Judge: Carolyn M. Caietti, Case: 37-2023-00022288-CU-PT-CTL, Date: 2023-08-16 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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TENTATIVE RULINGS - July 28, 2023

07/28/2023  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Petitions - Other Hearing on Petition 37-2023-00022288-CU-PT-CTL THE PEOPLE OF THE STATE OF CALIFORNIA VS TOBIASON [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Petitioner The People of the State of California's Petition for Order Permitting Entry on Property is GRANTED IN PART AND CONTINUED IN PART.

Petitioner is the state agency responsible for the planning, design and construction of the state highway system and is vested with the authority to exercise the power of eminent domain for state highway purposes. In this matter, Petitioner seeks an order permitting entry on property pursuant to C.C.P.

section 1245.030 as necessary for a potential SR-67 Highway Improvements Project. Consistent with the Constitutional authority to take private property for a public use, the Legislature enacted Code of Civil Procedure sections 1245.010-1245.060 to allow public entities to conduct preliminary activities on properties as part of their planning procedures prior to the commencement of, or commitment to, a condemnation action. In reviewing these statutory provisions, the California Supreme Court explained this procedure was authorized '...to avoid the ill-advised and premature condemnation of private property...' (Property Reserve Inc. v. Superior Court (2016) 1 Cal.5th 151, 200.) The Court previously granted the petition in part as to certain respondents. (ROA 43 – Minute Order; ROA 55 – Order Permitting Entry on Property.) Currently before the Court is the petition as to Respondents Luana Stines, Harold and Shirley Harrison, Charmagne and Brian Garrett and Nolan and Alexandra Colwell. At the hearing on July 14, 2023, these respondents appeared and the Court continued the matter to allow another opportunity to file an opposition.

The Harrisons filed an opposition with concerns regarding their business and 30 horses at the property.

(ROA 52-53.) The petition will be granted subject to the conditions outlined below.

As of this writing, there are no other oppositions on file. The Court finds these respondents received notice of the petition and this hearing. (C.C.P., § 1245.030(a).) Petitioner seeks to enter the properties for the purpose of enabling Petitioner and its consultants to complete environmental activities related to the acquisition or use of the subject properties for potential improvements to State Route 67.

The nature and scope of the activities that are reasonably necessary to accomplish the above-stated purpose include environmental investigatory activities (site reconnaissance, biological investigation), hazardous materials investigations, noise monitoring and cultural studies. More specifically, Petitioner Calendar No.: Event ID:  TENTATIVE RULINGS

2997067  47 CASE NUMBER: CASE TITLE:  THE PEOPLE OF THE STATE OF CALIFORNIA VS TOBIASON  37-2023-00022288-CU-PT-CTL seeks to: (i) document wildlife sightings and observations of habitat, sensitive vegetation communities, and rare plants; (ii) determine the elemental composition of soil and recording observations using a handheld Xray fluorescent analyzer at spot locations; (iii) identify locations where future hazardous materials investigations may need to occur; (iv) install and remove a noise meter facing existing SR-67 for a 1-hour short term measurement and a 24-hour long term measurement to establish baseline noise levels at various locations; and (v) search for and record cultural resources observed on the surface of the ground.

The entry and activities will not unreasonably interfere with Respondents' possession and use of their properties.

The entry and activities may result in minimal – if any – actual damage to the properties and/or interference with its possession and use. (See, ROA 4 – Declaration of Cynthia Hoffman Paz, at ¶¶ 10-19.) The Court previously ordered a deposit as required by C.C.P. section 1245.030(c).

For these reasons, the petition is GRANTED as to Respondents Luana Stines (APN 278-260-37-00), Harold and Shirley Harrison (APN 377-262-29-00), Charmagne Garrett and Brian Garrett (APN 278-261-19-00) and Nolan Colwell and Alexandra Colwell (APN 278-261-21-00, 278-391-08-00).

With regard to the inspection of Harold and Shirley Harrison's property, Petitioner is ordered to meet and confer by August 4, 2023, with the Harrisons to discuss: (i) a mutually agreeable date for the inspection to occur no later than August 18, 2023; and (ii) the locations of the property where the inspection and activities will take place so that it will lessen any impact on the Harrisons' business and the horses.

Petitioner shall also return any disturbed portion of the property to its condition before its access at its own cost. The Court does not order the Harrisons' request for the right to reschedule and reserves on ordering any compensation to Respondents.

At the hearing on July 14, 2023, Petitioner represented it filed a request for dismissal as to Respondent Lisa Ellen Dominguez Alvarez. As of this writing, that request was not entered. (ROA 46.) As to all other respondents, including Mitchell David Borden, Leslie Lyons and Janice Wong-Lyons, Fahrenheit Condos, LLC, Earl Bryan Lim and Leslie Lim, Chole Bajwa and Charlie Wyman, John Difederico, Lloyd Babineau and Linda Ruth Villarreal, the petition is CONTINUED to September 1, 2023, at 10:30 a.m. in Department 70, consistent with the Court's orders on July 14, 2023.

As indicated by the Court on July 14, 2023, Judge Mohr's order on June 30, 2023, regarding service remains in effect and Petitioner may effectuate service in accordance with that order.

Petitioner is ordered to: (i) give notice of the September 1, 2023, hearing to all remaining respondents if it has not done so already; and (ii) prepare and submit a proposed order consistent with these orders and those previously made on July 14, 2023. (See, ROA 55.) Calendar No.: Event ID:  TENTATIVE RULINGS

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