CACI No. 3509B. Precondemnation Damages - Public Entity’s Authorized Entry to Investigate Property’s Suitability (Code Civ. Proc., § 1245.060)
Judicial Council of California Civil Jury Instructions (2023 edition)
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3509B.Precondemnation Damages - Public Entity’s Authorized
Entry to Investigate Property’s Suitability (Code Civ. Proc.,
§ 1245.060)
A public entity that is considering condemning property for public use
may enter the property before condemnation to conduct activities that
are reasonably related to acquiring the property for a public project.
However, the property owner may recover for any actual damage to, or
substantial interference with, the owner’s possession and use of the
property caused by the public entity’s entry for these purposes.
[Name of property owner] claims that [he/she/nonbinary pronoun/it]
suffered damage to, or substantial interference with, the use or
possession of [his/her/nonbinary pronoun/its] property because of [name of
condemnor]’s precondemnation activities on the property.
[If you determine that [name of property owner] suffered actual damage
to, or substantial interference with, the use or possession of
[his/her/nonbinary pronoun/its] property during precondemnation
activities,] [Y/y]ou must determine the amount of this loss and include it
in determining just compensation.
New May 2017
Directions for Use
Give this instruction if the property owner alleges that the public entity’s
precondemnation entry onto the property to investigate its suitability for a public
project caused actual damage or substantially interfered with the owner’s possession
or use of the property. (See Code Civ. Proc., §§ 1245.010, 1245.060.) The amount
of any such damages must be determined by a jury. (Property Reserve, Inc. v.
Superior Court (2016) 1 Cal.5th 151, 207-210 [204 Cal.Rptr.3d 770, 375 P.3d
887].)
The last paragraph is partially bracketed because it is not clear whether the jury is
also to determine whether in fact the owner has suffered any precondemnation harm
from the entry. (See City of Perris v. Stamper (2016) 1 Cal.5th 576, 593-595 [205
Cal.Rptr.3d 797, 376 P.3d 1221.) But for the similar claim for severance damages,
the California Supreme Court has held that it is for the jury to determine if such a
loss has actually occurred as long as the claim is not speculative, conjectural, or
remote. (Metropolitan Water Dist. of So. California v. Campus Crusade for Christ,
Inc. (2007) 41 Cal.4th 954, 973 [62 Cal.Rptr.3d 623, 161 P.3d 1175].)
For an instruction on a claim for precondemnation damages because of the public
entity’s unreasonable delay in condemnation, see CACI No. 3509A,
Precondemnation Damages - Unreasonable Delay (Klopping Damages).
679
Sources and Authority
• Public Entity’s Precondemnation Entry to Investigate Property’s Suitability for
Public Project. Code of Civil Procedure section 1245.010 et seq.
• Public Entity’s Precondemnation Entry Authorized for Particular Purposes. Code
of Civil Procedure 1245.010.
• Damages to or Interference With Possession and Use of Property During
Precondemnation Entry. Code of Civil Procedure section 1245.060.
• “[T]he current precondemnation entry and testing statutes not only establish a
statutory compensation procedure but also expressly preserve a property owner’s
right to pursue and obtain damages in a statutorily authorized civil action or an
ordinary inverse condemnation action. Taken as a whole, state law clearly
provides ‘a “ ‘reasonable, certain and adequate’ ” ’ procedure to enable a
property owner to recover money damages for any injury caused by the activities
authorized by the statutes.” (Property Reserve, Inc., supra, 1 Cal.5th at pp.
186-187, internal citations omitted.)
• “[T]he statutory damages that a property owner is entitled to obtain under
section 1245.060, the applicable precondemnation entry and testing statute, are a
constitutionally adequate measure of just compensation under the state takings
clause for the precondemnation activities authorized by the statutory scheme. [¶]
Like the concept of just compensation under the federal takings clause, the just
compensation required by the state takings clause is the amount required to
compensate the property owner for what the owner has lost.” (Property Reserve,
Inc., supra, 1 Cal.5th at pp. 203-204, internal citation omitted.)
• “[T]he compensation authorized by section 1245.060, subdivision (a) - damages
for any ‘actual damage’ to the property and for ‘substantial interference with the
[property owner’s] possession or use of the property’ - appears on its face to be
a reasonable means of measuring what the property owner has lost by reason of
the specific precondemnation activities that are authorized by the trial court’s
environmental order.” (Property Reserve, Inc., supra, 1 Cal.5th at p. 205.)
• “The statutes at issue in the present case involve a factual
setting - precondemnation entry and testing - that falls between the classic
condemnation proceeding where the public entity is seeking to obtain title to or
a compensable property interest in the property and the typical inverse
condemnation action where the public entity does not intend to enter or intrude
upon private property but damage to such property nonetheless ensues. Here, the
proposed precondemnation entry and testing activities upon the subject property
are intentional, but the public entity is not seeking to obtain title to or exclusive
possession of the property for a significant period of time. Rather, the public
entity is seeking temporary access to the property to conduct investigations that
are needed to decide whether the property is suitable for a proposed project and
should thereafter be acquired by the public entity.” (Property Reserve, Inc.,
supra, 1 Cal.5th at p. 190.)
• “Although the measure of compensation that is ‘just’ for purposes of both the
CACI No. 3509B EMINENT DOMAIN
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federal and state takings clause is often determined by the ‘fair market value’ of
what has been lost, both federal and state takings cases uniformly recognize that
the fair market value standard is not applicable in all circumstances and that
there is no rigid or fixed standard that is appropriate in all settings.” (Property
Reserve, Inc., supra, 1 Cal.5th at pp. 203-204.)
• “In light of the nature of the environmental order at issue here, however,
granting a property owner the rental value of the property in addition to any
damages the owner sustains for actual injury or substantial interference with the
possession or use of the property would afford the owner an unwarranted
windfall. Under the trial court’s environmental order, the owner retains full
possession and use of the property over the period covered by the order,
notwithstanding the authorized testing activities. Under these circumstances, the
rental value of the property would not be a valid measure of what the property
owner has lost as a result of the trial court’s environmental order.” (Property
Reserve, Inc., supra, 1 Cal.5th at p. 204.)
• “We have long held that this jury right applies only to determining the
appropriate amount of compensation, not to any other issues that arise in the
course of condemnation proceedings. ‘ “[A]ll issues except the sole issue relating
to compensation[] are to be tried by the court,” including, “except those relating
to compensation, the issues of fact.” ’ “ ‘ “ ‘It is only the ‘compensation,’ the
‘award,’ which our constitution declares shall be found and fixed by a jury. All
other questions of fact, or of mixed fact and law, are to be tried, as in many
other jurisdictions they are tried, without reference to a jury.’ ” ’ ” (City of
Perris, supra, 1 Cal.5th at p. 593, internal citations omitted.)
• “By contrast, Campus Crusade held that two pure questions of fact directly
pertaining to the proper amount of compensation were reserved to the jury. First,
we said that whether it is reasonably probable a city would change the zoning
status of the landowners’ property in the near future was a jury question. Second,
because the landowner had introduced credible evidence that the remaining
portion of its property would be worth less after the proposed taking due to
hazards associated with a pipeline the government proposed to install on the
property, the extent of the resulting severance damages was a jury question.”
(City of Perris, supra, 1 Cal.5th at p. 595, internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1333
14 California Real Estate Law and Practice, Ch. 503, Preliminary Case Evaluation
and Preparation for the Condemnor, § 503.05 (Matthew Bender)
20 California Forms of Pleading and Practice, Ch. 247, Eminent Domain and
Inverse Condemnation, § 247.72 (Matthew Bender)
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