# County of Los Angeles v. Faus

> California Supreme Court · June 21, 1957 · 48 Cal. 2d 672

URL: https://www.frixlaw.com/law-library/cases/9844837

## Case

- **Full name:** COUNTY OF LOS ANGELES, Respondent, v. L. C. FAUS Et Al., Appellants
- **Court:** California Supreme Court
- **Decided:** June 21, 1957
- **Citations:** 48 Cal. 2d 672; 312 P.2d 680; 1957 Cal. LEXIS 219
- **Precedential status:** Published
- **Opinion:** Dissent by Spence
- **Judges:** McComb, Spence, Gibson
- **Cited by:** 195 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated by statute, as recognized in Moradi-Shalal v. Fireman's Fund Ins. Companies.
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9844837

## Opinion text

SPENCE, J.
I dissent.
It appears to me that the majority has adopted a novel type of judicial technique in reaching its conclusion that the judgment should be reversed. It reverses upon the single ground that the trial court erred in refusing to give certain instructions requested by defendants. The majority bases its reversal solely upon the alleged authority of City of Los Angeles v. Cole, 28 Cal.2d 509 [ 170 P.2d 928 ], and the cases cited therein; but the majority then proceeds to overrule the very cases upon which its reversal is based, declaring that “these authorities should no longer be controlling.” In other words, the trial court’s ruling is declared to be both erroneous and not erronoeus within the confines of a single opinion. Thus it is impossible to" know what rule the majority establishes as the law;, of the case to govern the trial court on a retrial of the *682 cause. Furthermore, the majority fails to discuss whether the error, if any there be, was prejudicial, thereby ignoring the constitutional mandate prohibiting the reversal of a judgment unless “the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Const., art. VI, § 4%.)
I am of the opinion that the record discloses no prejudicial error, and that the judgment should therefore be affirmed. With respect to the specific ground upon which the majority bases its ambivalent declaration of error, I am of the view that the trial court did not err in refusing to give defendants’ requested instructions. Neither City of Los Angeles v. Cole, supra, 28 Cal.2d 509 , nor any other cited ease, is authority for the majority’s holding that such refusal constituted error.
In the Cole case, the property involved was in an area which had been designated for a civic center, and much of the property required for that purpose had been acquired or was being acquired. Many condemnation proceedings had been commenced. In other words, all property was being acquired under condemnation or the immediate threat of condemnation. The condemner was, in reality, buying under compulsion and the sellers were selling under compulsion. Under these circumstances and “in the light of the evidence adduced,” we held in the Cole case that it was proper to instruct the jury that “the price paid by plaintiff condemner for other property is not a proper basis for determining the market value of the property here in question,” and that “the price fixed by an agreement between the owner of property and a public corporation seeking to condemn his land by virtue of eminent domain cannot be taken as a criterion of the market value of other land in the vicinity.” ( 28 Cal.2d 516 -518; emphasis added.)
In the present case, the 12 prior sales in question were not sales to plaintiff but were sales by the Pacific Electric and the Huntington Land Company to public bodies, other than plaintiff, and to private individuals, of portions of abandoned rights-of-way. There is nothing in the record to show that there was any threat of condemnation present at the time that any of such sales were made. On the contrary, the evidence shows that these sales were sales ‘1 on the open market without compulsion.” Under these circumstances, the prior sales here were clearly distinguishable from the prior sales in the Cole case.
Similarly, the instructions in the Cole case were materially *683 different from defendants’ requested instructions here, even though some of the language was similar. The vice of the defendants’ requested instructions here is that they purported to cover every sale made to any public body “having the power” of condemnation. No such broad declaration was made in the instructions in the Cole case. The concept embodied in the requested instructions here is erroneous, and said instructions cannot be said to be “almost identical” with those given in the Cole case. As was said in O’Malley v. Commonwealth, 182 Mass. 196 [ 65 N.E. 30, 31 ] : “We cannot say merely because of the name of the purchaser that the sale was not a fair transaction in the market rather than a compulsory settlement. The board has power to purchase as well as to condemn land.”
So here, the other public bodies had power to purchase, and did purchase, and there is no evidence to show that any of the sales made either to public bodies or to private individuals were made under compulsion or threat of condemnation. The requested instructions were therefore erroneous and were properly refused.
The other main ground urged by defendants for reversal is that the trial court committed prejudicial error in refusing to strike the testimony of plaintiff’s experts. The majority opinion refers to this ruling on the motion but does not discuss or pass upon defendants’ contention. In my opinion, the trial court properly denied the motion to strike such testimony.
Plaintiff’s experts did not base their opinions solely upon the price paid by other public bodies, but these opinions were also based on the price paid by private individuals for portions of abandoned rights-of-way. These experts also considered some 40 private sales of property in the vicinity but not located on the narrow right-of-way in the middle of a divided highway. They conceded that they had “practically” rejected the prices paid on these 40 sales in determining the value of the right-of-way property but they gave ample reason for so doing. Their testimony also showed ample reason for determining that the prior sales of abandoned right-of-way property was the best criterion available to determine the value of the narrow strip in question. In view of the qualifications of these experts and the reasons given by them, the mere fact that they based their opinions principally on such prior sales of abandoned right-of-way property *684 was not a sufficient ground for striking their entire testimony.
On the other hand, defendants’ witnesses took the position exemplified by Mr. Frisbie’s testimony. He said: “I have taken into consideration the sale of properties on both sides of Huntington Drive, and have considered that that right-of-way strip had a value just as high as the properties on both sides.” (Emphasis added.) The unsoundness of this conclusion is apparent. The sales of property along Huntington Drive other than right-of-way property were sales of lots of normal size, which lots were not part of a narrow strip in the middle of a divided highway. Those sales were of property which was zoned for a normal use by an ordinary purchaser. The narrow strip in the highway xvas zoned for transportation, park, and recreation purposes only, and was too narrow to permit the building of any useful structure within normal setback lines. There appeared to be little likelihood of a change in the zoning or the set-back ordinances, and all experts apparently conceded that the highest use of the narrow right-of-way strip was for some form of transportation purposes. In the absence of any demand for such property by ordinary purchasers and in view of the property’s availability only for limited uses, it seems obvious that the valuations of plaintiff’s experts more nearly reflected the “market value” than did those of defendants’ experts. The jury fixed a valuation substantially higher than that fixed by plaintiff’s experts, and the jury’s award also included substantial severance damages even though plaintiff’s experts were of the opinion that no such severance damages were involved.
It therefore appears to me that defendants have had a fair trial, and that they have received an award which represents “just compensation” for the property involved. (Const., art. I, § 14.) In fact, it is doubtful whether upon a second trial, defendants would receive an award in an amount as great as that heretofore fixed by the jury.
The novelty of the judicial technique adopted by the majority is more clearly illustrated by the second portion of the majority opinion. Upon the theory that a certain problem is “presented upon [this] appeal” (Code Civ. Proc. § 53), the majority declares that the following question is presented: “In a condemnation proceeding, is evidence of the prices paid for similar property in the vicinity, including'prices paid by the condemner, admissible on (a) direct examination, and (b) cross-examination of a witness who is presenting testimony *685 on the issue of the value of the condemnee’s property ? ’ ’ (Emphasis added.) The majority answers this question in the affirmative and in doing so, it purports to overrule a long line of decisions of this court commencing with Central Pac. R. R. Co. v. Pearson (1868), 35 Cal. 247 , and ending with People v. La Macchia (1953), 41 Cal.2d 738 [ 264 P.2d 15 ], together with numerous decisions of the district courts of appeal.
The truth of the matter is that no such question is presented upon this appeal. All parties introduced without objection, on cross-examination of the experts, any evidence which they desired concerning “the prices paid for similar property in the vicinity” upon which the opinions of the experts had been based; but no party introduced or sought to introduce any such evidence on direct examination of the experts. Furthermore, none of the sales to which the experts referred involved sales to the “condemner,” and therefore no party sought to introduce evidence on either direct or cross-examination of any “prices paid by the condemner.” It is therefore understandable that all parties agreed on the oral argument before this court that the quoted question as stated by the majority is not presented upon this appeal.
The unusual procedure of injecting a false issue into this case can probably be explained only by the apparent eagerness of the majority to find a vehicle for effecting the change of a long-standing and well-established rule of evidence with which the majority does not agree. Regardless of the question of whether that rule should or should not be changed, the present appeal obviously does not constitute an appropriate vehicle for that purpose. In fact, it appears that the majority’s injection of this issue into this appeal has resulted in an abortive disposition of the appeal on the merits as presented by the record and by the parties. Certain it is that the reversal requires the majority, for the purpose of the reversal only, to take a position directly contrary to the position stated by three members of the majority in their dissenting opinion in City of Los Angeles v. Cole, supra, 28 Cal.2d 509, 519 . I am certain that no member of this court, regardless of whether he may have joined in the majority or minority opinion in the Cole case, is of the view that defendants’ requested instructions in the present case were proper, and that such requested instructions should have been given. It bears repeating, however, that the trial court’s *686 failure to give said requested instructions is the sole basis for the reversal ordered by the majority here.
Before concluding, and in spite of the fact that the issue discussed in the second portion of the majority opinion is not involved on this appeal, I feel impelled to express my disagreement with the majority’s action in overruling and disapproving a long line of decisions which have established the rules of evidence applicable in condemnation cases. I am of the opinion that the established rules have operated satisfactorily and that they should not be changed. The change favored by the majority would permit an expert witness, on direct examination, to testify concerning the details of every sale of other property which he has considered in arriving at his opinion of the value of the property under consideration. The established rule to the contrary was adopted in this state in order to avoid unnecessarily time-consuming procedures in the administration of justice. The established rule is realistic and practical. Condemnation cases ordinarily involve rather protracted trials, and it is not desirable to adopt a new rule which will make them more protracted unless there is some compensating advantage in the change. I find no reason to believe that there will be any such compensating advantage; and in this day and age when every endeavor is being made to expedite the administration of justice, it appears undesirable to adopt a new rule of doubtful value which will tend to defeat that endeavor. It may be conceded that, as an abstract proposition, a plausible argument may be made, and has been made by some text writers, for the rule which the majority would adopt • but all the text writers, regardless of their views, apparently agree that the adoption of such rule would inevitably result in the prolongation of trials in condemnation cases.
At present, the direct examination of an expert is ordinarily not unduly prolonged. He usually bases his opinion on his claimed general knowledge of sales of similar property if there have been such sales. The field of permissible cross-examination of the expert is very broad. He may be examined on such cross-examination concerning the details of all sales upon which he may have based his opinion. The actual cross-examination, however, is often carefully limited by the cross-examiner. He is sometimes content to obtain an answer to the single question of the amount which the expert is receiving for his expert testimony. Again, he may only be interested in showing that the expert has failed to consider certain prior *687 sales which the cross-examiner deems similar. In other cases, he may be content with an endeavor to show that some sales upon which the expert relied were sales of dissimilar property or were sales made under dissimilar circumstances. Thus there is little time lost on the direct and cross-examination of many experts.
Under the changed rule, the expert would not only be permitted, but would be practically required, to go into detailed facts upon direct examination concerning every sale which he had considered in forming his opinion. If he should fail to do so, he might find that the court would sustain objections later upon the ground that the questions should have been asked on direct and therefore would not constitute proper redirect examination. This would have the tendency to bring into the case on direct examination numerous collateral issues, thus necessarily making the direct examination of every expert unduly prolonged. It therefore appears that there is sound reason for sustaining the established rule. It is unnecessary to labor this point as it is sufficiently explored in the prior opinions of this court and of other courts. (People v. La Macchia, supra, 41 Cal.2d 738 ; Heimann v. City of Los Angeles, 30 Cal.2d 746 [ 185 P.2d 597 ] ; City of Los Angeles v. Cole, supra, 28 Cal.2d 509 ; City of Los Angeles v. Hughes, 202 Cal. 731 [ 262 P. 737 ]; City of San Luis Obispo v. Brizzolara, 100 Cal. 434 [ 34 P. 1083 ] ; Spring Valley Water Works v. Drinkhouse, 92 Cal. 528 [ 28 P. 681 ] ; Central Pac. R. R. Co. v. Pearson, supra, 35 Cal. 247 ; City of Los Angeles v. Frew, 139 Cal.App.2d 859 [ 294 P.2d 1073 ] ; People v. Union Machine Co., 133 Cal.App.2d 167 [ 284 P.2d 72 ] ; Atchison etc. Ry. Co. v. Southern Pac. Co., 13 Cal.App.2d 505 [ 57 P.2d 575 ] ; City of Los Angeles v. Deacon, 119 Cal.App. 491 [ 7 P.2d 378 ] ; Los Angeles Gas & Elec. Corp. v. Etienne, 83 Cal.App. 645 [ 257 P. 123 ] ; Reclamation Dist. No. 730 v. Inglin, 31 Cal.App. 495 [ 160 P. 1098 ].) For the reasons stated in these numerous authorities, I would adhere to the established rules.
Returning now to the only questions involved on this appeal, I am of the view that the trial court committed no error in the challenged rulings; and that the majority’s reversal is regrettably based solely upon the failure of the trial court to give certain requested instructions, when I feel certain that no member of this court believes that said instructions should have been given. It is for these reasons that I take exception
*688 to the judicial technique employed by my associates who have signed the majority opinion.
I would affirm the judgment.
Shenk, J., concurred.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9844837. Public record. Not legal advice.