CACI No. 3509A. Precondemnation Damages - Unreasonable Delay (Klopping Damages)

Judicial Council of California Civil Jury Instructions (2023 edition)

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3509A.Precondemnation Damages - Unreasonable Delay
(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]]. These 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].
New September 2003; Revised and Renumbered May 2017
Directions for Use
This instruction will need to be modified if the entity does not ultimately proceed
with the condemnation, or if there has been another type of unreasonable conduct
other than unreasonable delay.
For an instruction on precondemnation damages arising from the public entity’s
authorized entry to investigate suitability of the property for the project, see CACI
No. 3509B, Precondemnation Damages - Public Entity’s Authorized Entry to
Investigate Property’s Suitability.
Sources and Authority
“[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.” (Klopping v.
City of Whittier (1972) 8 Cal.3d 39, 52 [104 Cal.Rptr. 1, 500 P.2d 1345].)
“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, original italics,
internal citation omitted.)
Klopping does not permit an owner to recover precondemnation damages for
general market decline as that is not attributable to the condemner.” (People ex
rel. Dept. of Transportation v. McNamara (2013) 218 Cal.App.4th 1200, 1209
[160 Cal.Rptr.3d 812].)
“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], original italics, internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1373
1 Condemnation Practice in California (Cont.Ed.Bar 3d ed.) § 4.8
14 California Real Estate Law and Practice, Ch. 512, Compensation, § 512.12
(Matthew Bender)
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, Ch. 247, Eminent Domain and
Inverse Condemnation, § 247.202 (Matthew Bender)
9 California Points and Authorities, Ch. 95, Eminent Domain, § 95.123 (Matthew

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