Earlier this year, the Fourth District Court of Appeal created a split among California appellate courts on the question of whether a party to an inverse condemnation action may bring a pre-trial motion under Code of Civil Procedure section 1260.040 to determine issues of liability. In Weiss v. People ex rel. Dep't of Transportation, 20 Cal. App. 5th 1156 (2018), the Fourth District concluded that section 1260.040 may be used to decide issues of compensation, but not liability. The Fourth District declined to follow Dina v. People ex rel. Dep't of Transportation, 151 Cal. App. 4th 1029 (2007), where the Second District reached the opposition conclusion. Property owners had good reason to cheer the Weiss decision because it removed the threat of a last-minute dispositive motion. The California Supreme Court recently granted review, Weiss v. Dep't of Transportation, 419 P.3d 534 (Cal. 2018), and now stands poised to resolve the split of authority.
The statutory language at issue provides that “[i]f there is a dispute between plaintiff and defendant over an evidentiary or other legal issue affecting the determination of compensation, either party may move the court for a ruling on the issue.” Cal. Civ. Proc. Code § 1260.040(a) (emphasis added). The Weiss defendats, CalTrans and the Orange County Transportation Authority, brought a motion in limine under section 1260.040, arguing that the plaintiff’s nuisance claim “failed as a matter of law based on the statutory immunity Civil Code section 3284 provided.” Weiss, 20 Cal. App. 5th at 1161. The trial court agreed, and dismissed the claim. The Fourth District, disagreed, and reversed.
On appeal, the defendants conceded that the language of section 1260.040, as well as the statutory provisions governing eminent domain actions, provide that the code section applies only to eminent domain proceedings, and not inverse condemnation actions. The defendants nevertheless urged the Court of Appeal to “import [section 1260.040] into the body of inverse condemnation law as a matter of judicial development.” Id. at 1161. The court declined the invitation for multiple reasons.
First, the Law Revision Commission comments that introduce “the original Eminent Domain Law state that ‘[t]he provisions of the Eminent Domain Law are intended to supply rules only for eminent domain proceedings.” Weiss, at 1167.
Second, the language of section 1260.040 applies only to issues affecting the determination of compensation. Id. at 1167-68. Because liability is not mentioned in the statute, the court declined to “‘insert what has been omitted.’” Id. at 1168.
Third, the legislative history, consisting of the Law Revision Commission recommendation, states that provision was intended to apply only to compensation. Weiss at 1170. The court noted that Caltrans “endorsed the proposed legislation as a means to resolve compensation issues in limine, citing “[t]he ability to challenge by pretrial motion improper valuation methods used by appraisers ... that, under current practice, are often improperly sent to juries.” Id.
Fourth, other eminent domain statutes the legislature adopted together with section 1260.040 indicate that it knows how to draft statutory provisions allowing pre-trial motions addressing questions of liability. One of those statutes, section 1260.110, provides a method for property owners to challenge the government’s “right to take.”
Finally, the court was unpersuaded that the three words (“other legal issue”) contained in section 1260.040, were “intended to create a new dispositive procedure reproducing the safeguards, entire statutory framework, and extensive caselaw governing either a nonsuit motion or a summary judgment motion. Id. at 1173. The court noted the emerging judicial skepticism of using motions in limine as a substitute for a dispositive motion, noting that such motions “circumvent procedural protections provided by the statutory motions or by trial on the merits; they risk blindsiding the nonmoving party; and, in some cases, they could infringe a litigant's right to a jury trial.” Weiss, at 1176 (quoting R & B Auto Center, Inc. v. Farmers Group, Inc., 140 Cal.App.4th 327, 371 (2006) (conc. opn. of Rylaarsdam, J.).
There is much to recommend the Weiss decision. It is faithful to the statutory language, and consistent with the legislative history. Its result also supports the trend against allowing parties to use in limine motions to circumvent the procedural protections the legislature has established for dispositive motions. The California Supreme Court’s resolution of the split of authority Weiss created could therefore reach beyond the law of inverse condemnation and eminent domain.
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