Filed 10/27/15 Cal. Dept. of Transportation v. Briseno CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CALIFORNIA DEPARTMENT OF D065271

TRANSPORTATION,

Plaintiff and Respondent, (Super. Ct. No. 37-2012-00093894- v. CU-EI-CTL)

FRANCISCO JAVIER BRISENO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Judith F.

Hayes, Judge. Affirmed.

Francisco J. Briseno, in pro. per., for Defendant and Appellant.

Jeanne E. Scherer, Jeffrey R. Benowitz, and Scott R. Fridell, for Plaintiff and

Respondent.

In this eminent domain case, defendant Francisco Javier Briseno appeals a

judgment awarding him $195,000 as just compensation for 2.75 acres of unimproved land. Briseno contends the trial court erred by not allowing him or his wife to testify

about their opinion of value and by not permitting his expert witness to testify regarding a

transaction he contends was a comparable sale. We conclude the trial court did not abuse

its discretion in making these evidentiary rulings and we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A

The People of the State of California, acting by and through the California

Department of Transportation (State), filed a complaint in eminent domain to acquire

2.75 acres of unimproved property owned by Briseno in the City of Chula Vista (Subject

Property), for state highway purposes. A jury reached a verdict awarding Briseno just

compensation in the amount of $195,000. Judgment was entered on November 14, 2013.

Briseno raises two evidentiary issues on appeal.

B

As required by Code of Civil Procedure section 1258.250, Briseno exchanged a

statement of valuation data for the witness he intended to call to testify at trial, a real

estate appraiser. The appraiser estimated the fair market value of the Subject Property

was $420,000, based on a sales comparison approach of eight property transactions.

The State filed a motion in limine to preclude the introduction of evidence or

testimony regarding one of the transactions, "Land Datum No. 2" (No. 2). Transaction

No. 2 involved the sale of property across the street from the University of San Diego,

located in Linda Vista. A developer purchased adjacent property to develop a 533-unit

apartment complex. As a condition of the development, the developer was required to

2 either purchase property No. 2 and dedicate it to the City of San Diego for public park

use, or provide funds in the amount of $980,000 toward development at different

locations. The developer chose to purchase property No. 2 for $950,000.

The appraiser's opinion of the highest and best use of the Subject Property was

agriculture and/or park. Briseno argued transaction No. 2 should be included as a

comparable sale because it was a recent sale of property to be used as a public park. The

State argued transaction No. 2 was not comparable to the Subject Property because there

was no land near the Subject Property that could be developed under the conditions

present for transaction No. 2. The State further argued the $950,000 purchase price does

not represent what a buyer would pay for property No. 2, but rather what a developer had

to pay in order to be able to develop the adjacent apartment complex.

The State contended inclusion of transaction No. 2 would unduly confuse the jury

and it should be excluded under Evidence Code section 352.1 Briseno responded by

arguing the appraiser could explain how each property contributed to his ultimate value

opinion and how he took into account these differences. The court excluded evidence of

transaction No. 2 under section 352, finding it would cause undue consumption of time

and confusion of the issues because of transaction No. 2's connection to the development

of the apartment complex.

1 Further statutory references are to the Evidence Code unless otherwise specified.

3 C

The State also filed a motion in limine to preclude Briseno from testifying

regarding the value of plants on the Subject Property because Briseno did not file a

statement of valuation data for himself. Briseno's counsel argued a statement of

valuation data was not required for Briseno's testimony because Briseno would give fact

testimony about the plants and would not offer opinion evidence about their value. The

court ruled Briseno would be allowed to testify as to the number of plants on the Subject

Property, but he could not discuss any dollar figures related to the value of the plants.

DISCUSSION

I

Standard of Review

We review a court's evidentiary rulings for abuse of discretion. (McCoy v. Pacific

Maritime Assn. (2013) 216 Cal.App.4th 283, 295.) "The trial court enjoys 'broad

authority' over the admission and exclusion of evidence." (Ibid.) Abuse of discretion is

not shown "by merely arguing that a different ruling would have been better. Discretion

is abused only when in its exercise, the trial court 'exceeds the bounds of reason, all of the

circumstances before it being considered.' " (Shaw v. County of Santa Cruz (2008) 170

Cal.App.4th 229, 281, quoting Denham v. Superior Court of Los Angeles County (1970)

2 Cal.3d 557, 566.) "[T]o obtain a reversal based on the erroneous exclusion of evidence,

[an appellant] is required to show a 'miscarriage of justice,' meaning that 'a different

result was probable if the evidence had been admitted.' " (P&D Consultants, Inc. v. City

of Carlsbad (2010) 190 Cal.App.4th 1332, 1348.)

4 II

Briseno's Opinion of Value

Briseno first contends the trial court erred in precluding him or his wife from

testifying about their opinion of the value of the Subject Property. Briseno does not cite

to, and we have not found, where in the record the trial court made such a ruling or

order.2 Briseno refers to one page of the reporter's transcript, but that page and the

surrounding pages relate to Briseno's trial testimony regarding his knowledge of the

plants on the Subject Property, not his opinion regarding the value of the Subject

Property.

Briseno has not shown he or his wife ever sought to testify about their opinion of

the value of the Subject Property. "[F]ailure to make an adequate offer of proof in the

court below ordinarily precludes consideration on appeal of an allegedly erroneous

exclusion of evidence." (Shaw v. County of Santa Cruz, supra, 170 Cal. App. 4th at

p. 282, citing § 354.) Even if such an offer of proof were made, Briseno has not shown

how inclusion of their opinion of value would have changed the result given the fact they

had an expert real estate appraiser testify on their behalf. Thus, there has been no

showing of miscarriage of justice to warrant reversal. (Century Surety Co. v. Polisso

(2006) 139 Cal.App.4th 922, 963.)

2 All appellate briefs must support any reference to a matter in the record by a citation to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).) "The appellate court is not required to search the record on its own seeking error." (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) Issues may be considered waived if a party's brief fails to adequately cite to the record. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) 5 To the extent Briseno may be contending he should have been able to testify about

the value of the plants, we find no merit in such a contention. Briseno's counsel

explained no statement of valuation data was filed for Briseno because he did not intend

to give opinion testimony about the value of the plants. The State's appraiser included a

value for the plants as personal property in his statement of valuation data based on the

opinion of a consulting certified arborist. Both the appraiser and the arborist testified at

trial. Briseno did not present a similar statement of valuation data regarding his opinion

of the value of the plants, which is required by Code of Civil Procedure section 1258.250

whether or not the individual is qualified to testify as an expert. (Cal. Law Revision

Com. com., 19 West's Ann. Code Civ. Proc., (2007 ed.) foll. § 1258.250, p. 606 ["a

statement must be provided for the owner of the property if he is to testify concerning

value, damages, … or other items of compensation"].) Therefore, the trial court did not

abuse its discretion in precluding Briseno from testifying regarding the value of the

plants.

III

Exclusion of Transaction No. 2 from Comparable Sale Evidence

Briseno next contends the trial court erred by not permitting his expert witness to

testify regarding a comparable sale listing. Again, Briseno fails to support this contention

with adequate citations to the record. In exercising our discretion to consider Briseno's

position, we presume he is referring to transaction No. 2. (See Del Real v. City of

Riverside, supra, 95 Cal.App.4th at p. 768.)

6 After considering the fact Briseno's expert had seven other comparables, the court

determined the risk of confusion and the undue consumption of time necessary to explain

the unique factors surrounding transaction No. 2 outweighed the probative value of using

this transaction as a comparable sale. (§ 352.) We cannot conclude the trial court's

exercise of discretion was beyond the bounds of reason. Further, Briseno has not shown

that inclusion of the evidence would have changed the result. (P&D Consultants, Inc. v.

City of Carlsbad, supra, 190 Cal.App.4th at p. 1348.)

DISPOSITION

The judgment is affirmed. Respondent shall recover its costs on appeal.

MCCONNELL, P. J.

WE CONCUR:

NARES, J.

MCDONALD, J.

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