This one is California process-specific, but we think the California Supreme Court's opinion in Weiss v. People ex rel Dep't of Transportation, No. S248141 (July 16, 2020), is still worth a read for you non-Golden Staters.
Why, you ask? Well, we all have been in the situation where, just before you are about to empanel your valuation jury, the court entertains motions in limine that look a lot like summary judgment motions. You know, things like "their theory of valuation is no good," or "my theory is the only theory," etc., etc. You can prepare a case for months, only to have it blown up on the literal eve of trial. It's wasteful, based on unfair surprise.
So California has a procedure -- only applicable to eminent domain cases -- that front-loads these type of questions. Any party may file what is called a "1260.040" motion (we'll let you guess at which section of the Code of Civil Procedure you need to look for to find this procedure), that asks the trial judge to make a pretrial ruling on "an evidentiary or other legal issue affecting the determination of compensation." And you have to make these motions "not later than 60 days before commencement of trial on the issue of compensation." Got it.
Thus, the government in Weiss asked, why not in inverse condemnation also? We're going to a valuation trial, right? The question was whether statutory procedures in California's eminent domain code could be, in the Supreme Court's words, "imported" into and employed in inverse condemnation cases. As we all know, both eminent domain and takings cases are "condemnation" matters, and the government argued that the procedures the legislature required in eminent domain cases also make sense in inverse cases. So why not carry those procedures over? Instead of a typical summary judgment motion (or worse yet, eve-of-trial summary judgment motions disguised as evidentiary motions in limine), you front-load compensation legal issues.
Short story from the unanimous court: No, the "[t]he special statutory procedures that govern a public entity’s exercise of the power of eminent domain are inapplicable in inverse condemnation actions, which instead proceed by the rules governing ordinary civil actions." Slip op. at 1.
While inverse cases and eminent domain cases share many things, they are not simply mirror images, and inverse cases, unlike eminent domain, are plain old civil cases. Here, the court concluded, the procedure in the eminent domain code cannot be brought over.
While the “cross-pollination” embraced by Chhour, supra, 46 Cal.App.4th 273, may make sense with respect to provisions of the Eminent Domain Law that affect the amount of compensation due to a property owner, the special rules governing the procedure by which a public entity exercises the eminent domain power are another matter. As noted above, inverse condemnation actions proceed by the rules governing ordinary civil actions, not the special rules that apply to eminent domain proceedings. Indeed, much of the “elaborate and lengthy process established by the Eminent Domain Law and related statutes”—would serve no purpose in an inverse condemnation action. (Property Reserve, supra, 1 Cal.5th at p. 188; see, e.g., §§ 1245.220 [requiring resolution of necessity], 1255.410 [authorizing motion for order of possession].) Chhour does not suggest that an appellate court may “import” into the inverse condemnation context provisions of the Eminent Domain Law that set out the special procedures applicable to eminent domain actions, such as section 1260.040.
Slip op. at 19-20 (footnote omitted).
Remember: eminent domain actions are special civil actions to establish the amount of just compensation owed to a property owner for the taking or damaging of private property. They are not typical civil litigation in which the plaintiff alleges that the defendant did something wrong. You hit me with your car, you broke a promise, you sunk my battleship, and the like. An inverse condemnation claim falls into that latter category: the plaintiff (owner) is alleging that the taker did something wrong: you took my property for public use, but you haven't paid me the compensation the constitution(s) require. First part is prove the taking, and if compensation is the remedy sought, then you fight about the amount the condemnor must provide. But in eminent domain actions, the court concluded, "liability is established at the outset." Slip op. at 24.
The court concluded that because liability determinations in inverse cases are often disputed, a 1260.040 motion, if imported, would "replace, not supplement, existing procedures." Slip op. at 25. The Code section, however, notes that it "supplements, and does not replace any other pretrial or trial procedure otherwise available to resolve an evidentiary or other legal issue affecting the determination of compensation." No deal.
We recommend you check out the opinion. We tuned in to the oral arguments (the court convened remotely), and thought that all of the advocates were excellent. For what one of them thought of the Weiss decision, read his writeup: "Supreme Court Rejects Procedural Innovation in Inverse Condemnation."
Finally, a practice note: here's one where an amicus brief resonated with the court. Scroll down to the end, and you will note a brief filed by the lawyer who literally wrote the book on California condemnation practice:
Reading through the opinion, you will note multiple references to "the book." Nice work.
Weiss v. People ex rel. Dep't of Transportation, No. S248141 (Cal. July 16, 2020)
