AB 436, as amended, Jones-Sawyer. Inverse condemnation: comparative fault.
(1) Existing law prohibits the taking of private property without the payment of just compensation and permits a person to maintain an action in inverse condemnation for the purpose of obtaining compensation for a taking. Existing law applies the doctrine of comparative fault for the purpose of apportioning responsibility and reducing damages to the extent a plaintiff is found partially at fault.
This bill would apply the doctrine of comparative fault to inverse condemnation actions and would require a court or arbitrator to reduce the compensation paid to a plaintiff in an inverse condemnation proceeding in direct proportion to his or her percentage of fault, if any, in the damaging of property that constitutes a takingbegin insert, as specifiedend insert.
(2) Existing law governs offers by a party to compromise a dispute that is to be resolved by trial or arbitration. Existing law provides in this regard, among other things, that if the defendant makes an offer that the plaintiff does not accept, and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff is prohibited from recovering his or her postoffer costs and is required to pay the defendant’s costs from the time of the offer.
Existing law also awards to the plaintiff in an inverse condemnation proceeding reasonable costs actually incurred because of that proceeding in the trial court, or in any appellate proceeding, in which the plaintiff prevails on any issue in that proceeding.
This bill would provide, notwithstanding the latter provision, that if the defendant in an inverse condemnation action, on or after January 1, 2014, makes an offer that the plaintiff does not accept, and the plaintiff fails to obtain a judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s postoffer costs. Additionally, the bill would provide that the plaintiff may be required to pay the defendant’s costs for expert witnesses. Alternatively, if the plaintiff rejects the offer and fails to obtain a more favorable judgment or award, the bill would prohibit the plaintiff from recovering his or her postoffer costs, but would provide that the plaintiff shall not be ordered to pay the defendant’s postoffer costs.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 998 of the Code of Civil Procedure is
2amended to read:
(a) The costs allowed under Sections 1031 and 1032 shall
4be withheld or augmented as provided in this section.
5(b) Not less than 10 days prior to commencement of trial or
6arbitration (as provided in Section 1281 or 1295) of a dispute to
7be resolved by arbitration, any party may serve an offer in writing
8upon any other party to the action to allow judgment to be taken
9or an award to be entered in accordance with the terms and
10conditions stated at that time. The written offer shall include a
11statement of the offer, containing the terms and conditions of the
12judgment or award, and a provision that allows the accepting party
13to indicate acceptance of the offer
by signing a statement that the
14offer is accepted. Any acceptance of the offer, whether made on
15the document containing the offer or on a separate document of
16acceptance, shall be in writing and shall be signed by counsel for
17the accepting party or, if not represented by counsel, by the
18accepting party.
P3 1(1) If the offer is accepted, the offer with proof of acceptance
2shall be filed and the clerk or the judge shall enter judgment
3accordingly. In the case of an arbitration, the offer with proof of
4acceptance shall be filed with the arbitrator or arbitrators who shall
5promptly render an award accordingly.
6(2) If the offer is not accepted prior to trial or arbitration or
7within 30 days after it is made, whichever occurs first, it shall be
8deemed withdrawn, and cannot be given in
evidence upon the trial
9or arbitration.
10(3) For purposes of this subdivision, a trial or arbitration shall
11be deemed to be actually commenced at the beginning of the
12opening statement of the plaintiff or counsel, and if there is no
13opening statement, then at the time of the administering of the oath
14or affirmation to the first witness, or the introduction of any
15evidence.
16(c) (1) If an offer made by a defendant is not accepted and the
17plaintiff fails to obtain a more favorable judgment or award, the
18plaintiff shall not recover his or her postoffer costs and shall pay
19the defendant’s costs from the time of the offer. In addition, in any
20action or proceeding other than an eminent domain action, the
21court or arbitrator, in its discretion, may require the
plaintiff to
22pay a reasonable sum to cover costs of the services of expert
23witnesses, who are not regular employees of any party, actually
24incurred and reasonably necessary in either, or both, preparation
25for trial or arbitration, or during trial or arbitration, of the case by
26the defendant.
27(2) (A) In determining whether the plaintiff obtains a more
28favorable judgment, the court or arbitrator shall exclude the
29postoffer costs.
30(B) It is the intent of the Legislature in enacting subparagraph
31(A) to supersede the holding in Encinitas Plaza Real v. Knight,
32209 Cal.App.3d 996, that attorney’s fees awarded to the prevailing
33party were not costs for purposes of this section but were part of
34the judgment.
35(d) If an offer made by a plaintiff is not accepted and the
36defendant fails to obtain a more favorable judgment or award in
37any action or proceeding other than an eminent domain action, the
38court or arbitrator, in its discretion, may require the defendant to
39pay a reasonable sum to cover postoffer costs of the services of
40expert witnesses, who are not regular employees of any party,
P4 1actually incurred and reasonably necessary in either, or both,
2preparation for trial or arbitration, or during trial or arbitration, of
3the case by the plaintiff, in addition to plaintiff’s costs.
4(e) If an offer made by a defendant is not accepted and the
5plaintiff fails to obtain a more favorable judgment or award, the
6costs under this section, from the time of the offer, shall be
7deducted from any damages awarded in favor of the plaintiff. If
8the
costs awarded under this section exceed the amount of the
9damages awarded to the plaintiff the net amount shall be awarded
10to the defendant and judgment or award shall be entered
11accordingly.
12(f) Police officers shall be deemed to be expert witnesses for
13the purposes of this section. For purposes of this section, “plaintiff”
14includes a cross-complainant and “defendant” includes a
15cross-defendant. Any judgment or award entered pursuant to this
16section shall be deemed to be a compromise settlement.
17(g) (1) Notwithstanding Section 1036 or any other law, the
18following shall apply to an action in inverse condemnation:
19(A) If an offer made by a defendant is not accepted and the
20plaintiff fails to obtain a judgment or award, the plaintiff shall not
21recover
his or her postoffer costs and shall pay the defendant’s
22costs from the time of the offer. In addition, the court or arbitrator,
23in its discretion, may require the plaintiff to pay a reasonable sum
24to cover costs of the services of expert witnesses, who are not
25regular employees of any party, actually incurred and reasonably
26necessary in either, or both, preparation for trial or arbitration, or
27during trial or arbitration, of the case by the defendant.
28(B) If an offer made by a defendant is not accepted and the
29plaintiff fails to obtain a more favorable judgment or award, the
30plaintiff shall not recover his or her postoffer costs. The court or
31arbitrator shall not order the plaintiff to pay the defendant’s costs
32from the time of the offer. In determining whether the plaintiff
33obtains a more favorable judgment, the court or arbitrator shall
34exclude
the postoffer costs.
35(2) This subdivision shall apply only to offers in inverse
36condemnation actions that are made on or after January 1, 2014.
37(h) This chapter does not apply to either of the following:
38(1) An offer that is made by a plaintiff in an eminent domain
39action.
P5 1(2) Any enforcement action brought in the name of the people
2of the State of California by the Attorney General, a district
3attorney, or a city attorney, acting as a public prosecutor.
4(i) The costs for services of expert witnesses for trial under
5subdivisions (c) and (d) shall not exceed those specified in Section
668092.5
of the Government Code.
7(j) This section shall not apply to labor arbitrations filed pursuant
8to memoranda of understanding under the Ralph C. Dills Act
9(Chapter 10.3 (commencing with Section 3512) of Division 4 of
10Title 1 of the Government Code).
Chapter 3.4 (commencing with Section 1000) is added
12to Title 14 of Part 2 of the Code of Civil Procedure, to read:
13
(a) As described in this chapter, the doctrine of
18comparative fault applies to actions in inverse condemnation.
19(b) In an inverse condemnation proceeding, a court or arbitrator
20shall reduce the compensation to be paid to a plaintiff in direct
21proportion to his or her percentage of fault, if any, in the damaging
22of property that constitutes a taking for a public use.
23(c) In calculating a plaintiff’s percentage of fault pursuant to
24subdivision (b), the act of a plaintiff in applying for a permit or
25other entitlement for use or development shall not be construed
26as
damaging or diminishing the value of the property.
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