BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1770
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          Date of Hearing:   April 2, 2002

                           ASSEMBLY COMMITTEE ON JUDICIARY
                               Ellen M. Corbett, Chair
                  AB 1770 (Papan) - As Introduced:  January 9, 2002
           
          SUBJECT  :   EMINENT DOMAIN:  PROCEEDINGS

           KEY ISSUE  :  SHOULD EVIDENCE OF A PREJUDGMENT DEPOSIT APPRAISAL  
          BE PERMITTED TO BE USED TO IMPEACH THE WITNESS WHO PREPARED THE  
          APPRAISAL?

                                      SYNOPSIS
          
          This bill, sponsored by the California Law Revision Commission,  
          codifies case law holding that evidence of the prejudgment  
          deposit appraisal may be used for purposes of impeaching a  
          witness who prepared the appraisal.  In support of the bill, the  
          sponsor asserts that a witness who has prepared a prejudgment  
          deposit appraisal and later testifies as to a different value  
          should not be protected from impeachment, as existing law  
          provides, because "a rule that prohibits a landowner from  
          questioning a witness about a prior inconsistent opinion  
          interferes with the constitutional right to compensation in a  
          fundamental way."  Opponents of this provision argue, on the  
          other hand, that the bill will force public agencies to "hire a  
          new appraiser and contract for a new appraisal report" rather  
          than using the same appraiser to prepare a later report.   
          According to opponents, this will result in "substantial costs  
          to ratepayers and taxpayers."

           SUMMARY  :   Seeks to revise the statutes relating to evidence of  
          the condemnor's prejudgment deposit appraisal.  Specifically,  
           this bill  :  

          1)Codifies case law holding that evidence of the prejudgment  
            deposit appraisal may be used for purposes of impeaching a  
            witness who prepared the appraisal.

          2)Provides that evidence of the prejudgment deposit may be  
            considered by the court in determining the amount of  
            litigation expenses awarded to a defendant (property owner)  
            when the court finds that the offer of the plaintiff (public  
            entity) was unreasonable and the demand of the defendant was  
            reasonable. 








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           EXISTING LAW  :  

          1)Permits the plaintiff to deposit the probable amount of  
            compensation, based on an appraisal, at any time before entry  
            of judgment and requires the plaintiff to prepare a written  
            statement of summary of the basis for the appraisal.  (Code of  
            Civil Procedure section 1255.010.  All further statutory  
            references are to this code.)

          2)Provides that, before making a deposit, the plaintiff must  
            have a qualified expert make an appraisal of the property and  
            prepare a written statement of, or summary of the basis for,  
            the appraisal and requires that an appraisal contain specified  
            information sufficient to indicate clearly the basis for the  
            appraisal.  (Section 1255.010(b).)

          3)Provides that the amount deposited by the plaintiff or  
            withdrawn by the defendant shall not be given in evidence or  
            referred to in the trial on the issue of compensation.   
            (Section 1255.060(a).)

          4)Provides that, in the trial on the issue of compensation, a  
            witness may not be impeached by reference to any appraisal  
            report, written statement and summary of an appraisal or other  
            statements made in connection with a deposit or withdrawal,  
            nor shall such a report or statement and summary be considered  
            an admission of a party.  (Section 1255.060(b).)

          5)Provides that, upon objection of the party at whose request an  
            appraisal report, written statement and summary of the  
            appraisal or other statement was made in connection with a  
            deposit or withdrawal, the person who made the report or  
            statement and summary or other statement may not be called at  
            the trial on the issue of compensation by any other party to  
            give an opinion as to compensation.  (Section 1255.060(c).) 

          6)Provides that, when a condemnor calls an expert witness to  
            testify at trial as to the valuation of a subject property,  
            Section 1255.060(b), noted above, does not prohibit the  
            impeachment of that witness as to an appraisal he or she made  
            in connection with the condemnor's prejudgment deposit.   
            (  County of Contra Costa v. Pinole Point Properties, Inc.  ,  
            (1994) 27 Cal.App. 4th 1105.)









                                                                  AB 1770
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          7)Provides that if the court finds that the offer of the  
            plaintiff was unreasonable and the demand of the defendant was  
            reasonable, the costs awarded to the defendant shall include  
            the defendant's litigation expenses.  In determining the  
            amount of those litigation expenses, the court shall consider  
            the offer required to be made by the plaintiff and any other  
            written offers and demands filed and served prior to or during  
            the trial.  (Section 1250.410.)

           FISCAL EFFECT  :   The bill as currently in print is not keyed  
          fiscal. 

           COMMENTS  :  This bill, sponsored by the Law Revision Commission,  
          is intended to address issues that have arisen with respect to  
          existing law governing evidence of the condemnor's prejudgment  
          deposit appraisal.  In March of 2001, the California Law  
          Revision Commission published a preprint recommendation entitled  
          "Evidence of Prejudgment Deposit Appraisal in Eminent Domain,"  
          suggesting statutory improvements which seek to: 

             1)   Codify case law that evidence of the prejudgment  
               deposit appraisal may be used for purposes of  
               impeaching a witness who prepared the appraisal.

             2)   Emphasize that the protections against use of  
               prejudgment deposit appraisal evidence apply equally  
               to the property owner and the condemnor.

             3)   Make clear that evidence of the prejudgment deposit  
               may be used in determining the amount of litigation  
               expenses for which a condemnor may be assessed. 
                      
           Background.   In its recommendation, the Commission states the  
          following by way of background:

               The California Constitution enables the condemnor in  
               an eminent domain proceeding to take immediate  
               possession of the property, even though valuation  
               issues are yet to be tried and just compensation yet  
               to be awarded. ? The Legislature has implemented the  
               constitutional authority by enactment of a detailed  
               procedure governing deposit and withdrawal of probable  
               compensation.

               As a practical matter, it is routine for the condemnor  








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               to use the prejudgment procedure.  The condemnor in  
               the ordinary case makes a prejudgment deposit of  
               probable compensation.  The deposit is based on the  
               condemnor's appraisal of the property.  The deposit  
               enables the condemnor to take immediate possession of  
               the property. ? The law protects the condemnor from  
               use of the prejudgment deposit appraisal against it at  
               trial.  The intent of the law is to encourage the  
               condemnor to make a fully adequate prejudgment  
               deposit, without fear of prejudicing its position at  
               trial.

           Need for the bill.   The Commission states that certain issues  
          have arisen concerning several aspects of existing law that make  
          this bill necessary, among them:

             1)   Are the evidentiary rules effective in ensuring  
               adequacy of the deposit, and can they be improved?

             2)   Does protection of a valuation witness from  
               impeachment by a prejudgment deposit appraisal unduly  
               impair the property owner's ability to prove fair  
               market value?
          
           Determination of Litigation Expenses.   As noted above, existing  
          law provides that, if the court finds that the offer of the  
          plaintiff was unreasonable and the demand of the defendant was  
          reasonable, the costs awarded to the defendant shall include the  
          defendant's litigation expenses.  Existing law further provides  
          that in determining the amount of those litigation expenses, the  
          court shall consider the offer required to be made by the  
          plaintiff and "any other written offers and demands filed and  
          served prior to or during the trial."  This bill would add to  
          this list of considerations any deposit made by the plaintiff in  
          order to clarify that the condemnor's prejudgment appraisal and  
          deposit are considered to be "other written offers and demands  
          filed and served prior to or during the trial."

           Impeachment of a prejudgment deposit appraisal witness: key  
          issue in the bill.   Under existing law, an appraisal witness may  
          not be impeached at trial by the witness' own previously-made  
          prejudgment deposit appraisal.  According to the sponsor, the  
          intent of this provision was to encourage a condemnor to make a  
          fully adequate prejudgment deposit without fear that this might  
          be held against it later at trial.  This bill would codify the  








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          case of  County of Contra Costa v. Pinole Point Properties, Inc.  ,  
          supra., in which the court held that evidence of the prejudgment  
          deposit appraisal may be used for purposes of impeaching a  
          witness who prepared the appraisal.  In explaining the need for  
          this change, the Commission states:

               The court in Pinole Point Properties was concerned  
               that a literal interpretation of the statute might  
               violate the constitutional guarantee of just  
               compensation.  The essence of a condemnation action is  
               to determine the fair market value of condemned  
               property, and a rule that prohibits a landowner from  
               questioning a witness about a prior inconsistent  
               opinion interferes with the constitutional right to  
               compensation in a fundamental way. ? 

               [T]he statute should be revised to allow expressly for  
               impeachment of an appraiser who later testifies as to  
               a different value.  An appraiser who testifies under  
               oath at an eminent domain trial should be held to  
               explain why that valuation differs from the valuation  
               of the same property made by the same appraiser  
               earlier in the proceeding.  
           
          ARGUMENTS IN SUPPORT  :  Attorney Norman Matteoni wrote in support  
          of the bill, stating, with respect to the bill's provision  
          regarding the impeachment of a valuation witness:

               It is only logical that an appraiser can be examined  
               on his investigation and any previous opinions  
               relating to value as long as the time of that value is  
               near the valuation date in the condemnation case.

               Moreover, Government Code sections 7260-7277  
               (California Relocation Assistance Act) provide  
               directives to public agencies as follows: The  
               condemnors are to obtain an appraisal before  
               negotiations are undertaken.  Then, it must offer the  
               amount of that appraisal and negotiate in good faith  
               to bring about a resolution without the necessity of  
               filing a condemnation action.  Code of Civil Procedure  
               Section 1245.230 requires a precondemnation offer  
               prior to the adoption of a resolution of condemnation.  
                Obviously, the condemnor needs to put its best  
               position forth based on a fair and honest appraisal.








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          ARGUMENTS IN OPPOSITION  :  The California Association of  
          Sanitation Agencies opposes the bill, unless amended to "delete  
          the provision allowing for impeachment of appraisers based on  
          the appraisal report, statement, and summary," stating:

               We are concerned that AB 1770 would allow the  
               impeachment of the public entity's appraiser based on  
               the contents of the appraisal report, written  
               statement and summary of an appraisal or other  
               statements made in connection with a deposit or  
               withdrawal of deposit.  This change in the law would  
               shift the balance in an eminent domain proceeding  
               unfairly toward the property owner.  AB 1770 would  
               essentially give property owners additional tools to  
               negotiate property acquisition prices that are above  
               fair market value.  If AB 1770 becomes law, public  
               agencies may have no recourse but to hire a new  
               appraiser and contract for a new appraisal report,  
               resulting in substantial costs to ratepayers and  
               taxpayers, rather than face a loss on the issue of  
               compensation in court due to the impeached credibility  
               of the appraiser.  
           
          REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Law Revision Commission

          Opposition 
           
          California Association of Sanitation Agencies (unless amended)
           
          Analysis Prepared by  :    Saskia Kim / JUD. / (916) 319-2334