CACI No. 3511B. Damage to Remainder During Construction (Code Civ. Proc., § 1263.420(b))

Judicial Council of California Civil Jury Instructions (2020 edition)

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3511B.Damage to Remainder During Construction (Code Civ.
Proc., § 1263.420(b))
The [name of condemnor] has taken only a part of [name of property
owner]’s property. [Name of property owner] claims that [he/she/nonbinary
pronoun/it] suffered damage to the remaining property during
construction of the project for which the property was taken. This loss
was because of [specify reasons alleged for damage due to construction,
e.g., reduced business because construction made access to owner’s business
more diffıcult].
If you determine that [name of property owner] suffered damage to [his/
her/nonbinary pronoun/its] remaining property during construction, you
must determine the amount of this damage and include it in determining
just compensation.
New May 2017; Revised May 2020
Directions for Use
Give this instruction if the owner claims that the owner suffered an economic loss
on the property not taken during construction of the project, for example because of
decreased business due to access being made more difficult. (See City of Fremont v.
Fisher (2008) 160 Cal.App.4th 666, 676 [73 Cal.Rptr.3d 54].) Courts have referred
to these damages as “temporary severance damages” (see, e.g., City of Fremont,
supra, 160 Cal.App.4th at p. 676.), though the statute does not call them either
“temporary” or “severance.” (See Code Civ. Proc., § 1263.420(b) [damage to the
remainder caused by the construction and use of the project for which the property
is taken].)
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].)
A property owner may also be able to recover severance damages if the remaining
property has decreased in value because of the partial taking. If severance damages
are sought, give CACI No. 3511A, Severance Damages to Remainder. Read CACI
No. 3512, Severance Damages - Offset for Benefits, if benefits to the owner’s
remaining property are at issue.
Sources and Authority
• Damages to Remainder During Construction. Code of Civil Procedure section
1263.420(b).
• Benefit to Remainder. Code of Civil Procedure section 1263.430.
• “When property acquired by eminent domain is part of a larger parcel,
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compensation must be awarded for the injury, if any, to the remainder. Such
compensation is commonly called severance damages. When the property taken
is but part of a single legal parcel, the property owner need only demonstrate
injury to the portion that remains to recover severance damages.” (City of San
Diego v. Neumann (1993) 6 Cal.4th 738, 741 [25 Cal.Rptr.2d 480, 863 P.2d
725], internal citations omitted.)
• “Temporary severance damages resulting from the construction of a public
project are also compensable. A property owner ‘generally should be able “to
present evidence to show whether and to what extent the delay disrupted its use
of the remaining property.” ’ However, ‘the mere fact of a delay associated with
construction’ does not, without more, entitle the property owner to temporary
severance damages. The temporary easement or taking must interfere with the
owner’s actual intended use of the property.” (City of Fremont, supra, 160
Cal.App.4th at p. 676, original italics.)
• “If [owner] had sold the property during the construction period and if the
ongoing construction had temporarily lowered the sales price of the property, it
would appear that [owner] would be entitled to recover that loss from [city]. But
the mere fact of a delay associated with construction of the pipeline did not,
without more, entitle [owner] to temporary severance damages relating to the
financing or marketing of the property in this eminent domain action. [¶ ] This is
not to say, however, that [owner] is barred from recovering damages for actual
injury it may have suffered during the construction of the pipeline. On remand,
[owner] may have the opportunity before the trial court to create an appropriate
record to support its claim of severance damages. In addition, ‘[w]hen the
condemnation action is tried before the improvement is constructed, and
substantial although temporary interference with the property owner’s rights of
possession or access occurs during construction, the property owner may
maintain a subsequent action for such damage occurring during construction.’ ”
(Metropolitan Water Dist. of So. California, supra, 41 Cal.4th at p. 975, internal
citations omitted.)
• “[Owner] sought temporary severance damages for impairment to his property
because of construction activities associated with the project. Specifically,
[owner] asserted the effect of removal of all landscaping for a period of one
year, and the closure of two of four driveways on his property for four months
during construction entitles him to temporary severance damages. In addition,
[owner] asserts the access to his property was substantially impaired by the
traffic detour traveling east through the intersection of East Airway Boulevard
and Isabel Avenue created by the construction project.” (City of Livermore v.
Baca (2012) 205 Cal.App.4th 1460, 1471 [141 Cal.Rptr.3d 271] [court erred in
excluding evidence of the above].)
• “The Legislature has framed the question of whether property should be viewed
as an integrated whole in terms of whether the land remaining after the taking
forms part of a ‘larger parcel’; the issue is one of law for decision by the court.”
(City of San Diego, supra, 6 Cal.4th at p. 745, internal citations omitted.)
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• “Both sides here thus agree that the court, not the jury, must make certain
determinations that are a predicate to the award of severance damages. But
[condemnor] is on weaker ground when it attempts to derive . . . a general rule
that ‘as a matter of constitutional and decisional law, all issues having to do with
the existence of, or entitlement to, severance damages are entrusted to the trial
judge,’ such that ‘[o]nly after the trial judge has determined that severance
damages exist does the jury consider the amount of those severance damages.’
[Condemnor]’s proposed rule assumes that questions relating to the measurement
of severance damages can be readily distinguished from questions relating to the
entitlement to them in the first place but, as we have previously cautioned, the
two concepts are not necessarily ‘so easily separable.’ ” (Metropolitan Water
Dist. of So. California, supra, 41 Cal.4th at p. 972, original italics, internal
citations omitted.)
• “In determining severance damage, the jury must assume ‘the most serious
damage’ which will be caused to the remainder by the taking of the easement
and construction of the property.” (San Diego Gas & Electric Co. v. Daley
(1988) 205 Cal.App.3d 1334, 1345 [253 Cal.Rptr. 144], internal citations
omitted, disapproved on other grounds in Los Angeles County Metropolitan
Transportation Authority v. Continental Development Corp. (1997) 16 Cal.4th
694, 720 [66 Cal.Rptr.2d 630, 941 P.2d 809].)
• “[W]hether access to a property has been ‘substantially impaired’ for purposes of
determining severance damages is a question for the court, even though
‘[s]ubstantial impairment cannot be fixed by abstract definition; it must be found
in each case upon the basis of the factual situation.’ ” (City of Perris v. Stamper
(2016) 1 Cal.5th 576, 594 [205 Cal.Rptr.3d 797, 376 P.3d 1221].)
• “Although the measure of compensation that is ‘just’ for purposes of both the
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. v. Superior Court (2016) 1 Cal.5th 151, 186 [204 Cal.Rptr.3d 770,
375 P.3d 887].)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law,
§§ 1236-1244
1 Condemnation Practice in California (Cont.Ed.Bar 3d ed.) Ch. 5
14 California Real Estate Law and Practice, Ch. 508, Evidence: General, §§ 508.24,
508.25 (Matthew Bender)
4A Nichols on Eminent Domain, Ch. 14, Damages for Partial Takings,
§§ 14.01-14.03 (Matthew Bender)
5 Nichols on Eminent Domain, Ch. 16, Consequential Damages as a Result of
Proposed Use, §§ 16.01-16.05 (Matthew Bender)
20 California Forms of Pleading and Practice, Ch. 247, Eminent Domain and
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Inverse Condemnation, § 247.140 (Matthew Bender)
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