A motion for a prejudgment order of possession is authorized by Code of Civil Procedure section 1255.410, which provides the statutory scheme for possession of property being sought in a condemnation action, prior to final judgment. This type of motion is often referred to as a “quick take” or a request for an Order for Immediate Possession (“OIP”).
In an eminent domain proceeding, the public agency may deposit the probable amount of compensation based on an appraisal. Code Civ. Proc. 1255.010. The public agency may thereafter take immediate possession of the property. Code Civ. Proc. 1255.410. This is known as a "quick-take" eminent domain action. (Mt. San Jacinto Community College Dist. v. Super. Ct. (2007) 40 Cal. 4th 648, 653.) “If any portion of the money deposited pursuant to this chapter is withdrawn, the receipt of any such money shall constitute a waiver by operation of law of all claims and defenses in favor of the persons receiving such payment except a claim for greater compensation.” Code Civ. Proc. 1255.260.
“The property owner can immediately withdraw the funds, but by doing so waives all rights to dispute the taking other than the right to challenge the amount of just compensation.” (Mt. San Jacinto Community College Dist. v. Superior Court, supra.) "...[S]ection 1255.260 operates to relinquish claims and defenses otherwise available to contest allegations in a condemner's complaint.” (Id.) “It is a statutory waiver provision which serves to reduce the right-to-condemn issues to be litigated between the parties, a substantial benefit to the condemner.” (Clayton v. Super. Ct. (1998) 67 Cal. App. 4th 28, 33.) “There is no definition of what constitutes a ‘claim’ for purposes of section 1255.260.” (Id.) “The few cases examining section 1255.260 analyze waiver in the context of substantive issues.” (Id.) “Thus, a condemnee's withdrawal of deposited funds waives any challenge to the right to take (San Diego Gas & Electric Co. v. 3250 Corp. (1988) 205 Cal. App. 3d 1075, 1081-1082), and any claim as to lack of a public purpose (City of Glendale v. Superior Court (1993) 18 Cal. App. 4th 1768, 1774).” (Id.)
“In Clayton, the Court determined that the statutory right to transfer a matter to a neutral venue is not a ‘claim’ for purposes of section 1255.260.” (Id.) “In Redevelopment Agency of City of San Diego v. Mesdaq (2007) 154 Cal. App. 4th 1111, 1118, the Court found that, by withdrawing the deposit, the property owner waived his argument that the acquiring entity's action in taking his property constituted a ‘gross abuse’ of the entity's discretion and was not in the public interest.” (Id.)
A plaintiff may move the court for an order for possession demonstrating that the plaintiff is entitled to take the property by eminent domain and has deposited an amount satisfying the requirements of Civ. Code, Sec. 1255.010. Civ. Code, Sec. 1255.410(a). “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.” Id. Plaintiff states it plans to take possession of the property 30 days after service of the order for prejudgment possession.
If the motion is not opposed within 30 days of service, the court shall make an order for possession if it finds the plaintiff is entitled to take the property by eminent domain and has made the required deposit. Civ. Code, Sec. 1255.410(d)(1).
A quick take is permitted where a plaintiff:
Civ. Code, Sec. 1240.030
The plaintiff demonstrates entitlement to take the property via eminent domain by showing:
(Civ. Code, Sec. 1240.030.)
Code of Civil Procedure, section 1255.410, subdivision (c) provides:
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.
(Civ. Code, Sec. 1255.410(c).)
If the possession motion is opposed, the court may make an order for possession if it finds:
(Civ. Code, Sec. 1255.410.)
“California's Eminent Domain Law provides for interest on a delayed condemnation award but limits interest to the legal rate.” (Redevelopment Agency v. Erganian (1989) 211 Cal.App.3d 166, 171 citing Civ. Code, Sec. 1268.310.) “It now seems clear, however, that a statutory interest ceiling cannot prevail where it falls short of constitutional ‘just compensation’ under the standard of Seaboard and Phelps.” (Id.) “When the delay occurs during times of inflationary market interest rates which substantially exceed the statutory rate, application of the lower statutory limit denies the condemnee ‘the full equivalent of the [property's] value... at the time of the taking paid contemporaneously with the taking.’” (Id. citing Phelps v. United States (1927) 274 U.S. 341, at 344; see also, Redevelopment Agency v. Gilmore (1985) 38 Cal.3d 790 at 797.)
Any proceeding brought pursuant to this subdivision shall take precedence over all matters of the calendar of the court except criminal, probate, eminent domain, forcible entry, and unlawful detainer proceedings.” (Government Code, § 66020(d).)
El Dorado County, CA
Item 8.b of Cost Memo – Expert Fees "If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover post-offer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration
Ventura County, CA
A second case to which Jiang cites is Aetna Life, also involving eminent domain. (Aetna Life & Cas. Co. v. City of Los Angeles (1985) 170 Cal.App.3d 865, 881.) Zeng contends that the Marshall holding does not apply because this contractual dispute is distinguishable from the inverse condemnation matter in Marshall, and Jiang contends that there are no grounds to distinguish the two. Zeng notes that the right to prejudgment interest in Marshall derived from the Fifth Amendment to the U.S.
Los Angeles County, CA
A second case to which Jiang cites is Aetna Life, also involving eminent domain. (Aetna Life & Cas. Co. v. City of Los Angeles (1985) 170 Cal.App.3d 865, 881.) Zeng contends that the Marshall holding does not apply because this contractual dispute is distinguishable from the inverse condemnation matter in Marshall, and Jiang contends that there are no grounds to distinguish the two. Zeng notes that the right to prejudgment interest in Marshall derived from the Fifth Amendment to the U.S.
Los Angeles County, CA
For example, a vehicle seized after its owner used it for an illegal liaison with a sex worker was held not to constitute a taking because it was “already lawfully acquired under the exercise of governmental authority other than the power of eminent domain.” (Bennis v. Michigan (1996) 516 U.S. 442, 452.) The same analysis has been held true of property seized “through civil rather than criminal proceedings,” such as the seizure of counterfeit goods at the behest of the holder of the original trademark.
Administrative
Writ
Los Angeles County, CA
FACTUAL / PROCEDURAL CONTEXT This is an eminent domain action brought by plaintiff City of Banning in connection with a project to widen Ramsey Street in Banning. The City actually seeks to acquire two different property interests.
Riverside County, CA
By this motion, True Horizons challenges County’s complaint in eminent domain. A public entity may not commence an eminent domain proceeding until its governing body has adopted a resolution of necessity. Code Civ. Proc. §1245.220.
Santa Barbara County, CA
The demurrer cites Code of Civil Procedure § 1250.230, a statute which the Intervenors properly point out addresses eminent domain proceedings and is not applicable. The parties, however, also address the case law on the standing necessary to bring a quiet title action. A long line of California authority requires the plaintiff asserting a quiet title claim to establish a claim to legal title to the property in question in order to have standing to assert this cause of action.
Contra Costa County, CA
Beaudet; Dept. 50 DISCLOSURE Action Filed: May 24, 2019 Judge Beaudet hereby discloses to the parties the following information: Judge Beaudet received a letter last week from a law firm that handles eminent domain cases indicating that certain undeveloped land that she owns in Lancaster, California, may be subject to an eminent domain effort next summer if the environmental report for the California High-Speed Rail project is approved.
Los Angeles County, CA
Beaudet; Dept. 50 DISCLOSURE Action Filed: May 24, 2019 Judge Beaudet hereby discloses to the parties the following information: Judge Beaudet received a letter last week from a law firm that handles eminent domain cases indicating that certain undeveloped land that she owns in Lancaster, California, may be subject to an eminent domain effort next summer if the environmental report for the California High-Speed Rail project is approved.
Los Angeles County, CA
This is an action in eminent domain where the City of Morro Bay (Plaintiff or the City) seeks to take certain property (the Property) located at 1290 Embarcadero in Morro Bay, belonging to Defendants Vistra Energy Corp. and Dynegy Morro Bay, LLC.
San Luis Obispo County, CA
The Court said that “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.
Santa Barbara County, CA
The City is confusing what it wants – which can be obtained through eminent domain or sale – with what York Point can be compelled to provide as mitigation for development. The City cannot adopt a Plan that requires a unique mitigation ratio for dedication of acreage based on a development’s impact on the City’s desire for a wildlife corridor. In sum, The City’s approval is not supported by fair and substantial reason.
Administrative
Writ
Los Angeles County, CA
Hussey, (“Allen”) (1950)[10] 101 Cal.App.2d 457, in which an irrigation district used eminent domain to buy property—becoming subject to a public trust—and then leased it out for $1 a year. The court said this was unconstitutional and also a violation of trust principles with adverse ramifications for a purchaser with notice of a transfer in breach of the trust, including restoration of the property to the trust beneficiary. Id. at 467. Opp. at 7.
Administrative
Writ
Los Angeles County, CA
“Inverse condemnation occurs when there is a public taking of (or interference with) land without formal eminent domain proceedings.” (Serra Canyon Co. v. California Coastal Com. (2004) 120 Cal.App.4th 663, 669.)
Los Angeles County, CA
Plaintiff argues that a preliminary injunction should issue to prevent defendant and the Doe defendants acting in concert with him from engaging in a persistent and continuous pattern of unreasonable interference with the County’s property interests acquired through eminent domain proceedings wherein defendant threatens County staff working on a project on the County’s real property interests that he will defend his property if the County exercised its lawful easement rights; removed surveying stakes placed
El Dorado County, CA
In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant." (Code Civ. Proc. § 998(c)(1).)
Real Property
other
Sacramento County, CA
Any risk inherent in a contingency fee agreement was ameliorated by the promise of a reasonable fee upon abandonment and the nature of eminent domain. To the extent the retainer agreement was a contingency fee arrangement, there was no risk of zero recovery. If Plaintiff prevailed, Defendant would still have been entitled just compensation for loss of his property through eminent domain. The contingency fee arrangement allowed for 40% of the excess over the Plaintiff’s initial offer. See Dec. of G.
H. Jay Ford
Los Angeles County, CA
Moving party City of Tracy has established that it has the right to acquire, by eminent domain, the portion of Defendants’ property it seeks for the Corral Hollow Road Widening Project (“Project”). Str. & Hwy § 1810 (with county consent city may acquire property outside city limits to connect or widen streets of acquiring city); also Gov. C. §§ 37350.5, 40401 and 40404. By written agreement, County delegated to Tracy the power to acquire property in the County necessary for the Project.
San Joaquin County, CA
The ‘public use’ requirement ‘goes to the legitimacy of the government's taking to begin with; if a taking is not for public use, the government has no right to complete the act of eminent domain.’ The unlawful seizure of property does not constitute a ‘public use.’
Los Angeles County, CA
HEARING ON DEMURRER TO 1st Amended EMINENT DOMAIN COMPLAINT FILED BY CITY OF LAFAYETTE, CITY OF ORINDA * TENTATIVE RULING: * Off calendar per fax of moving party.
Contra Costa County, CA
(writs), sections 1230.010–1268.720 (eminent domain). ¶ The Act is contained in Code of Civil Procedure Part 3—Of Special Proceedings of a Civil Nature. Section 22 defines an action as “an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” Section 23 defines a special proceeding as “[e]very other remedy.” (See People v.
El Dorado County, CA
“The plaintiff is entitled to take the property by eminent domain.” The plaintiff has the power of eminent domain. The defendants do not appear to argue otherwise. 2. “The plaintiff has deposited pursuant to Article 1 (commencing with Section 1255.010) an amount that satisfies the requirements of that article.” The plaintiff has made a deposit. The defendants deny, however, that it is sufficient. A deposit is sufficient if it is supported by an appraisal of the “probable amount of compensation.”
Riverside County, CA
Ventura County (1955) 45 Cal.2d 276, 285 (abrogated on other grounds) [maintenance within the purview of inverse condemnation/eminent domain].) Simple negligence cannot support a constitutional claim for inverse condemnation. (Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 742.) Rather, the necessary finding is that the wrongful act be part of the deliberate design, construction, or maintenance of the public improvement. (Ibid.)
San Luis Obispo County, CA
City’s reply relies upon precedence given to eminent domain matters, and necessity that right to take issues be determined early so that a public entity may determine whether a construction project may be placed at risk by a potentially meritorious challenge to the right to take. It contends that parties need to adapt to pandemic conditions, with respect to taking depositions and conducting other discovery.
Santa Barbara County, CA
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