Filed 6/9/15 Downey Real Estate Holding v. Los Angeles County MTA CA2/3
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                         SECOND APPELLATE DISTRICT

                                                       DIVISION THREE



DOWNEY REAL ESTATE HOLDING, LLC                                                   B244647 (consolidated with B247931)

          Plaintiff and Appellant,                                                (Los Angeles County
                                                                                  Super. Ct. No. BC465234)
          v.

LOS ANGELES COUNTY
METROPOLITAN TRANSPORTATION
AUTHORITY,

          Defendant and Appellant.




          APPEALS from orders of the Superior Court of Los Angeles County, Michael P.
Linfield, Judge. Affirmed in part and reversed in part.
          Nick A. Alden and Aleksey Sirotin for Plaintiff and Appellant.
          Lewis Brisbois Bisgaard & Smith, LLP, Roy G. Weatherup, Wesley G. Beverlin,
Raymond R. Barrera and Allison A. Arabian for Defendant and Appellant.

                                              _________________________
       In this consolidated appeal, plaintiff and appellant Downey Real Estate Holding,
LLC (Downey) appeals an order dismissing its inverse condemnation action against
defendant and respondent Los Angeles County Metropolitan Transportation Authority
(MTA) pursuant to Code of Civil Procedure section 1260.040. 1 2
       The MTA, in turn, appeals from postjudgment orders denying its motion for cost-
of-proof attorney fees and expenses (§ 2033.420) and granting Downey’s motion to strike
the MTA’s memorandum of costs.
       On Downey’s appeal, we affirm the order of dismissal, concluding the trial court
properly determined Downey could not prevail at trial on its claims against the MTA for
inverse condemnation and nuisance.
       On the MTA’s appeal, we affirm the order denying the MTA’s motion for cost-of-
proof sanctions and reverse the order striking the MTA’s memorandum of costs.
                 FACTUAL AND PROCEDURAL BACKGROUND
       The subject real property is located at 5161 East Pomona Boulevard (on the north
side of the street), near the intersection of Atlantic and Pomona Boulevards in East Los
Angeles. The site is improved with an L-shaped shopping center and parking lot. Access
to the property is via two driveways fronting Pomona Boulevard.
       In 2009, the MTA built the Atlantic Boulevard Metro Gold Line light rail station
(the Station) in the middle of Pomona Boulevard, directly in front of the entrances to and

1
       An inverse condemnation action is an eminent domain proceeding initiated by the
property owner rather than the condemner. (People ex rel. Dept. Pub. Wks. v. Romano
(1971) 18 Cal.App.3d 63, 71 (Romano).)
2
        Code of Civil Procedure section 1260.040 states in relevant part at subdivision (a):
“If 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. The motion shall be made not later than 60 days before
commencement of trial on the issue of compensation. The motion shall be heard by the
judge assigned for trial of the case.”

      All further statutory references are to the Code of Civil Procedure, unless
otherwise specified.

                                             2
exits from Downey’s property. The Station is a 270-foot long raised platform allowing
for a maximum of two train cars and a walkway for arriving and departing passengers.
The following year, the MTA opened a three-story parking structure for 250 vehicles,
directly to the east of the subject real property.
       1. Pleadings.
       On July 12, 2011, Downey filed suit against the MTA alleging causes of action for
inverse condemnation and nuisance.3 The gravamen of the action is that the placement of
the Station in the middle of Pomona Boulevard, which had the effect of turning
Downey’s portion of Pomona Boulevard into a one-way westbound street, substantially
impaired access to the shopping center, causing loss of tenants and a diminution in value.
Downey also alleged the Station, parked trains, and parking structure obstructed the
visibility of the shopping center, and that the Station and parking structure constituted a
nuisance.
       2. The MTA’s dismissal motion.
       One year later, on July 9, 2012, two months before the trial date, the MTA filed a
motion for dismissal pursuant to section 1260.040.
       The MTA contended Downey lacked a legally compensable claim because a
property owner cannot state a claim based on alteration of traffic flows in abutting streets
resulting from the construction of public improvements. It also argued the obstructed
view claim was not compensable under California law. Finally, because the construction
of the Station and related parking structure were expressly authorized by statute, those
improvements could not be deemed a nuisance.




3
       The original complaint incorrectly designated David Raminfard as the plaintiff,
but the complaint later was amended to substitute Downey in his stead.

                                               3
       3. Downey’s opposition.
       In opposing the dismissal motion, Downey contended that section 1260.040
unconstitutionally deprives a property owner of the right to a jury trial or bench trial, and
that the statute was not intended to be used to adjudicate liability or to dispose of an
entire case.
       With respect to the merits, Downey asserted it stated a claim for substantial
impairment of its right of access to and from the property as a consequence of the
placement of the Station and parking structure. Downey argued “the correct approach to
determine if a compensable impairment of ingress and egress has occurred is by looking
at the access available to the particular property before and after the impairment and then
deciding on a case by case basis if the impairment is substantial.” Here, Downey lost
unrestricted access to Pomona Boulevard in both directions. The presence of the Station
in the middle of the street precludes eastbound drivers from making a left turn to enter the
shopping center; the presence of the Station also precludes exiting drivers from turning
left onto Pomona Boulevard. As a result, ingress and egress have become more
circuitous and are now substantially impaired.
       Downey also contended its claim for loss of visibility was viable because the same
thing that impaired ingress and egress, i.e., the Station, was causing the loss of visibility.
       As for the nuisance claim, Downey argued it was viable because the presence of
parked trains at the Station for extended periods of time is not expressly authorized by
statute.
       4. Trial court’s ruling.
       On August 9, 2012, after hearing the matter, the trial court granted the MTA’s
dismissal motion, setting forth its rationale in an extensive minute order.
       Relying on Dina v. People ex rel. Dept. of Transportation (2007) 151 Cal.App.4th
1029 (Dina), the trial court rejected Downey’s argument that section 1260.040 is
unconstitutional.



                                               4
       With respect to the inverse condemnation claim, the trial court ruled the cases
“make clear that plaintiff’s allegations that the train station and Gold Line have made it
difficult to enter the property because Pomona Blvd. is now a one way street and that
patrons cannot make a left directly into the shopping center are insufficient to support a
finding plaintiff suffered a substantial impairment of access. A reduction in access is
simply not considered a taking. ‘[S]treet alterations which cause significantly increased
traffic or which reduce but do not eliminate access to a property do not give rise to a
compensable taking.’ [Citation.] . . . [The] cases make clear, the conversion of a street
from a two-way street to a one-way street does not affect the basic right of direct access
to plaintiff’s property.
       Further, “[w]ithout a compensable claim for lack of ingress or egress, Plaintiff
[cannot] state a claim for diminution of visibility. See Regency Outdoor Advertising, Inc.
v. City of Los Angeles (2006) 39 Cal.4th 507, 521-523 [(Regency)].)”
       The nuisance claim likewise was meritless because “the conduct at issue here was
clearly ‘authorized pursuant to statute,’ and there is no indication that [the MTA’s]
actions involve unnecessary activity, are illegitimate, or were committed with the purpose
of harassing plaintiff.”
       On August 21, 2012, the trial court entered an order of dismissal, and on October
17, 2012, Downey filed a timely notice of appeal from the order of dismissal.
       5. Subsequent proceedings.
               a. Costs.
       On December 4, 2012, the MTA filed a memorandum of costs, seeking
$13,512.81.
       On December 17, 2012, Downey filed an objection and motion to strike the cost
memorandum as untimely on the ground it was filed more than 60 days after the August
21, 2012 order of dismissal.
       On February 26, 2013, the trial court granted Downey’s request to strike, on the
ground that the order of dismissal was entered on August 21, 2012, and the California


                                             5
Rules of Court (hereafter, rules) require a memorandum of costs to be served and filed
within 15 days after the date of mailing of notice of entry of judgment or dismissal.
(Rule 3.1700(a)(1).)
              b. Cost-of-proof sanctions.
       On December 4, 2012, the MTA also filed a motion for cost-of-proof attorney fees
and expenses pursuant to section 2033.420, seeking $85,528 as reimbursement for
attorney fees and expenses it “incurred to prove matters wrongfully denied in [Downey’s]
responses” to the MTA’s requests for admission (RFAs).
       On January 31, 2013, after hearing the matter, the trial court denied the MTA’s
request, stating “I just don’t think that the [section] 2033.420 purposes would be served.
I don’t think, in this case, given the facts of this case, that justice would be served by
granting the motion for the attorneys’ fees and expenses that are requested by defendant.”
       c. The MTA’s appeal.
       On April 2, 2013, the MTA filed a timely notice of appeal from the postjudgment
orders striking its cost memorandum and denying its motion for cost-of-proof sanctions.
       On August 5, 2013, Downey’s appeal and the MTA’s appeal were consolidated,
with the latter appeal being deemed a cross-appeal.
                                     CONTENTIONS
       Downey contends: (1) the trial court erred in utilizing section 1260.040 as the
basis for a dispositive motion on the issue of liability for inverse condemnation and
nuisance; (2) the trial court abused its discretion in denying Downey’s request for a
continuance to present additional evidence of impaired access; (3) the trial court erred in
dismissing the action because Downey established a substantial impairment of access to
its property, obstructed visibility of its property, and the existence of a nuisance due to
the constantly parked trains at the Station.
       The MTA contends: it is entitled to recover cost-of-proof attorney fees because
Downey denied important objective facts within its knowledge, without substantial



                                               6
justification; and it is entitled to recover its costs because it was the prevailing party and
its memorandum of costs and disbursements was timely filed.
                                        DISCUSSION
       I. DOWNEY’S APPEAL.
       1. Section 1260.040 may be employed to bring a dispositive motion in an eminent
domain or inverse condemnation case.
       Downey contends the trial court erred in relying on section 1260.040 to dispose of
the case because the statute was never intended to provide for disposition of an entire
case by motion.
       Dina, supra, 151 Cal.App.4th 1029, cited by the trial court, is dispositive. Dina
rejected the contention “that section 1260.040 does not authorize the trial court to resolve
the entire action.” (Id. at p. 1039.) In fact, based on the legislative history of section
1260.040, Dina observed the legislation was intended “ ‘to facilitate resolution of
eminent domain cases without the need for trial.’ ” (Id. at p. 1042.) Dina concluded,
“Nothing in the language of section 1260.040 or its legislative history bars a party from
seeking an order on a legal issue that disposes of an inverse condemnation action.” (Id. at
p. 1044.) Dina further held that section 1260.040 does not violate the right to a jury trial
because, in inverse condemnation actions, “ ‘the right to jury trial . . . is limited to the
question of damages.’ ” (Id. at pp. 1044, quoting San Diego Gas & Electric Co. v.
Superior Court (1996) 13 Cal.4th 893, 951.)
       Finally, Dina rejected the argument that pretrial resolution of the issue of liability
is limited to motions for summary judgment. “The procedural mechanism implemented
by section 1260.040 expressly ‘supplements, and does not replace any other pretrial or
trial procedure otherwise available to resolve an evidentiary or other legal issue affecting
the determination of compensation.’ (§ 1260.040, subd. (c).) Moreover, a motion for
summary judgment is not the exclusive means by which a trial court can consider
evidence in resolving issues before trial. (See Cal. Rules of Court, rule 3.1112(b) [‘Other



                                               7
papers may be filed in support of a motion, including declarations, exhibits, appendices,
and other documents or pleadings’].)” (Dina, supra, 151 Cal.App.4th at p. 1046.)
       We find Dina’s reasoning and its discussion of the legislative history of section
1260.040 to be persuasive. Although Downey “respectfully disagrees” with Dina’s
holding that section 1260.040 is constitutional, that is not a basis for reversal.
       2. No abuse of discretion in denial of continuance.
       Downey next contends that even assuming section 1260.040 may be used for a
dispositive motion on the issue of liability for inverse condemnation, the trial court
abused its discretion in refusing Downey’s request to continue the hearing on the section
1260.040 motion. However, we perceive no abuse.
       The record reflects that on August 9, 2012, the matter came on for hearing.
Counsel for both parties indicated they had read the tentative ruling and they proceeded
with their arguments. Just before the hearing ended, Downey’s counsel orally requested
a continuance of 30 to 45 days, to “give us the time to go and find those people [truck
drivers], depose them, and prove to the court that the services that this shopping center
could get before the station are not available today.”
       The trial court denied the request to continue the matter, stating: “Had you come
in previously with a motion to continue, the court certainly would have considered it.
And would be inclined to do so, to continue. After we’ve had briefing on both sides, a
five-page tentative, argument for about 25 minutes, and then to ask for a continuance I
think is just not . . . . [¶] . . . [¶] . . . The court is going to adopt its tentative as its order.”
       Our review of the trial court’s decision denying a continuance is deferential. The
decision to grant or deny a continuance is committed to the sound discretion of the trial
court, and a reviewing court may not disturb the exercise of discretion by a trial court in
the absence of a clear abuse thereof appearing in the record. (Thurman v. Bayshore
Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 1126.)
       The record amply supports the trial court’s refusal to continue the matter. As
indicated, Downey did not seek a continuance of the MTA’s dismissal motion until just


                                                  8
before the end of the hearing, after the parties had seen the tentative ruling and had
presented oral argument.
       The trial court also was mindful that additional testimony would not have affected
the outcome: “So had you had 10 more declarations of people saying, ‘you know, I
normally turn left and I decided to go to the business down the street because it was just
too much of a pain to go three blocks to make a U-turn and come back, that would be fine
evidence; but I don’t think that makes any difference legally.” As we discuss, post, the
trial court properly concluded the additional witness declarations would have been
unavailing to Downey because the question presented was one of law -- was the
placement of the Station in the middle of Pomona Boulevard, effectively transforming
Downey’s portion of Pomona Boulevard into a one-way street, legally compensable?
       Moreover, the hearing on the section 1260.040 motion was held on August 9,
2012, more than a year after the action was filed, and just one month before the scheduled
trial date (Sept. 10, 2012). Impaired ingress and egress was the basic theory of Downey’s
lawsuit, so Downey could not have been surprised by the issues raised in the MTA’s
dismissal motion. With the trial date rapidly approaching, Downey should have
completed all the truck drivers’ depositions that it deemed to be necessary. Therefore,
the trial court was well within its discretion in refusing Downey’s belated request for a 30
to 45 day continuance, which would have delayed the section 1260.040 hearing to a date
beyond the date set for trial.
       3. Trial court properly dismissed Downey’s inverse condemnation claim alleging
a substantial impairment of access to its property from the roadway and loss of visibility.
       In essence, Downey’s theory is that the MTA’s construction of the Station in the
middle of Pomona Boulevard, in front of Downey’s shopping center property, and the
MTA’s construction of an adjacent parking structure, substantially impaired both the
access to and view of Downey’s property and caused a substantial diminution in value, so
as to entitle Downey to compensation for inverse condemnation.



                                              9
               a. Inverse condemnation.
       An inverse condemnation cause of action derives from article I, section 19 of the
California Constitution, which states in relevant part: “(a) Private property may be taken
or damaged for a public use and only when just compensation . . . has first been paid to,
or into court for, the owner.” Property “is ‘taken or damaged’ within the meaning of
article I, section 19 of the California Constitution, so as to give rise to a claim for inverse
condemnation, when: (1) the property has been physically invaded in a tangible manner;
(2) no physical invasion has occurred, but the property has been physically damaged; or
(3) an intangible intrusion onto the property has occurred which has caused no damage to
the property but places a burden on the property that is direct, substantial, and peculiar to
the property itself. [Citations.]” (Oliver v. AT&T Wireless Services (1999)
76 Cal.App.4th 521, 530, italics omitted.)
       The property owner has the burden of establishing that the public entity has, in
fact, taken or damaged his or her property. (San Diego Gas & Electric Co. v. Superior
Court, supra, 13 Cal.4th at p. 940.)
               b. Property owner’s right of access to public streets.
       Merely because ingress and egress have become less convenient does not give rise
to a right to compensation. “As long as there is access to the abutting road and from
there to the next intersecting street in at least one direction, there is no legally cognizable
impairment of access.” (Border Business Park, Inc. v. City of San Diego (2006)
142 Cal.App.4th 1538, 1557, citing People v. Ayon (1960) 54 Cal.2d 217, 223-224
(Ayon).)
       As the Supreme Court stated in Ayon, supra, 54 Cal.2d 217, “the right of a
property owner to ingress and egress is not absolute. He cannot demand that the adjacent
street be left in its original condition for all time to insure his ability to continue to enter
and leave his property in the same manner as that to which he has become accustomed.
Modern transportation requirements necessitate continual improvement of streets and
relocation of traffic. The property owner has no constitutional right to compensation


                                               10
simply because the streets upon which his property abuts are improved so as to affect the
traffic flow on such streets. If loss of business or of value of the property results, that is
noncompensable. It is simply a risk the property owner assumes when he lives in modern
society under modern traffic conditions. [¶] The compensable right of an abutting
property owner is to direct access to the adjacent street and to the through traffic which
passes along that street. [Citation.] If this basic right is not adversely affected, a public
agency may enact and enforce reasonable and proper traffic regulations without the
payment of compensation although such regulations may impede the convenience with
which ingress and egress may thereafter be accomplished, and may necessitate circuity
of travel to reach a given destination. ‘In the proper exercise of its police power in the
regulation of traffic, a state or county may do many things which are not compensable to
an abutting property owner, such as constructing a traffic island, placing permanent
dividing strips which deprive an abutter of direct access to the opposite side of the
highway, painting double white lines on the highway, or designating the entire street as a
one-way street. [Citations.]’ (People v. Russell [(1957)] 48 Cal.2d 189, 197 [(Russell)].)
The Russell case held that the use of a parkway as a traffic separation strip between a
state highway and a county road was a noncompensable traffic regulation.” (Ayon, supra,
54 Cal.2d at pp. 223-224, italics added.)
       Ayon concluded, “Under these well-settled rules the appellants are not entitled to
compensation because of the divider strip placed in the middle of Azusa [Avenue]. They
have direct access to that street and to traffic traveling in one direction on that street.
[Citations.] Nor can appellants complain because the relocation plan will divert some
southbound traffic from Azusa in front of appellants’ property. A property owner has no
right to compensation because traffic is rerouted or diverted to another thoroughfare even
though the value of his property is substantially diminished as a result. [Citations.]”
(Ayon, supra, 54 Cal.2d at p. 224.)
       Thus, the landowner’s right is to “an easement of access which permits travel onto
the street upon which his land abuts, and from there, in a reasonable manner, to the


                                               11
general system of public streets. [Citations.] Such an easement constitutes a property
right [citations], the substantial impairment of which is cognizable in an eminent domain
proceeding. [Citation.] [¶] The determination whether the interference with access
constitutes a substantial impairment is a question of law; if compensable impairment is
found, then the extent of such impairment is a matter of fact for determination by the jury.
(Breidert v. Southern Pac. Co. [(1964)] 61 Cal.2d 659, 664.) In making the
determination whether there is a substantial impairment of defendant’s access to the
general system of public streets and public highways, our inquiry is tantamount to
determining whether [the owner’s] right of access has been unreasonably interfered with.
[Citations.]” (Romano, supra, 18 Cal.App.3d at pp. 72-73, italics added.)
       Romano applied the test of substantial impairment to its fact situation and found
no such impairment. (Romano, supra, 18 Cal.App.3d at p. 73.) Romano observed, inter
alia, “assuming that new Meridian Road is relevant to the context of impairment of
access to the general system of public streets, the record discloses that [condemnee] is
caused, at most, to travel a distance of 2,400 feet from her home to the nearest available
entry into new Meridian Road.” (Ibid.; accord People ex rel. Dept. of Public Works v.
Wasserman (1966) 240 Cal.App.2d 716, 730 [alternate route which was one-third of a
mile longer after the construction of the improvement did not constitute a substantial
impairment of the defendants’ access to general system of public streets].)
       Romano observed, “[t]he real basis of [condemnee’s] claim appears to be that she
had a legal right to old Meridian Road in its before condition. This contention is without
merit. The legal right which reposed in [condemnee] was a right of access to the general
system of public streets and not the right to have one particular street remain in its
original condition. . . . [Condemnee’s] compensable right was to an easement which
permitted her to get into the street upon which her property abutted and from there, in a
reasonable manner, to the general system of public streets. [Citation.] Her access to the
street on which her property abutted was unimpaired. From that street, . . . she could



                                             12
proceed to the general system of public streets in a reasonable manner.” (Romano, supra,
18 Cal.App.3d at pp. 73-74.)
               c. Direct access to Pomona Boulevard and to the general system of public
streets has not been substantially impaired.
         Downey’s claim of impaired access to its premises is predicated on the following
facts:
         The subject property is improved with a one story commercial building and a two
story commercial building, which function as a shopping center consisting of 12 stores,
including restaurants, insurance offices, video, water, and tobacco supplies stores. The
subject property has a parking lot that is used for customer parking and deliveries. There
is no vehicular access to the property from the north, east or west. To the south is
Pomona Boulevard, an east/west street, which is the only means of ingress and egress.
         In 2009, the MTA built the Station in the middle of Pomona Boulevard, directly in
front of the entrances to and exits from Downey’s property. The Station is a 270-foot
long raised platform allowing for a maximum of two train cars and a walkway for
arriving and departing passengers.
         In 2010, the MTA completed a three-story park-and-ride structure for the Station.
The parking structure is located directly to the east of the subject property and is
separated by a wall, so that there is no vehicular access to Downey’s property from the
east.
         Admittedly, notwithstanding the placement of the Station in the middle of Pomona
Boulevard, customers driving westbound on Pomona Boulevard still have regular access
to enter the subject property. However, due to the presence of the Station, customers
driving east on Pomona Boulevard are no longer able to turn left to enter the subject
property. In order to reach the property, eastbound drivers are required to make a U-turn
at Pomona and Atlantic Boulevards, or if that proves too difficult, to continue another
half mile east on Pomona Boulevard, make a U-turn there, and then drive a half mile
west, back to the subject property.


                                               13
       Customers are still able to exit the shopping center by going west on Pomona
Boulevard, but due to the presence of the Station, departing customers can no longer go
directly east onto Pomona Boulevard from the subject property. In order to go eastbound,
customers are required to go westbound on Pomona for 0.3 miles until La Verne Avenue,
in order to make a U-turn to go east on Pomona.
       Further, certain larger vehicles are no longer able to enter the subject property
because the Station impedes their access. This has had an impact on tenants’ ability to
receive delivery of supplies and inventory, and this has also meant that the drivers of
those vehicles no longer patronize the stores at the shopping center because their trucks
cannot enter the property.4
       Viewing these facts in light of the case law set forth ante, we conclude the trial
court properly found Downey was incapable of prevailing at trial on its claim of
substantial impairment of its right of access to the subject property. The placement of the
Station in the middle of Pomona Boulevard has the same effect as if the municipality had
exercised its police power and turned Pomona Boulevard into a one-way street.
Downey’s customers continue to enter and exit the shopping center parking lot via the
original two driveways that existed before the Station was built. Contrary to Downey’s
argument, there has not been a “major grade change” in the street.5 Vehicles enter and


4
        For example, one of the retail tenants filed a declaration in support of Downey’s
opposition to the motion, stating: “Prior to the train station, Fire Department trucks
would frequently come to eat at my restaurant. After the construction of the Train
Station, the Fire Department trucks stopped eating at my restaurant because it [sic] could
no longer enter the shopping center.” We note Downey does not contend the inability of
large fire trucks to access the property gives rise to a fire hazard; Downey’s claim is that
firefighters have stopped patronizing the businesses at the shopping center.
5
       A “major change in the grade of the road, such as construction of highway
underpasses, overpasses and freeway off-ramps, which prevents direct access to a
property abutting the new construction, is a substantial impairment of access. (See, e.g.,
Blumenstein v. City of Long Beach (1956) 143 Cal.App.2d 264, 267-269 [freeway off-
ramp]; Anderson v. State of California (1943) 61 Cal.App.2d 140, 143 [grade of road
fronting plaintiff’s property elevated several feet to build bridge]; Goycoolea v. City of
                                             14
exit the shopping center parking lot at the same grade as previously. Further, vehicles
still have access to Pomona Boulevard, to Atlantic Boulevard and to the general system
of public streets.
       We recognize that drivers traveling eastbound on Pomona Boulevard, who seek to
enter the shopping center parking lot, must either make a U-turn at Pomona and Atlantic
Boulevards or drive another half mile up Pomona Boulevard and make a U-turn there and
then head west, to reach the subject property. Further, drivers exiting the parking lot,
who need to travel east, must first drive 0.3 miles west on Pomona Boulevard to make a
U-turn at La Verne Avenue in order to travel east.
       Although access to the property is somewhat more circuitous, under the
controlling case law this circumstance is insufficient to give rise to a claim for inverse
condemnation. (Ayon, supra, 54 Cal.2d at pp. 223-224; Russell, supra, 48 Cal.2d at
p. 197.)
       In an attempt to distinguish Ayon, Downey focuses on language therein that
temporary interference with a property owner’s rights during construction of public
improvements is generally noncompensable (Ayon, supra, 54 Cal.2d at p. 228), and
argues that Ayon is inapposite because Downey has suffered substantial permanent
impairment of ingress and egress as a result of the Station and parking structure.
Downey’s reading of Ayon, as being limited to the issue of temporary interference during
construction of public improvements, is overly narrow. To reiterate, Ayon states there is

Los Angeles [(1962)] 207 Cal.App.2d 729, 733-735 [street abutting plaintiff’s property
substantially narrowed to create a raised viaduct on remaining portion of road which
blocked air, light and view to property].” (Brumer v. Los Angeles County Metropolitan
Transportation Authority (1995) 36 Cal.App.4th 1738, 1746; accord United Cal. Bank v.
People ex rel. Dept. Pub. Wks. (1969) 1 Cal.App.3d 1, 8 [street in front of store was
“lowered in level and separated by a guardrail from the sidewalk making it unusable as a
place for store customers to board and alight from their vehicles”]; Bacich v. Board of
Control (1943) 23 Cal.2d 343, 351 [plaintiff alleged that “by reason of the lowering of
Harrison Street fifty feet below the level of Sterling Street the access that plaintiff
formerly had to Harrison Street from Sterling Street has now been lost except for an
almost perpendicular flight of stairs”].)

                                             15
no right to compensation, inter alia, when a public entity places “ ‘permanent dividing
strips which deprive an abutter of direct access to the opposite side of the highway.’ ”
(Id. at p. 224, italics added.) In effect that is what occurred here. Due to the placement
of the Station in the middle of Pomona Boulevard, Downey has lost direct access to the
opposite side of the street. This street alteration is not compensable.
              d. Downey has no compensable claim for impaired visibility.
       As the trial court ruled, to be compensable, a claim of reduced visibility must be
tethered to a compensable claim of impaired physical access; a reduction of visibility,
standing alone, is not compensable. (Regency, supra, 39 Cal.4th at p. 520, fn. 7.)
       Downey contends that because it stated a compensable claim for impaired ingress
and egress, it also established a compensable claim for diminished visibility. Our
determination that Downey’s claim of impaired access is not compensable also disposes
of Downey’s claim for compensation based on obstructed visibility.
       4. No viable claim for nuisance based on trains parked at the Station.
       Civil Code section 3482 provides: “Nothing which is done or maintained under
the express authority of a statute can be deemed a nuisance.”
       Here, the construction, operation, and maintenance of the Station is expressly
authorized by Public Utilities Code section 30631, which provides in relevant part: “The
district[6] may acquire, construct, develop, lease, jointly develop, own, operate, maintain,
control, use, jointly use, or dispose of rights-of-way, rail lines, monorails, buslines,
stations, platforms, switches, yards, terminals, parking lots, air rights, land rights,
development rights, entrances and exits, and any and all other facilities for, incidental to,
necessary for, or convenient for rapid transit service, including, but not limited to,

6
        The “district” denotes the Southern California Rapid Transit District (RTD).
(Pub. Util. Code, § 30004.) However, in 1992, the Legislature merged the RTD with the
Los Angeles County Transportation Commission to form the MTA, which succeeded to
all of the powers, duties, rights and obligations of the RTD. (Pub. Util. Code,
§§ 130050.2, 130051.13; Silver v. Los Angeles County Metropolitan Transportation
Authority (2000) 79 Cal.App.4th 338, 342.)

                                              16
facilities and structures physically or functionally related to rapid transit service, within
or partly without the district, underground, upon, or above the ground and under, upon, or
over public street, highways, bridges, or other public ways or waterways, together with
all physical structures necessary for, incidental to, or convenient for the access of persons
and vehicles thereto . . . .” (Id., at subd. (a).)
       Although “acts authorized by statute cannot give rise to nuisance liability, “ ‘the
manner in which those acts are performed may constitute a nuisance.’ ” (Jones v. Union
Pacific Railroad Co. (2000) 79 Cal.App.4th 1053, 1067 (Jones).) In Jones, railroad
employees allegedly were “needlessly blowing train horns and whistles and idling train
engines in front of property owners’ homes for hours on end, at all hours of the day and
night, for no legitimate purpose.” (Id. at pp. 1067-1067, italics omitted.) This conduct
constituted “allegedly unnecessary activity, serving no legitimate purpose, and/or activity
allegedly committed for the sole purpose of harassing plaintiffs.” (Id. at p. 1068, italics
added.) Jones held the trial court erred in granting summary judgment based on Civil
Code section 3482 because the activity in question was not expressly authorized by
statute. (Id. at p. 1068.)
       In the instant case, Downey’s theory of nuisance is based on the MTA’s “parking
of train cars in front of [Downey’s] property for extended periods of time.” Downey
concedes the MTA’s intent in doing so is not for the sole purpose of harassing Downey.
However, Downey asserts the MTA failed to identify “any legitimate purpose for
constantly parking the trains at the station.” The argument fails.
       The record reflects that the subject Station is at the eastern terminus of this rail
line. Given the Station’s location at the end of the line, it reasonably can be expected that
train cars will be parked at this location. As stated in Friends of H Street v. City of
Sacramento (1993) 20 Cal.App.4th 152, 163, “Although the relevant statutes do not
expressly authorize the City to operate its streets in a manner which generates traffic,
noise, fumes, litter, and headlight glare, . . . such loss of peace and quiet is a fact of urban
life which must be endured by all who live in the vicinity of freeways, highways, and city


                                                17
streets.” In the instant case, urban life adjacent to the terminus of a rail line inevitably
brings with it the sight of parked railcars.
       We conclude Downey failed to show the parking of trains at the Station was
unnecessary and served no legitimate purpose. Therefore, the trial court properly
dismissed the nuisance claim, in addition to the inverse condemnation claim.
       5. Evidentiary issues.
       Downey contends the trial court improperly excluded certain evidence that
prejudiced Downey in its efforts to show substantial impaired access. For example,
Raminfard, Downey’s principal, stated that he received multiple complaints from tenants
regarding lack of customers, lack of visibility, inability to put a sign on the property,
problems getting supplies to the shopping center, train cars parked in front of the
shopping center, and tenants’ inability to pay rent as a result of reduced business. Two
tenants submitted declarations to similar effect. The trial court sustained the MTA’s
objection to these statements as inadmissible hearsay.
       Downey contends the various hearsay objections should have been overruled
because the statements were not offered for the truth of the matter asserted, but rather, to
prove the impact on the tenants, as well as the effect that the tenants’ complaints had on
Raminfard’s state of mind and his behavior in reducing his tenants’ rent. The argument is
unavailing.
       The trial court correctly concluded these out-of-court statements were hearsay.
Moreover, as the trial court observed at the hearing on the section 1260.040 motion, even
if such additional evidence had been admitted, it would not have changed the outcome.
The pivotal issue was whether there was a legally compensable impairment of access.
The trial court stated, “I’ll indicate if you had 10 declarations from people stating it’s
harder to get into the place now – I have no doubt that that is true. I mean, it’s clear to
the court that it’s impacted your client. People can’t turn left, if they’re going in one
direction. The problem . . . for your client is that the court doesn’t think that this is



                                               18
compensable. It’s not that you haven’t suffered any harm or [that] there hasn’t been a
loss in business, it simply is not compensable.”
        As the trial court found, the proffered evidence had no bearing on the ultimate
legal issues herein. Therefore, the claim of prejudicial evidentiary error must fail.
        II. THE MTA’S APPEAL.
        1. No abuse of discretion in denial of MTA’s request for cost-of-proof sanctions.
        On September 20, 2011, two months into the litigation, the MTA propounded a set
of 19 RFAs to Downey. The RFAs were broad in scope. For example, RFA No. 1 asked
Downey to admit that the MTA did not inversely condemn Downey’s real property, and
RFA No. 4 asked Downey to admit that the MTA’s construction of the Station did not
constitute a public or private nuisance damaging Downey’s property. Downey’s
responses denied nearly all of the RFAs, including RFAs No. 1 and No. 4.
        Following the MTA’s successful motion to dismiss Downey’s case pursuant to
section 1260.040, the MTA filed a motion for cost-of-proof attorney fees and expenses
pursuant to section 2033.420, seeking $85,528 as reimbursement for attorney fees and
expenses it “incurred to prove matters wrongfully denied in [Downey’s] responses” to the
RFAs.
        On January 31, 2013, after hearing the matter, the trial court denied the MTA’s
request, stating “I just don’t think that the [section] 2033.420 purposes would be served.
I don’t think, in this case, given the facts of this case, that justice would be served by
granting the motion for the attorneys’ fees and expenses that are requested by defendant.”
               a. General principles.
        Section 2033.420 provides in pertinent part at subdivision (a): “If a party fails to
admit the . . . truth of any matter when requested to do so under this chapter, and if the
party requesting that admission thereafter proves the . . . truth of that matter, the party
requesting the admission may move the court for an order requiring the party to whom
the request was directed to pay the reasonable expenses incurred in making that proof,
including reasonable attorney’s fees.”


                                              19
       The trial court “shall make this order unless it finds any of the following: [¶]
(1) An objection to the request was sustained or a response to it was waived under
Section 2033.290. [¶] (2) The admission sought was of no substantial importance. [¶]
(3) The party failing to make the admission had reasonable ground to believe that that
party would prevail on the matter. [¶] (4) There was other good reason for the failure to
admit.” (§ 2033.420, subd. (b).)
       The determination of whether there were no good reasons for the denial, whether
the RFA was of substantial importance, and the amount of expenses to be awarded, if
any, are all within the sound discretion of the trial court. (Bloxham v. Saldinger (2014)
228 Cal.App.4th 729, 753.) “ ‘An abuse of discretion occurs only where it is shown that
the trial court exceeded the bounds of reason.[7] [Citation.] It is a deferential standard of
review that requires us to uphold the trial court’s determination, even if we disagree with
it, so long as it is reasonable. [Citation.]’ ” (Ibid.)
               b. No abuse of discretion in trial court’s ruling.
       Section 2033.420 “authorizes only those expenses ‘incurred in making that proof,’
i.e., proving the matters denied by the opposing party.” (Garcia v. Hyster Co. (1994)
28 Cal.App.4th 724, 736-737; see generally, Weil & Brown, Cal. Practice Guide: Civil
Procedure Before Trial (The Rutter Group 2014) § 8:1405.1 et seq. [costs recoverable are
limited to reasonable expenses incurred after denial and are limited to expenses incurred
in proving matters denied].)
       Here, however, as Downey argued below, the MTA did not pinpoint the expenses
it incurred in proving the 14 RFAs which were the focus of its motion for cost-of-proof


7
       For example, in Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, a
products liability action involving a defective bicycle, the trial court abused its discretion
in denying the plaintiff’s request for cost-of-proof sanctions because “the defect and
causation issues were of ‘substantial importance’ [and the facts established] the only
inference that [could] reasonably be drawn [was] that when [defendant] Derby denied
Wimberly’s requests for admissions, it had no reasonable belief it could prevail on the
causation and defect issues.” (Id. at p. 638.)

                                               20
sanctions. Instead, the MTA sought to recover nearly the entirety of the attorney fees and
expenses it incurred in this litigation subsequent to Downey’s denial of the RFAs. The
generalized nature of the MTA’s request supports the trial court’s refusal to award cost-
of-proof sanctions. Further, the MTA’s motion did not specify what facts it proved that
made Downey’s denial of the RFAs improper.
       In addition, the essential issue herein, i.e., whether the transformation of Pomona
Boulevard into a one-way street is legally compensable, is controlled by settled case law,
discussed ante. The August 9, 2012 order granting the MTA’s dismissal motion reflects
that the MTA did not prevail as a consequence of having proven facts that Downey
denied in its responses to the 14 RFAs now at issue. Rather, the trial court’s decision in
favor of the MTA was largely based on its determination that the case law applicable to
the facts alleged by Downey does not recognize a compensable taking. The trial court
ruled, “[the] cases make clear that plaintiff’s allegations that the train station and Gold
Line have made it difficult to enter the property because Pomona Blvd. is now a one way
street and that patrons cannot make a left directly into the shopping center are insufficient
to support a finding plaintiff suffered a substantial impairment of access.” (Italics
added.) Further, “[w]ithout a compensable claim for lack of ingress or egress, Plaintiff
cannot state a claim for diminution of visibility. See Regency[, supra,] 39 Cal.4th [at
pp.] 521-523.” (Italics added.) Thus, the MTA prevailed because of the controlling case
law, not because it proved the matters in the 14 RFAs that Downey had denied.
Accordingly, the trial court reasonably could conclude that the RFAs were “of no
substantial importance” to the resolution of this case. (§ 2033.420, subd. (b)(2).)
       For all these reasons, the trial court acted within the bounds of its discretion in
declining to award the MTA cost-of-proof sanctions.




                                              21
         2. Trial court erred in striking MTA’s memorandum of costs as untimely.
         On August 21, 2012, the trial court signed and filed an order dismissing Downey’s
case.8
         On December 4, 2012, the MTA filed a memorandum of costs, seeking
$13,512.81.
         On December 17, 2012, Downey filed an objection and motion to strike the cost
memorandum as untimely because it was filed more than 60 days after the August 21,
2012 order of dismissal.
         On February 26, 2013, the trial court granted Downey’s request to strike, on the
ground that the order of dismissal was entered on August 21, 2012, and rule 3.1700(a)(1)
requires a memorandum of costs to be served and filed within 15 days after the date of
mailing of the notice of entry of judgment or dismissal.
         The trial court correctly stated the law but misapplied the rule in this fact situation.
         Rule 3.1700(a)(1) provides in relevant part: “A prevailing party who claims costs
must serve and file a memorandum of costs within 15 days after the date of mailing of the
notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure
section 664.5 or the date of service of written notice of entry of judgment or dismissal, or
within 180 days after entry of judgment, whichever is first.” (Italics added.)
         Here, there is no indication that either the clerk or a party served written notice of
entry of the August 21, 2012 order of dismissal. Accordingly, the December 4, 2012



8
        Section 581d provides: “A written dismissal of an action shall be entered in the
clerk’s register and is effective for all purposes when so entered. [¶] All dismissals
ordered by the court shall be in the form of a written order signed by the court and filed
in the action and those orders when so filed shall constitute judgments and be effective
for all purposes, and the clerk shall note those judgments in the register of actions in the
case.” (Italics added.) Thus, the August 21, 2012 order of dismissal constituted a
judgment and was immediately appealable. On October 17, 2012, Downey filed a timely
notice of appeal, specifying the August 21, 2012 order of dismissal. The MTA’s
assertion that Downey’s notice of appeal was premature is meritless.

                                                22
memorandum of costs, which was served and filed within 180 days after the entry of the
order of dismissal, should not have been stricken as untimely.
       Lastly, Downey argues that one of the items in the MTA’s memorandum of costs
was subject to being stricken for an additional reason: the memorandum of costs
included a request for an award of expert witness fees in the amount of $8,881.51 per
section 998.9 In this case, the MTA extended a $15,000 section 998 offer on March 5,
2012. According to Downey, this offer was unreasonable and was not made in good
faith, and therefore, the $8,881.51 in expert fees should have been stricken from the
MTA’s memorandum of costs.
       Downey’s challenge to the expert fees in the memorandum of costs is not properly
before this court. Contesting costs is by way of a motion to strike or tax costs, filed
within 15 days after service of the cost memorandum (rule 3.1700(b)(1)), which occurred
here on December 4, 2012. The record reflects that in the court below, in Downey’s
“Objection To And Request to Strike” the MTA’s memorandum of costs (filed by
Downey on December 17, 2012), Downey solely argued the memorandum of costs was
filed late. Downey did not move to strike the expert fees from the memorandum of costs
on the ground the MTA’s section 998 offer was unreasonable and lacking in good faith.
Therefore, in ruling on the motion to strike, the trial court was not asked to consider




9
        Section 998 states in relevant part at subdivision (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, . . . .” (Italics added.) An inverse condemnation action is not an eminent
domain action within the meaning of section 998. (Goebel v. City of Santa Barbara
(2001) 92 Cal.App.4th 549, 558-560.) Therefore, an unsuccessful inverse condemnation
plaintiff may be held liable for expert fees under section 998. (Id. at p. 560.)

                                             23
whether the MTA made a good faith section 998 offer, and the issue is not properly
before this court.10
       We conclude the memorandum of costs should not have been stricken as untimely.
Therefore, the trial court should have awarded the MTA the entire $13,512.81 in costs
that it requested (including the $8,881.51 in expert fees).




10
       The record reflects that instead of attacking the expert fees in its motion to strike
the memorandum of costs, Downey raised its objection to the claimed expert fees in its
opposition to the MTA’s motion for cost-of-proof attorney fees and expenses, which
Downey filed one month later. In its opposition to the MTA’s request for cost-of-proof
sanctions, Downey included the contention that “The Request for Expert’s Fees Should
Be Stricken Because Defendant’s Section 998 Offer Was Not Made In Good Faith.”
However, Downey’s objection to the expert fees in the costs memorandum should have
been asserted in its motion to strike costs (rule 3.1700(b)), not in its opposition to the
MTA’s motion for cost-of-proof sanctions.

                                             24
                                    DISPOSITION
       The order of dismissal/judgment, and the postjudgment order denying the MTA’s
motion for cost-of-proof sanctions, are affirmed. The postjudgment order striking the
MTA’s memorandum of costs as untimely is reversed with directions to enter a new order
awarding the MTA its costs in the sum of $13,512.81. The parties shall bear their
respective costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                EDMON, P. J.


We concur:




                     KITCHING, J.




                     ALDRICH, J.




                                           25
