Judge: Stephen I. Goorvitch, Case: 22STCV09322, Date: 2023-02-03 Tentative Ruling

Case Number: 22STCV09322    Hearing Date: February 3, 2023    Dept: 39

City of Los Angeles v. George E. Ainslie, et al.

Case No. 22STCV09322

Motion for Order for Prejudgment Possession

INTRODUCTION

            The City of Los Angeles (the “City”) filed this complaint in eminent domain, per Code of Civil Procedure section 1250.310, against George E. Ainslie and Cindy L. Ainslie (the “Anslies”).  Now, the City moves for prejudgment possession of the property at issue, and the Ainslies oppose the motion.  The motion is granted.

FACTUAL BACKGROUND

            The City filed this action to acquire a permanent public easement to a portion of the Ainslies’ property, which is located at 3165 Motor Avenue in Los Angeles, California.  (Declaration of Michael M. Haddadin, ¶¶ 7, 9.)  The City seeks to acquire this property in order to construct a continuous bike path from Exposition Park to Santa Monica.  (Id., ¶ 5.)  The City seeks a permanent public access easement over approximately 2,026 square feet of vacant land from the Ainslies’ property.  (Id., ¶ 9.)  The project would not impact any existing structures on the Ainslies’ property.  (Ibid.)  Much of the bike path has already been completed but there is a gap from Overland Avenue and Motor Avenue.  (Id., ¶ 5.)  Temporary sharrows were installed on the streets through this segment, but the City seeks to complete the bike path to ensure the safety of the cyclists and pedestrians using this path as well as the surrounding vehicles and ongoing traffic.  (Ibid.)  The sharrows cannot be used permanently because they reduce the width of the street through this segment, which poses an ongoing public safety concern and inconvenience for vehicular traffic.  (Ibid.)

PROCEDURAL HISTORY

            At a public hearing on November 30, 2021, the City Council considered and adopted a Resolution of Necessity authorizing the commencement of eminent domain proceedings to acquire the subject property.  (See Complaint, Exh. A.)  The City Council found: (1) The pubic interest and necessity require the project; (2) The project is planned and located in a manner that will be most compatible with the greatest public good and the least private industry; (3) The Ainslies’ property is necessary for the project; and (4) The offer requirement of Government Code section 7267.2 has been satisfied.  (Ibid.)  Prior to filing the complaint, the City “engaged in repeated negotiations with the owner in an effort to purchase the take area at the appraised value and acquire access to the take area voluntarily.”  (Declaration of Michael M. Haddadin, ¶ 13.)  The negotiations were unsuccessful.  (Ibid.) 

            The City filed the complaint in eminent domain on March 16, 2022.  On April 29, 2022, the City deposited the sum of $27,600 with the State Treasury Condemnation Deposits Fund as the probable amount of just compensation to be awarded to the Ainslies.  (Declaration of Aaron S. You, ¶ 4.)  The Court held a case management conference on July 20, 2022, at which the parties indicated that they were attempting to resolve the issue and would participate in a mediation as necessary.  The City filed a motion for prejudgment possession on September 26, 2022, and noticed the hearing on the motion for January 25, 2023.  The Court continued the hearing to February 3, 2023, due to the Court’s trial schedule and an unexpected absence by the judge. 

LEGAL STANDARD

            The California Supreme Court has recognized that “[t]he power of eminent domain is an inherent attribute of sovereignty.”  (City of Oakland v. Oakland Raiders (1982) 32 Cal.3d 60, 64, citing County of San Mateo v. Coburn (1900) 130 Cal. 631, 634.)  “When properly exercised, that power affords an orderly compromise between the public good and the protection and indemnification of private citizens whose property is taken to advance that good.”  (Ibid.)  Simply, the City has the right to take property for the public good but must compensate the owner.  (Code Civ. Proc., § 1230.010, et seq.) 

            The City may take early possession of the property before the litigation is concluded “upon deposit in court and prompt release to the owner of money determined by the court to be the probable amount of just compensation.”  (Mt. San Jacinto Community College Dist. v. Superior Court (2007) 4 Cal.4th 648, 653, citing Cal. Const., art. 1, ¶ 19; Code Civ. Proc., § 1255.410.)  In order to do so, the City must demonstrate that it is entitled to take the property by eminent domain and that it has deposited the probable amount of compensation.  (Code Civ. Proc., § 1255.410(d)(2)(A), (B).  The City must demonstrate that there is an overriding need to possess the property prior to the issuance of a final judgment, and that the City will suffer a substantial hardship if the application for early possession is denied or limited.  (Code Civ. Proc., § 1255.410(d)(2)(C).)  The City’s hardship must outweigh any hardship on the owner or occupant that would be caused by issuing an order of possession.  (Code Civ. Proc., § 1255.410(d)(2)(C), (D).)

EVIDENTIARY ISSUES

            The Ainslies object to Paragraph #11 of the declaration of Michael M. Haddadin.  The Court did not rely on this paragraph in ruling on the motion, so the Court need not rule on this objection. 

DISCUSSION

            A.        The City is entitled to take the property by eminent domain

            The City is entitled to take the property by eminent domain, as the Government Code is clear: “A city may acquire by eminent domain any property necessary to carry out any of its powers or functions.”  (Gov. Code, § 37350.5.)  The Ainslies argue that the City is not entitled to take property by eminent domain, arguing that the “[s]tatutory language defining eminent domain powers is strictly construed and any reasonable doubt concerning the existence of the power is resolved against the entity.”  There can be no dispute that a city has this authority, given the plain language of section 37350.5.  “If there is no ambiguity in the plain language of a statute, a court presumes the lawmakers meant what they said, and the plain meaning of the language governs.”  (Allen v. Sully-Miller Contracting Co. (2002) 28 Cal.4th 222, 227, 120 Cal.Rptr.2d 795, 47 P.3d 639.)     

            B.        The City has deposited the probable amount of just compensation

            The City deposited $27,600 with the State Treasurer.  (See Notice of Deposit of Probable Just Compensation, filed on September 12, 2022.)  This amount was based on an appraisal by Aaron S. You.  (See Declaration of Aaron S. You, ¶¶ 3-4.)  The Ainslies present no contrary evidence or argue that the appraisal is incorrect.

            C.        The City has an overriding need to possess the property

            The City has an overriding need to possess the property.  Much of the bike path has already been completed but there is a gap from Overland Avenue and Motor Avenue.  (Declaration of Michael M. Haddadin, ¶ 5.)  The City seeks to complete this segment to ensure  the safety of the cyclists and pedestrians using this path as well as the surrounding vehicles and ongoing traffic.  (Ibid.)  “This safety gap needs to be closed urgently.”  (Supplemental Declaration of Michael M. Haddadin, ¶ 14.)    

            Putting aside the safety concerns, the City risks losing funding for this project without prejudgment possession.  (Supplemental Declaration of Michael M. Haddadin, ¶¶ 6-13.)  The City must have legal possession of the land no later than February 28, 2023, in order to certify the right of way with Caltrans.  (Id., ¶ 16.)  Once that occurs, an E-76 authorization for construction will be issued for the project.  (Id., ¶ 10.)  A final E-76 can only be issued once all of the right of way is certified by Caltrans.  (Id., ¶¶ 9-12.)  The funds must be obligated, and a final E-76 must be issued by June 30, 2023, or the funding will be lost.  (Id., ¶ 12.)  Moreover, the City must have possession in order to request proposals, obtain bids, and award the contract.  (Declaration of Michael M. Haddadin, ¶¶ 6-7.) 

            In sum, the City has demonstrated that it has an overriding need to possess the property in order to resolve an ongoing safety issue and to complete the project.  The City has demonstrated that the project would be jeopardized without prejudgment possession.  Therefore, the City has satisfied its burden.

            D.        The City’s hardship outweighs any hardship by Ainslies

            Finally, the City has demonstrated that its hardship outweighs any hardship by the Ainslies.  As an initial matter, the Ainslies’ opposition is defective because they fail to include “a declaration signed under penalty of perjury stating facts supporting the hardship,” as required by Code of Civil Procedure section 1255.410(a) & (c).  Putting that aside, the Ainslies’ arguments in the opposition do not establish that any hardship outweighs that to the City in not having prejudgment possession of the property.  The Aisnlies cite the pandemic and argue that their health would be jeopardized by requiring them “to open their property to numerous construction workers whose vaccination or exposure history is unknown.”  This argument is not persuasive because the construction would not occur in the proximity to the Ainslies or their house, and the Ainslies could effectively protect themselves by maintaining social distancing from any workers.  The Ainslies argue that the construction would impact the property “during the holidays and up through at least the end of Spring 2023.”  However, the City noticed this motion for hearing after the holidays, which accommodates this concern.  The Ainslies focus generally on the potential disruption to the quiet enjoyment of their property where they reside.  The Court is not unsympathetic to this concern.  However, the construction would occur on the edge of their property; the disruption would be temporary; and any taking of this nature would impact the property owners’ quiet enjoyment.  The Court cannot conclude that these hardships outweigh the hardships identified by the City.  The Court has considered the Aisnlies’ remaining arguments but finds that none overcomes the City’s hardship in not having prejudgment possession of the property.

CONCLUSION AND ORDER

            Based upon the foregoing, the Court grants the City’s motion for prejudgment possession of the property at issue.  The Court shall issue this minute order and sign the City’s proposed order.  The City shall provide notice and file proof of such with the Court.