BILL ANALYSIS
AB 1770
Page 1
ASSEMBLY THIRD READING
AB 1770 (Papan)
As Introduced January 9, 2002
Majority vote
JUDICIARY 11-0
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|Ayes:|Corbett, Harman, Bates, | | |
| |Dutra, Jackson, | | |
| |Longville, Robert | | |
| |Pacheco, Rod Pacheco, | | |
| |Steinberg, Vargas, Wayne | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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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.
FISCAL EFFECT : None
COMMENTS :
1)This bill, sponsored by the California Law Revision Commission
(CLRC), 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, CLRC
published a preprint recommendation entitled, "Evidence of
Prejudgment Deposit Appraisal in Eminent Domain," suggesting
statutory improvements which seek to:
a) Codify case law that evidence of the prejudgment deposit
appraisal may be used for purposes of impeaching a witness
AB 1770
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who prepared the appraisal;
b) Emphasize that the protections against use of
prejudgment deposit appraisal evidence apply equally to the
property owner and the condemnor; and,
c) 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.
2)In its recommendation, CLRC 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 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.
3)CLRC states that certain issues have arisen concerning several
aspects of existing law that make this bill necessary, among
them:
a) Are the evidentiary rules effective in ensuring adequacy
of the deposit, and can they be improved?
b) 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?
4)A key issue in this bill relates to the impeachment of a
prejudgment deposit appraisal witness. Under existing law, an
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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 case of County of Contra
Costa v. Pinole Point Properties, Inc. , (1994) 27 Cal.App. 4th
1105, 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, CLRC 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.
Analysis Prepared by : Saskia Kim / JUD. / (916) 319-2334
FN: 0004274