Filed 7/17/14 Verizon of California v. Carrick CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


VERIZON OF CALIFORNIA, INC.,                                         H038157
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CV028324)

             v.

PAUL CARRICK et al.,

         Defendants and Appellants.



         This case concerns a private road that was condemned for a subterranean easement
to install telephone cable. The Summit Road Association (SRA), is a group of people
who maintain the private road with donations from and the efforts of its 140 landowner
members.
         Judgment was entered in this case following a jury trial to determine just
compensation. All of the the individual landowners whose property was affected by the
condemnation have been fully compensated. However, the SRA appeals the court’s
decision that it did not have a compensable interest in the property that was condemned.
                                  STATEMENT OF THE FACTS AND CASE
         In October 2004, respondent Verizon California, Inc. (Verizon) filed a complaint
in eminent domain. Verizon sought to place underground fiber-optic telephone cables
along Summit Road between Los Gatos and Gilroy. The area at issue is privately owned
by the owners of the property through which the road passes. The complaint names the
record owners of the properties in which Verizon sought to condemn an easement; the
SRA was not named as a defendant in the original complaint. On October 15, 2004,
Verizon secured an order for prejudgment possession, allowing it to begin installing cable
along Summit Road.
       On March 7, 2005, the SRA filed a motion to vacate the order of prejudgment
possession on the ground that Summit Road was “owned and maintained by the SRA.”
On December 1, 2005, Verizon filed a “First Amended Complaint” adding the SRA as a
defendant because the SRA claimed a property interest in the road.
       In October 2006, the SRA filed a verified answer to the “First Amended
Complaint” in which it stated it was “the owner in interest of certain fees simple on
behalf and as assignees from SRA Defendants of all fees simple absolute described in
[Verizon’s] pleadings….” (Emphasis omitted.) The SRA also asserted it was “entitled to
mitigation damages for . . . that section of Summit Road that the SRA is entrusted to
maintain.”
       Half of the defendants, including the SRA opposed the proposed condemnation.
The remaining defendants named in the “First Amended Complaint” settled with Verizon
or opted to allow a default to be entered.
       In its opposition to the condemnation, the SRA argued that Verizon’s proposed
project was subject to the provisions of Public Utilities Code section 625. The court
conducted a bench trial on this issue and in August 2007, the court ordered Verizon to
comply with the code section. In response, Verizon sought an order from the California
Public Utilities Commission (CPUC) finding that the proposed condemnation served the
public interest.
       In June 2008, the CPUC issued an order finding that Verizon’s proposed project
served the public interest. The SRA filed an application for reconsideration with the



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CPUC that was denied. In addition, the SRA filed a petition for writ of review with the
California Supreme Court that was also denied.
      In a bifurcated trial in 2009, the court determined that Verizon had the right to
exercise eminent domain to condemn a subterranean utility easement along Summit
Road. The court also found that Verizon could condemn a temporary construction
easement.
      At the time for jury trial on the issue of compensation for the taking, Verizon filed
a motion in limine to exclude the valuation testimony of the SRA’s appraiser, Chris
Pedersen. One of the grounds for the motion was that the SRA did not own a
compensable interest in the property being condemned.
      The court conducted a hearing pursuant to Evidence Code section 402 to
determine what testimony Chris Pedersen could offer at trial. Following the hearing, the
court determined that the SRA did “not have a viable property interest in the property
affected by the taking,” because the SRA did not own any real property. The court
allowed Chris Pedersen to testify at trial, but only to the quantum of mitigation damages
suffered by the property owners as a result of the condemnation.
      During trial, Chris Pedersen testified, allocating 100 percent of the damages to the
individual property owners. In December 2010, the jury returned a verdict and awarded
compensation to the landowners. The court entered judgment on April 12, 2011, and
Verizon deposited monies with the court to cover the award.
      In September 2011, the landowners filed an application to withdraw their share of
the funds on deposit. The landowners also filed a motion requesting additional
prejudgment interest. The parties agreed that Verizon would pay $25,967.25 to the
landowners to cover all claims of prejudgment interest by them.
      On January 6, 2012, the parties agreed that Verizon’s payment would resolve any
outstanding issues regarding compensation to the landowners, and that the money would

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be paid into the client trust account of counsel for the landowners. The judge signed the
order on January 12, 2012.
       The SRA filed a notice of appeal.
                                        DISCUSSION
       On appeal, the SRA asserts the trial court erred in deciding in limine that the SRA
did not have a compensable interest in the condemned property. The SRA argues that an
in limine motion was not a proper procedure to make a determination of standing, and
that it could assert its claim under associational standing regardless of the actual
ownership of the property at issue.
       In Limine Motion
       The SRA argues that Verizon’s motion to limit the testimony of its appraiser,
Chris Pedersen, was not a proper mechanism for the court to ultimately decide the SRA
did not have a compensable interest in the property being condemned.
       The SRA cites a decision of this court, Amtower v. Photon Dynamics, Inc. (2008)
158 Cal.App.4th 1582 (Amtower) to support its argument that the issue of standing
should not have been decided in limine. In Amtower, this court criticized the increasingly
frequent “use of in limine motions as substitutes for summary adjudication motions,
motions for judgment on the pleadings, or other dispositive motions authorized by
statute.” (Id. at p. 1588.) This court published the Amtower opinion “to express our
concerns surrounding the proliferation of such shortcut procedures.” (Ibid.) There, this
court observed: “The better practice in nearly every case is to afford the litigant the
protections provided by trial or by the statutory processes.” (Ibid.) The SRA argues it
should have been entitled to a full evidentiary hearing on the issue of whether the SRA
had standing to seek compensation.
       While this court criticized the use of in limine motions for dispositive issues, it did
not set forth a blanket prohibition on such use. Specifically, this court did not reverse the

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judgment in Amtower, finding that “the trial court’s unorthodox procedure does not
warrant reversal because plaintiff could not have prevailed under any circumstances.”
(Amtowner, supra, 158 Cal.App.4th at p. 1588.)
       Here, we reach the same conclusion. In making its determination regarding the
SRA’s standing to seek compensation, the court was presented with ample evidence,
including the testimony of Chris Pedersen, the SRA’s own expert that the SRA did not
own any property. The court also had statements of the president of the SRA, Ken Moore
that the SRA does not hold any ownership interest in the road, and owns no real property.
Finally, the court had the statements of the lead landowner defendant, Paul Carrick, that
he never assigned any property interest to the SRA. The court’s conclusion that the SRA
did not have a compensable interest in the condemned property was supported by
substantial evidence.
       Moreover, the SRA cannot demonstrate any prejudice from the court’s decision.
After ruling that Chris Pedersen could not testify about the SRA’s ownership of property,
the court allowed him to testify about the total mitigation damages suffered by the
property owners. Mr. Pedersen testified during trial allocating 100 percent of the
mitigation damages to the property owners. Following trial, the jury awarded
compensation to the property owners for the condemnation. The parties stipulated to
prejudgment interest, and a judgment was entered.
       “[W]e cannot reverse the judgment of dismissal based on . . . alleged [procedural]
error … unless we are convinced that that ruling resulted in a miscarriage of justice . . . .”
(People v. Edward D. Jones & Co. (2007) 154 Cal.App.4th 627, 634; see Cal. Const., art.
VI, § 13.) There was no miscarriage of justice in this case. All of the property owners
were compensated by Verizon for the condemnation.




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       Associational Standing
       The SRA argues in the alternative that regardless of the issue of whether it owned
the condemned property, it could seek compensation under the principle of associational
standing.
       Associational standing applies where the association is seeking “declaratory or
injunctive relief which would inure to the benefit of the . . . organizations’ members.”
(County of San Luis Obispo v. Abalone Alliance (1986) 178 Cal.App.3d 848, 863-864, fn.
omitted.) By contrast, when an association seeks damages for harm supposedly suffered
by its members, associational standing is inappropriate, because an award of damages
necessarily requires the participation of individual members in the lawsuit. (Ibid.)
       Here, the SRA was seeking to assert a claim for just compensation during the jury
trial. (See, e.g., Citizens Utilities Co. v. Superior Court (1963) 59 Cal.2d 805, 816 [the
property owner in an eminent domain action “is entitled to a jury trial on the issue of just
compensation”].) This claim necessarily requires the participation of the individual
landowners affected by the condemnation. Indeed, the mitigation damages were
attributed 100 percent to the individual landowners during trial, and they were
compensated accordingly. There are no grounds upon which the SRA can assert
associational standing in this case.
       In conclusion, the SRA has not shown that the court erred in its ruling on the in
limine motion. The court acted within its inherent discretion in considering the motion.
(See, e.g., Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 284 [“[a] court has
inherent equity, supervisory, and administrative powers, as well as inherent power to
control litigation and conserve judicial resources”].) Moreover, the court’s conclusion
that the SRA did not have a compensable interest in the condemned property was
supported by substantial evidence. Finally, the SRA has not been prejudiced by the
court’s ruling, because all of the mitigation damages it sought were attributed to the

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individual landowners during trial, and all of the landowners were compensated by
Verizon for the condemnation.
                                        DISPOSITION
      The judgment is affirmed.




                                        ______________________________________
                                                   RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




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