The opinion
WIENER, J.
I dissent.
The majority concludes that where a condemner offers to settle an eminent domain action for a sum equal to its appraiser’s good faith opinion of value the standard of reasonableness has been satisfied by the condemner and the property owners may not recover their litigation expenses under Code of Civil Procedure section 1250.410. 1 I disagree. I believe this test not only diminishes the professional role of the lawyer, but fails to satisfy the requirements of the statute.
*39 The same judge who presided at the trial ruled on the motion for costs. No additional evidence was presented. Although in the first instance the measure of reasonableness is a factual matter for the trial court (City of Los Angeles v. Cannon (1976) 57 Cal.App.3d 559, 562 [ 127 Cal.Rptr. 709 ]), where uncontradicted evidence permits only one conclusion, the issue is one of law and not of fact. (See County of Los Angeles v. Kranz (1972) 65 Cal.App.3d 656, 659 [ 135 Cal.Rptr. 473 ]; City of Gardena v. Camp (1977) 70 Cal.App.3d 252, 255 [ 138 Cal.Rptr. 656 ].) The decision by this court should not rest on the substantial evidence rule.
The good faith, care and accuracy in how the amount of the offer was determined is only one factor in establishing reasonableness. The amount of the difference between the offer and the compensation awarded, and the percentage of the difference between the offer and the award must also be considered. (See Los Angeles Unified Sch. Dist. v. C. F. Bolster Co. (1978) 81 Cal.App.3d 906, 913 [ 146 Cal.Rptr. 789 ]; City of Los Angeles v. Cannon, supra, 57 Cal.App.3d 559 .) Precedents involving former section 1249.3 which bear on the issue in controversy are listed on appendix A. In every case where the ratio of offer to verdict was less than 80 percent, the offer was held to be unreasonable. Only where the offer was 87 percent (Los Angeles Unified Sch. Dist. v. C. F. Bolster Co., supra, 81 Cal.App.3d 906, 915 ) or 91 percent of the verdict (City of Los Angeles v. Cannon, supra, 57 Cal.App.3d 559 ) has the appellate court affirmed trial court denial of litigation costs. It is essential in the instant matter before reaching a conclusion to weigh the significance of an offer which was only 78 percent of the verdict with a difference in absolute terms of $124,700, more than 25 percent of the verdict.
The majority, in attempting to excuse the wide margin of error by the state’s expert, refers to the element of Flopping damages of $100,000 included, for with the $100,000 eliminated there was only a $37,700 difference between the expert’s appraisal and the owners’ opinion of value. There is no factual basis for this argument. The final demand of $600,000 by the property owners was for all damages, those allegedly caused by the delay were not segregated. Moreover, the test of reasonableness of an offer is not the difference between the offer and demand. It is the difference between the offer and the award. Enlightenment and perspective are improved when hindsight is used in accordance with the provisions of section 1250.410, subdivision (b), in determining whether an offer is unreasonable.
*40 The trial lawyer should be well aware that the only certainty associated with a jury trial is the uncertainty of the jury verdict. Section 1250.410 was enacted not only to assure fair compensation to the property owners, but to promote the amicable resolution of eminent domain litigation by increasing the economic risk to the condemner for continued litigation. When additional costs can be imposed, greater incentive for settlement is created.
The primaiy reason expressed by the trial court for its denial of costs was the property owners’ failure to retain a professional appraiser. Whether communication in eminent domain litigation is improved when each side has an appraiser is irrelevant. The presence or absence of an appraiser for the property owners should not have prevented plaintiff from further evaluation of its own position. At no time did the state budge from its initial offer of settlement, $462,300, its appraiser’s opinion of value. The absence of an expert hardly justifies the state’s stubborn unwillingness to raise its offer.
It is the duty of the attorney responsible for the case to consider all aspects of the litigation which may possibly affect the result. In addition to the information furnished by an expert, the good faith, care and accuracy of an offer requires the intellectual and thoughtful analysis by counsel. He does not fulfill that function when he is merely a conduit for the expert’s conclusion.
I am well aware that litigation has become to some extent a battle between expert witnesses. I am unwilling, however, to contribute to this practice by requiring a party to retain an expert appraiser as a condition of obtaining litigation costs.
I would reverse the order denying litigation costs and direct the trial court to award to defendants costs allowed under section 1268.710 and litigation expenses in an amount as the court, after hearing, determined to be reasonable.
Appellants’ petition for a hearing by the Supreme Court was denied May 10, 1979.
All references are to the Code of Civil Procedure.