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 taking, as specified.
(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
P3 1the accepting party or, if not represented by counsel, by the
2accepting party.
3(1) If the offer is accepted, the offer with proof of acceptance
4shall be filed and the clerk or the judge shall enter judgment
5accordingly. In the case of an arbitration, the offer with proof of
6acceptance shall be filed with the arbitrator or arbitrators who shall
7promptly render an award accordingly.
8(2) If the offer is not accepted prior to trial or arbitration or
9within 30 days after it is made, whichever occurs first, it shall be
10deemed withdrawn, and cannot be given in
evidence upon the trial
11or arbitration.
12(3) For purposes of this subdivision, a trial or arbitration shall
13be deemed to be actually commenced at the beginning of the
14opening statement of the plaintiff or counsel, and if there is no
15opening statement, then at the time of the administering of the oath
16or affirmation to the first witness, or the introduction of any
17evidence.
18(c) (1) If an offer made by a defendant is not accepted and the
19plaintiff fails to obtain a more favorable judgment or award, the
20plaintiff shall not recover his or her postoffer costs and shall pay
21the defendant’s costs from the time of the offer. In addition, in any
22action or proceeding other than an eminent domain action, the
23court or arbitrator, in its discretion, may require the
plaintiff to
24pay a reasonable sum to cover costs of the services of expert
25witnesses, who are not regular employees of any party, actually
26incurred and reasonably necessary in either, or both, preparation
27for trial or arbitration, or during trial or arbitration, of the case by
28the defendant.
29(2) (A) In determining whether the plaintiff obtains a more
30favorable judgment, the court or arbitrator shall exclude the
31postoffer costs.
32(B) It is the intent of the Legislature in enacting subparagraph
33(A) to supersede the holding in Encinitas Plaza Real v. Knight,
34209 Cal.App.3d 996, that attorney’s fees awarded to the prevailing
35party were not costs for purposes of this section but were part of
36the judgment.
37(d) If an offer made by a plaintiff is not accepted and the
38defendant fails to obtain a more favorable judgment or award in
39any action or proceeding other than an eminent domain action, the
40court or arbitrator, in its discretion, may require the defendant to
P4 1pay a reasonable sum to cover postoffer costs of the services of
2expert witnesses, who are not regular employees of any party,
3actually incurred and reasonably necessary in either, or both,
4preparation for trial or arbitration, or during trial or arbitration, of
5the case by the plaintiff, in addition to plaintiff’s costs.
6(e) If an offer made by a defendant is not accepted and the
7plaintiff fails to obtain a more favorable judgment or award, the
8costs under this section, from the time of the offer, shall be
9deducted from any damages awarded in favor of the plaintiff. If
10the
costs awarded under this section exceed the amount of the
11damages awarded to the plaintiff the net amount shall be awarded
12to the defendant and judgment or award shall be entered
13accordingly.
14(f) Police officers shall be deemed to be expert witnesses for
15the purposes of this section. For purposes of this section, “plaintiff”
16includes a cross-complainant and “defendant” includes a
17cross-defendant. Any judgment or award entered pursuant to this
18section shall be deemed to be a compromise settlement.
19(g) (1) Notwithstanding Section 1036 or any other law, the
20following shall apply to an action in inverse condemnation:
21(A) If an offer made by a defendant is not accepted and the
22plaintiff fails to obtain a judgment or award, the plaintiff shall not
23recover
his or her postoffer costs and shall pay the defendant’s
24costs from the time of the offer. In addition, the court or arbitrator,
25in its discretion, may require the plaintiff to pay a reasonable sum
26to cover costs of the services of expert witnesses, who are not
27regular employees of any party, actually incurred and reasonably
28necessary in either, or both, preparation for trial or arbitration, or
29during trial or arbitration, of the case by the defendant.
30(B) If an offer made by a defendant is not accepted and the
31plaintiff fails to obtain a more favorable judgment or award, the
32plaintiff shall not recover his or her postoffer costs. The court or
33arbitrator shall not order the plaintiff to pay the defendant’s costs
34from the time of the offer. In determining whether the plaintiff
35obtains a more favorable judgment, the court or arbitrator shall
36exclude
the postoffer costs.
37(2) This subdivision shall apply only to offers in inverse
38condemnation actions that are made on or after January 1, 2014.
39(h) This chapter does not apply to either of the following:
P5 1(1) An offer that is made by a plaintiff in an eminent domain
2action.
3(2) Any enforcement action brought in the name of the people
4of the State of California by the Attorney General, a district
5attorney, or a city attorney, acting as a public prosecutor.
6(i) The costs for services of expert witnesses for trial under
7subdivisions (c) and (d) shall not exceed those specified in Section
868092.5
of the Government Code.
9(j) This section shall not apply to labor arbitrations filed pursuant
10to memoranda of understanding under the Ralph C. Dills Act
11(Chapter 10.3 (commencing with Section 3512) of Division 4 of
12Title 1 of the Government Code).
Chapter 3.4 (commencing with Section 1000) is added
14to Title 14 of Part 2 of the Code of Civil Procedure, to read:
15
(a) As described in this chapter, the doctrine of
20comparative fault applies to actions in inverse condemnation.
21(b) In an inverse condemnation proceeding, a court or arbitrator
22shall reduce the compensation to be paid to a plaintiff in direct
23proportion to his or her percentage of fault, if any, in the damaging
24of property that constitutes a taking for a public use.
25(c) In calculating a plaintiff’s percentage of fault pursuant to
26subdivision (b), thebegin delete actend deletebegin insert actionsend insert
of a plaintiff in applying forbegin insert or
27processingend insert a permit or other entitlement for use or development
28shall not be construed as damaging or diminishing the value of the
29propertybegin insert nor constitute fault on the part of the plaintiffend insert.
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