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”).

Quick Take Defined

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 “If any portion of the money deposited pursuant to this chapter is withdrawn, the receipt of any such money shall constitute a waiver by operation of law of all claims and defenses in favor of the persons receiving such payment except a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.)

Procedure

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).

Required Elements

A quick take is permitted where a plaintiff:

1. demonstrates that it is entitled to take the property by eminent domain and
2. has deposited an amount equal to the probable amount of compensation to be awarded to defendant.

Civ. Code, Sec. 1240.030

The plaintiff demonstrates entitlement to take the property via eminent domain by showing:

1. the public interest and necessity require the project;
2. the project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury; and
3. the property sought to be acquired is necessary for the project.

(Civ. Code, Sec. 1240.030.)

Defendant's Opposition to Taking

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:

1. The plaintiff is entitled to take the property by eminent domain;
2. The plaintiff has deposited pursuant to Article 1 (commencing with Code Civ. Proc., Sec. 1255.010) an amount that satisfies the requirements of that article;
3. 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; and
4. The hardship that the plaintiff will suffer if possession if denied or limited outweighs any hardship on the defendant or occupant that would be caused by the granting of the order of possession.

(Civ. Code, Sec. 1255.410.)

Delayed Condemnation Award and Interest

“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.)