Judge: Upinder S. Kalra, Case: 23STCV00142, Date: 2023-05-11 Tentative Ruling
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Case Number: 23STCV00142 Hearing Date: May 11, 2023 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: May
11, 2023
CASE NAME: San Gabriel Valley Council of
Governments v. 515 Turbull Canyon, LLC, et al.
CASE NO.: 23STCV00142
MOTION
FOR PREUDGMENT ORDER OF POSSESSION
MOVING PARTY: Plaintiff San Gabriel Valley Council of
Governments
RESPONDING PARTY(S): None as of May 8, 2023.
REQUESTED RELIEF:
1. An
order granting prejudgment possession of the property interests to be acquired
via this complaint.
TENTATIVE RULING:
1. Motion
for Order for Prejudgment Possession is GRANTED.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On January 4, 2023, Plaintiff San Gabriel Valley Council of
Governments (“Plaintiff”) filed a complaint in eminent domain against
Defendants 515 Turnbull Canyon, LLC, Woodmen of the World Life Insurance
Society, Commonwealth Title Insurance Company, and All Persons Unknown Claiming
an Interest in the Property (“Defendants.”) In the complaint, Plaintiff seeks
to use eminent domain to acquire interests in real property for the Turnbull
Canyon Road Grade Separate Project. The project will raise Turnbull Canyon Road
over the existing Union Pacific Railroad tracks.
On February 3, 2023, Plaintiff filed a Motion for Order for
Prejudgment Possession.
On February 8, 2023, Defendant Commonwealth Land Title
Insurance Company filed a Disclaimer of Interest in Response to Plaintiff’s
Complaint in Eminent Domain.
LEGAL STANDARD:
CCP section 1255.410 provides the following:
a.
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.
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. 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.
b.
The plaintiff shall serve a
copy of the motion on the record owner of the property and on the occupants, if
any. The plaintiff shall set the court hearing on the motion not less
than 60 days after service of the notice of motion on the record owner of
unoccupied property. If the property is lawfully occupied by a person
dwelling thereon or by a farm or business operation, service of the notice of
motion shall be made not less than 90 days prior to the hearing on the motion.
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. If the
written opposition asserts a hardship, it shall be supported by a declaration
signed under penalty of perjury stating facts supporting the hardship.
The plaintiff shall serve and file any reply to the opposition not less than 15
days before the hearing.
d.
(1) If 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.
(2) If the
motion is opposed by a defendant or occupant 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.
e.
(1) Notwithstanding the time
limits for notice prescribed by this section and Section 1255.450, a court may
issue an order of possession upon an ex parte application by a water, wastewater, gas, electric, or
telephone utility, as the court deems appropriate under the circumstances of
the case, if the court finds each of the following:
A.
An emergency exists and as a consequence
the utility has an urgent need for possession of the property. For
purposes of this section, an emergency is defined to include, but is not
limited to, a utility’s urgent need to protect the public’s health and safety
or the reliability of utility service.
B.
An emergency order of
possession will not displace or unreasonably affect any person in actual and
lawful possession of the property to be taken or the larger parcel of which it
is a part.
(2) Not
later than 30 days after service of the order authorizing the plaintiff to take
possession of the property, any defendant or occupant of the property may move
for relief from an emergency order of possession that has been issued under
this subdivision. The court may modify, stay, or vacate the order upon
consideration of the relevant facts and any objections raised, and upon
completion of a hearing if requested.
ANALYSIS:
Plaintiff seeks a court order for
prejudgment possession of real property owned by Defendant 515 Turnbull, LLC
for its Turnbull Canyon Road Grade Separation Project. This project with raise
Turnbull Canyon Road and construct a two-lane overpass to allow cars to drive
over the Union Pacific Railroad Tracks. This project is designed to relieve
rail and road traffic, including first responders, and to eliminate potential
train-vehicle and train-pedestrian accidents.
Procedural
Requirements –
Service/Notice
CCP section 1255.410(b) requires the plaintiff to serve a
copy of the motion on the record owner of the property and on the occupants, if
any. (Code Civ. Proc., § 1255.410(b).) For property that is
unoccupied, the plaintiff “shall set the court hearing on the motion not less
than 60 days after service of the notice of motion on the record owner of
unoccupied property.” (Id.)
For property lawfully occupied by a person dwelling or a farm or business
operation, service of the notice of motion shall be made not less than 90 days
prior to the hearing on the motion. (Id.)
Plaintiff
has properly served the motion on the three separate defendants, Defendants 515
Turnbull Canyon, LLC, Woodmen of the World Life Insurance Society, Commonwealth
Title Insurance Company. The Proofs of Service were each filed on February 10,
2023. Plaintiff
has thus complied with CCP section 1255.410(b) requirements.
Property Description and Statement of Right to Oppose
CCP section 1255.410(a) provides that “[t]he 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(a).) Section 1255.410(a)
also requires the motion to 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.” (Id.)
Here, the motion indicates that Plaintiff is seeking possession of
real property owned by Defendant 515 Turnbull, LLC. Specifically, Plaintiff
seeks a roadway easement consisting of 34 square feet of area along the Subject
Property and Turnbull Canyon Road. (Dec. Mendoza, ¶ 7.) Plaintiff also seeks a
footing easement, which consists of 5 square feet located at the extreme
southeast corner of the Subject Property. (Id.)
Lastly, Plaintiff seeks a Temporary Construction Easement (“TCE”), which
consists of 11,290 square feet from the Subject Property, along the Subject Property’s
frontage on Turnbull. The TCE will be for a term of 60 months, but Plaintiff’s
contractor will be performing only 36 months of construction. (Id.) Additionally, in the Notice of
Motion, Plaintiff includes
the requisite statement notifying Defendant of its right to oppose this
motion. Plaintiff has thus complied with CCP section 1255.410(a)
requirements.
Merits:
“If 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[; and] (B) The 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(d)(1).)
Entitlement to Possession
A party is entitled to exercise the power of eminent domain
if it has the statutory authority to do so, and if the proposed project for
which the property is sought meets certain statutory requirements. (Code
Civ. Proc., §§ 1240.020, 1240.030.) Those statutory requirements are:
“(a) [t]he public interest and necessity require the project[,] (b) [t]he
project is planned or located in the manner that will be most compatible with
the greatest public good and the least private injury[, and] (c) [t]he property sought to be acquired is
necessary for the project.” (Id.,
§ 1240.030.) “Except 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.” (Id., §
1245.250(a).)
Here, Plaintiff states that it is
entitled to take the property interests by eminent domain. Specifically,
Plaintiff is authorized to take the property pursuant to Government Code § 6500
et seq. To begin, a condemning agency must adopt a resolution of necessity,
pursuant to CP § 1245.220. Here, on December 12, 2022, Plaintiff adopted the
“Resolution of Necessity authorizing acquisition of the Property Interests for
the Property.” (Motion 7: 28 – 8: 1.) This Resolution establishes the need to
use eminent domain to obtain the Property Interests, pursuant to CCP §§
1245.250(a) and 1240.030.
Based on the above, Plaintiff
has established its entitlement to possession of the property.
Deposit
With respect to the deposit,
CCP section 1255.010 provides that “[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.”
(Code Civ. Proc., § 1255.010(a).) “The appraisal upon which the deposit
is based shall be one that satisfies the requirements of subdivision
(b).” (Id.) Subdivision
(b) requires plaintiff to “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.” (Id., § 1255.010(b).) “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) [t]he date of valuation, highest and best use, and applicable
zoning of the property[,] (B) [t]he principal transactions, reproduction or
replacement cost analysis, or capitalization analysis, supporting the
appraisal[, and] (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.” (Id.)
Plaintiff has filed concurrently
with this motion, a Notice of Deposit of Probable Compensation. On January 12,
2023, Plaintiff deposited $285,000 into a trust account with the State Treasury.
(Notice of Deposit, Dec. Valdez ¶ 2, Ex. C.) A qualified and licensed
appraiser, Thomas M. Mike, Jr., MAI, appraised the Subject Property and
Property Interests. (Notice of Deposit, Dec. Pike, ¶ 5, Ex. C.) With his
Declaration, Mr. Pike has provided an appraisal report, which is attached as
Exhibit 1. Plaintiff has met the deposit requirements pursuant to CCP sections
1255.010 and 1255.410(d).
Because no Opposition has been filed as of
May 8, 2023, and Plaintiff has sufficiently deposited the appraisal amount of
$285,000 into a trust with the State Treasury, the Court finds that Plaintiff
is entitled to prejudgment possession of the property.
Motion for Order for Prejudgment
Possession is GRANTED.
Conclusion:
For
the foregoing reasons, the Court decides the pending motion as follows:
Motion for Order for Prejudgment Possession
is GRANTED.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: May 11, 2023 _________________________________ Upinder
S. Kalra
Judge
of the Superior Court