Judge: Anne Richardson, Case: 22STCV16033, Date: 2023-03-08 Tentative Ruling

Case Number: 22STCV16033    Hearing Date: March 8, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Plaintiff City of Los Angeles sues, among others, Defendant Robert L. Henry, pursuant to a single cause of action for Eminent Domain for the purpose of acquiring a 2,829 square-foot tract of land from the property located at 10335 Walavista Rd., Los Angeles, CA 90064 (“Subject Property”), for use as a permanent public access easement (bike path in the “Take Area”), as related to the City’s Exposition Bike Path Project (“Project”).

Now before the Court is the City of Los Angeles’s opposed Motion for Prejudgment Possession of the Take Area.

Evidentiary Objections

Defendant Robert L. Henry’s Objection to Declaration of Michael M. Haddadin

Objection No. 1: OVERRULED.

Motion for Prejudgment Possession: GRANTED.

Legal Standard

“When the government exercises its power of eminent domain, and condemns or damages private property for public use, it must pay ‘just compensation’ to the owner. (Cal. Const., art. I, § 19.) The just compensation is aimed at making the landowner whole for a governmental taking or damage to the owner’s property. [Citations.] In other words, ‘“the owner is entitled [to] the full and perfect equivalent of the property taken.”’ [Citations.]” (Mt. San Jacinto Community College Dist. v. Superior Court (2007) 40 Cal.4th 648, 653.)

“California’s statutory Eminent Domain Law (Code Civ. Proc., § 1230.010 et seq.) provides that if the compensation issue ‘is brought to trial within one year after commencement of the proceeding, the date of [property] valuation is the date of commencement of the proceeding.’ ([Code Civ. Proc.,] § 1263.120.) The condemner may, however, take early possession of the property before litigation is concluded ‘upon deposit in court and prompt release to the owner of money determined by the court to be the probable amount of just compensation.’ (Cal. Const., art. I, § 19; see [Code Civ. Proc.,] § 1255.410.) The immediate possession procedure is also known as a ‘quick-take’ eminent domain action. [Citation.] Because compensation is immediately available to the property owner in a quick-take action, the date of valuation of the property is statutorily required to be no later than the date the condemner deposits ‘probable compensation’ for the owner. ([Code Civ. Proc.,] § 1263.110 et. seq.) The deposit earns statutory interest until it is withdrawn. ([Code Civ. Proc.,] § 1268.310.) The property owner can immediately withdraw the funds, but by doing so waives all rights to dispute the taking other than the right to challenge the amount of just compensation. ([Code Civ. Proc.,] § 1255.260.)”.

Code of Civil Procedure section 1255.410, subdivisions (a)-(c) provides the requirements for a motion for order for possession:

(a) At the time of filing the complaint or at any time after filing the complaint and prior to entry of judgment, the plaintiff may move the court for an order for possession under this article, demonstrating that the plaintiff is entitled to take the property by eminent domain and has deposited pursuant to Article 1 (commencing with Section 1255.010) an amount that satisfies the requirements of that article.

The motion shall describe the property of which the plaintiff is seeking to take possession, which description may be by reference to the complaint, and shall state the date after which the plaintiff is seeking to take possession of the property. The motion shall include a statement substantially in the following form: “You have the right to oppose this motion for an order of possession of your property. If you oppose this motion you must serve the plaintiff and file with the court a written opposition to the motion within 30 days from the date you were served with this motion.” If the written opposition asserts a hardship, it shall be supported by a declaration signed under penalty of perjury stating facts supporting the hardship.

(b) The plaintiff shall serve a copy of the motion on the record owner of the property and on the occupants, if any. The plaintiff shall set the court hearing on the motion not less than 60 days after service of the notice of motion on the record owner of unoccupied property. If the property is lawfully occupied by a person dwelling thereon or by a farm or business operation, service of the notice of motion shall be made not less than 90 days prior to the hearing on the motion.

(c) Not later than 30 days after service of the plaintiff’s motion seeking to take possession of the property, any defendant or occupant of the property may oppose the motion in writing by serving the plaintiff and filing with the court the opposition. If the written opposition asserts a hardship, it shall be supported by a declaration signed under penalty of perjury stating facts supporting the hardship. The plaintiff shall serve and file any reply to the opposition not less than 15 days before the hearing.

(Code Civ. Proc., § 1255.410, subds. (a)-(c).)

If the motion is not opposed within 30 days of service on each defendant and occupant of the property, the court shall make an order for possession of the property if the court finds each of the following:

(A) The plaintiff is entitled to take the property by eminent domain.

(B) The plaintiff has deposited pursuant to Article 1 (commencing with Section 1255.010) an amount that satisfies the requirements of that article.

(Code Civ. Proc., § 1255.410, subds. (d)(1)(A)-(B).)

If the motion is opposed by a defendant or occupant within 30 days of service, the court may make an order for possession of the property upon consideration of the relevant facts and any opposition, and upon completion of a hearing on the motion, if the court finds each of the following:

(A) The plaintiff is entitled to take the property by eminent domain.

(B) The plaintiff has deposited pursuant to Article 1 (commencing with Section 1255.010) an amount that satisfies the requirements of that article.

(C) There is an overriding need for the plaintiff to possess the property prior to the issuance of final judgment in the case, and the plaintiff will suffer a substantial hardship if the application for possession is denied or limited.

(D) The hardship that the plaintiff will suffer if possession is denied or limited outweighs any hardship on the defendant or occupant that would be caused by the granting of the order of possession.

(Code Civ. Proc., § 1255.410, subds. (d)(2)(A)-(D).)

Analysis

The Court first notes that Defendant Robert L. Henry—the homeowner dwelling on the Subject Property from which the Take Area will be carved out—timely opposed the instant Motion for Prejudgment Possession. (Mot., Proof of Service [service by email on October 4, 2022]; Code Civ. Proc., § 1255.410, subd. (c) [opposition must be filed within 30 days of service of prejudgment possession motion]; Code Civ. Proc., § 1010.6, subd. (a)(3)(B) [two additional court days for right or duty to act where service made electronically]; Opp’n, 1:1 [filed November 7, 2022, i.e., 30 days plus two court days after October 4, 2022].)

I. Requirements of Code Civ. Proc., § 1255.410, subd. (a)

The City of Los Angeles first argues that it is entitled to possession of the Take Area because the City Council for the City of Los Angeles complied with the requirements of Code of Civil Procedure, Part 3, Title 7—Eminent Domain Law—by holding a duly noticed meeting at which it considered and adopted a Resolution of Necessity authorizing the commencement of eminent domain proceedings against the Take Area. (Mot., 5:8-12.) The Motion points to Exhibit A of the Complaint for a copy of the Resolution of Necessity. (Comp., Ex. A.)

A review of the Resolution of Necessity (Comp., Ex. A) shows that it complies with Code of Civil Procedure sections 1240.030 and 1240.230, which empower a public entity to exercise the power of eminent domain.

The Resolution contains a general statement explaining the Take Area consists of a public use bikeway secured under the authority of Article 1, Section 19 of the California Constitution (inverse condemnation compensation requirement), Government Code section 37350.5 (city’s statutory right to acquire by eminent domain property necessary to carry its power or functions), and Code of Civil Procedure sections 1240.010 to 1240.050 (statute providing requirements for exercising eminent domain power). (Comp., Ex. A; see Code Civ. Proc., 1245.230, subd. (a).) The Resolution contains a description of the general location and extent of the Take Area with sufficient detail for reasonable identification. (Comp., Ex. A, § 3; see Comp., Exs. B, C; see also Code Civ. Proc., 1245.230, subd. (b).) The Resolution also contains a declaration that the City Council has found and determined that (1) the public interest and necessity require the bikeway, (2) the Project is located in a manner that is most compatible with public good and least private injury, (3) the property described in the Resolution is necessary for the proposed bikeway, and (4) the offer required by Government Code section 7267.2 has been made to the property owner or owners of record. (Comp., Ex. A, § 5, ¶¶ A-D; see Code Civ. Proc., 1245.230, subds. (c)(1)-(4).) The Resolution thus complies with the requirements set forth in Code of Civil Procedure section 1245.230.

By operation of Code of Civil Procedure section 1245.250, subdivision (a), satisfaction of section 1245.230 also “conclusively establishes the matters referred to in Section 1240.030,” which empowers a public entity to use “[t]he power of eminent domain … to acquire property for a proposed project.”

The City of Los Angeles also provides that it has deposited $30,800 as the probable amount of compensation with the State Treasury Condemnation Deposits Fund, which was based on the appraisal of Aaron S. You, an independent real estate appraiser who appraised the fair market value of the property. (Mot., 5:16-22; see Code Civ. Proc., § 1255.010, subds. (a), (b).)

The motion—in the Declaration of Michael M. Haddadin and by reference to Exhibits B and C in the Complaint—contains a description of the Take Area. (Mot., 3:14-16, Haddadin Decl., ¶¶ 5-9; Comp., Exs. B [Legal Description of Take Area by State of California Land Surveyor with depiction], C [map of Subject Property showing Take Area].)

The motion requests possession of the land “as soon as possible.” (Mot., 4:17-19, Haddadin Decl., ¶¶ 11-12.)

The motion also contains a notice showing the right of opposition language required by Code of Civil Procedure section 1255.410, subdivision (a). (Mot., Notice, 2:10-15.)

Consistent with these determinations, the Court finds that the City of Los Angeles has shown compliance with all the requirements set forth by Code of Civil Procedure 1255.410, subdivision (a).

In Opposition, Defendant Henry argues that “[t]he City is not entitled to an order for prejudgment possession because it cannot meet the requirement of demonstrating that it has a right to take the property” but fails to explain how the City lacks the right to exercise the power of eminent domain law in relation to the Take Area. (See Opp’n, 7:13-14 [quoted language], 7:14-8:13 [string of case law cited without application to the facts before the Court].)

In Reply, the City argues that it has the right to take the Take Area through eminent domain as set forth in the Complaint. (Reply, 10:7-20.)

The Court finds no merit to Defendant Henry’s position and agrees with the City. Fatally, Defendant Henry’s Opposition fails to explain why the City of Los Angeles is not entitled to use Code of Civil Procedure, Part 3, Title 7 to exercise its eminent domain powers to secure the Take Area. Further, the Court’s discussion ante sufficiently establishes that the City of Los Angeles has complied with the requirements of Code of Civil Procedure 1240.230 and 1240.030, which, when satisfied, provide the City with eminent domain powers to take the property of another.

II. Requirements of Code Civ. Proc., § 1255.410, subd. (b)

Service of this motion must have been made on persons dwelling on the property subject to eminent domain at least 90 days before the hearing. (Code Civ. Proc., 1244.410, subd. (b).) Defendant Robert L. Henry is one of five possible interest holders in the Subject Property identified in the Resolution of Necessity and in fact owns and dwells on the Subject Property. (Comp., Ex. D; Opp’n, Henry Decl., ¶ 2.) Service of the motion was made on him on October 4, 2022 via email to counsel Sullivan Workman & Dee, LLP. (Comp., Proof of Service.) 90 days after October 4, 2022 was Monday, January 2, 2023. Two additional court days for electronic service pushed the earliest hearing date for this motion to January 4, 2023. (Code Civ. Proc., § 1010.6, subd. (a)(3)(A).) Before continuance, the original hearing date for this motion was January 31, 2023—119 days after service thereof. Based on these calculations, the Court finds that this motion complies with Code Civil Procedure section 1255.410, subdivision (b).

III. Requirements of Code Civ. Proc., § 1255.410, subd. (d)(2)

As this motion is properly opposed, the City must meet the requirements of Code of Civil Procedure section 1255.410, subdivision (d)(2) before prejudgment possession can take place.

Subsections (A) and (B) of subdivision (d)(2) have already been established per this Court’s discussion ante related to Code of Civil Procedure 1255.410, subdivision (a)—i.e., City’s entitlement to take the property by eminent domain and deposit of an amount that satisfies the requirements of Code of Civil Procedure section 1255.010. (Code Civ. Proc., § 1255.410, subds. (d)(2)(A)-(B).)

Thus, to succeed on this motion, the City of Los Angeles must show (C) an overriding need for the City to possess the property prior to the issuance of final judgment in the case, such that the City will suffer a substantial hardship if the application for possession is denied or limited and (D) hardship that the City will suffer if possession is denied or limited outweighs any hardship on Defendant Henry that would be caused by the granting of the order of possession. (Code Civ. Proc., § 1255.410, subds. (d)(2)(C)-(D).

Subdivision (d)(2)(C): The Motion and Declaration of Michael Haddadin explain that the City has an overriding need to possess the Take Area prior to the issuance of final judgment in the case for two reasons: (1) “[m]uch of th[e] proposed bike path has already been completed but there is currently a significant gap in the bike path from Overland Avenue and Motor Avenue,” where “[t]emporary sharrows … [have been] installed on the streets,” “reduc[ing] the width of the street through this segment”, such that a “bike path is necessary to ensure the safety of the cyclists and pedestrians using this path as well as the surrounding vehicles and ongoing traffic”; and (2) “[t]he City’s current process requires that the City has possession of the right of way in order to issue a request for proposals, obtain bids, and award a contract and begin construction of the Project.” (Mot., 6:3-5, Haddadin Decl., ¶¶ 5, 10.)

The Motion and Declaration of Michael Haddadin also explain that a denial of prejudgment possession of the Take Area will harm the City because “[c]onstruction costs continue to rise and if prejudgment possession is not granted, increased costs could seriously restrict the Project or even make the Project prohibitive.” (Mot., 6:3-5, Haddadin Decl., ¶ 11.)

In Opposition, Defendant Henry argues that the City does not have an overriding interest in the bike path because the public has an alternative access path to connect travel from Exposition Park and Santa Monica (the direction of the bike path). (Opp’n, 4:25-5:4.)

Defendant Henry also argues on various grounds that the City will not suffer hardship is prejudgment possession is denied or limited, only two of which are relevant to this discrete analysis: the City only makes conclusory statements of hardship related to rising costs of construction without competent evidence; and the City’s own requirements that possession must be secured before bidding for construction work can begin is a problem of the City’s creation that it can rectify by changing its rules. (Opp’n, 6:5-22.)

In Reply, the City argues that Defendant Henry misstates the hardship to the City if prejudgment possession is not granted insofar as loss of funding is not incumbent on City rules, but rather, is related to the relationship between the City’s Department of Transportation Grant Fund and federal grant funds released to the California Department of Transportation (CalTrans), which, put simply, may be lost if the bike path right of way is not secured prior to February 28, 2023. (Reply, 5:3-6:13, Haddadin Decl., ¶¶ 7-13.) The Reply also reiterates the public safety concerns raised by the continued use of sharrows in the street near the Project segment and rise of construction costs faced by the City if prejudgment possession is not granted. (Reply, 6:14-24.)

Safety concerns raised by the City aside, the Court finds that the City has an overriding interest in securing prejudgment possession of the Take Area to ensure, at the very least, that no loss of funding occurs for a project of public interest that is almost completed. (Mot., 3:3-5, Haddadin Decl., ¶ 5 [“Much of this proposed bike path has already been completed but there is currently a significant gap in the bike path from Overland Avenue to Motor Avenue”]; Reply, 3:14-17 [“[T]he City must take legal possession of the Take Area by February 28, 2023, in order to proceed with pre-construction activities for the Project, including obtaining right of way certification of the Project with the State Department of Transportation (“Caltrans”) so that a final E-76 can issue before June 30, 2023, or risk losing funding”].)

For the same reasons, the Court also finds that denial of prejudgment possession in favor of the City could result in substantial hardship to the City if the funding for this nearly completed Project is lost.

Subdivision (d)(2)(D): The City of Los Angeles last argues that “[t]he City seeks prejudgment possession of a small portion of vacant land from the property, for which the landowner will be compensated,” and that “[b]alanced against any minimal hardship to the owner, if prejudgment possession is denied, there will be a substantial risk to public safety and an unnecessary increase in construction costs possibly even jeopardizing the construction of the Project.” (Mot., 6:9-12.)

In Opposition, and in relevant part, Defendant Henry argues that he will be prejudiced by the prejudgment possession and commencement of work on the Project because: construction of the bike path will “impact family plans at their home during the upcoming holiday season and hinder access to the Defendant’s property because the driveway boarders [sic] the proposed taking area” (Opp’n, 2:26-3:2); “vandalism and homeless encampments have occurred in the neighborhood in the past and … to open up Defendant’s side yard prematurely … will be a significant hardship and safety risk” where the City’s construction plans will leave Henry’s “side yard open for the public for seven months” (Opp’n, 3:2-11); taking of his property is premature where alternate routes of transportation exist (Opp’n, 4:28-5:4); the Subject Property is not vacant because Henry lives there and has “the undeniable reasonable expectation of quiet enjoyment in his home and a right to not be disturbed,” where, “coming out of a global pandemic, it is unreasonable to expect any property owner to be required to open their property to numerous construction workers whose vaccination or exposure history is unknown” (Opp’n, 5:7-15); the City has failed to provide competent evidence that Defendant Henry will not experience hardship (Opp’n, 5:16-18); the City has failed to file non-speculative evidence relating to the financial hardship it will suffer if prejudgment possession is not granted (Opp’n, 6:5-13); the City has failed to provide a specific time in which it seeks to take possession of the Take Area other than “‘as soon as possible,’” providing Defendant Henry with no notice of when the City intends to take possession, thus disrupting Henry’s quiet enjoyment of his property (Opp’n, 6:23-7:1); and the City has failed to provide critical information regarding the Project scope, including days, hours, and duration of construction, and has failed to indicate what security measures will be used to protect adjacent residences and backyards (Opp’n, 7:2-5.)

In Reply, the City of Los Angeles argues that hardship to Defendant Henry is mitigated by the facts that: actual physical possession and construction for the Project would not begin until August 2023 at the earliest (Reply, 7:8-24); case law holds that “it would ‘unduly hinder and delay or even prevent the construction of public improvements to hold compensable’ every interference that resulted in a decline in a property’s use or value or a business’ sales” where “[m]odern transportation requires continual street and traffic improvements, and the impacts from such improvements are ‘simply a risk the property owner assumes when he lives in a modern society under modern traffic conditions’” (Reply, 8:3-10); and “the General Requirements section of the anticipated contract for the construction of the Project will require the General Contractor to do construction work during regular business hours as permitted by local ordinance and to address and mitigate for all security, noise, lighting, and dust control issues,” with a “temporary construction security fence … [to be] erected between the Project boundary at the bottom of the hill and Henry’s backyard on the top of the hill” and “take area [to be] fenced off,” with work only to be performed in “the right of way” (Reply, 8:11-20, Haddadin Decl., ¶¶ 20-21).

The Court finds that the hardships discussed ante with respect to Code of Civil Procedure section 1255.410, subdivision (d)(1)(C) outweigh the hardships to Defendant Henry. The City’s briefing and supporting Declaration of Michael Haddadin properly explain the safeguards that the City will implement to ensure that Defendant Henry’s quiet enjoyment of his property will not be unduly affected beyond the proper “risk [of street and traffic improvements that] the property owner assumes when he lives in a modern society under modern traffic conditions.” (People v. Ayon (1960) 54 Cal.2d 217, 223-24.) The City thus meets the requirements of prejudgment possession set forth in Code of Civil Procedure section 1255.410, subdivision (d)(1)(D).

Accordingly, the City’s Motion for Order for Prejudgment Possession of the Take Area is GRANTED.

Conclusion

Plaintiff City of Los Angeles’s Motion for Order for Prejudgment Possession is GRANTED because the City’s fulfillment of the requirements of Code of Civil Procedure, section 1255.410 shows that the City is entitled to prejudgment possession of the property pursuant to California eminent domain statutes.