Judge: Carolyn M. Caietti, Case: 37-2023-00022288-CU-PT-CTL, Date: 2023-09-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 31, 2023

09/01/2023  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 DISMISSED IN PART.

Background 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.) At a status conference on June 30, 2023, the Court authorized 'service by email, 1st class mail, overnight delivery with signature, overnight delivery without signature, leaving the served documents in the 'bin' near the mailbox and telephone call, speaking with or leaving a message. All of the above must be done to effectuate service.' (ROA 24 – Minute Order (emphasis added).) At the hearing on July 14, 2023, the Court granted the petition in part as to some respondents and continued the petition in part to July 28, 2023, as to other respondents who appeared at the hearing, and to September 1, 2023, as to other respondents whose service was not confirmed. (ROA 43 – Minute Order; ROA 55 – Order Permitting Entry on Property.) At the hearing on July 28, 2023, the Court granted the petition in part as to certain respondents and continued the matter as it relates to Respondent Luana Stines. (ROA 57 – Minute Order; ROA 64 – Order Permitting Entry on Property.) Discussion Currently before the Court is the petition as to Respondents Luana Stines; Mitchell David; Fahrenheit Condos, LLC; Linda Ruth Villarreal; Leslie Lyons & Janice Wong-Lyons; Earl Bryan Lim & Leslie Lim; Chole Bajwa & Charlie Wyman; John Defederico; Lloyd Babineau; and Lisa Ellen Dominguez Alvarez.

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2997070  43 CASE NUMBER: CASE TITLE:  THE PEOPLE OF THE STATE OF CALIFORNIA VS TOBIASON  37-2023-00022288-CU-PT-CTL Dr. Stines submitted a motion to strike (ROA 60), which the Court construed as an opposition. No other oppositions have been received from the other respondents at issue for this hearing.

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.) There is no proof of service on Lisa Ellen Dominguez Alvarez. The petition against her is DISMISSED.

On review of the proofs of service filed by Petitioner, the Court confirms all other respondents have been served with notice of the petition package and of this hearing. (See, ROA 47, 77-84.) The petition is GRANTED as to Respondents Luana Stines, Mitchell David, Fahrenheit Condos, LLC, Linda Ruth Villarreal, Leslie Lyons & Janice Wong-Lyons, Earl Bryan Lim & Leslie Lim, Chole Bajwa & Charlie Wyman, John Defederico and Lloyd Babineau.

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 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 Court considered Dr. Stines' opposition and does not agree her previous receipt of a Major Use Permit precludes Petitioner from entering and conducting the activities described pursuant to C.C.P.

section 1245.030.

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 Luana Stines (APN 278-260-37-00), Mitchell David (APN 278-372-04-00), Fahrenheit Condos, LLC (APN 322-010-45-00), Linda Ruth Villarreal (APN 377-262-07-00), Leslie Lyons & Janice Wong-Lyons (APN 278-261-20-00), Earl Bryan Lim & Leslie Lim (APN 324-010-62-00), Chole Bajwa & Charlie Wyman (326-020-10-00), John Defederico (375-041-46-00) and Lloyd Babineau (APN 377-262-02-00).

Concluding Orders Petitioner is ordered to prepare and submit a proposed order consistent with these orders and those previously made on July 14, 2023 and July 28, 2023. (See, ROA 55 & 64.) Calendar No.: Event ID:  TENTATIVE RULINGS

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