AB 1402, as introduced, Harper. 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. The bill would also provide that in calculating the plaintiff’s percentage of fault, the actions of the plaintiff in applying for or processing a permit or other entitlement for use or development do not damage or diminish the value of the property, nor constitute fault on the part of the plaintiff.
(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 daysbegin delete prior toend deletebegin insert beforeend insert commencement of trial
6or arbitrationbegin delete (as provided in Section 1281 or 1295)end delete of a dispute
7begin delete to be resolved by arbitration,end deletebegin insert as provided in Section
1281 or 1295,end insert
8 any party may serve an offer in writing upon any other party to
9the action to allow judgment to be taken or an award to be entered
10in accordance with the terms and conditions stated at that time.
11The written offer shall include a statement of the offer, containing
12the terms and conditions of the judgment or award, and a provision
13that allows the accepting party to indicate acceptance of the offer
14by signing a statement that the offer is accepted. Any acceptance
15of the offer, whether made on the document containing the offer
16or on a separate document of acceptance, shall be in writing and
P3 1shall be signed by counsel for the accepting party or, if not
2represented by counsel, by the accepting 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)
end delete
20(g) (1) Notwithstanding Section 1036 or any other law, the
21following shall apply to an action in
inverse condemnation:
22(A) If an offer made by a defendant is not accepted and the
23plaintiff fails to obtain a judgment or award, the plaintiff shall not
24recover his or her postoffer costs and shall pay the defendant’s
25costs from the time of the offer. In addition, the court or arbitrator,
26in its discretion, may require the plaintiff to pay a reasonable sum
27to cover costs of the services of expert witnesses, who are not
28regular employees of any party, actually incurred and reasonably
29necessary in either, or both, preparation for trial or arbitration,
30or during trial or arbitration, of the case by the defendant.
31(B) If an offer made by a defendant is not accepted and the
32plaintiff fails to obtain a more favorable judgment or award, the
33plaintiff shall not recover his or her postoffer costs. The court or
34arbitrator shall not order the plaintiff to pay the defendant’s costs
35from the
time of the offer. In determining whether the plaintiff
36obtains a more favorable judgment, the court or arbitrator shall
37exclude the postoffer costs.
38(2) This subdivision shall apply only to offers in inverse
39condemnation actions that are made on or after January 1, 2014.
40begin insert(h)end insert 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(h)
end delete
7begin insert(i)end insert The costs for services of expert witnesses for trial under
8subdivisions (c) and (d) shall not exceed those specified in Section
968092.5 of the Government Code.
10(i)
end delete
11begin insert(j)end insert This sectionbegin delete shallend deletebegin insert doesend insert not apply to labor arbitrations filed
12pursuant to memoranda of understanding under the Ralph C. Dills
13Act (Chapter 10.3
(commencing with Section 3512) of Division
144 of Title 1 of the Government Code).
Chapter 3.4 (commencing with Section 1000) is added
16to Title 14 of Part 2 of the Code of Civil Procedure, to read:
17
(a) As described in this chapter, the doctrine of
22comparative fault applies to actions in inverse condemnation.
23(b) In an inverse condemnation proceeding, a court or arbitrator
24shall reduce the compensation to be paid to a plaintiff in direct
25proportion to his or her percentage of fault, if any, in the damaging
26of property that constitutes a taking for a public use.
27(c) In calculating a plaintiff’s percentage of fault pursuant to
28subdivision (b), the actions of a plaintiff in applying for or
29processing a permit or other entitlement for use or development
30shall not be construed as damaging or diminishing the value of the
31property, nor constitute fault on the part of the
plaintiff.
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