COUNSEL:

Fadem & Kanner, Michael M. Berger, Jerrold A. Fadem and Gideon Kanner for Plaintiffs and Appellants.

Richard L. Knickerbocker and Christina New, City Attorneys, Brill, Hunt, DeBuys & Burby, MacDonald, Halsted & Laybourne, Mitchell L. Lathrop, and Milnor E. Gleaves for Defendant and Respondent.

Roger Arnebergh, City Attorney (Los Angeles), Milton N. Sherman, Assistant City Attorney, and James H. Pearson and Ronald J. Einbodin, Deputy City Attorneys, as Amici Curiae on behalf of Defendant and Respondent.

MOSK, J.

Appellants are 37 of over 700 plaintiffs who brought suit against the City of Santa Monica ("defendant") for injuries alleged to have been suffered by virtue of defendant's operation of the Santa Monica Airport. [FN 1] This action vividly demonstrates the difficulties encountered in engrafting traditional common law theories of recovery onto proceedings involving injuries peculiarly contemporary in nature. (See Kramon, Noise Control: Traditional Remedies and a Proposal for Federal Action (1969) 7 Harv. J. Legis. 533; Malley, The Supersonic Transport's Sonic Boom Cost: A Common Law Approach (1969) 37 Geo.Wash.L.Rev. 683.) Despite the dilemma, however, we recall Justice Cardozo's admonition that "[t]hose who would earn [the common law's] best rewards must make their knowledge as deep as the science and as broad and universal as the culture of their day." (Selected Writings of Benjamin Nathan Cardozo (Hall ed. 1947) p. 88.)

[FN 1] The trial court adopted a procedure by which plaintiffs selected 10 representative parcels purportedly affected and tried the issues relating to those 10 parcels separately. The specific plaintiffs involved with parcels 1 through 10 will be hereinafter referred to as "appellants," whereas the entire class of plaintiffs will be referred to as "plaintiffs."

At trial the parties agreed to a procedure by which the court, immediately prior to the commencement of trial, would rule on the legal sufficiency of counts II, III, and IV. The court reserved its ruling on the nuisance theory (II) and held that the counts for negligence (III) and zoning violations (IV) failed to state causes of action. The court denied appellants leave to amend the latter two counts.

Trial was commenced with both parties presenting evidence as to the value of appellants' properties both before and after the stipulated valuation date of July 1, 1966. Appellants produced expert opinion that the value of the 10 parcels had suffered diminution due to jet noise, fumes and vibration. The amount of decrease, according to appellants' witness, ranged from 4 percent to 20 percent of the pre-July 1 value of the respective parcels. Furthermore, appellants introduced substantial evidence that the noise to which the homeowners have been subjected is "intolerable" and "monstrous" and "untenable" for human habitation. Defendant's appraiser, utilizing the same general approach of determining values before and after July 1, concluded that none of the properties had been diminished in value as of that date by exposure to jet noise, fumes, and vibration.

After trial, the court found for defendant on count I (inverse condemnation), concluding that appellants had failed to establish that their properties had been damaged. The court then ruled that appellants' count II for nuisance failed to state a cause of action. Thereupon judgment was entered for defendant on the inverse condemnation count and counts II, III, and IV were dismissed.

On appeal, appellants' principal contentions are: (1) the evidence is not sufficient to support a judgment for defendant on the inverse condemnation action; (2) appellants suffered prejudicial error when counsel for defendant failed to comply with the court's pretrial order requiring a complete exchange of appraisal reports; and (3) the trial court erred in dismissing counts II, III, and IV.

Appellants' two contentions in regard to the cause of action for inverse condemnation -- insufficiency of the evidence and unfair exchange of appraisal reports -- are necessarily interlaced: even if the evidence were otherwise sufficient to support a judgment for defendant, if defendant failed to comply with the trial court's mutual exchange order, appellants may have been handicapped in cross-examining defense witnesses and in introducing their own evidence. Full exchange of reports might, in such circumstances, have enabled appellants to elicit testimony from which a reviewing court could conclude there was insufficient evidence to support the judgment.

In resolving the issue of the sufficiency of the evidence, we are bound by the established rules of appellate review that all factual matters will be viewed most favorably to the prevailing party (Leming v. Oilfields Trucking Co. (1955) 44 Cal.2d 343, 346 [282 P.2d 23, 51 A.L.R.2d 107]; Bancroft-Whitney Co. v. McHugh (1913) 166 Cal. 140, 142 [134 P. 1157]; 6 Witkin, Cal. Procedure (2d ed. 1971) s 245, at p. 4236) and in support of the judgment (Waller v. Brooks (1968) 267 Cal.App.2d 389, 394 [72 Cal.Rptr. 228]). All issues of credibility are likewise within the province of the trier of fact. (Estate of Teel (1944) 25 Cal.2d 520, 526 [154 P.2d 384].) "In brief, the appellate court ordinarily looks only at the evidence supporting the successful party, and disregards the contrary showing." (6 Witkin, Cal. Procedure, supra, s. 249, at p. 4241.) All conflicts, therefore, must be resolved in favor of the respondent. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429 [45 P.2d 183].)

Cognizant of these rules controlling appellate review, we now turn to the evidence to determine whether it was sufficient to sustain the court's decision. Appellants, in presenting their inverse condemnation case at trial, essentially offered two categories of testimony: first, evidence as to the existence of excessive noise levels near the airport; second, evidence as to the diminution in the value of the homeowners' properties. At the onset it must be noted that the first category of evidence was employed in order to demonstrate the existence of the ultimate fact of a decrease in property value. It would appear that appellants could not rest solely on even massive and uncontradicted evidence of excessive noise levels occasioned by the use of jet aircraft to prove a decrease in property value. [FN 2] In any event, appellants' evidence on excessive noise level was not unchallenged. Dr. Robert L. Watson, Jr., an ear, nose and throat specialist, testified that none of the 15 individuals he examined suffered any hearing loss. From this the trial court could properly infer that the noise level was not excessive and accordingly did not diminish the value of appellants' land. Dr. Watson also testified that a noise exposure of 110 decibels over a time period of 150 seconds per day at intervals of 20 seconds each, over a three-year period would not cause hearing loss. [FN 3] Similarly, from such testimony the trial judge could have concluded that such occasional noise increases were insufficient to cause property damage.

[FN 2] We do not reach the issue of whether, in view of the advancing state of medical and scientific knowledge in this regard, excessive noise levels might not be sufficient, standing alone, to establish a prima facie case for nuisance or to prove the existence of personal injuries due to hearing loss, even though it might be insufficient to establish the "taking" required in an inverse condemnation cause of action. (Compare Kramon, supra, pp. 538-544, with Spater, Noise and the Law (1965) 63 Mich.L.Rev. 1373, 1385-1396, 1406-1407.)

[FN 3] The relevancy of the 110 decibel figure becomes meaningful in light of the data compiled by appellants on the noise standards formulated by several governmental agencies. However, even those statistics do not provide full support for the contention that 110 decibels is necessarily excessive noise sufficient to cause injury. For example, standards originally established pursuant to the federal Walsh-Healy Public Contracts Act (41 U.S.C. 35 et seq.) did state that a maximum of 85 decibels of steady noise is permissible. However, occasional heights of 110 decibels are not considered unsafe. (33 Fed.Reg. No. 184, Sept. 20, 1968, at pp. 14258-14260.) Furthermore, current regulations permit exposures of one quarter hour per day of 115 decibels. (41 C.F.R. 50-204.10, Table I.) Occasional exposure of 115 decibels is likewise allowed pursuant to the Noise Control Safety Orders of the State Division of Industrial Safety even though constant eight-hour exposure of 90 decibels is considered the maximum permitted for safe and healthy working conditions. (Tit. 8, Cal. Admin. Code, s 3872, subd. (a), at p. 432.123.) Finally, the Department of Aeronautics has established a maximum of 65 decibels. Such level, however, is not computed on the basis of infrequent blasts of noise but upon a complicated formula for averaging noise levels for a 24-hour period. (Tit. 4, Cal. Admin. Code, s. 5012, at p. 396.)

Mr. Tucker painstakingly provided testimony on each of the 10 representative parcels, concluding that none suffered any diminution in value as a result of the operations of jet aircraft. Whenever applicable, he described the property, its topography, the access streets, the availability of utilities, the uses for which it was zoned, the improvements made on the property, the chronology of any remodeling of those improvements and the condition of the property. Finally, he testified as to the result of the comparable sales approach he employed in appraising the property.

For example, with respect to parcel 6, his conclusions were "based on sales over a period of time, on sales occurring from ... two and a half years prior to the middle of 1966 and about the same time following, or perhaps more likely two years following, [in which he] found no influence on the market from jet operations during that period of time." With regard to parcel 7, Mr. Tucker testified: "My opinion was developed on the basis of the sales in the particular tract, plus the study of sales in other areas, plus the other basic investigations which I made relating to market activity and price of residences in the general area. All of my investigation was used as a basis for developing this final opinion of value." At the close of his testimony on the 10 parcels, he explained the general method by which he reached the conclusion of no property damage. That process, in part, is set forth in the margin. [FN 4]

[FN 4] Tucker testified as follows: "[My opinion that none of the properties in question has suffered any damage from the operation of jet aircraft during the applicable period] was based on the studies that I have enumerated here, including rather general studies of the residential real estate market over an appropriate period of time in Southern California -- six counties -- in Los Angeles County, in the Westchester-Santa Monica area. I studied the build-up of residential housing, the rate of sales as indicated by deed recordings, by building as indicated by permits for single family residences over a period of a year, as indicated by trust deed recordings. All of those show activity in the real estate market. "I investigated the rate of foreclosures over several years; investigated interest rates as they applied to single family residences from several sources. I secured something like 850 sales, most of those in the Airport area -- almost 700 of them; confirmed something like 165 or 75 or 80 sales, most of those in the Airport area; analyzed the sales for availability; reviewed a number of multiple listing sheets that showed offers and sales dates, or reported sales dates of a number of properties for several years, both in and out of the Airport area, to discover the time required to sell, or the elapsed time between the listing date of a property and the reported selling date of that property, in both the Airport and non-Airport areas. "I was able to confirm a number of sales and resales, and in practically all cases the resale was at a significantly higher level of value than the original sale for the individual property. A number of those increased in price were caused in part by some modifications, renovations, improvements of the property, but not all of them. And those that had some renovation or improvement did not appear to account for it entirely.

"I looked at the trend in prices in the area. I studied the estimated market price of several houses, six or eight, in the general area of the Santa Monica Airport. Three of them were in the general area of the Santa Monica Airport; two northwest; and one to the east; and the others a little further distance away. And comparing those with the same type of data for a larger number of homes for which market price estimates were made periodically by lending institutions, builders, and others that were interested in keeping up with the current real estate market. "These studies showed a slow-down in the activity of real estate sales -- that is, the volume in Southern California, Los Angeles County in the vicinity of the Airport. The similarity of those trends was quite striking. "I considered the interest rates that were available. I took notes of the loan to sale price ratio in a number of confirmed sales to discover if there was a lack of financing in the airport area that might dampen down sales activity or sales price. I inquired of a number of lenders as to their attitude regarding loans in the airport area, took notes of the tight money situation.

"On these I developed my final estimate of value of subject parcels."

Appellants next insist that defendant failed to comply with the court's pretrial order requiring an exchange of complete appraisal reports. Even though we have concluded that there was substantial evidence to support the judgment, the failure to fairly exchange such reports could infect the amount and quality of the evidence adduced. Accordingly we inquire into the nature of the order and into any violation.

In its first pretrial conference order, the court required the parties to submit for exchange the appraisal reports upon which they intended to rely at trial. [FN 5] Counsel ostensibly exchanged their respective reports. However, cross-examination of Mr. Tucker, defendant's appraiser, revealed that the witness had testified to matters which were not included in the exchanged reports.

[FN 5] The order recited in part: "The parties are ordered to file appraisal reports upon which they intend to rely at the time of trial, if any, with the clerk ... If any party intends to have an owner or any witness, other than the appraisers whose appraisal reports are to be submitted, testify in this case with respect to valuation, such party shall also file with the court on the same date the name of such person, his opinion as to valuation, and all factual data, not otherwise submitted, upon which such opinion is based, including market data, reproduction studies, and capitalization studies, in as much detail as practicable ... Except as set forth herein, and except for the purposes of rebuttal, the parties will not be permitted to call any witness to testify on direct examination to an opinion of value, a sale, a reproduction study or capitalization study, unless submitted to the court as set forth above. "In the event a party subsequently discovers any information which should have been submitted as set forth in the preceding paragraph, and desires in good faith to use the information at time of trial, he must immediately notify the other party to this effect, and provide the other party with the said information, and show good cause to the court ... that he should be permitted to use such information at the trial."

As the court stated in Regents of University of California v. Morris (1968) 266 Cal.App.2d 616, 631 [72 Cal.Rptr. 406], "A proper exchange of appraisals is not an empty pretrial formality. Its crucial importance is illustrated in U.S.A. v. Meyer (9th Cir. July 17, 1968) 398 F.2d 66, 69-70. In Meyer the court says: 'The appraisers' opinions and their factual and theoretical foundation are peculiarly within each appraiser's knowledge and, to a degree, that of the party who employed him. The opposing party can obtain this information in advance of trial only by discovery. Because this material will constitute the substance of the trial, pretrial disclosure is necessary if the parties are to fairly evaluate their respective claims for settlement purposes, determine the real areas of dispute, narrow the actual issues, avoid surprise, and prepare adequately for cross-examination and rebuttal."'

Certainly if the pretrial order is to be effective the court must be vigilant in compelling compliance. (See Swartzman v. Superior Court (1964) 231 Cal.App.2d 195, 203-204 [41 Cal.Rptr. 721].) However, it is equally true that counsel must call to the court's attention any material failure to comply (cf. Regents of University of California v. Morris, supra, 266 Cal.App.2d 616, 630) and must do so forthrightly. While we do not prescribe a rule requiring a motion in a specific form or manner in order to inform the court of any departure from the pretrial order for the purposes of preserving the error on appeal, we do note that here counsel for appellants made their "objections" in an ambiguous and circuitous manner, if at all. Counsel did not request a continuance in order to study evidence introduced but allegedly not exchanged. Counsel did not move to strike the testimony giving rise to the issue of compliance. Nor did they make a request for exchange of additional information on which the appraiser purportedly based his testimony and with which counsel was not originally provided.

Instead, between opposing counsel and the trial judge there was a lengthy colloquy in which appellants failed to specify any objection to the exchange procedures. In fact, counsel for defendant offered to recess if appellants desired, in order that they might obtain any materials alleged to have been excluded and necessary for continued cross-examination. Appellants did not take advantage of this offer. [FN 6]

[FN 6] Compare, for example, the manner in which objections were made in two cases cited by appellants, Regents of University of California v. Morris, supra, 266 Cal.App.2d 616, 630, and Sacramento, etc. Drainage Dist. ex rel. State Reclamation Bd. v. Reed (1963) 215 Cal.App.2d 60, 67-68 [29 Cal.Rptr. 847], mod. on other grounds, 217 Cal.App.2d 611 [31 Cal.Rptr. 754]. In Morris, counsel made a formal motion to strike. In Reed counsel moved for complete exclusion of certain testimony; the court "ruled in favor of a kind of limited admissibility"; and the Court of Appeal concluded that by virtue of the formal motion before the ruling on limited admissibility counsel had objected sufficiently at trial to preserve the issue on appeal. Here, however, there was never a formal motion of any kind by appellants, and any objections could most tolerantly be characterized as imprecise.

Defendant tried to clarify the issue of compliance on several occasions; in each instance appellants avoided direct confrontation. At the close of trial when defendant moved the court for a ruling on its compliance, one of appellants' attorneys stated he did not "consider such a motion to have any legal basis." The trial court, after recognizing that appellants had at no time moved to strike any testimony, noted that it was "not unusual that certain statements and actions are taken but never pursued ultimately." On the state of the cloudy record we can only conclude the trial court ruled that either defendants did not violate the pretrial order or that appellants were no longer asserting error. Either ground compels us to uphold the court's determination.