Judge: Curtis A. Kin, Case: 22STCV09973, Date: 2022-12-27 Tentative Ruling

Case Number: 22STCV09973    Hearing Date: December 27, 2022    Dept: 72

Plaintiff City of Los Angeles’ Motion for Order of Prejudgment Possession is GRANTED.

The evidentiary objection of defendant Regina Thomas, individually and as Trustee of the Regina Thomas 2009 Revocable Trust, is OVERRULED.

Plaintiff City of Los Angeles (“City”) moves for an order of prejudgment possession of parcel of property designated in Complaint as Work Order No. E1907693, Right-of-Way No. 33922-4A.

A plaintiff can move for prejudgment possession of property subject to eminent domain. (CCP § 1255.410(a).) “If the motion [for prejudgment possession] is opposed by a defendant…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.

(CCP § 1255.410(d)(2).)

The City demonstrates that it is entitled to take the subject property by eminent domain. Under the California Constitution, “Private property may be taken or damaged for a public use and only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner.” (Cal. Const. Art. I, § 19(a).) “A city may acquire by eminent domain any property necessary to carry out any of its powers or functions.” (Gov. Code § 37350.5.) “The court in which a proceeding in eminent domain is brought has the power to…[e]nforce any of its orders for possession by appropriate process. The plaintiff is entitled to enforcement of an order for possession as a matter of right.” (CCP § 1230.050(b).)

Here, the property to be taken is a public access easement over 1,239 square feet of vacant land. (Haddadin Decl. ¶¶ 7-9 & Ex. C to Complaint.) The easement is part of a bike path from Exposition Park to Santa Monica. (Ex. A to Complaint §§ 2, 3.) Further, on August 18, 2022, the City filed the declaration of real estate appraiser Aaron S. You, indicating that the fair market value of the subject property is $11,800. (8/18/22 You Decl. ¶ 4.)

“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.” (CCP § 1245.220.) It is undisputed that the Los Angeles City Council adopted a Resolution of Necessity on November 30, 2021, with the findings required under CCP § 1245.230. (Ex. A to Complaint.)

Based on the intended public use of the subject property and the compensation that the City is willing to pay for the property, the City demonstrates that it is entitled to take the subject property by eminent domain.

The City has also deposited $11,800 with the State Treasurer Condemnation Deposit Fund. (8/18/22 Notice of Deposit Ex. A; see also CCP § 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 also demonstrates an overriding need for prejudgment possession and resulting substantial hardship if the City’s motion were denied. The City requires possession of the subject property before it issues requests for proposals, obtains bids, awards contracts, and begins construction of the bike path. (Haddadin Decl. ¶ 10; Haddadin Reply Decl. ¶ 7.)

Defendant argues that the City can begin the contract procurement process without possession. As the City responds in the reply, the construction of bike path is being federally funded through a grant issued to the California Department of Transportation (“Caltrans”). (Haddadin Reply Decl. ¶ 9.) Caltrans ensures that the local agencies administering the federal funds comply with applicable federal requirements. (Haddadin Reply Decl. ¶ 9.) For the City to secure federal funding for the bike path, the City must have legal possession of the subject property no later than February 28, 2023, so that it can certify the right of way with Caltrans and obtain the final E-76 authorization for construction. (Haddadin Reply Decl. ¶¶ 10, 16.) Once the final E-76 is issued, the City can begin the contract procurement process. (Haddadin Reply Decl. ¶ 16.) The City sufficiently explains why the contract procurement process depends on having possession of the subject property.

Further, the City sufficiently explains that prejudgment possession is necessary to immediately address safety concerns and costs. The City explains that temporary sharrows were installed on the streets through the segment of the bike path wherein the subject property stands. (Haddadin Decl. ¶ 5.) The temporary sharrows reduce the width of the street, posing a safety danger for cyclists and pedestrians on the bike path and an inconvenience to vehicular traffic. (Haddadin Decl. ¶ 5.) The City also asserts that construction costs continue to rise. (Haddadin Decl. ¶ 11.) Granting legal possession to the City would speed up the timeline for the City to address safety concerns and mitigate construction costs.

Defendant does not demonstrate any hardship that outweighs the hardship that the City would suffer if prejudgment possession were denied. Defendant maintains that she has personal and work-related events taking place in her backyard through the spring of 2023. (Thomas Decl. ¶¶ 3, 6, 7.) Defendant also maintains that a portion of her home is used as a rental and that the popular rental times are winter and spring. (Thomas Decl. ¶ 8.) The City sufficiently addresses this concern by stating that construction would not commence until August 2023. (Haddadin Reply Decl. ¶¶ 18, 19.)

Further, any assertion that construction would require entry into defendant’s backyard is without merit. The City explains that the subject property where the bike path will be constructed is at the bottom of the hill on defendant’s property and that defendant’s backyard, located at the top of the hill, will be fenced off and a privacy screen will be erected. (Haddadin Reply Decl. ¶¶ 20, 21.) The subject property is vacant land. (Haddadin Decl. ¶ 9; Haddadin Reply Decl. ¶ 22.) Defendant cannot demand that the subject property “be left in its original condition for all time” as “[m]odern transportation requirements necessitate continual improvement of streets and relocation of traffic.” (See People ex rel. Department of Public Works v. Ayon (1960) 54 Cal.2d 217, 222.)

Because plaintiff City of Los Angeles satisfies the requirements of CCP § 1255.410(d)(2), the motion is GRANTED.