CACI 3509B Precondemnation Damages—Public Entity’s Authorized Entry to Investigate Property’s Suitability (Code Civ. Proc., § 1245.060)

New May 2017

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Give this instruction if the property owner alleges that the public entity’s precondemnation entry onto the property to investigate its suitability for a public project caused actual damage or substantially interfered with the owner’s possession or use of the property. (See Code Civ. Proc., §§ 1245.010, 1245.060.) The amount of any such damages must be determined by a jury. (Property Reserve, Inc. v. Superior Court (2016) 1 Cal.5th 151, 207–210 [204 Cal.Rptr.3d 770, 375 P.3d 887].)

The last paragraph is partially bracketed because it is not clear whether the jury is also to determine whether in fact the owner has suffered any precondemnation harm from the entry. (See City of Perris v. Stamper (2016) 1 Cal.5th 576, 593–595 [205 Cal.Rptr.3d 797, 376 P.3d 1221.) But for the similar claim for severance damages, the California Supreme Court has held that it is for the jury to determine if such a loss has actually occurred as long as the claim is not speculative, conjectural, or remote. (Metropolitan Water Dist. of So. California v. Campus Crusade for Christ, Inc. (2007) 41 Cal.4th 954, 973 [62 Cal.Rptr.3d 623, 161 P.3d 1175].)

For an instruction on a claim for precondemnation damages because of the public entity’s unreasonable delay in condemnation, see CACI No. 3509A, Precondemnation Damages—Unreasonable Delay (Klopping Damages).

•Public Entity’s Precondemnation Entry to Investigate Property’s Suitability for Public Project. Code of Civil Procedure section 1245.010 et seq.

•Public Entity’s Precondemnation Entry Authorized for Particular Purposes. Code of Civil Procedure 1245.010.

•Damages to or Interference With Possession and Use of Property During Precondemnation Entry. Code of Civil Procedure section 1245.060.

•“[T]he current precondemnation entry and testing statutes not only establish a statutory compensation procedure but also expressly preserve a property owner’s right to pursue and obtain damages in a statutorily authorized civil action or an ordinary inverse condemnation action. Taken as a whole, state law clearly provides ‘a “ ‘reasonable, certain and adequate’ ” ’ procedure to enable a property owner to recover money damages for any injury caused by the activities authorized by the statutes.” (Property Reserve, Inc., supra, 1 Cal.5th at pp. 186–187, internal citations omitted.)

•“[T]he statutory damages that a property owner is entitled to obtain under section 1245.060, the applicable precondemnation entry and testing statute, are a constitutionally adequate measure of just compensation under the state takings clause for the precondemnation activities authorized by the statutory scheme. [¶] Like the concept of just compensation under the federal takings clause, the just compensation required by the state takings clause is the amount required to compensate the property owner for what the owner has lost.” (Property Reserve, Inc., supra, 1 Cal.5th at pp. 203–204, internal citation omitted.)

•“[T]he compensation authorized by section 1245.060, subdivision (a)—damages for any ‘actual damage’ to the property and for ‘substantial interference with the [property owner’s] possession or use of the property’—appears on its face to be a reasonable means of measuring what the property owner has lost by reason of the specific precondemnation activities that are authorized by the trial court’s environmental order.” (Property Reserve, Inc., supra, 1 Cal.5th at p. 205.)

•“The statutes at issue in the present case involve a factual setting—precondemnation entry and testing—that falls between the classic condemnation proceeding where the public entity is seeking to obtain title to or a compensable property interest in the property and the typical inverse condemnation action where the public entity does not intend to enter or intrude upon private property but damage to such property nonetheless ensues. Here, the proposed precondemnation entry and testing activities upon the subject property are intentional, but the public entity is not seeking to obtain title to or exclusive possession of the property for a significant period of time. Rather, the public entity is seeking temporary access to the property to conduct investigations that are needed to decide whether the property is suitable for a proposed project and should thereafter be acquired by the public entity.” (Property Reserve, Inc., supra, 1 Cal.5th at p. 190.)

•“Although the measure of compensation that is ‘just’ for purposes of both the federal and state takings clause is often determined by the ‘fair market value’ of what has been lost, both federal and state takings cases uniformly recognize that the fair market value standard is not applicable in all circumstances and that there is no rigid or fixed standard that is appropriate in all settings.” (Property Reserve, Inc., supra, 1 Cal.5th at pp. 203–204.)

•“In light of the nature of the environmental order at issue here, however, granting a property owner the rental value of the property in addition to any damages the owner sustains for actual injury or substantial interference with the possession or use of the property would afford the owner an unwarranted windfall. Under the trial court’s environmental order, the owner retains full possession and use of the property over the period covered by the order, notwithstanding the authorized testing activities. Under these circumstances, the rental value of the property would not be a valid measure of what the property owner has lost as a result of the trial court’s environmental order.” (Property Reserve, Inc., supra, 1 Cal.5th at p. 204.)

•“We have long held that this jury right applies only to determining the appropriate amount of compensation, not to any other issues that arise in the course of condemnation proceedings. ‘ “[A]ll issues except the sole issue relating to compensation[] are to be tried by the court,” including, “except those relating to compensation, the issues of fact.” ’ “ ‘ “ ‘It is only the ‘compensation,’ the ‘award,’ which our constitution declares shall be found and fixed by a jury. All other questions of fact, or of mixed fact and law, are to be tried, as in many other jurisdictions they are tried, without reference to a jury.’ ” ’ ” (City of Perris, supra, 1 Cal.5th at p. 593, internal citations omitted.)

•“By contrast, Campus Crusade held that two pure questions of fact directly pertaining to the proper amount of compensation were reserved to the jury. First, we said that whether it is reasonably probable a city would change the zoning status of the landowners’ property in the near future was a jury question. Second, because the landowner had introduced credible evidence that the remaining portion of its property would be worth less after the proposed taking due to hazards associated with a pipeline the government proposed to install on the property, the extent of the resulting severance damages was a jury question.” (City of Perris, supra, 1 Cal.5th at p. 595, internal citations omitted.)