Bill Text: CA AB1402 | 2015-2016 | Regular Session | Introduced
Bill Title: Inverse condemnation: comparative fault.
Spectrum: Bipartisan Bill
Status: (Failed) 2016-02-01 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB1402 Detail]
Download: California-2015-AB1402-Introduced.html
BILL NUMBER: AB 1402 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Members Harper and Jones-Sawyer
FEBRUARY 27, 2015
An act to amend Section 998 of, and to add Chapter 3.4 (commencing
with Section 1000) to Title 14 of Part 2 of, the Code of Civil
Procedure, relating to inverse condemnation.
LEGISLATIVE COUNSEL'S DIGEST
AB 1402, as introduced, Harper. Inverse condemnation: comparative
fault.
(1) Existing law prohibits the taking of private property without
the payment of just compensation and permits a person to maintain an
action in inverse condemnation for the purpose of obtaining
compensation for a taking. Existing law applies the doctrine of
comparative fault for the purpose of apportioning responsibility and
reducing damages to the extent a plaintiff is found partially at
fault.
This bill would apply the doctrine of comparative fault to inverse
condemnation actions and would require a court or arbitrator to
reduce the compensation paid to a plaintiff in an inverse
condemnation proceeding in direct proportion to his or her percentage
of fault, if any, in the damaging of property that constitutes a
taking. The bill would also provide that in calculating the plaintiff'
s percentage of fault, the actions of the plaintiff in applying for
or processing a permit or other entitlement for use or development do
not damage or diminish the value of the property, nor constitute
fault on the part of the plaintiff.
(2) Existing law governs offers by a party to compromise a dispute
that is to be resolved by trial or arbitration. Existing law
provides in this regard, among other things, that if the defendant
makes an offer that the plaintiff does not accept, and the plaintiff
fails to obtain a more favorable judgment or award, the plaintiff is
prohibited from recovering his or her postoffer costs and is required
to pay the defendant's costs from the time of the offer.
Existing law also awards to the plaintiff in an inverse
condemnation proceeding reasonable costs actually incurred because of
that proceeding in the trial court, or in any appellate proceeding,
in which the plaintiff prevails on any issue in that proceeding.
This bill would provide, notwithstanding the latter provision,
that if the defendant in an inverse condemnation action, on or after
January 1, 2014, makes an offer that the plaintiff does not accept,
and the plaintiff fails to obtain a judgment or award, the plaintiff
shall not recover his or her postoffer costs and shall pay the
defendant's postoffer costs. Additionally, the bill would provide
that the plaintiff may be required to pay the defendant's costs for
expert witnesses. Alternatively, if the plaintiff rejects the offer
and fails to obtain a more favorable judgment or award, the bill
would prohibit the plaintiff from recovering his or her postoffer
costs, but would provide that the plaintiff shall not be ordered to
pay the defendant's postoffer costs.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 998 of the Code of Civil Procedure is amended
to read:
998. (a) The costs allowed under Sections 1031 and 1032 shall be
withheld or augmented as provided in this section.
(b) Not less than 10 days prior to before
commencement of trial or arbitration (as provided in
Section 1281 or 1295) of a dispute to be resolved
by arbitration, as provided in Section 1281
or 1295, any party may serve an offer in writing upon any
other party to the action to allow judgment to be taken or an award
to be entered in accordance with the terms and conditions stated at
that time. The written offer shall include a statement of the offer,
containing the terms and conditions of the judgment or award, and a
provision that allows the accepting party to indicate acceptance of
the offer by signing a statement that the offer is accepted. Any
acceptance of the offer, whether made on the document containing the
offer or on a separate document of acceptance, shall be in writing
and shall be signed by counsel for the accepting party or, if not
represented by counsel, by the accepting party.
(1) If the offer is accepted, the offer with proof of acceptance
shall be filed and the clerk or the judge shall enter judgment
accordingly. In the case of an arbitration, the offer with proof of
acceptance shall be filed with the arbitrator or arbitrators who
shall promptly render an award accordingly.
(2) If the offer is not accepted prior to trial or arbitration or
within 30 days after it is made, whichever occurs first, it shall be
deemed withdrawn, and cannot be given in evidence upon the trial or
arbitration.
(3) For purposes of this subdivision, a trial or arbitration shall
be deemed to be actually commenced at the beginning of the opening
statement of the plaintiff or counsel, and if there is no opening
statement, then at the time of the administering of the oath or
affirmation to the first witness, or the introduction of any
evidence.
(c) (1) If an offer made by a defendant is not accepted and the
plaintiff fails to obtain a more favorable judgment or award, the
plaintiff shall not recover his or her postoffer costs and shall pay
the defendant's costs from the time of the offer. In addition, in any
action or proceeding other than an eminent domain action, the court
or arbitrator, in its discretion, may require the plaintiff to pay a
reasonable sum to cover costs of the services of expert witnesses,
who are not regular employees of any party, actually incurred and
reasonably necessary in either, or both, preparation for trial or
arbitration, or during trial or arbitration, of the case by the
defendant.
(2) (A) In determining whether the plaintiff obtains a more
favorable judgment, the court or arbitrator shall exclude the
postoffer costs.
(B) It is the intent of the Legislature in enacting subparagraph
(A) to supersede the holding in Encinitas Plaza Real v. Knight, 209
Cal.App.3d 996, that attorney's fees awarded to the prevailing party
were not costs for purposes of this section but were part of the
judgment.
(d) If an offer made by a plaintiff is not accepted and the
defendant fails to obtain a more favorable judgment or award in any
action or proceeding other than an eminent domain action, the court
or arbitrator, in its discretion, may require the defendant to pay a
reasonable sum to cover postoffer costs of the services of expert
witnesses, who are not regular employees of any party, actually
incurred and reasonably necessary in either, or both, preparation for
trial or arbitration, or during trial or arbitration, of the case by
the plaintiff, in addition to plaintiff's costs.
(e) If an offer made by a defendant is not accepted and the
plaintiff fails to obtain a more favorable judgment or award, the
costs under this section, from the time of the offer, shall be
deducted from any damages awarded in favor of the plaintiff. If the
costs awarded under this section exceed the amount of the damages
awarded to the plaintiff the net amount shall be awarded to the
defendant and judgment or award shall be entered accordingly.
(f) Police officers shall be deemed to be expert witnesses for the
purposes of this section. For purposes of this section, "plaintiff"
includes a cross-complainant and "defendant" includes a
cross-defendant. Any judgment or award entered pursuant to this
section shall be deemed to be a compromise settlement.
(g)
(g) (1) Notwithstanding Section 1036 or any other law, the
following shall apply to an action in inverse condemnation:
(A) If an offer made by a defendant is not accepted and the
plaintiff fails to obtain a judgment or award, the plaintiff shall
not recover his or her postoffer costs and shall pay the defendant's
costs from the time of the offer. In addition, the court or
arbitrator, in its discretion, may require the plaintiff to pay a
reasonable sum to cover costs of the services of expert witnesses,
who are not regular employees of any party, actually incurred and
reasonably necessary in either, or both, preparation for trial or
arbitration, or during trial or arbitration, of the case by the
defendant.
(B) If an offer made by a defendant is not accepted and the
plaintiff fails to obtain a more favorable judgment or award, the
plaintiff shall not recover his or her postoffer costs. The court or
arbitrator shall not order the plaintiff to pay the defendant's costs
from the time of the offer. In determining whether the plaintiff
obtains a more favorable judgment, the court or arbitrator shall
exclude the postoffer costs.
(2) This subdivision shall apply only to offers in inverse
condemnation actions that are made on or after January 1, 2014.
(h) This chapter does not apply to either of the
following:
(1) An offer that is made by a plaintiff in an eminent domain
action.
(2) Any enforcement action brought in the name of the people of
the State of California by the Attorney General, a district attorney,
or a city attorney, acting as a public prosecutor.
(h)
(i) The costs for services of expert witnesses for
trial under subdivisions (c) and (d) shall not exceed those specified
in Section 68092.5 of the Government Code.
(i)
(j) This section shall does
not apply to labor arbitrations filed pursuant to memoranda of
understanding under the Ralph C. Dills Act (Chapter 10.3 (commencing
with Section 3512) of Division 4 of Title 1 of the Government Code).
SEC. 2. Chapter 3.4 (commencing with Section 1000) is added to
Title 14 of Part 2 of the Code of Civil Procedure, to read:
CHAPTER 3.4. COMPARATIVE FAULT IN INVERSE CONDEMNATION
1000. (a) As described in this chapter, the doctrine of
comparative fault applies to actions in inverse condemnation.
(b) In an inverse condemnation proceeding, a court or arbitrator
shall reduce the compensation to be paid to a plaintiff in direct
proportion to his or her percentage of fault, if any, in the damaging
of property that constitutes a taking for a public use.
(c) In calculating a plaintiff's percentage of fault pursuant to
subdivision (b), the actions of a plaintiff in applying for or
processing a permit or other entitlement for use or development shall
not be construed as damaging or diminishing the value of the
property, nor constitute fault on the part of the plaintiff.
