BILL ANALYSIS �
AB 328
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ASSEMBLY THIRD READING
AB 328 (Smyth)
As Introduced February 10, 2011
Majority vote
JUDICIARY 10-0
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|Ayes:|Feuer, Wagner, Atkins, | | |
| |Dickinson, Gorell, Huber, | | |
| |Huffman, Jones, Monning, | | |
| |Wieckowski | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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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.
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
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Cal.3d 804.)
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. �Blau 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.
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 (CCP) 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.
FISCAL EFFECT : None
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 CCP
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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 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.
In 1975 California adopted the doctrine of "comparative fault"
in Li v. Yellow Cab. 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. 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.
There is no case law that definitively applies CCP 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, more recent
decisions by the California Supreme Court and another appellate
court hold that the references to "eminent domain" actions in
CCP Section 998 were not intended to include actions in inverse
condemnation. This bill would clarify the potential confusion
arising out of these cases by stating expressly that CCP Section
998 applies to an action in inverse condemnation for the purpose
of reducing the compensation paid to a prevailing plaintiff in
appropriate cases. CCP 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.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0000081
AB 328
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