1

Filed 4/21/15Sacramento Area Flood Control Agency v. Dhaliwal CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

SACRAMENTO AREA FLOOD CONTROL AGENCY,

Plaintiff and Respondent,

v.

BRINDERJIT S. DHALIWAL, as Co-executor, etc., et al.,

Defendants and Appellants.

C073098

(Super. Ct. No. 

34-2010-0070156)

In this eminent domain proceeding, plaintiff Sacramento Area Flood Control 

Agency (SAFCA) acquired a fee simple interest in, a roadway easement over, and a 

temporary construction easement over a portion of defendant Ranjit S. Dhaliwal’s 

roughly 131-acre property in the Natomas Basin for use in connection with the Natomas 

Levee Improvement Program. The jury awarded Dhaliwal $178,703 for the property 

taken and $29,100 in severance damages. Brinderjit S. Dhaliwal and Gurdeep S. 

Dhaliwal, as co-executors of Dhaliwal’s estate, appeal.1

 

1

 The notice of appeal was filed on behalf of Ranjit S. Dhaliwal. On August 29, 2013, 

this court ordered that Brinderjit S. Dhaliwal and Gurdeep S. Dhaliwal, as co-executors 

of the Estate of Ranjit S. Dhaliwal, be substituted as appellants in place of Ranjit S. 

Dhaliwal, deceased, in this matter. Ranjit, Brinderjit, and Gurdeep Dhaliwal are referred 

to herein as “Dhaliwal” for ease of reference.
2

Dhaliwal does not contest SAFCA’s right to take the property. Rather, his 

challenge is limited to the compensation award. His principal contention on appeal is 

that the trial court prejudicially erred in allowing SAFCA to introduce evidence 

concerning “future access” to the property. He claims that such evidence is speculative 

because “[a]fter this case is concluded, the County and SAFCA would be able to deny 

Dhaliwal access to the property,” leaving him landlocked. We shall conclude that the 

trial court did not err in admitting the challenged evidence because such evidence had the 

potential to affect the property’s market value, and was not conjectural, speculative, or 

remote (Metropolitan Water Dist. of So. California v. Campus Crusade for Christ, Inc.

(2007) 41 Cal.4th 954, 972-973 (Campus Crusade)) and did not contradict the scope of 

the taking as defined by the resolution of necessity (County of San Diego v. Bressi (1986) 

184 Cal.App.3d 112, 123 (Bressi); Coachella Valley Water Dist. v. Western Allied

Properties, Inc. (1987) 190 Cal.App.3d 969, 978-979 (Coachella)). 

Dhaliwal also contends that the trial court erred in allowing SAFCA’s appraiser to 

critique his appraiser’s valuation of the property, and that SAFCA’s counsel committed 

misconduct during closing argument by commenting on Dhaliwal’s absence and referring 

to SAFCA’s inability to pay more than fair market value for the property. We shall 

conclude that neither contention has merit, and thus, affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Natomas Levee Improvement Program

The Natomas Basin is a large flood plain bordered by the American and 

Sacramento Rivers and includes portions of the City of Sacramento and the Sacramento 

International Airport. Because the existing levees are not adequate to protect the basin 

from a severe flood, SAFCA is repairing approximately 35 of the existing 42 miles of 

levees to provide the basin with at least a 100-year level of flood protection. This project 

is known as the Natomas Levee Improvement Program.
3

At all relevant times herein, there has been a de facto building moratorium in the 

basin. The first floor of any new building in the basin must be built above the base flood 

elevation, which generally speaking is not economically feasible. The de facto 

moratorium can be lifted once the project is complete and SAFCA is able to certify that 

the levee provides 100-year flood protection.

On December 10, 2009, SAFCA’s board of directors adopted a resolution of 

necessity declaring that the public interest and necessity required the project. SAFCA 

also determined that it was necessary for it to acquire a fee simple interest in 

approximately 10.94 acres, a roadway easement over approximately 0.499 acres, and a 

temporary construction easement over approximately 8.796 acres, including all riparian 

and water rights appurtenant to the fee acquisition portion, for the “construction, 

operation, reconstruction, repair and maintenance of improvements for present and future 

flood control, infrastructure relocations, habitat mitigation and other purposes in

connection with the Project.”

B. The Property Before SAFCA’s Acquisition

Prior to SAFCA’s acquisition, the property consisted of two legal lots totaling just 

over 131-acres. It was (and is) zoned “AG-80,” meaning it is approved for all 

agricultural uses and requires a minimum parcel size of 80 acres. It is located in the 

basin, on the land-side of the levee directly east of Garden Highway, north of Interstate 5, 

and west of the Sacramento International Airport. It was (and is) used for farming. 

There were three buildings on the property, a vacant single-family house, a small storage 

shed, and a barn. The house was 80 years old, had not been occupied since 2008, and 

was in fair to poor condition. The shed and barn were also in disrepair. There was a 

driveway leading to the house off Garden Highway.

In addition to Garden Highway, the property was accessible from North Bayou 

Road, a public road that runs along the south side of the property, and Schoolhouse Road, 

a private dirt road that runs along the east and southeast border of the property.
4

C. SAFCA’s Acquisition

SAFCA acquired three interests in the subject property: (1) a fee simple interest in 

an approximately 10.94-acre strip of land along Garden Highway, which included the 

house and other buildings; (2) an approximately 0.499-acre roadway easement along the 

southern border of the property; and (3) an approximately 8.796-acre temporary 

construction easement with a term of three years. Following SAFCA’s acquisition, the 

property no longer is accessible via Garden Highway, but it continues to be accessible via 

North Bayou and Schoolhouse Roads.

D. Dhaliwal’s Appraisal

1. Fair Market Value

At trial, Dhaliwal presented the testimony of appraiser Arthur Gimmy to establish 

the fair market value of the property, along with severance damages and benefits, if any. 

Gimmy found that the highest and best use of the property prior to SAFCA’s acquisition 

was as rural residential property-- a combination of agricultural and residential living. 

Using February 22, 2010, as the date of value, he determined that the fair market value 

for the subject property before SAFCA’s acquisition was $2.3 million or $17,500 an acre. 

In making his determination, he used comparable sales, including two in the basin, 

namely: (1) a 275-plus acre property directly east of the subject property that sold in 

2004 for $10,665 an acre; and (2) a 96.83 acre property along Garden Highway that sold 

in 2005 for $10,699 per acre. He then adjusted those figures for time and other factors. 

He opined that since 2004 and 2005 on the one hand, and 2010 (the date of valuation) on 

the other, prices for this type of property, which has the potential to be used as mitigation 

land for future development, increased 40 to 50 percent. In reaching this conclusion, 

Gimmy relied on “trends in prices,” but not on any one specific sale. He explained that

this type of property was exempt from the recent downturn in real estate prices due to its 

potential for use as mitigation land for future development in the basin.
5

After determining the value of the whole, Gimmy allocated the appraised value 

between what he deemed “the key components of the property”-- a 3-acre homestead and 

128 acres of agricultural land. Using comparable sales of small parcels comprised of 5

acres or less, he valued the 3-acre homestead at $375,000 ($215,000 for the land and 

$160,000 for the improvements). During cross-examination, he acknowledged that 

smaller properties sell for much more per acre than larger properties and that the fictitious 

3-acre homestead could not legally be bought and sold since the property, as zoned, could 

not be divided into parcels of less than 80 acres. He valued the remaining 128 acres of 

agricultural land at $15,000 an acre.

Gimmy used the same methodology to value the 10.94-acre strip of land acquired 

by SAFCA. He divided the area into a 3-acre homestead and 7.9 acres of agricultural 

land, valued the 3-acre homestead at $375,000 and the 7.9 acres of agricultural land at 

$90,000, for a total of $465,000.2 He valued the permanent roadway easement at $3,600 

and the temporary construction easement at $39,100. In sum, he determined that the fair 

market value for the property SAFCA acquired is $507,700, which he then rounded up to 

$510,000.

2. Severance Damages and Benefits

Gimmy opined that the highest and best use of the property following SAFCA’s 

acquisition is “[f]or agricultural purposes only” because the property lost its access to 

Garden Highway and the most desirable location for a house, and “[t]he rest of the access 

to the property is . . . in a gray area.” Comparing the sales of what he described as three 

“problem” properties, Gimmy determined that the remainder was worth $1.17 million, or 

$10,000 per acre, which represented a $620,000 reduction in value. He further concluded 

that there would be no benefit to the remainder from the project. Thus, in addition to the 

 

2

 Gimmy discounted the value of 2.125 of the 7.9 acres 90 percent because it is 

encumbered by a roadway easement.
6

$510,000 for the property SAFCA acquired, Gimmy found that Dhaliwal was entitled to 

$620,000 in severance damages, for a total of $1.13 million in just compensation.

On cross-examination, Gimmy acknowledged that farmers did not use the Garden 

Highway access for heavy equipment, such as a combine, and that they primarily 

accessed the property along North Bayou and Schoolhouse Roads. He further 

acknowledged that the access point on the corner of North Bayou and Schoolhouse Roads

“physically” exists following SAFCA’s acquisition but stated that “legally we don’t 

know what its status is.” He explained that he had been told by Dhaliwal’s counsel that 

Dhaliwal must apply for an encroachment permit to access North Bayou Road and that 

“there is no legal guarantee of access.” He also indicated there was “no guarantee” 

Dhaliwal or his tenants would be able to use Schoolhouse Road once the project was 

completed. While he acknowledged that Dhaliwal did not have any legal right to use 

Schoolhouse Road prior to SAFCA’s acquisition and that his use “was just custom,” he 

asserted that the situation was different now because SAFCA owns an interest in the fee 

under Schoolhouse Road, along with several other private owners. When asked if 

Dhaliwal had any less legal right to use the road after SAFCA’s acquisition, Gimmy 

responded, “It’s -- not legally. But in terms of who you’re dealing with, it’s different. 

Before, you had local farmers that you knew and, by custom, you allowed each other to 

use each other’s property. [¶] In the after condition, you have a county agency owning 

this farm road that was used, just customarily, by local farmers. It’s a different 

situation.” In other words, “it’s a risk because now SAFCA owns the property instead of 

some private property owner.”

E. SAFCA’s Appraisal

1. Fair Market Value

At trial, SAFCA presented the testimony of appraiser Brent Blaesi to establish the 

fair market value of the property, along with severance damages and benefits, if any. 

Blaesi found that the highest and best use for the property prior to SAFCA’s acquisition
7

was as agricultural property. Using February 22, 2010, as the date of value, Blaesi 

determined that the fair market value for the subject property prior to SAFCA’s 

acquisition was $1,234,822, or $9,400 per acre. In making his determination, Blaesi 

compared the sales of six properties, including two in the basin --the same two used by 

Gimmy. Unlike Gimmy, Blaesi found that the value of potential mitigation land in the 

basin, like the subject property, had declined in value at an average rate of 0.8 percent per 

month between 2005 and 2012 due to declining demand. He explained that the real estate 

market “tanked” in 2005 and was followed by the de facto building moratorium in 2008. 

As a result, development in the basin came to a halt, and there was no demand for 

mitigation land.

Using the $9,400 per acre figure, Blaesi determined that the value of the 10.94-

acre strip of land acquired by SAFCA was $99,841, and the value of the permanent road 

easement was $4,703. Blaesi concluded that the house contributed no value to the 

property because the buyer who would pay the highest price for the property would be an 

investor who would hold the property for its future use as mitigation land, while 

continuing to lease the property for row-crop farming, and thus, would have little use for 

a house on the property. Using agricultural rental figures on the property over the past 

few years, he found that the value of the temporary construction easement was $3,450. In 

sum, he determined the fair market value of the property acquired by SAFCA was

$108,000.

2. Severance Damages and Benefits

Blaesi calculated severance damages as the cost of replacing the functions served 

by the lost Garden Highway access, namely access to a public road and to a portion of the 

property where the irrigation ditch is located. He determined that a new access driveway 

out to North Bayou Road and a new farm road along the west side of the property would 

cost $28,600.
8

Blaesi found that access to the remainder essentially remained the same both 

before and after SAFCA’s acquisition. He explained that farmers preferred to access the 

property via North Bayou Road or Schoolhouse Road as opposed to Garden Highway. 

Moreover, there is an easement along the west side of the property that granted 

Reclamation District (RD) 1000 “the exclusive [and] perpetual rights to use th[e] 

easement for” flood control. According to Blaesi, that easement would have allowed RD 

1000 to cut off Dhaliwal’s Garden Highway access at anytime. Thus, that access was not 

guaranteed.

Blaesi found that there was no difference in the property’s access via North Bayou 

Road following SAFCA’s acquisition because North Bayou Road is a public road. He 

agreed that Dhaliwal would need to obtain an encroachment permit if he decided to 

install a driveway connecting the property to North Bayou Road but said the process for 

obtaining such a permit was “straightforward,” explaining that such permits are granted 

on a regular basis and typically cost $300 to $500.

Blaesi likewise determined that there was no difference in the property’s access 

via Schoolhouse Road following SAFCA’s acquisition. He explained that Schoolhouse 

Road is a private road reservation that was created as part of the Natomas Elkhorn 

subdivision. In another eminent domain action, SAFCA acquired the east side of 

Schoolhouse Road, subject to others’ rights to use the road. According to Blaesi, a 

knowledgeable buyer would not believe that SAFCA could cut off access to Schoolhouse 

Road because “all the property owners in that subdivision [have] the right to use that 

road. So SAFCA has no more right to cut it off than anybody else that uses that road 

does.”3 Blaesi noted that SAFCA had constructed a giant garter snake canal through the 

 

3

 Blaesi’s statement is consistent with applicable law. (See Hocking v. Title Ins. & Trust 

Co. (1951) 37 Cal.2d 644, 650 [“It is established law in [California] that the title to [a lot 
9

area and went to considerable trouble to build it away from Schoolhouse Road so as not 

to interfere with anyone’s use of the road. SAFCA also wrote a letter to Dhaliwal 

indicating that it had no intention of interfering with his right to use the road.

Finally, Blaesi found that the remainder would benefit from the project in that the 

completion of the project would result in the lifting of the de facto building moratorium, 

and thereby increase the value of the remainder by $266,833. Blaesi explained that under 

the draft joint vision plan that is expected to govern future development in the area, the 

county will require that all developers mitigate for the loss of undeveloped land by 

conserving one acre of land for each acre developed. Without the joint vision plan, 

properties like the subject property would only have value as agricultural land. Blaesi 

further explained that once the de facto moratorium is lifted and building in the basin 

resumes, there will be a demand for agricultural land, such as the subject property, for use 

as mitigation land. Because the project’s benefit exceeded the amount of severance 

damages, Blaesi concluded Dhaliwal was not entitled to any severance damages. In sum, 

Blaesi determined Dhaliwal was entitled to just compensation in the amount of $108,000.

F. The Jury’s Verdict

The jury awarded Dhaliwal $207,803 in just compensation, consisting of $170,000 

for the 10-plus acres acquired by SAFCA, $4,703 for the roadway easement, $4,000 for 

the temporary construction easement, and $29,100 in severance damages. The jury found 

that there were no project benefits.

DISCUSSION

Before we address the issues raised on appeal, a brief overview of eminent domain 

law and procedure is in order. Article I, section 19 of the California Constitution requires 

 

created by a subdivision map] embraces an easement to use all of the streets disclosed on 

a subdivision map.].)
10

that the owner whose property is taken for a public use be paid “just compensation, 

ascertained by a jury unless waived.”

“The Legislature has defined the measure of just compensation as ‘the fair market 

value of the property taken.’ (Code Civ. Proc., § 1263.310.)[

4

] ‘The fair market value of 

the property taken is the highest price on the date of valuation that would be agreed to by 

a seller, being willing to sell but under no particular or urgent necessity for so doing, nor 

obliged to sell, and a buyer, being ready, willing, and able to buy but under no particular 

necessity for so doing, each dealing with the other with full knowledge of all the uses and 

purposes for which the property is reasonably adaptable and available.’ (§ 1263.320, 

subd. (a).) ‘As section 1263.320 indicates, the fair market value of property taken has not 

been limited to the value of the property as used at the time of the taking, but has long 

taken into account the “highest and most profitable use to which the property might be 

put in the reasonably near future, to the extent that the probability of such a prospective 

use affects the market value.” ’ [Citation.] This prospective use ‘is to be considered, not 

necessarily as the measure of value, but to the full extent that the prospect of demand for 

such use affects the market value while the property is privately held.’ [Citation.]

“When[, as here,] the property taken is part of a larger parcel, the owner is 

compensated not merely for the injury to the part taken but also for the injury, if any, to 

the remainder. (§ 1263.410, subd. (a).) Compensation for injury to the remainder is the 

amount of the damage to the remainder caused by the taking, reduced by the amount of 

the benefit to the remainder caused by the taking. (§ 1263.410, subd. (b).) Such 

compensation is commonly called ‘severance damages.’ [Citation.]

“The procedures governing eminent domain actions differ in some respects from 

those governing other actions. For example, ‘all issues except the sole issue relating to 

 

4

 Further undesignated statutory references are to the Code of Civil Procedure.
11

compensation . . . are to be tried by the court.’ [Citation.] The defendant (i.e., the 

property owner) shall present evidence on the issue of compensation first and shall 

commence and conclude the argument. (§ 1260.210, subd. (a).) And, ‘[e]xcept as 

otherwise provided by statute, neither the plaintiff nor the defendant has the burden of 

proof on the issue of compensation.’ (§ 1260.210, subd. (b).)” (Campus Crusade, supra, 

41 Cal.4th at pp. 965-966, fn. omitted.) With these general principles in mind, we turn to 

the issues raised in this appeal.

I

The Trial Court Did Not Abuse Its Discretion in Admitting SAFCA’s Evidence 

Concerning “Future Access”

Dhaliwal contends that the trial court abused its discretion in allowing SAFCA to 

introduce “speculative evidence of future access.” He asserts that following SAFCA’s 

acquisition, all access via Garden Highway is lost, and access via North Bayou and 

Schoolhouse Roads is speculative because “each of them requires future encroachment 

permits from either the County of Sacramento and/or SAFCA,” which, if denied, would 

leave him landlocked. He argues that “[b]ecause the County and SAFCA can deny him 

access now that the trial is over, preventing him from installing this speculative 

replacement driveway, [he] has not received his constitutional right to just 

compensation.” As we shall explain, at the time the trial court ruled on Dhaliwal’s 

motion to exclude SAFCA’s evidence of future access,5it had before it evidence that the 

property remained accessible via both North Bayou and Schoolhouse Roads and 

conflicting evidence as to whether such access could be cut off in the future. As we shall 

further explain, there is nothing in SAFCA’s resolution of necessity that reasonably can 

be construed as preventing Dhaliwal from continuing to access his property via North 

 

5

 In reviewing the trial court’s ruling, we must consider the facts before the court at the 

time of its ruling, and not by reference to evidence produced at a later date. (People v. 

Welch (1999) 20 Cal.4th 701, 739.)
12

Bayou and Schoolhouse Roads following SAFCA’s acquisition. Under these 

circumstances, we conclude that the trial court did not err in allowing SAFCA to 

introduce evidence of future access that had the potential to affect market value (Campus 

Crusade, supra, 41 Cal.4th at pp. 972-973) and was necessary to refute Dhaliwal’s claim 

that such access was uncertain.

Prior to trial, Dhaliwal filed various motions in limine. In his motion in limine 

No. 2, he moved “[t]o exclude any evidence of possible access to the subject property via 

School House [sic] Road or North Bayou Road” on the grounds that such evidence 

contradicts the resolution of necessity and is speculative in that each of those “potential 

access points . . . requires future encroachment permits from either the County of 

Sacramento and [sic] plaintiff SAFCA.” Citing to the deposition transcript of SAFCA’s 

chief engineer John Bassett and the notes of SAFCA’s appraiser Brent Blaesi, Dhaliwal 

made the following proffer: “In the ‘before’ condition . . . the SUBJECT PROPERTY 

enjoyed access over 1) the Garden Highway; 2) North Bayou Road; and 3) School House 

[sic] Road. [¶] As part of this eminent domain action and the Levee Project, the access 

to the Garden Highway has been completely eliminated.” “As part of this Levee Project, 

plaintiff has condemned the access from School House [sic] Road in another eminent 

domain action entitled SAFCA v. Pacific Terrace, Sacramento County Superior Court 

No. 34-2009-00054924.” SAFCA “ ‘purchased underlying fee with [the] understanding 

there was a private road easement . . . that would allow property owners [in the Natomas 

Elkhorn Subdivision] to use it.’ ” Because the subject property is not part of the 

subdivision, Dhaliwal “ ‘doesn’t have the right to use the private road legally at this 

point. He would have to prove he has prescriptive rights.’ ” “ ‘SAFCA won’t prohibit 

[Dhaliwal] from using . . . [Schoolhouse Road], but they will not grant [him a] formal 

right’ ” to do so. “As a part of [the] Levee Project, SAFCA is condemning all access of 

the SUBJECT PROPERTY along North Bayou Road. SAFCA will take ownership of 

Dr. Dhaliwal’s land from Dr. Dhaliwal, and then will transfer the property to the County 
13

of Sacramento.” “[A]ccess to . . . [the property] would continue across that roadway 

easement,” but Dhaliwal “would need to get an encroachment permit from Sacramento 

County” if he wants to have access through the roadway easement.

Dhaliwal argued that SAFCA’s evidence concerning access to the property 

following its acquisition was speculative because the property “might be landlocked in 

the future.” Dhaliwal explained, however, that his appraiser “did not appraise the 

property as if landlocked (which would have increased damages), but instead testified [at 

deposition] that the access cloud would decrease the value of the remaining property 

from $17,500 per acre to $10,000 per acre.”

SAFCA opposed Dhaliwal’s motion to exclude evidence of possible access via 

North Bayou and Schoolhouse Roads, arguing that “the jury is entitled to consider all 

evidence relevant to valuation so long as it doesn’t contradict the RON [(resolution of 

necessity)].”6 SAFCA asserted that Dhaliwal “failed to cite to a single contradiction 

between the RON and SAFCA’s evidence of post-Project access to the remainder. . . . 

Therefore, SAFCA should be permitted to introduce evidence showing that Dhaliwal will 

be able to access the Remainder from both Schoolhouse and North Bayou Roads . . . . 

Whether or not that access is adequate and the amount Dhaliwal should be compensated 

for any perceived change in access is a question of fact for the jury.” Citing to Bassett’s 

deposition transcript and Blaesi’s declaration, SAFCA made the following proffer: “In 

the before and after condition, Dhaliwal is and will be able to access the Property directly 

from Schoolhouse [Road].” “Schoolhouse [Road] is a private road that was created as 

part of the Natomas Elkhorn Subdivision. . . . In the before condition, Dhaliwal’s tenantfarmers accessed the Property from multiple locations along Schoolhouse [Road] . . . . 

 

6

 On our own motion, we augment the record on appeal to include SAFCA’s opposition 

to Dhaliwal’s motions in limine, filed October 29, 2012. (Cal. Rules of Court, rule 

8.155(a)(1)(A).) 
14

No part of SAFCA’s acquisition affects Dhaliwal’s access from Schoolhouse 

[Road] . . . .” There was “no need for SAFCA to reserve . . . rights for Dhaliwal [over 

Schoolhouse Road] because [its] acquisition does not affect the access that Dhaliwal has 

enjoyed previously from Schoolhouse [Road].” There was no need for Dhaliwal to 

obtain an encroachment permit from the County or SAFCA in order to continue to use 

Schoolhouse Road because such permits are issued by the County to allow construction 

activities in a public right away, and Schoolhouse Road is a private road. “SAFCA is 

acquiring a 0.5-acre roadway easement that parallels Dhaliwal’s border with North 

Bayou” and “will grant the roadway easement to the County . . . to widen the public 

road. After SAFCA’s acquisition, Dhaliwal will continue to have a lengthy frontage on 

N. Bayou Road and will be able to continue accessing the Remainder from N. Bayou as 

he has in the past.” Blaesi “investigated the likelihood that Dhaliwal could obtain an 

encroachment permit from the County, if required, to connect his driveway to N. Bayou. 

Based on his experience in previous cases and his investigation in this case, he concluded 

that the likelihood of obtaining a permit was very high, if not guaranteed.” SAFCA 

asserted that it “did not need to reserve any rights for Dhaliwal because he will have 

rights to use the public road, just like anyone else.”

At the hearing on Dhaliwal’s motion in limine No. 2, the trial court agreed with 

Dhaliwal that SAFCA could not “offer speculative testimony” but found there was “a 

dispute about what kind of access is presently or was available to that property from 

[North Bayou and Schoolhouse] roads. That’s a factual determination.” The court then 

asked: “You disagree about that, right? So isn’t that something the jury is going to have 

to decide based upon whatever testimony comes up?” Both parties responded in the 

affirmative. Dhaliwal’s counsel then asked the court, “Denied without prejudice to raise 

later if I deem it appropriate,” and the court responded, “Denied without prejudice.”

With limited exceptions discussed below, Dhaliwal failed to renew his objection at 

trial, and thus forfeited his challenge to SAFCA’s evidence concerning future access to 
15

the property on appeal.7 (People v. Mills (2010) 48 Cal.4th 158, 170.) In any event,

Dhaliwal’s claim is without merit. 

In determining the fair market value of a property, the jury is entitled to consider 

any factor having “the potential of affecting the market value” so long as the effect of the 

factor on market value is not conjectural, speculative, or remote (Campus Crusade, 41 

Cal.4th at pp. 972-973), and does not contradict the scope of the taking as defined by the 

resolution of necessity (Bressi, supra, 184 Cal.App.3d at p. 123; Coachella, supra, 190 

Cal.App.3d at pp. 978-979). “An owner of land that abuts a street (or road) has an 

easement in that street for the purposes of ingress and egress to and from his property and 

from the street to the next intersecting public roadway in either direction.” (1 Matteoni & 

Veit, Condemnation Practice in Cal. (Cont.Ed.Bar 3d ed. 2009) § 5.20, p. 280; see also 

Bacich v. Board of Control (1943) 23 Cal.2d 343, 352.) “It is the owner’s private right as 

distinguished from the owner’s right as a member of the public to travel on the street. 

Compensation is due if the taking directly extinguishes the abutting owner’s right of 

ingress and egress to the public street.” (1 Matteoni & Veit, Condemnation Practice in 

Cal. (Cont.Ed.Bar 3d ed. 2009) § 5.22, p. 283; see also People v. Al. G. Smith Co. (1948) 

 

7

 For example, at trial Bassett testified, without objection, that Dhaliwal’s tenant farmers 

used an “access point . . . from North Bayou Road to drive onto Schoolhouse Road” in 

both the before and after conditions. The county has not required owners affected by the 

project to obtain encroachment permits where, as here, SAFCA constructed the road in 

question. Dhaliwal had no recorded rights in the eastern portion of Schoolhouse Road 

either before or after SAFCA’s acquisition of a portion thereof. The project would have 

no “affect on the access of farmers using the subject property to Schoolhouse Road” 

because “the area that the farmers use in the dirt road is on . . . the Dhaliwal property.” If 

SAFCA wanted to close off the portion of Schoolhouse Road that it had acquired, it 

would have to “condemn the rights of the people [who own property in the Natomas 

Elkhorn Subdivision] who use that road.” An encroachment permit would be required if 

Dhaliwal decided to construct a driveway connecting his property to North Bayou Road; 

however, “a buyer of the property would [not] believe that an encroachment permit like 

that would be difficult to get” because with minimal effort the buyer would discover that 

such permits are granted on a regular basis and cost between $300 and $500.
16

86 Cal.App.2d 308, 311.) In addition, “[a] substantial, unreasonable interference with the 

property owner’s easement of access to the general system of public roadways is a 

deprivation of a property right; when such interference results in connection with a partial 

taking in eminent domain, the condemnee must be compensated for the depreciation in 

the value of his or her remainder.” (1 Matteoni & Veit, Condemnation Practice in Cal. 

(Cont.Ed.Bar 3d ed. 2009) § 5.20, p. 280; see also Breidert v. Southern Pac. Co. (1964) 

61 Cal.2d 659, 663-667.)

As in any other judicial proceeding, the court determines the admissibility of 

evidence and the scope of admissible evidence. (City of Ripon v. Sweetin (2002) 100 

Cal.App.4th 887, 900-901.) The trial court is vested with considerable discretion in 

admitting or rejecting evidence of value. (City of San Diego v. Barratt American, Inc.

(2005) 128 Cal.App.4th 917, 936.)

Dhaliwal’s claim that the evidence is speculative is premised on the assumption 

that SAFCA and/or the county may cut off access to the property in the future, leaving it

landlocked. At the time the trial court denied Dhaliwal’s motion to exclude evidence 

concerning future access, it had been presented with an offer of proof, supported by a 

declaration and deposition testimony, that contradicted that assumption. Among other 

things, SAFCA presented evidence that “Dhaliwal will continue to have a lengthy 

frontage on N. Bayou Road [(a public road)] and will be able to continue accessing the 

Remainder from N. Bayou as he has in the past.” While Dhaliwal will have to obtain an 

encroachment permit should he decide to construct a driveway connecting his property to 

North Bayou Road, SAFCA’s proffer included evidence that the likelihood of obtaining 

such a permit was “high, if not guaranteed,” and in any event, the lack of a driveway 

would not preclude Dhaliwal or his tenants from accessing the property from other points 

along North Bayou Road. SAFCA’s proffer also included evidence that all owners of 

property within the Natomas Elkhorn subdivision have a legal right to use Schoolhouse 

Road because it is shown as a road on the subdivision map creating the subdivision. 
17

Thus, “as merely one owner of the land underlying half of Schoolhouse” Road, SAFCA 

“has no legal right to close it to traffic.” SAFCA also cited to Hocking v. Title Ins. & 

Trust Co., supra, 37 Cal.2d at page 650, which provides: “It is established law in 

[California] that the title to [a lot created by a subdivision map] embraces an easement to 

use all of the streets disclosed on the subdivision map.” In sum, at the time the trial court 

ruled on the admissibility of the challenged evidence, SAFCA and/or the county’s ability 

to cut off access via North Bayou and Schoolhouse Roads was far from settled. As the 

trial court observed, and the parties agreed, there was “a dispute about what kind of 

access is presently or was available to that property from those roads,” which presented a 

“factual determination” for the jury. The trial court did not abuse its discretion in 

admitting the challenged evidence, which “at least arguably ha[d] the potential of 

affecting the market value of the remaining property” and was necessary to refute

Dhaliwal’s claim that the property could be left landlocked in the future. (Campus 

Crusade, supra, 41 Cal.4th at p. 972, fn. omitted.)

The Court of Appeal, Fourth Appellate District, Division One’s decisions in Bressi

and Coachella, relied on by Dhaliwal, are readily distinguishable. Bressi stands for the 

unremarkable proposition that the condemning agency may not introduce evidence 

pertaining to a proposed, intended, or future use which contradicts the scope of the taking 

as set forth in the resolution of necessity. (Bressi, supra, 184 Cal.App.3d at p. 123.) 

There, the County of San Diego sought to acquire avigation easements over the 

defendant’s property and adopted a resolution of necessity allowing such easements to be 

used by “ ‘every type of aircraft which is now in existence or which may be developed in 

the future for both commercial and noncommercial flights . . . .’ ” (Id. at pp. 115-116.) 

The Court of Appeal ruled that on retrial “the County may not offer evidence that an 

airport accommodating jumbo jets will not be built” because such evidence contradicts

the resolution of necessity. (Id. at p. 123.) 
18

Here, the resolution of necessity provides that SAFCA seeks to acquire a fee 

simple interest, a roadway easement, and a temporary construction easement for the 

“construction, operation, reconstruction, repair and maintenance of improvements for 

present and future flood control, infrastructure relocations, habitat mitigation and other 

purposes in connection with the Project” and provides a legal description of such land. 

Nothing in the resolution of necessity can be construed as allowing SAFCA or the county 

to cut off access via North Bayou or Schoolhouse Roads in the future, and Dhaliwal does 

not contend otherwise. Rather, relying on Coachella, he asserts that SAFCA’s evidence 

that access was not impaired along North Bayou and Schoolhouse Roads “conflicts with 

the Resolution of Necessity because neither the Resolution of Necessity nor the 

Complaint reserved any rights to [Dhaliwal] over either North Bayou Road or 

Schoolhouse Road.” He misconstrues Coachella.

In Coachella, the plaintiff water district condemned 30 acres of the defendant’s

680-acre parcel for construction of a flood control channel. (Coachella, supra, 190 

Cal.App.3d at p. 978.) The channel bisected the defendant’s property, leaving a portion 

of the remainder completely landlocked. (Ibid.) The resolution of necessity did not 

expressly provide for access across the channel, and it was undisputed that the 

defendant’s access to its remaining 530-acre parcel was contingent upon the plaintiff’s

discretionary approval. (Ibid.) The defendant argued that the trial court erred in 

“permitt[ing] the jury to determine whether there was a reasonable probability the 

[defendant] property owner would be granted access across the channel at some time in 

the future.” (Ibid.) Citing Bressi, supra, 184 Cal.App.3d 112, the defendant urged that 

“evidence of the reasonable probability the Water District will grant access improperly 

limits the scope of the taking as defined in the resolution of necessity.” (Coachella, at p. 

978.) In dicta, the Court of Appeal observed, “Here, as in Bressi, the issue raised by [the 

defendant] is easily eliminated by formal amendment to the resolution of necessity before 

retrial of the valuation phase” (ibid.) and offered the following “guidance” to the trial 
19

court on retrial: “Absent action by the Water District to amend the complaint, on remand 

the court should follow the principles set forth in Bressi in determining the evidence to be 

presented to the jury.” (Id. at pp. 977, 979.)

Unlike Coachella, SAFCA’s acquisition, as set forth in the resolution of necessity,

did not leave any portion of the remainder landlocked. While Dhaliwal argued that 

SAFCA and/or the county could cut off his access via North Bayou and Schoolhouse 

Roads in the future, leaving him landlocked, as detailed above, the parties proffered 

conflicting evidence in support of and in opposition to Dhaliwal’s motion in limine No. 2. 

Accordingly, SAFCA’s evidence of future access did not contradict the scope of the 

taking, as Dhaliwal contends. Absent such a contradiction, SAFCA’s failure to “carve[]

out an exception” for Dhaliwal to “cross the permanent roadway easement to his 

property” or to “provide[] Dhaliwal with access rights” via Schoolhouse Road is of no 

consequence.

Finally, we turn to the evidence to which Dhaliwal did renew his objection at trial: 

(1) testimony that SAFCA had no intention of closing Schoolhouse Road; (2) a letter 

from SAFCA’s executive director to Dhaliwal, stating, among other things, that SAFCA 

“does not intend, by virtue of the Pacific Terrace acquisition, to alter any rights, 

prescriptive or otherwise, that you or your tenants may have to use School House [sic]

Road to access your property”; and (3) testimony that a knowledgeable buyer would not 

believe that SAFCA could cut off access to Schoolhouse Road because “this is a recorded 

subdivision map that gives all the property owners in that subdivision the right to use that 

road. So SAFCA has no more right to cut it off than anybody else that uses that road 

does.” 8 We need not decide whether the trial court abused its discretion in admitting this 

 

8

 In his opening brief, Dhaliwal complains that “. . . Mr. Bassett was permitted to tell the 

jury that in his opinion Dhaliwal might have prescriptive rights over School House [sic] 

Road, even though it would mean that Dhaliwal would have to sue his neighbors to assert 
20

evidence because its admission was harmless given the undisputed evidence presented at 

trial that SAFCA lacked the power to cut off all access via North Bayou Road, a public 

road, or unilaterally cut off access to Schoolhouse Road, where it is one of several parcel 

owners in the subdivision.

II

The Trial Court Properly Allowed Blaesi to Critique Gimmy’s Appraisal

Dhaliwal next contends that the trial court erred in permitting SAFCA’s valuation 

expert, Blaesi, to criticize Gimmy’s appraisal, opinions, and sales data because (1) 

section 2034.310 prohibits an expert witness from offering testimony that contradicts the 

opinion of an opposing party’s expert, (2) SAFCA failed to disclose that Blaesi would 

offer an opinion concerning Gimmy’s appraisal, (3) Blaesi based his criticism in part on 

undisclosed sales data, and (4) Blaesi testified that Gimmy “violated appraisal standards 

despite the trial court having already ruled that he did not violate those appraisal 

standards.” We discern no error.

Prior to trial, SAFCA moved in limine to prohibit Gimmy from testifying about 

the “cost approach” method, which SAFCA claimed Gimmy used to inflate the value of

the property. More particularly, SAFCA “object[ed] to [Gimmy] creating [a] fictitious 

three-acre homesite and using separate comparables to value that in order to get a higher 

value for the entire property.” Dhaliwal disputed SAFCA’s claim that Gimmy utilized a 

cost-approach method in valuing the property. According to Dhaliwal, Gimmy “valued 

 

those rights, and that SAFCA would not try to stop Dhaliwal from trying to perfect his 

rights.” That portion of Bassett’s testimony was elicited during Dhaliwal’s redirect 

examination. Dhaliwal also asserts that “[o]ver objection, Mr. Bassett testified that 

owners of lots in the subdivision have a legal right to use School House [sic] Road.” 

Dhaliwal objected to the introduction of such evidence as calling for a legal conclusion, 

not as speculative, and the objection was sustained. Thereafter, Bassett was permitted to 

testify, over Dhaliwal’s objection that the question called for a legal conclusion, that it 

was his understanding that owners of lots in these subdivisions have a right to use 

Schoolhouse Road because “it’s shown on a subdivision map.”
21

the property as a whole as if it sold to a single buyer on a single date. . . . Then after he 

got the value as a whole, then, . . . he allocated into different segments.” Following an 

evidentiary hearing, the trial court denied SAFCA’s motion to limit Gimmy’s testimony,

but noted that its ruling did not preclude SAFCA “in any way from fully exploring [its] 

concerns in front of the jury by way of cross-examination.” At trial, over Dhaliwal’s 

objection, Blaesi was permitted to critique Gimmy’s per acre valuation of the property in 

the before condition, and SAFCA was allowed to introduce undisclosed sales data to 

rebut Gimmy’s valuation of the property.

Citing section 2034.310, Dhaliwal claims that “[t]he law does not allow an expert 

to comment on the opinions of another expert.” While Dhaliwal is correct that section

2034.310 prohibits an expert called as a witness to impeach the testimony of an expert 

witness offered by another party from offering “testimony that contradicts the opinion” of 

the other party’s expert witness (§ 2034.310, subd. (b)), section 2034.310 and related 

provisions of the Civil Discovery Act do not apply in eminent domain proceedings

(§ 2034.010 [“This chapter does not apply to exchanges of lists of experts and valuation 

data in eminent domain proceedings . . . .”).

The exchange of expert witness lists and statements of valuation data in eminent 

domain proceedings is governed by section 1258.010 et seq. Pursuant thereto, parties are 

required to exchange lists of expert witnesses and statements of valuation data 90 days 

prior to the commencement of trial. (§§ 1258.210, 1258.220.) In addition to naming 

each proposed expert witness, the list of expert witnesses must identify the subject matter 

of his testimony. (§ 1258.240.) A party’s statement of valuation need only include 

evidence that supports the witness’s opinion. (§ 1258.260.) The penalty for failure to 

comply with these requirements is “exclusion of [such] evidence . . . at least from the 

offering party’s case-in-chief. (§ 1258.280.)” (County of Monterey v. W.W. Leasing 

Unlimited (1980) 109 Cal.App.3d 636, 642 (W.W. Leasing), italics added.) 
22

Section 1258.280, cited by the court in W.W. Leasing, provides that “upon 

objection of a party who has served his list of expert witnesses and statements of 

valuation data in compliance with section 1258.230: [¶] (a) No party required to serve a 

list of expert witnesses on the objecting party may call an expert witness to testify on 

direct examination during his case in chief unless the information required by Section

1258.240 for such witness is included in the list served. [¶] (b) No party required to 

serve statements of valuation data on the objecting party may call a witness to testify on 

direct examination during his case in chief to his opinion on any matter listed in Section 

1258.250 unless a statement of valuation data for such witness was served. [¶] (c) No 

witness called by a party required to serve statements of valuation data on the objecting 

party may testify on direct examination during the case in chief of the party who called 

him to any opinion or data required to be listed in the statement of valuation data for such 

witness unless such opinion or data is listed in the statement served except that testimony 

that is merely an explanation or elaboration of data so listed is not inadmissible under this 

subdivision.” (Italics added.) 

The Law Revision Commission’s Comment confirms that “[s]ection 1258.280 

limits only the calling of a witness, or the presentation of testimony, during the case in 

chief of the party calling the witness or presenting testimony. The section does not 

preclude a party from calling a witness in rebuttal or having a witness give rebuttal 

testimony that is otherwise proper. [Citations.]” (Cal. Law Revision Com. com., 19 

West’s Ann. Code Civ. Proc. (2007 ed.) foll. § 1258.280, p. 612, italics added.) The 

comment further explains that “[t]he section also does not preclude a party from bringing 

out additional data on redirect examination where it is necessary to meet matters brought 

out on the cross-examination of his witness. However, the court should take care to 

confine a party’s rebuttal case and his redirect examination of his witnesses to their 

purpose of meeting matters brought out during the adverse party’s case or crossexamination of his witnesses. A party should not be permitted to defeat the purpose of 
23

this article by reserving witnesses and valuation data for use in rebuttal where such 

witnesses should have been called and such valuation data presented on the direct 

examination during the case in chief.” (Id. at p. 613.)

In W.W. Leasing, the defendant landowner attempted to introduce undisclosed

comparable sales during the direct examination of its valuation expert, and the trial court 

sustained the plaintiff county’s objection thereto. (W.W. Leasing, supra, 109 Cal.App.3d 

at p. 643.) Thereafter, the defendant attempted to persuade the trial court that the data 

was admissible on cross-examination of the plaintiff’s valuation expert and in rebuttal. 

(Ibid.) The court allowed limited cross-examination of the plaintiff’s expert as to 

whether he had considered the subject sales data but refused to allow testimony 

concerning the data in rebuttal. (Ibid.) In affirming the trial court’s ruling, the Court of 

Appeal acknowledged that the exclusionary provisions of section 1258.280 apply only to 

the presentation of undisclosed data during the offering party’s case-in-chief, but found 

that it was “clear from [the Law Revision Commission’s] comments . . . that the concept 

of ‘rebuttal’ is not to be used in derogation of the requirement that data be exchanged 

pursuant to the prescribed procedures.” (W.W. Leasing, at pp. 643-644.) The court 

further explained that “[i]t is well established that rebuttal evidence does not properly 

consist of additional opinion evidence concerning valuation. Rather, it must be 

concerned with and address new matter brought out by the opposing party. [Citations.]” 

(Id. at pp. 644-645.) The court concluded that the “comparables” the defendant sought to 

introduce constituted “improper rebuttal evidence in that they were simply additional 

evidence on the question of value.” (Id. at p. 645.)

Here, we conclude that the trial court properly allowed Blaesi to testify as to why 

he disagreed with Gimmy’s valuation, even though that subject was not identified in 

SAFCA’s list of expert witnesses. (§§ 1258.240, 1258.280.) We likewise find that the 

trial court properly allowed SAFCA to introduce undisclosed sales data to rebut Gimmy’s 

valuation. (W.W. Leasing, supra, 109 Cal.App.3d at p. 645.) Unlike the data at issue in 
24

W.W. Leasing, the testimony and the sales data at issue were offered in response to 

Gimmy’s valuation and not in support of Blaesi’s own valuation. 

Contrary to Dhaliwal’s assertion, SAFCA was not required to supplement its 

expert witness disclosure after it determined that Blaesi would critique Gimmy’s 

appraisal at trial. A party is required to supplement or amend its expert witness list only 

if it “[d]etermines to call an expert witness not included in [its] list of expert witnesses to 

testify on direct examination during [its] case in chief.” (§ 1258.270, subd. (a)(1), italics 

added.) Because neither the challenged testimony nor the challenged data was presented 

in SAFCA’s case-in-chief, SAFCA was not required to supplement or amend its expert 

witness list to include it.9 

Finally, neither the introduction of the challenged testimony nor the challenged 

sales data violated the trial court’s earlier ruling denying SAFCA’s motion to prohibit 

Gimmy from testifying about what it deemed the “cost approach” method. First, contrary 

to Dhaliwal’s assertion, the trial court did not find, implicitly or otherwise, that Gimmy 

had “not violat[ed] . . . appraisal standards.” The trial court simply denied SAFCA’s 

motion and noted that SAFCA was not precluded “in any way from fully exploring [its] 

concerns in front of the jury by way of cross-examination.” Second, Blaesi did not testify 

that Gimmy violated any appraisal standards. SAFCA’s trial counsel asked Blaesi 

whether Gimmy’s methodology constituted a “proper appraisal technique.” Dhaliwal 

objected, and the objection was sustained. Thereafter, Dhaliwal’s counsel asked Blaesi 

 

9

 “Application of the concept of ‘case in chief’ to the presentation of evidence by the 

plaintiff requires particular attention. The defendant presents his case in chief first in the 

order of the trial. Therefore, the following presentation by the plaintiff may include 

evidence of two kinds; i.e., evidence comprising the case in chief of the plaintiff and 

evidence in rebuttal of evidence previously presented by the defendants. If the evidence 

offered in rebuttal is proper as such, this section does not prevent its presentation at that 

time.” (Cal. Law Revision Com. com., 19 West’s Ann. Code Civ. Proc. (2007 ed.) foll. 

§ 1258.280, p. 613.)
25

whether he was “telling this jury that Mr. Gimmy violated appraisal practices in reaching 

his opinions and conclusions in this case,” and Blaesi responded, “He didn’t use proper 

appraisal methodology. It isn’t proper. And violated would have to be decided by a 

committee or by the National Appraisal Institute Board that reviews that.” Moments 

later, Dhaliwal’s trial counsel stated: “Let’s talk about why you think his appraisal 

violated appraisal standards. Tell me why,” and Blaesi again explained, “It didn’t violate 

a specific standard in USPAP [(Uniform Standards of Professional Appraisal Practice)], 

but USPAP says that you need, when you develop your appraisal, you need to follow the 

generally-accepted appraisal practices.” When asked which practice Gimmy violated, 

Blaesi responded that Gimmy “created a hypothetical lot.” Blaesi later clarified, “I’m 

saying his methodology is improper by arbitrarily carving up the property into two 

separate pieces, a three-acre parcel and a 128 acre parcel.” Such testimony was proper 

and did not violate the trial court’s prior ruling.

III

The Record on Appeal Does Not Support Dhaliwal’s Claim That SAFCA’s Counsel 

Engaged in Misconduct, and Any Potential Misconduct Did Not Warrant a Retrial 

Lastly, Dhaliwal contends that SAFCA’s counsel committed misconduct during

closing argument by (1) commenting on Dhaliwal’s absence when he knew Dhaliwal was 

unable to attend the trial for medical reasons, and (2) stating that “SAFCA can’t afford to 

pay more than the fair market value of the property.” We discern no misconduct on the 

record before us, and in any event, Dhaliwal was not prejudiced by challenged remarks.

During his closing argument, SAFCA’s counsel argued, “I think it’s obvious in 

this case that SAFCA can’t afford to pay more than the fair market value of the property. 

If it had to pay property owners ten times the value of their property every time they 

acquired property for this project, it would be very difficult to build this project.” 

SAFCA’s counsel also told the jury, “I think it’s offensive and insulting for the process 

that there’s a property owner who wants you to give him more than $1 million of 
26

SAFCA’s money for this property west of the airport, and he doesn’t even show up in the 

process, didn’t show you the respect . . . [¶] . . . [¶] . . . to participate in the process.”

“ ‘In conducting closing argument, attorneys for both sides have wide latitude to 

discuss the case. “ ‘ “ ‘The right of counsel to discuss the merits of a case, both as to the 

law and facts, is very wide, and he has the right to state fully his views as to what the 

evidence shows, and as to the conclusions to be fairly drawn therefrom. The adverse 

party cannot complain if the reasoning be faulty and the deductions illogical, as SUCH 

matters are ultimately for the consideration of the jury.’ ” ’ [Citations.] ‘Counsel may 

vigorously argue his case and is not limited to “Chesterfieldian politeness.” ’ [Citations.] 

‘An attorney is permitted to argue all reasonable inferences from the evidence, . . .’ 

[Citation.] ‘Only the most persuasive reasons justify handcuffing attorneys in the exercise 

of their advocacy within the bounds of propriety.’ [Citation.]” [Citation.] The same 

rules apply in a criminal case. [Citation.] [¶] An attorney who exceeds this wide latitude 

commits misconduct. For example, “[w]hile a counsel in summing up may indulge in all 

fair arguments in favor of his client’s case, he may not assume facts not in evidence or 

invite the jury to speculate as to unsupported inferences.” [Citation.] Nor may counsel 

properly make personally insulting or derogatory remarks directed at opposing counsel or 

impugn counsel’s motives or character. [Citation.] Additional examples abound; these 

are but a few.’ [Citation.]” (Garcia v. ConMed Corp. (2012) 204 Cal.App.4th 144, 147-

148 (Garcia), fn. omitted.)

“But it is not enough for a party to show attorney misconduct. In order to justify a 

new trial, the party must demonstrate that the misconduct was prejudicial. [Citation.] As 

to this issue, a reviewing court makes ‘an independent determination as to whether the 

error was prejudicial.’ [Citation.] It ‘must determine whether it is reasonably probable 

[that the appellant] would have achieved a more favorable result in the absence of that 

portion of [attorney conduct] now challenged.’ [Citation.] It must examine ‘the entire 

case, including the evidence adduced, the instructions delivered to the jury, and the 
27

entirety of [counsel’s] argument,’ in determining whether misconduct occurred and 

whether it was sufficiently egregious to cause prejudice. [Citation.] ‘Each case must 

ultimately rest upon a court’s view of the overall record, taking into account such factors, 

inter alia, as the nature and seriousness of the remarks and misconduct, the general 

atmosphere, including the judge’s control, of the trial, the likelihood of prejudicing the 

jury, and the efficacy of objection or admonition under all the circumstances.’ [Citation.] 

‘[I]t is only the record as a whole, and not specific phrases out of context, that can reveal 

the nature and effect of such tactics.’ [Citation.]” (Garcia, supra, 204 Cal.App.4th at p. 

149.)

As a preliminary matter, Dhaliwal failed to object to the statement concerning 

SAFCA’s inability to pay above-market value for the property, and thus, forfeited his 

misconduct claim as to that remark. (Garcia, supra, 204 Cal.App.4th at p. 148.) In any 

event, the remark did not constitute misconduct. It is well established that “ ‘[t]he term 

“just compensation” means “just” not only to the party whose property is taken for public 

use but also “just” to the public which is to pay for it.’ ” (People ex rel. Department of 

Public Works v. Pera (1961) 190 Cal.App.2d 497, 499; see also Los Angeles County 

Metropolitan Transportation Authority v. Continental Development Corp. (1997) 16 

Cal.4th 694, 716 (Continental).) In other words, “taxpayers should not be required to pay 

more than reasonably necessary for public works projects.” (Continental, supra, 16 

Cal.4th at p. 716.) The challenged remark is consistent with this general principle and 

did not constitute misconduct.

Turning to the remark about Dhaliwal’s absence, Dhaliwal claims this remark

constituted misconduct because SAFCA’s counsel knew that Dhaliwal could not attend

the trial because he was undergoing surgery for cancer. As Dhaliwal concedes in his 

reply brief, there is nothing in the record to support his assertion that SAFCA’s counsel 

knew that Dhaliwal could not attend the trial because was undergoing surgery, and 

SAFCA denies that its trial counsel had any such knowledge at the time he made the 
28

challenged remark. Assuming without deciding that the remark nevertheless amounted to 

a personal insult rising to the level of misconduct, when viewed in the context of the 

entire case, we have no trouble concluding that Dhaliwal would not have achieved a more 

favorable result had the remark not been made. (Garcia, supra, 204 Cal.App.4th at pp. 

148-149.) Dhaliwal’s objection to the remark and motion to strike it were “sustained,” 

the remark was fleeting, and it was not particularly serious.

DISPOSITION

The judgment is affirmed. SAFCA shall recover its costs on appeal. (Cal. Rules 

of Court, rule 8.278(a).)

 BLEASE , Acting P. J.

We concur:

 NICHOLSON , J.

 DUARTE , J.