Like the Elizabethan gong farmer — whose job it was to police up the unpleasant remnants after the “main event” — the opinion of a court of appeal after a remand from the Supreme Court is often anticlimactic, and other than the parties involved no one really wants to see or hear about it too much.
The California Court of Appeal’s recent opinion in Property Reserve, Inc. v. Superior Court, No. C067758A (Dec. 16, 2016), strikes us as one of those. This decision came back to the court after the California Supreme Court’s “main event,” the opinion which held that a condemnor could in certain circumstances, enter private property in anticipation of an exercise of eminent domain, effect a taking, and not have to adhere to all of California’s eminent domain procedures. Except a jury trial, that is. The court “saved” the precondemnation entry statute by rewriting it, and requiring a jury trial even though there is not such requirement in the statute.
On remand, the court of appeal considered the question left hanging: does the property owner have a right during the precondemnation entry process to obtain discovery from the pre-condemnor? The court answered “yes, but.”
Discovery is one of those things that a trial judge has discretion to allow but here here, both the eminent domain code and the usual rules in civil cases expressly allow for discovery. Since the Supreme Court held that pre-condemnation entry procedures are kinda-sorta-eminent domain procedures, the usual rules in those civil cases apply. Besides, how are the parties going to conduct the jury trial that the California Supreme Court held the owner is entitled to, if there’s no discovery?
The “but” in the “yes, but,” however, was that the owners did not show that the trial judge’s error prohibiting discovery resulted in prejudice:
The landowners have not made this showing. They do not assert prejudicial error in either their opening brief or their supplemental brief. Consequently, they do not show how they would have received a more favorable outcome in this litigation had the trial court allowed them to conduct their requested discovery.
Slip op. at 14-15. So it sounds like the parties are going to go to trial without discovery after all.
The final section of the opinion details the court’s rejection of the owner’s indispensable party argument (because it was moot). Not really interesting (bumf, in keeping with this post’s theme) and you can read that if you like.
Property Reserve, Inc. v. Superior Court, No. C067758A (Cal. App. Dec. 16, 2016)