People Ex Rel. Dep't of Pub. Works v. Hamud

HERNDON, J.

Defendants appeal from the judgment entered in an eminent domain proceeding following a second trial by jury. The first judgment was set aside upon the granting of plaintiff’s motion for a new trial made on the ground that the evidence was insufficient to justify the verdict. Defendants ’ appeal from the order granting the new trial was unsuccessful. The order was affirmed by Division 4 of this court in an opinion certified for nonpublication.

The basic question here presented is whether on the retrial following the affirmance of the order granting a new trial the date of valuation should remain the date of the issuance of the summons, as it was at the first trial, or should be changed to the date of the second trial.

We hold that the trial court correctly decided on the basis of the undisputed facts of this case that the date of valuation remained the same, namely, the date of the issuance of the summons.

As we have indicated, the material facts are undisputed. The original complaint was filed and the summons was issued on April 7, 1961. The trial of the action was originally set within one year of the date of issuance of the summons, but at the request of the defendants the trial was continued in order to enable plaintiff to effect certain design changes desired by defendants.

The first trial was commenced on July 12, 1962. On the fourth day of trial, pursuant to stipulation, plaintiff filed an amendment to the complaint effectuating the changes in design desired by defendants and adding to the property to be condemned certain additional parcels comprising approximately two and one-third acres. It was stipulated at the first trial that the date of valuation for all the property involved,

[595]

including the parcels added by the amendment to the complaint, should be April 7, 1961, the date of issuance of the summons. This stipulation was made in recognition of the fact that it was upon defendants’ request that the trial date was continued beyond the one-year period provided in Code of Civil Procedure, section 1249. The pertinent provisions of section 1249 are as follows:

“For the purpose of assessing compensation and damages the right thereto shall be deemed to have accrued at the date of the issuance of summons and its actual value at that date shall be the measure of compensation for all property to be actually taken, and the basis of damages to property not actually taken but injuriously affected, in all cases where such damages are allowed as provided in Section 1248; provided, that in any case in which the issue is not tried within one year after the date of the commencement of the action, unless the delay is caused by the defendant, the compensation and damages shall be deemed to have accrued at the date of the trial. ’ ’