Judge: Teresa A. Beaudet, Case: 22STCV33346, Date: 2023-11-28 Tentative Ruling

Case Number: 22STCV33346    Hearing Date: November 28, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On October 12, 2022, Plaintiff Los Angeles County Metropolitan Transportation Authority (“LACMTA”) filed this eminent domain action against, inter alia, Century City Mall, LLC (“Century City”).

LACMTA seeks to acquire by eminent domain (1) four exclusive permanent subsurface easements; (2) a 6-month temporary construction easement; and (3) a 12-month access area for the installation, monitoring, and removal of liquid level gauge devices within the real property located at 1801 Avenue of the Stars and 1930 Century Park West, Los Angeles, California 90067 (also known as the Westfield Century City Mall). (Compl., ¶ 2.) LACMTA seeks to acquire these property interests for the development, construction, operation, and maintenance of the Westside Purple Line Extension Section 3 Project. (Compl., ¶ 4.)

On October 17, 2022, LACMTA filed a previous motion for order for prejudgment possession. On December 6, 2022, the Court issued a minute order providing, inter alia, that “[t]he Motion for Order for Prejudgment Possession filed by LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, A CALIFORNIA PUBLIC ENTITY on 10/17/2022 is Withdrawn.”  

LACMTA now moves for an order for prejudgment possession of certain real property interests that are contained within the real property located at 1801 Avenue of the Stars and 1930 Century Park West, Los Angeles, California 90067. On November 13, 2023, Century City filed a “Request for Mitigation Measures of [Century City] to [LACMTA’s] Motion for Order for Prejudgment Possession.”  

Request for Judicial Notice

The Court grants LACMTA’s request for judicial notice. 

Legal Standard

“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 pursuant to Article 1 (commencing with Section 1255.010) an amount that satisfies the requirements of that article.” (Code Civ. Proc., § 1255.410, subd. (a).)

If a motion for order for possession is unopposed, the court shall issue a prejudgment order for possession if plaintiff has demonstrated the threshold requirements that it has the right to take the property and has made the required deposit. (Code Civ. Proc., § 1255.410, subd. (d)(1).) If the motion is opposed, “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.”
(Code Civ. Proc., § 1255.410, subd. (d)(2).)

“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.” (Legislative Committee Comments to Code Civ. Proc., § 1255.410.)

As an initial matter, as set forth above, Century City filed a document captioned “[Century City’s] Request for Mitigation Measures of [Century City] to [LACMTA’s] Motion for Order for Prejudgment Possession.” In the request, Century City states, inter alia, that “Plaintiff Metro has now appraised the land together with the improvements, and has the power to take the subsurface easement by eminent domain. Thus, technically, Century City Mall does not oppose the motion on those grounds, but defendant Century City Mall requests that any order for prejudgment possession include those previous mitigation measures, as set forth in Exhibits A and B to this document.” (Century City’s Request at p. 2:7-11.)

Thus, Century City states that it “technically…does not oppose the motion…” (Request at p. 2:8-9), In addition, as discussed in further detail below, Century City’s Request was not filed or served within “30 days after service of the plaintiff’s motion seeking to take possession of the property…” (Code Civ. Proc., § 1255.410, subd. (c).) Accordingly, the Court agrees with LACMTA that the instant motion is governed by Code of Civil Procedure section 1255.410, subdivision (d)(1).

Discussion

LACMTA states that the instant motion “seeks pre-judgment possession of four exclusive permanent subsurface easements…with a starting date of January 1, 2024.” (Notice of Mot. at p. ii:17-19.) The four exclusive permanent subsurface easements (“Permanent Easements”) are within the real property located at 1801 Avenue of the Stars and 1930 Century Park West, Los Angeles, California 90067 (also known as the Westfield Century City Mall), in the County of Los Angeles. (Crow Decl., ¶ 8.) LACMTA indicates that the Permanent Easements are necessary for Section 3 of the Westside Purple Line Extension Project. (Crow Decl., ¶¶ 1, 8.)

            As set forth above, Code of Civil Procedure section 1255.410, subdivision (d)(1) provides that “[i]f the motion is not opposed within 30 days of service on each defendant and occupant of the property, 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.”

1.      Right to Take

LACMTA asserts that it is entitled to take the Permanent Easements by eminent domain.

            Pursuant to Code of Civil Procedure section 1240.030, “[t]he 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.” Pursuant to Code of Civil Procedure section 1245.250, subdivision (a), “[e]xcept as otherwise provided by statute, a resolution of necessity adopted by the governing body of the public entity pursuant to this article conclusively establishes the matters referred to in Section 1240.030.”

            Here, LACMTA alleges in the Complaint that on or about May 27, 2021, the LACMTA Board of Directors (“Board”), by a vote of not less than two-thirds of its members and after providing due notice and an opportunity to be heard to all those entitled to same, adopted a Resolution of Necessity authorizing LACMTA to acquire the subject property interests by eminent domain. (Compl., ¶ 15, Ex. E.) The Resolution of Necessity provides, inter alia, that the Board has determined that the public interest and necessity require the proposed project; the proposed project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury; the property sought to be acquired is necessary for the proposed project; the offer required by Government Code section 7267.2 has been made to the owner; and environmental review consistent with CEQA for the project has been previously certified by the Board. (Ibid.)

Century City does not dispute that LACMTA is entitled to take the Permanent Easements by eminent domain. Rather, Century City states in its Request that LACMTA “has the power to take the subsurface easement by eminent domain…” (Century City’s Request at p. 2:7-8.)

2.      Just Compensation Deposit

LACMTA also asserts that a deposit of probable compensation has been made. 

Pursuant to Code of Civil Procedure section 1255.010, subdivision (a), “[a]t 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 appraisal upon which the deposit is based shall be one that satisfies the requirements of subdivision (b). The deposit may be made whether or not the plaintiff applies for an order for possession or intends to do so.” Pursuant to Code of Civil Procedure section 1255.010, subdivision (b), “[b]efore making a deposit under this section, the plaintiff shall have an expert qualified to express an opinion as to the value of the property (1) make an appraisal of the property and (2) prepare a written statement of, or summary of the basis for, the appraisal. The statement or summary shall contain detail sufficient to indicate clearly the basis for the appraisal, including, but not limited to, all of the following information: (A) The date of valuation, highest and best use, and applicable zoning of the property. (B) The principal transactions, reproduction or replacement cost analysis, or capitalization analysis, supporting the appraisal. (C) If the appraisal includes compensation for damages to the remainder, the compensation for the property and for damages to the remainder separately stated, and the calculations and a narrative explanation supporting the compensation, including any offsetting benefits.”

LACMTA filed a Notice of Deposit on October 14, 2022 indicating that it deposited with the State Treasurer the sum of $716,100 as the probable just compensation to be awarded to defendants. (LACMTA’s RJN No. 2.) On October 14, 2022, LACMTA filed a Summary of the Basis for Appraisal Opinion. (LACMTA’s RJN No. 3.) The October 14, 2022 Summary discusses, inter alia, a date of valuation, a highest and best use, and sets forth the “current applicable zoning for the Subject Property.” (Ibid.) The October 14, 2022 Summary of the Basis for Appraisal Opinion further provides that “[t]he principal transactions and comparable sales data that support my appraisal of the Subject Property and the fair market value of the property interests to be taken are set forth in Exhibit A attached.” (Ibid.; Finestone Decl., ¶ 9.)

In addition, on August 24, 2023, LACMTA filed a Notice of First Supplemental Deposit of Probable Just Compensation, indicating that on August 21, 2023, LACMTA deposited with the State Treasurer the sum of $900, to supplement the $716,100 LACMTA previously deposited on October 14, 2022 in this matter. (LACMTA’s RJN No. 9.)

Further, on August 24, 2023, LACMTA filed a Summary of the Basis for Appraisal Opinion, which provides that LACMTA “submits, as an accompaniment to its Notice of First Supplemental Deposit of Probable Just Compensation, an Appraisal Summary Statement reflecting the fair market value of the real property interests being condemned in this action and supporting the Plaintiff’s total deposit of probable just compensation with the California State Treasurer. The Appraisal Summary Statement reflects the expert appraisal opinions of certified general real estate appraisers Beth B. Finestone, MAI, AI-GRS, FRICS, CRE and Adam M. Bogorad, MAI, of CBRE Valuation & Advisory Services. The Appraisal Summary Statement is attached hereto as Exhibit 1.” (LACMTA’s RJN No. 8.) Exhibit 1 to the August 24, 2023 Summary provides, inter alia, that “[t]he following table summarizes our value conclusions. Our analysis of the larger parcel includes both valuation of the larger parcel as improved and a land valuation of the site as vacant. To value the property as improved we utilized the improved sales comparison and income approaches to value. To value the site as vacant, we utilized the sales comparison approach.” (Ibid.)

LACMTA asserts that “[b]ased on this analysis, Ms. Finestone and Mr. Bogorad have sufficiently complied with California Code of Civil Procedure § 1263.210(a)…” (Mot. at p. 8:26-28.) This provision provides that “[e]xcept as otherwise provided by statute, all improvements pertaining to the realty shall be taken into account in determining compensation.” (Code Civ. Proc., § 1263.210, subd. (a).)

In its Request, Century City does not dispute that a deposit of probable compensation has been made. Century City states that LACMTA “has now appraised the land together with the improvements.” (Century City’s Request at p. 2:7.)

Based on the foregoing, the Court finds that LACMTA has demonstrated that “[t]he plaintiff is entitled to take the property by eminent domain,” and “[t]he plaintiff has deposited pursuant to Article 1 (commencing with Section 1255.010) an amount that satisfies the requirements of that article.” (Code Civ. Proc., § 1255.410, subd. (d)(1).)

3.      Century City’s Request for Mitigation Measures

In its Request filed on November 13, 2023, Century City’s counsel attaches as Exhibit B to his declaration “the prior alternative order submitted by Century City Mall in response to Metro’s previous motion for prejudgment possession.” (Brogan Decl., ¶ 3, Ex. B.)

This proposed order provides, inter alia, that “IT IS FURTHER ORDERED that the following mitigation measures apply to Plaintiff’s use of the Property Interests described above: A. Metro to provide Shopping Center with seven (7) calendar days notice before SAAX Array work and tunnel work begin beneath the Shopping Center. B. Metro shall comply with all state, federal, local rules, permits, and regulations. C. Metro to provide defendant with traffic control plans. D. Metro to indemnify defendant for any personal injury or property damage relating to Metro’s work. E. Metro to add defendant as additional named insured; F. Metro agrees that there will be no unreasonable interference with Shopping Center or its tenants’ operations…G. Metro to repair any damage caused by subway construction. H. Metro agrees to specific noise and vibration mitigation measures with respect to the movie theater as set forth in Exhibit B. I. LACMTA shall comply with the Emergency Response Plan, attached hereto as Exhibit C, with respect to settlement control and monitoring.” (Brogan Decl., ¶ 3, Ex. B.)

Century City appears to request that any order pertaining to the instant motion include mitigation measures discussed at page 3:4-13 of the Request. More specifically, Century City asserts that “[i]n short, as relevant to the current status of Metro construction, they are: A. Metro agrees to comply with all state, federal, local rules, permits, and regulations. B. Metro to indemnify Shopping Center for any personal injury or property damage relating to Metro’s work. C. Metro to add property owner as additional named insured; D. Metro agrees that there will be no unreasonable interference with Shopping Center or its tenants’ operations E. Metro to repair any damage caused by subway construction. F. Metro agrees to specific noise and vibration mitigation measures with respect to the movie theater. The order should include these mitigation measures. As noted above, as part of its prior opposition, defendant submitted an alternative proposed order for possession reflecting these key conditions. Exhibit B.” (Century City’s Request at p. 3:3-16.)

As an initial matter, LACMTA asserts that Century City’s Request is procedurally improper because it was not filed within the correct amount of time. Pursuant to Code of Civil Procedure section 1255.410, subdivision (c), “[n]ot 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...” In addition, under ¿Code of Civil Procedure section 1010.6, subdivision (a)(3)(B)¿, “[a]ny period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days.¿..”

The proof of service attached to LACMTA’s instant motion indicates that the motion was served via electronic service on August 28, 2023. Thirty days after August 28, 2023 is September 27, 2023, and two court days after September 27, 2023 is September 29, 2023. However, Century City’s instant Request for mitigation measures was filed on November 13, 2023. The proof of service attached to the Request indicates that it was also served on November 13, 2023.  

LACMTA also notes that “[t]o the extent that [Century City’s] Request is expressing a hardship if [LACMTA’s] Motion is granted in full, [Century City’s] Request is unsupported by a declaration signed under penalty of perjury stating facts supporting the hardship.” (Reply at p. 4:10-12.) Code of Civil Procedure section 1255.410, subdivision (c) provides that “[i]f the written opposition asserts a hardship, it shall be supported by a declaration signed under penalty of perjury stating facts supporting the hardship.” As noted by LACMTA, Century City’s counsel’s declaration in support of the Request attaches two proposed orders. The declaration does not refer to any purported hardship.

LACMTA also asserts that Century City “has not [sic] statutory basis to file Defendant’s Requests.” (Reply at p. 6:2.) Indeed, Century City does not cite any legal authority supporting its request that the Court impose the specified mitigation measures.

Based on the foregoing, the Court denies Century City’s request for mitigation measures.

Conclusion

Based on the foregoing, LACMTA’s instant motion for order for prejudgment possession filed on August 28, 2023 is granted.

LACMTA is ordered to give notice of this Order.

DATED:  November 28, 2023                        ________________________________

Hon. Rolf M. Treu

Judge, Los Angeles Superior Court