Department 58

Hearing Date: January 27, 2023

Case Name: City of Los Angeles v. James Greenwood et al.

Case No.: 22STCV09501

Matter: Motion for order for prejudgment possession

Moving Party: Plaintiff City of Los Angeles

Responding Party: Defendants James and Audrey Greenwood

Tentative Ruling: The motion for order for prejudgment possession is granted.

Background

In this eminent domain action, the City of Los Angeles (City) seeks to acquire a permanent public access easement across 8,586 square feet of the Property belonging to James and Audrey Greenwood (Defendants) located on Northvale Road in Los Angeles. The easement is necessary for the construction of the “Exposition Bike Path (Northvale Segment) Project” (Project). The easement at issue involves a 0.28 mile segment that is located at the back of the Property.

The City moves for an order of prejudgment possession. Defendants oppose the motion, arguing that they will suffer hardship because the construction will impact their obligations during the holiday season into Spring 2023. They also argue that prematurely opening the Property before the City’s plans have finalized will expose them to vandalism and homeless encampments.

Defendants’ objection to Michael M. Haddadin’s declaration is overruled.

Legal Standard

“Private property may be taken . . . for a public use and only when just compensation . . . has first been paid to, or into court for, the owner.” (Cal. Const., Art. I, § 19, subd. (a); see also Gov. Code, § 37350.5 [“A city may acquire by eminent domain any property necessary to carry out any of its powers or functions”].)

A plaintiff may move for prejudgment possession of property, “demonstrating that the plaintiff is entitled to take the property by eminent domain.” (Code Civ. Proc., § 1255.410, subd. (a).) “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).)

Discussion

The City seeks to take a public access easement “over approximately 8,586 square feet of vacant land from the subject property” which will not impact any existing structures. (Haddadin Decl., ¶¶ 7-9.) The easement is part of a bike path from Exposition Park to Santa Monica.

Here, the first two requirements under section 1255.410 are met. “A public entity may not commence an eminent domain proceeding until its governing body has adopted a resolution of necessity that meets the requirements of this article.” (Code Civ. Proc., § 1245.220.) “Except as otherwise provided by statute, a resolution of necessity adopted by the governing body of the public entity pursuant to this article conclusively establishes the matters referred to in Section 1240.030.”[1] (§ 1245.250, subd. (a).) The Los Angeles City Council adopted a Resolution of Necessity on November 30, 2021, with the findings required under Code of Civil Procedure section 1245.230. (Complaint, Ex. A.) The City has also deposited $88,200 with the State Treasurer Condemnation Deposit Fund. (§ 1255.010 [“At any time before entry of judgment, the plaintiff may deposit with the State Treasury the probable amount of compensation, based on an appraisal, that will be awarded in the proceeding”].) The City based this valuation on an appraisal of the fair market value of the easement. (You Decl., Ex. B.)

The City has shown an overriding need for prejudgment possession and substantial hardship if the motion was denied. Legal possession of the Property is necessary for the City to issue requests for proposals, obtain bids, and award contracts to begin construction. (Haddadin Decl. ¶ 10; Haddadin Reply Decl. ¶ 7.) However, actual possession and construction on the Property will not occur until August 2023. (Haddadin Reply Decl. ¶ 18.)

Defendant argues that the City can begin the contract procurement process without possession; however, the Project is funded by the City’s Department of Transportation’s “Transportation Grand Fund,” which draws from a federal grant to the California Department of Transportation (Caltrans). (Haddadin Reply Decl. ¶¶ 8-9.) Caltrans ensures that the local agencies administering the federal funds comply with applicable federal requirements. (Haddadin Reply Decl. ¶ 9.) In addition, if the allocation of funds is not obligated by a certain date, they are lost. (Id. at ¶ 10.)

For the City to secure federal funding for the Project, the City must have legal possession of the subject property no later than February 28, 2023. This date is derived from its precondition activities of obtaining a right of way certification from Caltrans and obtaining various “E-76” authorizations to begin construction. (Haddadin Reply Decl. ¶¶ 10, 12.) Only after the final “E-76” is issued can the City advertise the Project to solicit bids. (Id. at ¶ 16.)

Additionally, the City asserts that prejudgment possession is necessary to address safety concerns and construction costs. It states that temporary “sharrows” are being used through the segment where the Property stands but pose an ongoing public safety concern for bikers and inconvenience vehicular traffic because they reduce the width of the street. (Haddadin Reply Decl. ¶ 14. Moreover, the City asserts that any delays would cause a substantial increase in construction costs. (Haddadin Decl. ¶ 11.) Defendants’ contention that the sharrows exist as a viable alternative overlooks the risk to public safety.

The Court finds that the hardship the City would suffer if the motion were denied is outweighed by any claimed hardship that Defendants assert. Defendants make vague arguments: for example, they assert that the Property itself is not vacant; however, the “Take Area” is “vacant land on the bottom of the backyard without any improvements and is already subject to heavily restrictive use easement.” (Haddadin Reply Decl., ¶ 22.) They also argue that they have made improvements to the Property such as irrigation and landscaping but fail to offer any details and whether those improvements fall within the specific Take Area. (Greenwood Decl., ¶ 2.) Similarly, Defendants’ argument that the possession would impact their holiday and Spring 2023 plans is too speculative.

Defendants next argue that opening their Property “prematurely” would expose them to vandalism and homeless encampments. (Id. at ¶ 4.) It is not clear how this is the case given that actual possession of the Property will not take place until August 2023 and in any event, the presence of construction workers is likely to deter, rather than invite, a feared encampment. Furthermore, the City indicates that construction will commence at the bottom of the hill and a privacy screen will be enacted on Defendants’ Property at the top. (Haddadin Reply Decl., ¶ 20.)

Lastly, the dispute between whether the City will erect a fence or sound wall does not create uncertainty. The City states that Defendants and other property owners initially rejected the fence and wanted a sound wall; they then changed their mind. Defendants cannot manufacture a dispute and claim that it creates uncertainty in the Project when they themselves created that uncertainty. Their reliance on City of Stockton v. Marina Towers, LLC (2009) 171 Cal.App.4th 93, 115 is misplaced because that dealt with an agency’s failure to identify any project at all. Here, the Project has been identified, but Defendants take issue with minor details.

In sum, the City sufficiently explains why the procurement process depends on legal possession of the Property. Thus, granting legal possession to the City would expedite the timeline for the City to address safety concerns and mitigate construction costs. Based on the intended public use of the subject property and the compensation that the City is willing to pay to Defendants, the Court grants the motion for prejudgment possession.

[1] Section 1240.030 provides the conditions precedent prior to an entity exercising its eminent domain power.