Cal. Dept. of Transportation v. Briseno CA4/1 (2015) · DecisionDepot
Cal. Dept. of Transportation v. Briseno CA4/1
California Court of Appeal Oct 27, 2015 No. D065271Unpublished
Filed 10/27/15 Cal. Dept. of Transportation v. Briseno CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CALIFORNIA DEPARTMENT OF D065271 TRANSPORTATION,
Plaintiff and Respondent, (Super. Ct. No. 37-2012-00093894- v. CU-EI-CTL)
FRANCISCO JAVIER BRISENO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Judith F.
Hayes, Judge. Affirmed.
Francisco J. Briseno, in pro. per., for Defendant and Appellant.
Jeanne E. Scherer, Jeffrey R. Benowitz, and Scott R. Fridell, for Plaintiff and
Respondent.
In this eminent domain case, defendant Francisco Javier Briseno appeals a
judgment awarding him $195,000 as just compensation for 2.75 acres of unimproved
land. Briseno contends the trial court erred by not allowing him or his wife to testify
about their opinion of value and by not permitting his expert witness to testify regarding a
transaction he contends was a comparable sale. We conclude the trial court did not abuse
its discretion in making these evidentiary rulings and we affirm the judgment.
authority' over the admission and exclusion of evidence." (Ibid.) Abuse of discretion is
not shown "by merely arguing that a different ruling would have been better. Discretion
is abused only when in its exercise, the trial court 'exceeds the bounds of reason, all of the
circumstances before it being considered.' " (Shaw v. County of Santa Cruz (2008) 170
Cal.App.4th 229, 281, quoting Denham v. Superior Court of Los Angeles County (1970)
2 Cal.3d 557, 566.) "[T]o obtain a reversal based on the erroneous exclusion of evidence,
[an appellant] is required to show a 'miscarriage of justice,' meaning that 'a different
result was probable if the evidence had been admitted.' " (P&D Consultants, Inc. v. City
of Carlsbad (2010) 190 Cal.App.4th 1332, 1348.)
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II
Briseno's Opinion of Value
Briseno first contends the trial court erred in precluding him or his wife from
testifying about their opinion of the value of the Subject Property. Briseno does not cite
to, and we have not found, where in the record the trial court made such a ruling or
order.2 Briseno refers to one page of the reporter's transcript, but that page and the
surrounding pages relate to Briseno's trial testimony regarding his knowledge of the
plants on the Subject Property, not his opinion regarding the value of the Subject
Property.
Briseno has not shown he or his wife ever sought to testify about their opinion of
the value of the Subject Property. "[F]ailure to make an adequate offer of proof in the
court below ordinarily precludes consideration on appeal of an allegedly erroneous
exclusion of evidence." (Shaw v. County of Santa Cruz, supra, 170 Cal. App. 4th at
p. 282, citing § 354.) Even if such an offer of proof were made, Briseno has not shown
how inclusion of their opinion of value would have changed the result given the fact they
had an expert real estate appraiser testify on their behalf. Thus, there has been no
showing of miscarriage of justice to warrant reversal. (Century Surety Co. v. Polisso
(2006) 139 Cal.App.4th 922, 963.)
2 All appellate briefs must support any reference to a matter in the record by a citation to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).) "The appellate court is not required to search the record on its own seeking error." (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) Issues may be considered waived if a party's brief fails to adequately cite to the record. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) 5
To the extent Briseno may be contending he should have been able to testify about
the value of the plants, we find no merit in such a contention. Briseno's counsel
explained no statement of valuation data was filed for Briseno because he did not intend
to give opinion testimony about the value of the plants. The State's appraiser included a
value for the plants as personal property in his statement of valuation data based on the
opinion of a consulting certified arborist. Both the appraiser and the arborist testified at
trial. Briseno did not present a similar statement of valuation data regarding his opinion
of the value of the plants, which is required by Code of Civil Procedure section 1258.250
whether or not the individual is qualified to testify as an expert. (Cal. Law Revision
Com. com., 19 West's Ann. Code Civ. Proc., (2007 ed.) foll. § 1258.250, p. 606 ["a
statement must be provided for the owner of the property if he is to testify concerning
value, damages, … or other items of compensation"].) Therefore, the trial court did not
abuse its discretion in precluding Briseno from testifying regarding the value of the
plants.
III
Exclusion of Transaction No. 2 from Comparable Sale Evidence
Briseno next contends the trial court erred by not permitting his expert witness to
testify regarding a comparable sale listing. Again, Briseno fails to support this contention
with adequate citations to the record. In exercising our discretion to consider Briseno's
position, we presume he is referring to transaction No. 2. (See Del Real v. City of
Riverside, supra, 95 Cal.App.4th at p. 768.)
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After considering the fact Briseno's expert had seven other comparables, the court
determined the risk of confusion and the undue consumption of time necessary to explain
the unique factors surrounding transaction No. 2 outweighed the probative value of using
this transaction as a comparable sale. (§ 352.) We cannot conclude the trial court's
exercise of discretion was beyond the bounds of reason. Further, Briseno has not shown
that inclusion of the evidence would have changed the result. (P&D Consultants, Inc. v.
City of Carlsbad, supra, 190 Cal.App.4th at p. 1348.)
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.
MCCONNELL, P. J.
WE CONCUR:
NARES, J.
MCDONALD, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not abuse its discretion in excluding evidence of a specific comparable sale under Evidence Code section 352 or in precluding the property owner from testifying about the value of plants without having filed the required statement of valuation data.
Issues
Did the trial court abuse its discretion by precluding the property owner from testifying about the value of plants without a statement of valuation data?
Did the trial court abuse its discretion by excluding a specific transaction as a comparable sale under Evidence Code section 352?
Did the trial court err by allegedly precluding the property owner and his wife from testifying about their opinion of the property's value?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The court excluded evidence of transaction No. 2 under section 352, finding it would cause undue consumption of time and confusion of the issues”
“the trial court did not abuse its discretion in precluding Briseno from testifying regarding the value of the plants.”
“We cannot conclude the trial court's exercise of discretion was beyond the bounds of reason.”