Judge: Jon R. Takasugi, Case: 22STCV10093, Date: 2023-01-20 Tentative Ruling

Case Number: 22STCV10093    Hearing Date: January 20, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiff’s motion for prejudgment possession is GRANTED.

            On 3/23/2022, Plaintiff City of Los Angeles (Plaintiff or City) filed suit against Bruce S. Simon and Carol L. Simon, husband and wife, as joint tenants, alleging eminent domain.

Plaintiff now moves for an order of prejudgment possession.

Discussion

            In order to avail itself of CCP section 1255.410, Plaintiff’s 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.

            Then, pursuant to section 1255.410, subdivision (d)(2), if the motion not opposed within 30 days of service on each defendant, then 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.

(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

I.                   Entitlement

CCP section 1240.030 provides:

The power of eminent domain may be exercised to acquire property for a proposed project only if all of the following are established:

(a) The public interest and necessity require the project.

(b) The project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury.

(c) The property sought to be acquired is necessary for the project.

In establishing whether a Plaintiff is entitled to take possession of a property by eminent domain,

It should be noted that the determination of the plaintiff's right to take the property by eminent domain is preliminary only. The granting of an order for possession does not prejudice the defendant's right to demur to the complaint or to contest the taking. Conversely, the denial of an order for possession does not require a dismissal of the proceeding and does not prejudice the plaintiff's right to fully litigate the issue if raised by the defendant.

            Before the power of Eminent Domain is exercised, a public entity must consider and adopt a Resolution pursuant to the provisions of Part 3, Title 7, of the Code of Civil Procedure, commencing at section 1230.010. Pursuant to this Constitutional and Statutory authority, at a duly noticed meeting the City Council considered and adopted a Resolution of Necessity authorizing the commencement of eminent domain proceedings to acquire the take area. (Exh. A to Complaint.) In adopting the Resolution of Necessity, the Board made the findings required under Code of Civil Procedure sections 1240.030 and 1245.230. (Exh. A to Complaint.) The findings made by the City Council in the Resolution of Necessity are conclusively established. (Code Civ. Proc. § 1245.250.)

            In opposition, Defendant does not dispute entitlement.

II.               Deposit

On April 29, 2022, the City deposited the sum of 22,200, with the State Treasury Condemnation Deposits Funds as the probable amount of just compensation to be awarded to defendants. (Declaration of Aaron S. You in Support of Deposit; Notice of Deposit, both on file with the Court on September 13, 2022.) The amount of the deposit was based upon the appraisal provided by Aaron S. You, a certified real estate appraiser who appraised the fair market value of the take area at $22,200. (You Decl.)

In opposition, Defendant does not dispute the deposit.

III.            Overriding Need

Plaintiff argues that it has an overriding need for prejudgment possession because:

Commencement of the Project as soon as possible is necessary for public safety and to avoid the waste of taxpayer dollars due to rapidly increasing construction costs. Most importantly, the Project will provide for safer access and travel for cyclists and pedestrians as well as the surrounding vehicles and ongoing traffic. (Haddadin Decl. ¶¶ 5, 12.)

The 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. Accordingly, the City must have prejudgment possession of the take area before it can begin the contractor procurement process. (Haddadin Decl. ¶10.) Construction costs continue to rise and if prejudgment possession is not granted, increased costs could seriously restrict the Project or even make the Project prohibitive. Due to the serious public safety concerns as well as the rapidly increasing construction costs, prejudgment possession of the take area is required for the City to begin the contractor procurement and construction process as soon as possible. (Haddadin Decl. ¶¶ 11, 12.)

            (Motion, 4: 9-20.)

            In opposition, Defendants argue that there is no overriding need because: (1) due to the placement of temporary shallows, the public already, in fact, has the ability to travel in the manner of the stated purpose of the bike path; and (2) the Property is not vacant and is a portion of an improved property that is occupied by Defendants. Defendants have owned and have maintained their residence on the property for the past 27-years, and it “is unreasonable to expect any property owner to open their property to numerous construction workers whose vaccination or exposure history is unknown.” (Opp., 4: 24-5: 15.)

IV.            Hardship

A condemner is only entitled to possession upon also affirmatively establishing that "[t]here 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." (Code Civ. Proc. §1255.410, 2 subd. (d)(2)(C).)

Plaintiff 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. Balanced 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.” (Motion, 6: 8-11.) Moreover, the City must have prejudgment possession of the take area before it can begin the contractor procurement process. (4: 15-16.)

In opposition, Defendants argue they themselves will suffer significant hardship because:

-         “Immediate possession of the subject area on my property will cause a substantial hardship because the construction intrusion will impact our familial obligations during the upcoming holiday season. My family is hosting various holiday events at our home and construction will interfere with our quiet enjoyment of our property.” (Bruce Simon Decl., ¶ 3.)

-         Our only son is getting married and we will be hosting pre-wedding planning and various wedding activities through the Spring of 2023. (Bruce Simon Decl., ¶ 4.)

-         The back area of our property that is subject to the City's taking has been vandalized in the past and the police has been called to evict a homeless encampment. To prematurely open our property for construction for over seven months, when the City's plans are not even finalized, will create a significant hardship, and pose a significant safety risk to my family and property. (Bruce Simon Decl., ¶ 5.)

-         The project description remains uncertain due to an unresolved issue between the City and Defendants as to whether or not a sound barrier or fence will be installed at the property. (Bruce Simon Decl., ¶ 6.)

Defendants also argue that Plaintiff’s showing of harm is based on speculative and conclusory statements: “The City has not provided any specificity as to how the speculative increased construction costs would pose a hardship to the City. Public construction projects are frequently delayed without the harm speculated by the City. The City failed to provide any competent evidence that construction costs are in fact increasing.” (Motion, 6: 3-11.)

            Moreover, they argue that the fact that the City cannot move forward with contractor proposals is insufficient to show harm because it is the City’s own requirement that creates the problem.” (Opp., 6: 3-11.)

The Court agrees with Plaintiff.

While Defendants attempt to minimize the timing issue, Plaintiff’s reply makes clear just how sensitive the timing of prejudgment possession is here:

…the 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 that a final E-76 can issue before June 30, 2023 or risk losing funding. The Project cannot proceed until the City has possession of the Take Area but the actual physical possession of the Take Area and construction of the Project will not commence until late August 2023, at the earliest.

            (Reply, 2: 15-21.)

            Put another way, Plaintiff must have prejudgment possession of the property by February 28, 2023 or surrender funding for the project.

            Plaintiff also clarified that, contrary to Defendants’ contention, it is not able to change the procurement process to work around this issue:

One of the specific sources of TGF funding for the Project is through a Federal grant to Caltrans. As part of Metro’s 2009 Call for Projects (CFP), LADOT was awarded $4.4 million in Congestion Management Air Quality (CMAQ) funds, along with a local match commitment of $1.1 million, for an original project budget of $5.5 million for the implementation of this gap closure. Caltrans has the responsibility to ensure that local agencies are administering the Federal funds in conformance with the applicable Federal requirements. The allocation of the Federal funds to local agency projects is managed through a 10-year programming plan which has three phases. It is a “use it or lose it” funding program; that is, if the funds are not obligated by a certain date, they are lost. First, an E-76 is issued for Preliminary Engineering (“PE”), which includes environmental review and approval, culminating in 100% project plans which specify the exact project footprint. Then an E-76 is issued for acquisition of rights of way, including appraisals and negotiations. Once all of the rights of way have been acquired and a right of way certification is issued and certified by Caltrans, an E-76 authorization for construction will be issued for construction of the Project. Thereafter, bid solicitation is conditioned to this E-76 approval. (Haddadin Decl., ¶¶ 9-10.)

            (Reply, 5: 1-5.)

            Taken together, the Court agrees that the hardship to Plaintiff if possession is denied or limited outweighs the hardship to Defendants, given that the Project may lose funding and not be constructed at all if the City does not get legal possession by February 28, 2023. Such a date is neither arbitrary, nor a problem of Plaintiff’s own creation. Plaintiff has met its burden to show overriding need and risk of substantial hardship to justify prejudgment possession.

            Based on the foregoing, Plaintiff’s motion for prejudgment possession is granted.   

It is so ordered.

Dated:  January    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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