Preview
1 DANIEL C. CEDERBORG – SBN 124260
County Counsel
2 KYLE R. ROBERSON
Deputy County Counsel – SBN 285735
3 SELMA HARLOW E-FILED
Deputy County Counsel – SBN 326011 10/9/2020 2:21 PM
4 FRESNO COUNTY COUNSEL Superior Court of California
2220 Tulare Street, 5th Floor County of Fresno
5 Fresno, California 93721 By: I. Herrera, Deputy
6 sharlow@fresnocountyca.gov
Telephone: (559) 600-3479
7 Facsimile: (559) 600-3480
8 Attorneys for Defendant, COUNTY OF FRESNO Exempt From Filling Fees Pursuant
To Government Code Section 6103
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO
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11 CENTRAL DIVISION
12 THE STATE OF CALIFORNIA, acting by Case No. 20CECG01877
and through, the High-Speed Rail Authority, Parcels FB 10-1546-1 and 10-1546-2
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Plaintiffs, DEFENDANT COUNTY OF FRESNO’S
14 ANSWER TO COMPLAINT IN
vs. EMINENT DOMAIN
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16 FOWLER PACKING COMPANY, INC., a
California Corporation; GUSTAVO
17 MARTINEZ MESA; COUNTY OF
FRESNO, DEPARTMENT OF CHILD
18 SUPPORT SERVICES; NORTH
AMERICAN TITLE COMPANY, a
19 California Corporation; THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA, a
20 New Jersey Corporation; DENNIS S.
21 PARNAGIAN, as Trustee under the Dennis
and Donna Parnagian Living Trust dated
22 Sept. 22, 1995, as modified by the First
Restated and Amended Dennis and Donna
23 Parnagian Living Trust dated December 29,
1995, and as further amended on Jan. 11,
24 2006, and on Jan. 21, 2009; KENNETH LEE
PARNAGIAN, as Trustee of the Kenneth
25 and Barbara Parnagian Living Trust dated
26 Oct 5, 1995. And as further amended on Jan.
11, 2006, and on Jan. 21, 2009’ RANDY F.
27 PARNAGIAN, as Trustee of the Randy and
Susan Parnagian Living Trust dated Oct. 19,
28 1995, as modified by the First Amendment to
the Restated and Amended Randy and Susan
1
Answer to Complain in Eminent Domain Case No. 20CECG01877
1 Parnagian Living Trust dated Dec. 12, 2006,
and as further amended on Jan 21, 2009;
2 PHILIP G. PARNAGIAN, as Trustee of the
Philip and Florence Parnagian Living Trust
3 dated Oct. 18, 1995m as further amended on
Dec. 11, 2006 and on Jan. 21, 2009; G2
4 MANAGEMENT, LLC, a California Limited
5 Liability Company; DENKEN FARMS, a
California Limited Partnership; DOE ONE to
6 DOE FIFTY, inclusive,
7 Defendants.
8
9 The defendant, COUNTY OF FRESNO (hereinafter, the “County”), answers the
10 Complaint in Eminent Domain (hereinafter “Complaint”) on file herein as follows:
11 1. The County is informed and believes that it claims certain tax liens as an
12 additional interest in the property subject to condemnation in the Complaint
13 2. The County is informed and believes that it claims certain child support
14 and or/ spousal liens as an additional interest in the property subject to condemnation in the
15 Complaint.
16 3. The County is informed and believes that itholds a Land Conversation
17 Contract along the property subject to condemnation in the Complaint.
18 4. The County is informed and believes that it holds an easement for a public
19 road in the property subject to condemnation in the Complaint.
20 5. It appears that the Complaint is unverified, the County responses with a
21 general denial pursuant to Code of Civil Procedure section 431.30. Furthermore, the County
22 denies generally and specifically to each and every allegation of said complaint, both
23 conjunctively and disjunctively and the whole thereof.
24 //
25 //
26 //
27 //
28 //
2
Answer to Complain in Eminent Domain Case No. 20CECG01877
1 AFFIRMATIVE DEFENSES
2 Further, as affirmative defenses to each and every cause of action, the County alleges the
3 following:
4 FIRST AFFIRMATIVE DEFENSE
5 (Failure to State a Cause of Action)
6 As a first and separate affirmative defense, the County alleges that the Complaint and
7 each cause of action alleged therein fail to state facts sufficient to constitute a cause of action as
8 to the County.
9 SECOND AFFIRMATIVE DEFENSE
10 (Claim Not Authorized by Statute)
11 As a second and separate affirmative defense, the County alleges that Plaintiff is not
12 authorized by statue to exercise the power of eminent domain for the purpose(s) stated in the
13 Complaint.
14 THIRD AFFIRMATIVE DEFENSE
15 (Land Conversation Contract)
16 As a third and separate affirmative defense, the County alleges that Plaintiff’s acquisition
17 of the property does not satisfy Government Code section 51290, et seq., and the notice
18 requirements pursuant to Government Code section 51291.
19 FOURTH AFFIRMATIVE DEFENSE
20 (Condemnation for a More Necessary Use)
21 As a fourth and separate affirmative defense, the County alleges that Plaintiff seeks to
22 acquire property for a more necessary public use than the County’s existing public use, but the
23 acquisition does not satisfy Civil Code of Procedure section 1240.610.
24 FIFTH AFFIRMATIVE DEFENSE
25 (Unreasonable Interference with a Compatible Existing Public Use)
26 As a fifth and separate affirmative defense, the County alleges that Plaintiff’s proposed
27 use in the Complaint will unreasonably interfere with the County’s existing compatible public
28 use, but the acquisition does not satisfy Code of Civil Procedure section 1240.510.
3
Answer to Complain in Eminent Domain Case No. 20CECG01877
1 SIXTH AFFIRMATIVE DEFENSE
2 (Superiority of Tax Lien)
3 As a sixth and separate affirmative defense, the County alleges that that if, and to the
4 extent, the fee owner is delinquent in the payment of property taxes, ad valorem taxes, or special
5 assessments with the respect to the parcel(s) to be partially or fully condemned, then pursuant to
6 Revenue & Taxation Code section 2192.1, the County’s tax lien is accorded superiority and must
7 be paid before payment to any other defendant.
8 SEVENTH AFFIRMATIVE DEFENSE
9 (Superiority of Child Support/Spousal Support Lien)
10 As a sixth and separate affirmative defense, the County alleges that that if,and to the
11 extent, the fee owner is delinquent in the payment of child support or spousal support, with
12 respect to the parcel(s) to be partially or fully condemned, then pursuant to Family Code section
13 17523, 5200 et seq.; California Code of Civil Procedure section 697.380 et. seq.; Civil Code
14 section 2897; the County’s child support and or/ spousal support lien is accorded superiority and
15 must be paid before payment to any other defendant.
16 EIGHTH AFFIRMATIVE DEFENSE
17 (Laches)
18 As a seventh and separate affirmative defense, the County alleges that Plaintiff’s cause of
19 action is barred by the doctrine of laches.
20 NINTH AFFIRMATIVE DEFENSE
21 (Estoppel)
22 As an eighth and separate affirmative defense, the County alleges that Plaintiff’s cause of
23 action is barred by the doctrine of estoppel.
24 TENTH AFFIRMATIVE DEFENSE
25 (Waiver)
26 As a ninth and separate affirmative defense, the County alleges that Plaintiff’s cause of
27 action is barred by the doctrine of waiver.
28
4
Answer to Complain in Eminent Domain Case No. 20CECG01877
1 WHEREFORE, the County prays:
2 1. That this Court determine and award the just compensation to which the parties
3 are entitled by virtue of the taking of Parcels FB 10-1546-1 and 10-1546-2 and severance
4 damages to the remaining property.
5 2. That the County be granted such other and further relief as the Court shall find
6 just and proper.
7
Dated: October 9, 2020 Respectfully Submitted,
8
DANIEL C. CEDERBORG
9 County Counsel
10
11 By: /s/ Selma Harlow
12 Selma Harlow
Deputy County Counsel
13 Attorneys for Defendant, County Of Fresno
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5
Answer to Complain in Eminent Domain Case No. 20CECG01877
1 PROOF OF SERVICE
The state of California, Plaintiffs, v. Fowler Packing Company, Inc.
2 Fresno Superior Court Case No.20CECG01877
3 I, Vincent Soliz, declare as follows:
I am a resident of the State of California, over the age of eighteen years, and not a
4
party to the within action. I am employed at the Fresno County Counsel’s Office, 2220 Tulare
5 Street, Fifth Floor, Fresno, California, 93721.
6 On October 9, 2020, I served a copy of the within:
7
DEFENDANT COUNTY OF FRESNO’S ANSWER TO COMPLAINT IN EMINENT
8 DOMAIN
9 on the interested parties in said action addressed as follows:
10 Erin E. Holbrook
11 G. Michael Harrington
Samuel C. Law
12 Stephen A. Silver
Caltrans Legal Division – Bay Area Legal Office
13 P.O. Box 24325
14 Oakland, CA 94623-1325
Attorneys for Plaintiff The State of California,
15 acting by and through the High-Speed Rail Authority
16
X by placing the document(s) listed above for mailing in the United States mail at Fresno,
17 California, in accordance with my employer's ordinary practice for collection and
processing of mail and addressed as set forth above.
18
by transmitting via facsimile, the above listed document(s) to the fax number(s) set forth
19
above on this date before 5:00 p.m. pacific daylight time.
20
by personally delivering the document(s) listed above to the person(s) at the address(es)
21 set forth above.
22
by placing the document(s) listed above in a sealed envelope and placing the same for
23 overnight delivery by California Overnight at Fresno, California.
24 I declare under penalty of perjury under the laws of the State of California that the
25 foregoing is true and correct. Executed on October 9, 2020, at Fresno, California.
26 __________________________
Vincent Soliz
27 Litigation Paralegal
28
Proof of Service
Fresno Superior Court Case No. 20CECG01877
Preview
1 DANIEL C. CEDERBORG – SBN 124260 County Counsel 2 KYLE R. ROBERSON Deputy County Counsel – SBN 285735 3 SELMA HARLOW E-FILED Deputy County Counsel – SBN 326011 10/9/2020 2:21 PM 4 FRESNO COUNTY COUNSEL Superior Court of California 2220 Tulare Street, 5th Floor County of Fresno 5 Fresno, California 93721 By: I. Herrera, Deputy 6 sharlow@fresnocountyca.gov Telephone: (559) 600-3479 7 Facsimile: (559) 600-3480 8 Attorneys for Defendant, COUNTY OF FRESNO Exempt From Filling Fees Pursuant To Government Code Section 6103 9 SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO 10 11 CENTRAL DIVISION 12 THE STATE OF CALIFORNIA, acting by Case No. 20CECG01877 and through, the High-Speed Rail Authority, Parcels FB 10-1546-1 and 10-1546-2 13 Plaintiffs, DEFENDANT COUNTY OF FRESNO’S 14 ANSWER TO COMPLAINT IN vs. EMINENT DOMAIN 15 16 FOWLER PACKING COMPANY, INC., a California Corporation; GUSTAVO 17 MARTINEZ MESA; COUNTY OF FRESNO, DEPARTMENT OF CHILD 18 SUPPORT SERVICES; NORTH AMERICAN TITLE COMPANY, a 19 California Corporation; THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a 20 New Jersey Corporation; DENNIS S. 21 PARNAGIAN, as Trustee under the Dennis and Donna Parnagian Living Trust dated 22 Sept. 22, 1995, as modified by the First Restated and Amended Dennis and Donna 23 Parnagian Living Trust dated December 29, 1995, and as further amended on Jan. 11, 24 2006, and on Jan. 21, 2009; KENNETH LEE PARNAGIAN, as Trustee of the Kenneth 25 and Barbara Parnagian Living Trust dated 26 Oct 5, 1995. And as further amended on Jan. 11, 2006, and on Jan. 21, 2009’ RANDY F. 27 PARNAGIAN, as Trustee of the Randy and Susan Parnagian Living Trust dated Oct. 19, 28 1995, as modified by the First Amendment to the Restated and Amended Randy and Susan 1 Answer to Complain in Eminent Domain Case No. 20CECG01877 1 Parnagian Living Trust dated Dec. 12, 2006, and as further amended on Jan 21, 2009; 2 PHILIP G. PARNAGIAN, as Trustee of the Philip and Florence Parnagian Living Trust 3 dated Oct. 18, 1995m as further amended on Dec. 11, 2006 and on Jan. 21, 2009; G2 4 MANAGEMENT, LLC, a California Limited 5 Liability Company; DENKEN FARMS, a California Limited Partnership; DOE ONE to 6 DOE FIFTY, inclusive, 7 Defendants. 8 9 The defendant, COUNTY OF FRESNO (hereinafter, the “County”), answers the 10 Complaint in Eminent Domain (hereinafter “Complaint”) on file herein as follows: 11 1. The County is informed and believes that it claims certain tax liens as an 12 additional interest in the property subject to condemnation in the Complaint 13 2. The County is informed and believes that it claims certain child support 14 and or/ spousal liens as an additional interest in the property subject to condemnation in the 15 Complaint. 16 3. The County is informed and believes that itholds a Land Conversation 17 Contract along the property subject to condemnation in the Complaint. 18 4. The County is informed and believes that it holds an easement for a public 19 road in the property subject to condemnation in the Complaint. 20 5. It appears that the Complaint is unverified, the County responses with a 21 general denial pursuant to Code of Civil Procedure section 431.30. Furthermore, the County 22 denies generally and specifically to each and every allegation of said complaint, both 23 conjunctively and disjunctively and the whole thereof. 24 // 25 // 26 // 27 // 28 // 2 Answer to Complain in Eminent Domain Case No. 20CECG01877 1 AFFIRMATIVE DEFENSES 2 Further, as affirmative defenses to each and every cause of action, the County alleges the 3 following: 4 FIRST AFFIRMATIVE DEFENSE 5 (Failure to State a Cause of Action) 6 As a first and separate affirmative defense, the County alleges that the Complaint and 7 each cause of action alleged therein fail to state facts sufficient to constitute a cause of action as 8 to the County. 9 SECOND AFFIRMATIVE DEFENSE 10 (Claim Not Authorized by Statute) 11 As a second and separate affirmative defense, the County alleges that Plaintiff is not 12 authorized by statue to exercise the power of eminent domain for the purpose(s) stated in the 13 Complaint. 14 THIRD AFFIRMATIVE DEFENSE 15 (Land Conversation Contract) 16 As a third and separate affirmative defense, the County alleges that Plaintiff’s acquisition 17 of the property does not satisfy Government Code section 51290, et seq., and the notice 18 requirements pursuant to Government Code section 51291. 19 FOURTH AFFIRMATIVE DEFENSE 20 (Condemnation for a More Necessary Use) 21 As a fourth and separate affirmative defense, the County alleges that Plaintiff seeks to 22 acquire property for a more necessary public use than the County’s existing public use, but the 23 acquisition does not satisfy Civil Code of Procedure section 1240.610. 24 FIFTH AFFIRMATIVE DEFENSE 25 (Unreasonable Interference with a Compatible Existing Public Use) 26 As a fifth and separate affirmative defense, the County alleges that Plaintiff’s proposed 27 use in the Complaint will unreasonably interfere with the County’s existing compatible public 28 use, but the acquisition does not satisfy Code of Civil Procedure section 1240.510. 3 Answer to Complain in Eminent Domain Case No. 20CECG01877 1 SIXTH AFFIRMATIVE DEFENSE 2 (Superiority of Tax Lien) 3 As a sixth and separate affirmative defense, the County alleges that that if, and to the 4 extent, the fee owner is delinquent in the payment of property taxes, ad valorem taxes, or special 5 assessments with the respect to the parcel(s) to be partially or fully condemned, then pursuant to 6 Revenue & Taxation Code section 2192.1, the County’s tax lien is accorded superiority and must 7 be paid before payment to any other defendant. 8 SEVENTH AFFIRMATIVE DEFENSE 9 (Superiority of Child Support/Spousal Support Lien) 10 As a sixth and separate affirmative defense, the County alleges that that if,and to the 11 extent, the fee owner is delinquent in the payment of child support or spousal support, with 12 respect to the parcel(s) to be partially or fully condemned, then pursuant to Family Code section 13 17523, 5200 et seq.; California Code of Civil Procedure section 697.380 et. seq.; Civil Code 14 section 2897; the County’s child support and or/ spousal support lien is accorded superiority and 15 must be paid before payment to any other defendant. 16 EIGHTH AFFIRMATIVE DEFENSE 17 (Laches) 18 As a seventh and separate affirmative defense, the County alleges that Plaintiff’s cause of 19 action is barred by the doctrine of laches. 20 NINTH AFFIRMATIVE DEFENSE 21 (Estoppel) 22 As an eighth and separate affirmative defense, the County alleges that Plaintiff’s cause of 23 action is barred by the doctrine of estoppel. 24 TENTH AFFIRMATIVE DEFENSE 25 (Waiver) 26 As a ninth and separate affirmative defense, the County alleges that Plaintiff’s cause of 27 action is barred by the doctrine of waiver. 28 4 Answer to Complain in Eminent Domain Case No. 20CECG01877 1 WHEREFORE, the County prays: 2 1. That this Court determine and award the just compensation to which the parties 3 are entitled by virtue of the taking of Parcels FB 10-1546-1 and 10-1546-2 and severance 4 damages to the remaining property. 5 2. That the County be granted such other and further relief as the Court shall find 6 just and proper. 7 Dated: October 9, 2020 Respectfully Submitted, 8 DANIEL C. CEDERBORG 9 County Counsel 10 11 By: /s/ Selma Harlow 12 Selma Harlow Deputy County Counsel 13 Attorneys for Defendant, County Of Fresno 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Answer to Complain in Eminent Domain Case No. 20CECG01877 1 PROOF OF SERVICE The state of California, Plaintiffs, v. Fowler Packing Company, Inc. 2 Fresno Superior Court Case No.20CECG01877 3 I, Vincent Soliz, declare as follows: I am a resident of the State of California, over the age of eighteen years, and not a 4 party to the within action. I am employed at the Fresno County Counsel’s Office, 2220 Tulare 5 Street, Fifth Floor, Fresno, California, 93721. 6 On October 9, 2020, I served a copy of the within: 7 DEFENDANT COUNTY OF FRESNO’S ANSWER TO COMPLAINT IN EMINENT 8 DOMAIN 9 on the interested parties in said action addressed as follows: 10 Erin E. Holbrook 11 G. Michael Harrington Samuel C. Law 12 Stephen A. Silver Caltrans Legal Division – Bay Area Legal Office 13 P.O. Box 24325 14 Oakland, CA 94623-1325 Attorneys for Plaintiff The State of California, 15 acting by and through the High-Speed Rail Authority 16 X by placing the document(s) listed above for mailing in the United States mail at Fresno, 17 California, in accordance with my employer's ordinary practice for collection and processing of mail and addressed as set forth above. 18 by transmitting via facsimile, the above listed document(s) to the fax number(s) set forth 19 above on this date before 5:00 p.m. pacific daylight time. 20 by personally delivering the document(s) listed above to the person(s) at the address(es) 21 set forth above. 22 by placing the document(s) listed above in a sealed envelope and placing the same for 23 overnight delivery by California Overnight at Fresno, California. 24 I declare under penalty of perjury under the laws of the State of California that the 25 foregoing is true and correct. Executed on October 9, 2020, at Fresno, California. 26 __________________________ Vincent Soliz 27 Litigation Paralegal 28 Proof of Service Fresno Superior Court Case No. 20CECG01877