California Civil Jury Instructions (CACI)

3509. Precondemnation Damages (Klopping Damages)

I have determined that [insert one or both of the following:]

[there was an unreasonable delay between [date of announcement of intent to condemn], when the [name of condemnor] announced its intent to condemn [name of property owner]'s property, and [date of filing], when this case was filed] [and]

[insert description of unreasonable conduct].

In determining just compensation you must award damages that [name of property owner] has suffered as a result of the [name of condemnor]'s [delay/[describe unreasonable conduct]]. Such damages may include [insert damages appropriate to the facts, e.g., the cost of repairs, the loss of use of the property, loss of rent, loss of profits, or increased operating expenses pending repairs, and diminution of market value].

Directions for Use

This instruction will need to be modified in cases where the entity does not ultimately proceed with the condemnation, or where there has been another type of unreasonable conduct other than "unreasonable delay."

Sources and Authority

The Supreme Court in Klopping v. City of Whittier (1972) 8 Cal.3d 39, 52 [104 Cal.Rptr. 1, 500 P.2d 1345], held that "a condemnee must be provided with an opportunity to demonstrate that (1) the public authority acted improperly either by unreasonably delaying eminent domain action following an announcement of intent to condemn or by other unreasonable conduct prior to condemnation; and (2) as a result of such action the property in question suffered a diminution in market value."

"The measure of damages may be the cost of repairs, the loss of use of the property, loss of rent, loss of profits, or increased operating expenses pending repairs." (City of Los Angeles v. Tilem (1983) 142 Cal.App.3d 694, 703 [191 Cal.Rptr. 229], internal citations omitted.)

"[A]bsent a formal resolution of condemnation, recovery under Klopping requires that the public entity's conduct 'directly and specially affect the landowner to his injury.' This requirement mandates that the plaintiff demonstrate conduct on the part of the public entity 'which significantly invaded or appropriated the use or enjoyment' of the property." (Barthelemy v. Orange County Flood Control Dist. (1998) 65 Cal.App.4th 558, 570 [76 Cal.Rptr.2d 575], internal citations omitted.)

"[S]ince Klopping damages compensate a landowner for a public entity's unreasonable precondemnation conduct, their recovery 'is permitted irrespective of whether condemnation proceedings are abandoned or whether they are instituted at all.' " (Barthelemy, supra, 65 Cal.App.4th at p. 569, internal citation omitted.)

"Whether there has been unreasonable delay by the condemner and whether the condemner has engaged in unreasonable conduct are both questions of fact. What constitutes a direct and substantial impairment of property rights for purposes of compensation is also a factual question. In deciding factual matters on conflicting testimony and inferences, it is for the trier of fact to determine which evidence and inferences it finds more reasonable." (Contra Costa County Water Dist. v. Vaquero Farms, Inc. (1997) 58 Cal.App.4th 883, 897 [68 Cal.Rptr.2d 272], internal citations omitted.)

"Whether the public entity has acted unreasonably is a question of fact. 'However, the threshold question of liability for unreasonable precondemnation conduct is to be determined by the court, with the issue of the amount of damages to be thereafter submitted to the jury only upon a sufficient showing of liability by the condemnee.' Because inverse condemnation damages for precondemnation conduct must be claimed in a pending eminent domain action, the appropriate procedure is to bifurcate the trial of the action so that the question of the liability of the public entity is first adjudicated by the court without a jury." (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 897 [122 Cal.Rptr.2d 802], internal citations omitted.)

Secondary Sources

8 Witkin, Summary of California Law (9th ed. 1988) Constitutional Law, § 1021

1 Condemnation Practice in California (Cont.Ed.Bar 2005) § 4.8

6 Nichols on Eminent Domain, Ch. 26D, Abandonment, Dismissal of Action and Assessment of Damages, § 26D.01 (Matthew Bender)

20 California Forms of Pleading and Practice, Chapter 247, Eminent Domain (Matthew Bender)

(New September 2003)