination
of the property demonstrating that the lane “was too narrow for
two vehicles to pass each other if traversing thereon in opposite
directions.” (Ibid.) The court further clarified that compensable
damages could only relate to “interference with the [plaintiffs’]
right of access” and not any loss in business from the diversion of
traffic that the construction caused because “a landowner has no
property right in the continuation or maintenance of the flow of
traffic past his property.” (Id. at p. 737.)
Similarly, in Ricciardi, the Supreme Court found a taking
because a proposed underpass would “effectively block all ingress
and egress to and from the main highway [for the property
owners] except by traversing the service road… .” (Ricciardi,
supra, 23 Cal.2d at pp. 395.) Like Rose, Ricciardi also
“recognize[d] that [owners] have no property right in any
particular flow of traffic over the highway adjacent to their
property, but they do possess the right of direct access to the
through traffic highway and an easement of reasonable view of
their property from such highway.” (Id. at p. 399.) An “easement
of reasonable view” simply means that a property must be visible
from the street. (See id. at 404 [“it was for the trial court to
determine whether the obstruction caused by the underpass
would unreasonably cut off [the owners’] property from visibility
by travelers on the main highway”].) It does not, as Flats and
Simon would have us find, mean a property owner is entitled to a
certain amount of curb appeal.
The trial court rightly used the standard definition of the
word “access” for purposes of inverse condemnation.
27
b
Flats and Simon dispute the trial court’s factual findings
that “there never was a total loss of access” and that the access
interference was “temporary,” claiming the trial court should
have given more weight to the testimony of “witnesses with
restaurant expertise,” such as Mura-Smith, Long, Zamora, and
Fleischman, than it did to that of Ramlawi, and the photographs
depicting the construction. They also argue the trial court’s
factual findings did not account for the evidence they proffered of
the way in which City and Metro “targeted” the Property “with
construction activities unique to its corner location.”
In their response, Defendants contend Flats and Simon
have forfeited their challenge to the trial court’s factual findings
because they failed to explain how these findings were not
supported by substantial evidence, did not address any evidence
the trial court cited, and instead rehashed “the evidence they
claim supports their view of the facts” in an attempt to relitigate
these facts on appeal. And citing our decision in Schmidt v.
Superior Court (2020) 44 Cal.App.5th 570, 581–582 (Schmidt),
they note that our review of the trial court’s factfinding at a
bench trial must be “highly deferential” to the parties who
prevailed at trial and that Flats and Simon bear an “enormous
burden” in challenging the trial court’s factfinding. Once again,
Defendants are correct.
In Schmidt, we described the three pillars of reviewing a
trial court’s bench trial factfinding as follows: accepting all
evidence supporting the trial court’s order; completely
disregarding contrary evidence; and drawing all reasonable
inferences to affirm the trial court. (Schmidt, supra, 44
Cal.App.5th at p. 581.) We also stated that “[o]ur job is only to
28
see if substantial evidence exists to support the [judgment] in
favor of the prevailing party, not to determine whether
substantial evidence might support the losing party’s version of
events.” (Id. at p. 582.)
Flats and Simon’s factual challenges to the trial court’s
ruling essentially amount to a request to reweigh the evidence,
which the standard of review forbids. (See Schmidt, supra, 44
Cal.App.5th at p.586; see also Vasquez v. LBS Financial Credit
Union (2020) 52 Cal.App.5th 97, 109.) The trial court was
undoubtedly aware that Mura-Smith, Long, and Alexandroff
testified to a lack of “access” as they wished to define the term.
But the court was well within its discretion not to credit this
testimony and instead find probative Ramlawi’s testimony on the
issue of access. (See Schmidt, supra, 44 Cal.App.5th at p. 582
[“the trial court is the sole judge of witness credibility” [internal
quotation marks omitted].]) Ramlawi testified that, while
construction was in front of the Property, it was nonetheless
always possible for someone to get to the Property. Aside from
one week, the sidewalk in front of the restaurant was always
open. And there were always two westbound lanes and two
eastbound lanes of traffic open on Wilshire. This is substantial
evidence supporting the court’s factual finding that there was
sufficient access to the Property.
Moreover, Flats and Simon’s repeated claim that there was
evidence of construction “targeting” the Property cannot disprove
the trial court’s factual finding that the construction burdens
were “not unique to the Flats location” because the construction
and staging areas moved along Wilshire Boulevard. In making
this finding, the trial court properly relied on substantial
evidence—namely, Ramlawi’s testimony that the nature of the
29
work in front of the Property was the same work Metro completed
along all 3.9 miles of the subway expansion.
Another problem with Flats and Simon’s factual challenge
is their failure to provide a fair summary of the evidence. As the
appellants contesting the sufficiency of the evidence, Flats and
Simon had the burden of marshalling all of the record evidence
and to demonstrate affirmatively its insufficiency to sustain the
trial court’s findings. (See Pilliod v. Monsanto Co. (2021) 67
Cal.App.5th 591, 621.) Instead, Flats and Simon spend a great
deal of their opening brief rehashing evidence favorable to them,
including Long and Mura-Smith’s long and successful history in
the restaurant industry, Fleischman’s experience with the
Property and Beverly Hills, and their opinions of how the
construction affected the restaurant’s operations. And they
ignore unfavorable evidence, including the testimony of their own
witnesses that contradicted their theory that the construction
impaired the access so much that it led to the failure of the
restaurant. For instance, Long admitted that the construction
disruption was “intermittent” and that in June 2017 she felt
“optimistic” on days when there was less construction. And
Fleischman, who testified to observing “a perfect storm of access
problems” at the Property during construction and opined that a
Beverly Hills restaurant could not survive only on pedestrian
traffic, nonetheless admitted that “most restaurants don’t make
it past a year or two.”
Flats and Simon’s factual challenges to the inverse
condemnation decision therefore fail.
2
In sum, the trial court made detailed and substantiated
factual findings about the burdens the construction inflicted on
30
Flats and Simon. And it properly determined these burdens did
not amount to a taking. Accordingly, we need not consider Flats
and Simon’s remaining argument that the court erred in not
making separate findings as to Simon’s additional damages, for
they never established City or Metro took their property.
B
We reverse the judgment against Metro. The trial court
should have granted Metro’s motion for judgment
notwithstanding the verdict because Metro is immune to common
law negligence under the Government Claims Act, Government
Code, § 810 et seq. (“Act”).
1
In Flats and Simon’s operative complaint, the negligence
count cites Government Code § 815.4, which makes public
entities liable for the tortious acts or omissions of their
independent contractors, and alleged that Metro and City was
liable for the acts and omissions of Skanska.
Metro’s answer to the complaint includes an affirmative
defense in asserting it is “not liable except as provided by statute
and is otherwise immune from liability under state, federal, and
local laws and regulations.”
After the trial court granted Skanska’s nonsuit motions,
Flats and Simon asked the trial court to instruct the jury using
CACI No. 400, the common law negligence instruction. They do
not dispute that they did not assert a statutory basis for Metro’s
liability before the jury trial. Thus, according to their request,
the trial court instructed the jury as follows on their negligence
claim:
“[Flats and Simon] claim[] that [they] were harmed by
[Metro]’s negligence.
31
“To establish this claim, [Flats and Simon] must prove all
of the following:
“One, that [Metro] was negligent.
“Two, that [Flats and Simon] were harmed.
“And three, that [Metro’s] negligence was a substantial
factor in causing [Flats and Simon] harm.
“Negligence is the failure to use reasonable care to prevent
harm to oneself or to others. A person can be negligent by acting
or by failing to act.
“A person is negligent if that person does something that a
reasonably careful person would not do in the same situation or
fails to do something that a reasonably careful person would do in
the same situation.
“You must decide how a reasonably careful person would
have acted in defendant [Metro’s] position.”
It was not until Metro filed its motion for judgment
notwithstanding the verdict that Metro explicitly raised the Act,
and the legal principle that “[t]he liability of a governmental
entity is entirely statutory,” citing Government Code §§ 815,
subdivision (a) (§ 815(a)) and 815.2, subdivision (b) (§ 815.2(b)).
Then, in their opposition to Metro’s motion, Flats and
Simon raised for the first time a statutory basis for Metro’s
liability: Government Code § 815.6 (§ 815.6), which allows for
liability against public entities if they fail to discharge “a
mandatory duty imposed by an enactment that is designed to
protect against the risk of a particular kind of injury.”
The court heard argument from both sides on Metro’s
motion. Metro’s counsel stated: “I want to turn back to those
immunities directly tied to the case, Government Code [sections]
815(a) . . . I’d ask the court to take another look at those
32
immunities.” Then, the court, in discussing whether it was “error
in instructing on just a standard negligence in a case like this,”
stated: “I think I made that call, and I don’t think it was [error].”
In its written order denying Metro’s motion, the trial court
made no mention of §§ 815(a), 815.2(b) or 815.6. The court
evidently found viable Flats and Simon’s negligence theory,
which the court described as “includ[ing] a communicative
element, e.g., ‘not getting the information properly in order to
make a decision when we could have ,” along with Metro’s
"failure to mitigate the impact of their construction and to
guarantee access to Plaintiffs’ restaurant.” The court then
concluded that “[s]ubstantial evidence exists to support these
contentions.”
2
Metro’s appeal of the judgment against it raises a purely
legal issue of statutory interpretation and applying the law to
undisputed facts: whether the trial court erred in not finding it
immune to Flats and Simon’s negligence claim under the Act. We
independently review this question. (See Brown v. City of
Sacramento (2019) 37 Cal.App.5th 587, 598.)
The Act “is a comprehensive statutory scheme governing
the liabilities and immunities of public entities and public
employees for torts.” (Quigley v. Garden Valley Fire Protection
Dist. (2019) 7 Cal.5th 798, 803 (Quigley).) “The basic architecture
of the Act is encapsulated in Government Code section 815.
Subdivision (a) of that section makes clear that under the [Act],
there is no such thing as common law tort liability for public
entities; a public entity is not liable for an injury ‘[e]xcept as
otherwise provided by statute.” (Id. [citing Gov. Code, § 815].)
33
Flats and Simon do not dispute that their complaint no
longer identified a valid statutory basis for Metro’s liability
following the court’s dismissal of Skanska as a defendant. And
they never amended their original complaint to add additional
statutory bases for liability. They did not raise § 815.6 as a
statutory basis for liability until after they asked the court to
instruct the jury using CACI No. 400 and Metro filed its post-
trial motions.
On the flip side, while Metro included a broad government
immunities affirmative defense in its answer, it did not reference
§ 815(a) by name until it filed its motion for judgment
notwithstanding the verdict. In its earlier efforts to defeat the
negligence claim, Metro’s motions for nonsuit and for a directed
verdict only argued it had no duty to Flats and Simon and that
there was no causation.
Flats and Simon argue that Metro waived its immunity
under the Act by not objecting to the use of CACI No. 400, by
failing to ask for a jury instruction on governmental immunity,
and by “failing to litigate the defense until this appeal.” The
main case they rely on is Quigley, supra, 7 Cal.5th at p. 807–815,
where the Supreme Court held that immunity under the Act is
not a jurisdictional bar to liability but an affirmative defense that
a defendant can forfeit if they do not adequately invoke it.
The contentions of Flats and Simon lack merit. Metro is
correct that Quigley does not help Flats and Simon because they
did not have a viable statutory basis for liability against Metro
during the jury trial, and it was their burden to identify such a
statutory basis once the court dismissed Skanska from the case.
(See § 815(a); see also Lopez v. Southern Cal. Rapid Transit Dist.
(1985) 40 Cal.3d 780, 795 [because government tort liability is
34
based on statute, “to state a cause of action against a public
entity, every fact material to the existence of its statutory
liability must be pleaded with particularity”]; Foster v. County of
San Luis Obispo (1993) 14 Cal.App.4th 668, 672 [a plaintiff must
identify in a pleading a public entity’s statutory duty because “all
government tort liability is dependent upon the existence of an
authorizing statute”]; Searcey v. Hemet Unified School Dist.
(1986) 177 Cal.App.3d 792, 802 [same].) Flats and Simon did not
try to fix this problem until it was too late, and not until after the
jury had rendered a verdict of common law negligence against
Metro.
As for jury instructions, it is true that each side has the
duty to deliver to the court “all proposed instructions to the jury
covering the law as disclosed by the pleadings.” (Code Civ. Proc.
§ 607a.) But it was not Metro’s obligation to help Flats and
Simon craft a viable theory of negligence by objecting to the use
of CACI No. 400 in order to preserve this issue for appeal. (See
Hensley v. Harris (1957) 151 Cal.App.2d 821, 825 [a party “has no
duty to propose instructions which relate only to the opposing
theories of his adversary, and having no duty respecting them he
has no responsibility for the latter’s mistakes”].) Nor did Metro’s
failure to request a special jury instruction on government
immunity result in forfeiture of its ability to challenge Flats and
Simon’s instructions “that erroneously contain legal standards
inapplicable to the facts.” (See Alaniz v. Sun Pacific Shippers,
L.P. (2020) 48 Cal.App.5th 332, 339.)
Lastly, while Flats and Simon are wrong that Metro did not
litigate this immunity defense until its appeal, Metro did not
explicitly raise the Act until its post-trial motions. Given the
obvious applicability of the Act to Metro’s defense, it is surprising
35
that Metro did not raise the Act earlier in the proceedings. This
case is now in its ninth year. While we cannot turn back time, we
can correct the trial court’s reversible error. This error, giving
the jury CACI No. 400 and thereby allowing it to render a verdict
contrary to the Act, was a miscarriage of justice. (See Cassim v.
Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.) We are certain that
the jury would not have reached this verdict in the absence of the
trial court’s error. (See id.) We therefore reverse the judgment
against Metro.
Because the trial court committed legal error in allowing
Flats and Simon’s fatally flawed negligence claim, we remand the
case for the entry of judgment in Metro’s favor. (See, e.g., Kim v.
New Life Oasis Church (2025) 115 Cal.App.5th 659, 669) We need
not address the parties’ remaining arguments about the
applicability of § 815.6 or whether the negligence claim was
actually about negligent misrepresentation.
C
Our reversal of the judgment against Metro automatically
vacates the cost award from which Flats and Simon filed their
second appeal. (See Ducoing Management, Inc. v. Superior Court
(2015) 234 Cal.App.4th 306, 314.) This appeal is now moot and
we accordingly dismiss it. (See Sturgell v. Dept of Fish & Wildlife
(2019) 43 Cal.App.5th 35, 43.)
DISPOSITION
We dismiss Flats and Simon’s appeals against City and
Skanska. We reverse the judgment against Metro, vacate the
associated award of costs, and order the trial court to enter
judgment in Metro’s favor. In all other respects, the judgment
and orders are affirmed and we remand this matter to the trial
36
court for proceedings consistent with this opinion. Metro, City,
and Skanska shall recover their costs on appeal.
WILEY, J.
We concur:
STRATTON, P. J.
SCHERB, J.
37