Judge Robert B. Broadbelt, Case Number: 23STCV13914, Date: 2024-01-12 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 23STCV13914, Date: 2024-01-12 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

MOVING PARTY: Plaintiff The People of the State of California, acting by and through the Department of Transportation

The court considered the moving papers filed in connection with this motion. No opposition papers were filed.

Plaintiff The People of the State of California, acting by and through the Department of Transportation (“Plaintiff”), moves the court for an order for possession of the property described in its Complaint as Parcel 81647-1 and Parcel 81647-2 (collectively, the “Property”).

“At the time of filing the complaint or at any time after filing the complaint and prior to entry of judgment, the plaintiff may move the court for an order for possession under this article, demonstrating that the plaintiff is entitled to take the property by eminent domain and has deposited . . . an amount that satisfies the requirements of that article. [¶] The 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.” (Code Civ. Proc., § 1255.410, subd. (a).) The motion shall also include a statement in substantially the form set forth by statute, which informs the served party that it has the right to oppose the motion, that such an opposition must be served on the plaintiff and filed with the court within 30 days from the date of service of the motion, and that if the opposing party asserts hardship, it must be supported by a declaration stating facts in support of the asserted hardship. (Ibid.)

As a threshold matter, the court finds that Plaintiff has served all the parties to this action. (Code Civ. Proc., § 1255.410, subd. (b).)

Plaintiff has presented evidence showing that (1) Plaintiff personally served, on September 28, 2023, the pending motion and supporting papers on defendants Blue Wolverines, LLC, Nuckles Oil Company, Inc., Van Dyk Tank Lines, Inc., Southern California Edison Company, Landmark Infrastructure Holding Company, Inc., LD Acquisition Company 12 LLC, California Water Service Group, Regency Outdoor Advertising, Inc., and Enterprise Bank & Trust;[1] (2) after being served with the pending motion, defendant Enterprise Bank & Trust filed a Disclaimer of Interest, disclaiming interest or title in the Property and therefore asserting that it has no right to participate in further proceedings; (3) after service of this motion and on December 13, 2023, defendants Landmark Infrastructure Holding Company, LLC and LD Acquisition Company 12 LLC were dismissed; (4) after service of this motion and on January 25, 2024, defendant Regency Outdoor Advertising, Inc. was dismissed; and (5) the remaining defendants did not file opposition papers with the court 30 days from the September 28, 2023 date of service. (Enterprise Bank & Trust Disclaimer of Interest filed October 11, 2023; Code Civ. Proc., § 1255.410, subd. (c) [“Not later than 30 days after service of the plaintiff’s motion seeking to take possession of the property, any defendant or occupant of the property may oppose the motion in writing by serving the plaintiff and filing with the court the opposition”].)

Further, on December 1, 2023, Plaintiff filed an Amendment to Complaint, substituting defendant KBS Holdco, LLC, d/b/a Regency Outdoor Advertising, Inc. (“KBS”) for the fictitious name of Doe 2. Plaintiff served the motion and supporting papers on “Regency Outdoor Advertising, Inc. and KBS Holdco, LLC[,]” i.e., the entities described as KBS, on January 16, 2024. (Proof of Service filed Jan. 18, 2024.) KBS did not file an opposition within 30 days after service of this motion (by February 15, 2024). (Code Civ. Proc., § 1255.410, subd. (b).)

Because no opposition papers were filed, the court “shall make an order for possession” of the subject property upon a finding that Plaintiff (1) is entitled to take the property by eminent domain and (2) has deposited an amount that satisfies the requirement of Article 1 (commencing with Section 1255.010). (Code Civ. Proc., § 1255.410, subd. (d)(1).)

First, the court finds that Plaintiff has shown that it is entitled to take the Property by eminent domain. (Code Civ. Proc., § 1255.410, subd. (d)(1)(A).)

“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.” (Code Civ. Proc., § 1240.030.) Further, “[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.) Plaintiff’s governing body is the California Transportation Commission. (Code Civ. Proc., § 1245.210, subd. (e) [as used in the statutes, a governing body means, “[i]n the case of a taking by the Department of Transportation . . ., the California Transportation Commission”].) The California Transportation Commission passed and adopted Resolution of Necessity number C-22255 on March 23, 2023, declaring that the Property at issue in this action is necessary for state highway purposes. (Farr Decl., ¶ 5; Farr Decl., Ex. A, Transportation Commission Resolution No. C-22255, pp. 1:10-12, 3 [describing Parcel 81647-1], 4 [describing Parcel 81647-2]; Compl., ¶ 3 [describing the Property].)

The court finds that Plaintiff has shown that it is entitled to take the Property by eminent domain because (1) a resolution of necessity adopted by a public entity’s governing property “conclusively establishes” the requirements for an exercise of the power to acquire property, (2) Plaintiff has shown that its governing body, the California Transportation Commission adopted a resolution of necessity as to the project concerning the Property, and therefore (3) Plaintiff has shown that it may exercise the power of eminent domain to acquire the Property for its project. (Code Civ. Proc., §§ 1245.250, subd. (a), 1240.030.)

Second, the court finds that Plaintiff has shown that it has deposited an amount that satisfies the requirement of Article 1. (Code Civ. Proc., § 1255.410, subd. (d)(1)(B).)

Plaintiff has submitted (1) evidence showing that it deposited, on July 12, 2023, with the State of Treasurer, the amount of $35,500, and (2) the declaration of Bryan Tao, the Senior Right of Way Agent employed by the Department of Transportation, who states that the opinion of the amount of probable just compensation that will be awarded in this action is $35,500. (Choi Decl., Ex. A, Notice of Deposit and Summary of the Basis for Appraisal, pp. 2-3; Choi Decl., “Ex. A” to Ex. A, Notice of Deposit and Summary of the Basis for Appraisal [Appraisal Summary Statement for the Property].)

Third, the court finds that Plaintiff’s motion satisfies the requirements of Code of Civil Procedure section 1255.410, subdivision (a). The motion (1) describes the property of which Plaintiff is seeking to take possession by referencing the detailed description set forth in its Complaint, (2) states the date after which Plaintiff is seeking to take possession of the Property (February 29, 2024), and (3) includes the language regarding the requirements of any opposition in substantially the form set forth by statute. (Code Civ. Proc., § 1255.410, subd. (a); Notice of Mot., p. 2:14-17, 2:22-28; Memo., pp. 2:17-19, 6:3-5.)

The court grants plaintiff People of the State of California’s motion for order for possession.

The court orders, pursuant to Code of Civil Procedure section 1255.460, that plaintiff People of the State of California may take possession of the real property described in paragraph 3 of the Complaint filed by plaintiff People of the State of California on June 15, 2023, after February 29, 2024.

The court orders plaintiff People of the State of California to give notice of this ruling.

[1] Plaintiff did not serve defendants Los Angeles County Sanitation District No. 2, California Water Service Group, Pacific Bell Telephone Company, d/b/a AT&T California, as successor in interest to The Pacific Telephone and Telegraph Company, Gordon Sand Company, Ticor Title Company of California, CDC Small Business Finance Corp., a/k/a CDC Small Business Finance, United States Small Business Administration, and Umpqua Bank. However, these defendants all filed with the court disclaimers of interest in the subject Property. (Los Angeles County Sanitation District No. 2’s Disclaimer of Interest, filed September 19, 2023; California Water Service Group’s Disclaimer of Interest filed July 18, 2023; Pacific Bell Telephone Company, d/b/a AT&T California, as successor in interest to The Pacific Telephone and Telegraph Company’s Stipulation and Disclaimer of Interest filed August 8, 2023; Gordon Sand Company’s Disclaimer of Interest filed August 22, 2023; Ticor Title Company of California’s Disclaimer of Interest filed June 28, 2023 and August 8, 2023; CDC Small Business Finance Corp., a/k/a CDC Small Business Finance’s Disclaimer of Interest, filed August 8, 2023; United States Small Business Administration’s Disclaimer of Interest filed August 11, 2023; and Umpqua Bank’s Disclaimer of Interest filed August 28, 2023.)

the people of the state of california, acting by and through the Department of Transportation ; Plaintiff, vs. blue wolverines, llc , et al.; Defendants.	Case No.:	23STCV13914

	Hearing Date:	February 20, 2024

	Time:	10:00 a.m.

	[Tentative] Order RE: plaintiff’s motion for order for possession