BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 328
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          Date of Hearing:   March 15, 2011

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                  AB 328 (Smyth) - As Introduced:  February 10, 2011
           
          SUBJECT  :   Inverse Condemnation: Comparative Fault 

           KEY ISSUES:

           1)Should the doctrine of comparative fault be applied to actions 
            in inverse condemnation?

          2)Should the statute restricting the recovery of post-offer 
            costs expressly apply to inverse condemnation actions?

           FISCAL EFFECT  :   As currently in print this bill is keyed 
          non-fiscal. 

                                      SYNOPSIS 
                                          
          This bill would apply both the doctrine of comparative fault and 
          a statute limiting recovery of a plaintiff's post-offer costs to 
          inverse condemnation actions.  In short, under this bill, the 
          court would treat damage awards in an inverse condemnation 
          action in the same manner as a civil action between private 
          parties.  Under the California Constitution, a government entity 
          must provide a property owner with "just compensation" whenever 
          it takes  or damages  private property for a "public use."  
          Typically, a government entity initiates a condemnation action 
          against a private property owner when the property is needed for 
          a public use.  However, where a public use project proximately 
          damages private property, the owner may bring an action in 
           inverse  condemnation against the relevant government entity.  
          Unlike parallel tort actions, courts do not generally apply the 
          doctrine of comparative fault in inverse condemnation actions.  
          Thus, even if the property owner's negligence either partly, or 
          even mostly, caused the property damage, the government entity 
          is still required to compensate the property owner for 100% of 
          the damages.  The author and sponsor argue that exempting 
          inverse condemnation from the comparative fault doctrine is 
          unfair to financially strapped cities and counties that must 
          bear full responsibility for costs, even if they are only 
          minimally responsible for the damages.  For similar reasons, the 
          author argues that fairness requires expressly applying 








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          "post-offer" cost rules in inverse condemnation actions.  Under 
          Code of Civil Procedure Section 998 a plaintiff who rejects a 
          settlement offer that exceeds the final judgment cannot recover 
          any post-offer costs and may be required to pay the defendant's 
          post-offer costs.  Although the California Supreme Court has 
          held that the post-offer statute applies to inverse condemnation 
          cases, some courts have construed the statute's express 
          exemption for "eminent domain" actions to encompass inverse 
          condemnation actions.  This bill would clarify the issue by 
          expressly stating that Section 998 applies to inverse 
          condemnation actions.  The bill is sponsored by the Los Angeles 
          City Attorney. There is no known opposition to this bill. 

           SUMMARY  : Applies the doctrine of comparative fault and existing 
          rules governing a plaintiff's ability to recover post-offer 
          costs to inverse condemnation actions.  Specifically,  this bill  : 
           

          1)Requires a court or arbiter, in an inverse condemnation 
            proceeding, to reduce the compensation to be paid to a 
            plaintiff in direct proportion to his or her percentage of 
            fault, if any, in the damaging of property that constitutes a 
            taking. 

          2)Extends to actions in inverse condemnation an existing statute 
            which provides that when a plaintiff rejects a defendant's 
            settlement offer and then fails to obtain a more favorable 
            judgment or award, then the plaintiff is prohibited from 
            recovering his or her post-offer costs and is required to pay 
            the defendant's costs from the time of the offer. 

           EXISTING LAW  :

          1)Prohibits the government from taking or damaging private 
            property for a public use without the payment of just 
            compensation and permits a person to maintain an action in 
            inverse condemnation for the purpose of obtaining compensation 
            for the taking or damage.  (California Constitution Article 1, 
            Section 19.) 

          2)Provides that for purposes of apportioning liability a 
            plaintiff's damages may be reduced in direct proportion to his 
            or her percentage of fault.  (Li v. Yellow Cab (1975) 13 
            Cal.3d 804.)









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          3)Exempts from the above comparative fault rule an inverse 
            condemnation action, except in certain actions relating to 
            damages caused by public flood control projects.  ÝBlau v. 
            City of Los Angeles (1973) 32 Cal. App. 3d 77; Locklin v. City 
            of Lafayette (1994) 7 Cal. 4th 327; Bunch v. Coachella Valley 
            Water District (1997) 15 Cal 4th 432.] 

          4)Provides that, in any trial or arbitration, if an offer made 
            by a defendant is not accepted and the plaintiff fails to 
            obtain a more favorable judgment or award, the plaintiff shall 
            not recover his or her post-offer costs and shall pay the 
            defendant's costs.  Provides, in addition, that in any action 
            or proceeding other than an eminent domain action, the court 
            or arbitrator may require the plaintiff to pay reasonable 
            costs for expert witnesses, as specified.  (Code of Civil 
            Procedure Section 998(c).) 

          5)Holds that the Legislature perceives a difference between 
            "eminent domain" and "inverse condemnation," and therefore the 
            Legislature does not intend for its reference to eminent 
            domain in Code of Civil Procedure Section 998 to encompass 
            inverse condemnation proceedings.  (Regency Outdoor 
            Advertising, Inc. v. City of Los Angeles (2006) 39 Cal 4th 
            507, 530.) 

          6)Permits a prevailing plaintiff (property owner) in an inverse 
            condemnation action to recover reasonable litigation costs, 
            including reasonable attorney fees.  (Code of Civil Procedure 
            Section 1036.) 

           COMMENTS  :  According to the author and sponsor, the failure to 
          apply well-established comparative fault doctrine to inverse 
          condemnation actions "results in a windfall to the plaintiff and 
          seriously burdens the governmental agency and its residents."  
          Whereas plaintiffs in other actions are held responsible for 
          their portion of the damage, the public entity in an inverse 
          condemnation action must foot the entire cost, even if the 
          plaintiff was responsible for a greater portion of the damage.  
          This bill would expressly provide that the doctrine of 
          comparative fault shall apply to actions in inverse 
          condemnation.  In addition, the bill would expressly apply to 
          inverse condemnation actions the post-offer cost rules of Code 
          of Civil Procedure Section 988.  That statute provides that if a 
          plaintiff rejects a settlement offer that turns out to be more 
          than the final judgment awarded, then the plaintiff cannot 








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          recover post-offer costs and may be required to pay the 
          defendant's post-offer costs.  In short, this bill seeks, when 
          appropriate, to limit a plaintiff's recovery in inverse 
          condemnation actions in the same manner that it would be limited 
          in a civil action between private parties. 

           Background  :  In 1975 California adopted the doctrine of 
          "comparative fault" in Li v. Yellow Cab (1975) 13 Cal.3d 804.  
          Under this tort doctrine, a plaintiff's damages may be reduced 
          in direct proportion to his or her percentage of fault.  
          Although the principle of comparative fault is well-established 
          in tort law, it has not generally been applied to other kinds of 
          actions, including actions in inverse condemnation against a 
          government entity for damage to private property.  Indeed, 
          California courts developed a general rule that a public entity 
          is liable for the full injury if a public use project or 
          improvement was a "substantial cause" of the injury, even if the 
          plaintiff property owner substantially contributed to the injury 
          through his or her own fault.  (Blau v. City of Los Angeles 
          (1973) 32 Cal. App. 3d 77.)  Significantly, since the 1990s the 
          California Supreme Court has carved out an exception to the 
          exception, so to speak, in the case of damages caused by a 
          public flood control project.  In those cases, comparative fault 
          applies and the public entity is only liable for that portion of 
          damages that it caused.  (Locklin v. City of Lafayette (1994) 7 
          Cal 4th 327; Bunch v. Coachella Valley Water District (1997) 15 
          Cal 4th 432.)  Applying comparative fault to inverse 
          condemnation actions, therefore, would not be completely 
          unprecedented where a government entity contributed to property 
          damage, as courts have already applied comparative fault in 
          cases arising out of the failure of a public flood control 
          project. 

           Does the Reference to "Eminent Domain" in CCP Section 998 
          Include "Inverse Condemnation" Actions?   Enacted as an effort to 
          encourage early settlement, Section 998 of the Code of Civil 
          Procedure (CCP) governs the manner in which parties may make a 
          written settlement offer prior to the commencement of trial or 
          arbitration.  However, the precise wording of the statute has 
          given rise to some confusion as to its application to eminent 
          domain proceedings.  Subdivision (c) of Section 998 provides 
          that if a plaintiff rejects a defendant's offer and then fails 
          to obtain a more favorable judgment or award, the plaintiff 
          shall not recover his or her post-offer costs and shall pay the 
          defendant's costs from the time of the offer.  This subdivision 








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          then states that, "in addition," a plaintiff who rejects an 
          offer may be required to pay expert witness fees "in any action 
          or proceeding  other than an eminent domain action  ."  ÝEmphasis 
          added.]  Subdivision (f) then adds that the entire chapter on 
          offers to compromise does not apply to "an offer that is made by 
          a plaintiff in an eminent domain action."  If inverse 
          condemnation is included within the meaning of eminent domain, 
          then the post-offer cost restrictions would not, under existing 
          law, apply to actions in inverse condemnation.  If, on the other 
          hand, inverse condemnation is not included within the meaning of 
          eminent domain, then post-offer cost restrictions arguably 
          already apply to actions in inverse condemnation. 

           Case Law on Applicability of CCP Section 998 to Inverse 
          Condemnation Actions  :  There is no case law that definitively 
          applies Section 998 to actions in inverse condemnation.  
          Although at least one appellate court has held that CCP Section 
          998 treats "eminent domain" and "inverse condemnation" 
          synonymously (Orpheum v. BART (1978) 80 Cal. App.3d 863, 878), 
          more recent decisions by the California Supreme Court and 
          another appellate court hold that the references to "eminent 
          domain" actions in Section 998 were not intended to include 
          actions in inverse condemnation.  (Goebel v. City of Santa 
          Barbara (2001) 92 Cal. App. 4th 549, 558-559; Regency Outdoor 
          Advertising, Inc. v. City of Los Angeles (2006) 39 Cal 4th 507, 
          530.)  However, these latter cases did not completely resolve 
          the issue because, although at least one of the opinions 
          expressed disagreement with the earlier Orpheum opinion in 
          dictum, it also distinguished Orpheum because in that case the 
          plaintiff prevailed, while in the latter two the government 
          entity prevailed.  Therefore, one could arguably construe Goebel 
          and Regency as only applying the post-offer cost statute to 
          cases in which the government entity prevails and is seeking its 
          post-offer costs, but not to cases in which the plaintiff 
          prevails but wins a judgment that is less than the settlement 
          offer.  This bill would clarify the potential confusion arising 
          out of these cases by stating expressly that Section 998 applies 
          to an action in inverse condemnation for the purpose of reducing 
          the compensation paid to a prevailing plaintiff in appropriate 
          cases.  Code of Civil Procedure Section 1036, in general, 
          guarantees a plaintiff's right to recover costs in an inverse 
          condemnation, but this bill would clarify that, like any other 
          plaintiff, that recovery may be reduced if the plaintiff has 
          rejected a settlement offer that is more than the final award. 









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           ARGUMENTS IN SUPPORT  :  According to the Los Angeles City 
          Attorney's Office, the rationale for both the comparative fault 
          doctrine and the statute governing post-offer costs serve 
          important public purposes.  "The long-standing rationale behind 
          the rule of comparative fault," the author states, "is to 
          allocate responsibility and liability for damage by the actual 
          proportion of the fault of the persons whose negligence caused 
          the injury.  To do otherwise, results in a situation that 
          creates unjust enrichment for one side over the other."  
          Similarly, CCP Section 998, the author notes, "is designed to 
          encourage settlements and alleviate unnecessary burdens upon our 
          court system."  In order to better promote "fairness and 
          efficiency" the author believes that "both rules should be 
          applied to inverse condemnation actions, particularly in this 
          time of economic distress.  Government agencies should only be 
          made responsible for their proportionate share of the costs and 
          damages awarded in inverse condemnation cases."

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Los Angeles City Attorney's Office (sponsor) 

           Opposition 
           
          None on file 
           

          Analysis Prepared by  :    Thomas Clark / JUD. / (916) 319-2334