Preview
19CV340508 [Exempt From Filing Fee
Santa Clara — Civil I
Government Code § 6103]
R. Nguyeh
F. GALE CONNOR (Bar No. 131994) Electronically Filed
MILLER STARR REGALIA
A Professional Law Corporation by Superior Court of CA,
351 California St, Suite 1110 County of Santa Clara,
San Francisco, California 94104 on 10/16/2019 5:17 PM
Telephone: 415 638 4800 Reviewed By: R. Nguyen
Facsimile: 415 371 1012 Case #19CV340508
Email: gale.connor@msrlegal.com Envelope: 3529327
Attorneys for Plaintiff CITY OF SANTA CLARA
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
10 CITY OF SANTA CLARA, a California Case No. 19CV340508
Charter City,
11 APN: 104-30-36
Plaintiff,
12 CITY OF SANTA CLARA’S REQUEST
Vv. FOR JUDICIAL NOTICE IN SUPPORT
13 OF MOTION FOR PREJUDGMENT
D.E. II RESTAURANTS, INC., a California POSSESSION
14 corporation; and DOES 1 - 50,
Hon. Peter H. Kirwan
15 Defendants.
Date: October 31, 2019
16 Time: 9:00 a.m.
D.E. II RESTAURANTS, INC., a California Dept.: 19
17 corporation,
Complaint Filed: January 2, 2019
18 Cross-Complainant, Trial Date: None Set
19 CITY OF SANTA CLARA, a California
Charter City, and DOES 1- 50,
20
Cross-Defendants.
21
22 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
23 Plaintiff CITY OF SANTA CLARA (“CITY”) requests that the Court take judicial
24 notice of the Order Granting City of Santa Clara’s Motion For Prejudgment Possession in the
25 action now pending in Santa Clara Superior Court captioned City of Santa Clara v. IA Lodging
26 Santa Clara, et al., Case No. 19CV340507, (“IA Lodging Prejudgment Possession Order”) a true
27 and correct copy of which is attached hereto as Exhibit A.
28
SCLA\S2374\2174380.1 1
CITY OF SANTA CLARA’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR
PREJUDGMENT POSSESSION
A Standard for Judicial Notice
Evidence Code §452(d) provides that judicial notice may be taken of “[r]ecords of
(1) any court of this state or (2) any court of record of the United States or any state of the United
States.” Evidence Code §453 provides that “[t]he trial court shall take judicial notice of any
matter specified in Section 452, if a party requests it, and: (a) [g]ives each adverse party sufficient
notice of the request. through the pleadings or otherwise, to enable such adverse party to prepare
to read the request, and; (b) [f]urnishes the court with sufficient information to enable to take
judicial notice of the matter.”
The attached IA Lodging Prejudgment Possession Order is a record of the Superior
10 Court of the State of California, County of Santa Clara Santa and is therefore judicially noticeable
11 under Evidence Code §452(d).
12 B Relevance
13 The IA Lodging Prejudgment Possession Order was issued after the City filed this
14 motion but is relevant to the issue of phased construction of the Temporary Road as a condition
15 precedent to the closure of Stars & Stripes Drive.
16
17
Dated: October /6.20 19 Respectfully submitted,
18
MILLER STARR REGALIA
19
20
21 By: OBL =a
F. GALE CONNOR
22 Attorneys for Plaintiff CITY OF SANTA CLARA
23
24
25
26
27
28
SCLA\S2374\2174380.1 -2-
CITY OF SANTA CLARA’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR
PREJUDGMENT POSSESSION
EXHIBIT A
to City of Santa Clara’s RJN iso
Motion for Prejudgment Possession
[Exempt From Filing Fee
Government Code § 6103]
F. GALE CONNOR (Bar No. 131994) Filed
MILLER STARR REGALIA
A Professional Law Corporation September 23, 2019
351 California St, Suite 1110 Clerk of the Court
San Francisco, California 94104 Superior Court of CA
Telephone: 415 638 4800 County of Santa Clara
Facsimile: 415 371 1012
Email: gale.connor@msrlegal.com 19CV340507
By: ANakamoto
Attomeys for Plaintiff CITY OF SANTA CLARA
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
10 CITY OF SANTA CLARA, a California Case No. 19CV340507
Charter City,
Tt APN: 104-55-005
Plaintiff,
12 ORDER GRANTING CITY OF SANTA
v, CLARA’S MOTION FOR
13 PREJUDGMENT POSSESSION [C.C.P.
1A LODGING SANTA CLARA, LLC, a Section 1
14 Delaware limited liability company; IA
LODGING SANTA CLARA TRS, LLC, a Judge Hon. Mary E. Arand
15 Delaware limited liability company; and
DOES
| - 50, Date : September
5, 2019
16 Time : 9:00am.
Defendant. Dept. : 9
17
Complaint Filed: January 2, 2019
18 Trial Date: None Set
19
20
The City of Santa Clara's (the “City”) Motion for Prejudgment Possession was calendared
21
for a regularly-noticed hearing on September 5, 2019, at 9:00 a.m. After considering the papers
22
presented by the parties, the Court’s Tentative Ruling was to grant the City’s Motion. Since that
23
Tuling was not contested, the Court’s Tentative Ruling became its final ruling. This Court
24
therefore finds as follows and hereby GRANTS the City’s Motion and makes the following
25
finding:
26
1 The City seeks to acquire an equitable servitude in favor of Defendants created by a
27
a Recreation Facilities Agreement, dated April 30, 1985 as amended, (“RFA”) which affords
28
ORDER GRANTING CITY OF SANTA CLARA'S MOTION FOR PREJUDGMENT POSSESSION [C.C.P. Section 1255.410]
SCLA\S53792155664.1 1
Defendants ccrtain preferential rights in the use a City owned property, to wit the Santa Clara Golf
and Tennis Club (as described in Exhibit A), for purposes of construction of temporary and
permanent system of public roads.
2. The City is authorized under Government Code §§ 37350.5 and 40404 and
California Code of Civil Procedure §1240.010, ef seq., to exercise the power of eminent domain to
acquire the subject property rights necessary for the Project.
3. On December 11, 2018, after giving notice to the record owner of the Subject
Property Rights, the City held a public hearing and adopted a Resolution of Necessity conclusively
establishing: (1) that public interest and necessity required the Project; (2) the Project is planned
10 or located in a manner that will be most compatible with the greatest public good and the least
It private injury; and (3) the acquisition of the Property is necessary for the Project. (CCP
12 $§1240.030, 1245.235, & 1245.250(a).)
13 4. The City is authorized to condemn the Property and to obtain an Order for
14 Possession Before Judgment. (CCP §§1255.410(d){I)(A) and 1255.410(d)(2)(A).)
15 5. The City has deposited the probable amount of just compensation (cstablished by
16 an appraisal) in the amount of $306,000 with the State Treasurer (CCP an 1)(B) &
17 1255.410(d)(2)(B).)
18 6. The City has an overriding need for pre-judgment possession of the Subject
19 Property Rights in order to maintain the planning, schedule for the Project, which justifies pre-
20 |judgment possession. (CCP§1255.410(d)(2)(C).)
21 7 Defendants will not suffer any hardship from an award of possession prior to
22 judgment. Whereas, the phased construction schedule for construction of a Temporary Road to be
followed by a new, permanent road nctwork will be imperiled if the City does not obtain an order
24 to pre-judgment possession. Accordingly, the relative balance of hardships in this case supports
25 granting the City pre-judgment possession of the Property. (CCP §1255.410(d)(2)(D).)
26 ITIS SO ORDERED,
27 1 The City’s request for immediate possession of the Property is GRANTED.
28
ORDER GRANTING CITY OF SANTA CLARA'S MOTION FOR PREJUDGMENT POSSESSION [C.C.P. Scction 1255410)
SCLA\S537912155664,1 2
I 2 The City is ordered to serve a copy of this Order on the record owner of the Subject
2 || Property Rights and/or its counsel of record.
3. 3 The City is hereby authorized to enter upon and take immediate possession of the
4 | Property and property interests being condemned herein at 12:01 a.m., thirty (30) days after
‘ | service of this Order.
6 | Dated: September 23, 2019
7
8 By Mor s dnad
9 JUDGE O' THE SUPERIOR COURT
|
10}
WW Approvcy,its to form.
12
13 John 1. Collins
Attorney for [A LODGING SANTA CLARA, LLC,
\4 and IA LODGING SANTA CLARA TRS, LLC
15
16
{7
18
19)
20}
221
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27
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PROOF OF SERVICE
City of Santa Clara v. D.E. II Restaurants, Inc., et al.
19CV340508
At the time of service, I was over 18 years of age and not a party to this action. Iam
employed in the County of San Francisco, State of California. My business address is 351
California St, Suite 1110, San Francisco, CA 94104.
On October 16, 2019, I served true copies of the following document(s) described as
CITY OF SANTA CLARA’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF
MOTION FOR PREJUDGMENT POSSESSION on the interested parties in this action as
follows:
Scott E. Jenny Attorneys for Defendant
Jenny & Jenny D.E. IT RESTAURANTS, INC.
736 Ferry Street
Martinez, CA 94553
10 Ph: 925-228-1265
Fax: 925-228-2841
ll Email: seilawoffice@cs.com
12 BY MAIL: J enclosed the document(s) in a sealed envelope or package addressed to the
persons at the addresses listed in the Service List and placed the envelope for collection and
13 mailing, following our ordinary business practices. I am readily familiar with the practice of
Miller Starr Regalia for collecting and processing correspondence for mailing. On the same day
14 that correspondence is placed for collection and mailing, it is deposited in the ordinary course of
business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I
15 am a resident or employed in the county where the mailing occurred. The envelope was placed in
the mail at San Francisco, California.
16
BY ELECTRONIC SERVICE: I served the document(s) on the person listed in the
17 Service List by submitting an electronic version of the document(s) to One Legal, LLC, through
the user interface at www.onelegal.com.
18
I declare under penalty of perjury under the laws of the State of California that the
19 foregoing is true and correct.
20 Executed on October 16, 2019, at San Francisco, California.
21
22 Woes
Janice Anderson
23
24
25
26
27
28
Preview
19CV340508 [Exempt From Filing Fee Santa Clara — Civil I Government Code § 6103] R. Nguyeh F. GALE CONNOR (Bar No. 131994) Electronically Filed MILLER STARR REGALIA A Professional Law Corporation by Superior Court of CA, 351 California St, Suite 1110 County of Santa Clara, San Francisco, California 94104 on 10/16/2019 5:17 PM Telephone: 415 638 4800 Reviewed By: R. Nguyen Facsimile: 415 371 1012 Case #19CV340508 Email: gale.connor@msrlegal.com Envelope: 3529327 Attorneys for Plaintiff CITY OF SANTA CLARA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA 10 CITY OF SANTA CLARA, a California Case No. 19CV340508 Charter City, 11 APN: 104-30-36 Plaintiff, 12 CITY OF SANTA CLARA’S REQUEST Vv. FOR JUDICIAL NOTICE IN SUPPORT 13 OF MOTION FOR PREJUDGMENT D.E. II RESTAURANTS, INC., a California POSSESSION 14 corporation; and DOES 1 - 50, Hon. Peter H. Kirwan 15 Defendants. Date: October 31, 2019 16 Time: 9:00 a.m. D.E. II RESTAURANTS, INC., a California Dept.: 19 17 corporation, Complaint Filed: January 2, 2019 18 Cross-Complainant, Trial Date: None Set 19 CITY OF SANTA CLARA, a California Charter City, and DOES 1- 50, 20 Cross-Defendants. 21 22 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 23 Plaintiff CITY OF SANTA CLARA (“CITY”) requests that the Court take judicial 24 notice of the Order Granting City of Santa Clara’s Motion For Prejudgment Possession in the 25 action now pending in Santa Clara Superior Court captioned City of Santa Clara v. IA Lodging 26 Santa Clara, et al., Case No. 19CV340507, (“IA Lodging Prejudgment Possession Order”) a true 27 and correct copy of which is attached hereto as Exhibit A. 28 SCLA\S2374\2174380.1 1 CITY OF SANTA CLARA’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR PREJUDGMENT POSSESSION A Standard for Judicial Notice Evidence Code §452(d) provides that judicial notice may be taken of “[r]ecords of (1) any court of this state or (2) any court of record of the United States or any state of the United States.” Evidence Code §453 provides that “[t]he trial court shall take judicial notice of any matter specified in Section 452, if a party requests it, and: (a) [g]ives each adverse party sufficient notice of the request. through the pleadings or otherwise, to enable such adverse party to prepare to read the request, and; (b) [f]urnishes the court with sufficient information to enable to take judicial notice of the matter.” The attached IA Lodging Prejudgment Possession Order is a record of the Superior 10 Court of the State of California, County of Santa Clara Santa and is therefore judicially noticeable 11 under Evidence Code §452(d). 12 B Relevance 13 The IA Lodging Prejudgment Possession Order was issued after the City filed this 14 motion but is relevant to the issue of phased construction of the Temporary Road as a condition 15 precedent to the closure of Stars & Stripes Drive. 16 17 Dated: October /6.20 19 Respectfully submitted, 18 MILLER STARR REGALIA 19 20 21 By: OBL =a F. GALE CONNOR 22 Attorneys for Plaintiff CITY OF SANTA CLARA 23 24 25 26 27 28 SCLA\S2374\2174380.1 -2- CITY OF SANTA CLARA’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR PREJUDGMENT POSSESSION EXHIBIT A to City of Santa Clara’s RJN iso Motion for Prejudgment Possession [Exempt From Filing Fee Government Code § 6103] F. GALE CONNOR (Bar No. 131994) Filed MILLER STARR REGALIA A Professional Law Corporation September 23, 2019 351 California St, Suite 1110 Clerk of the Court San Francisco, California 94104 Superior Court of CA Telephone: 415 638 4800 County of Santa Clara Facsimile: 415 371 1012 Email: gale.connor@msrlegal.com 19CV340507 By: ANakamoto Attomeys for Plaintiff CITY OF SANTA CLARA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA 10 CITY OF SANTA CLARA, a California Case No. 19CV340507 Charter City, Tt APN: 104-55-005 Plaintiff, 12 ORDER GRANTING CITY OF SANTA v, CLARA’S MOTION FOR 13 PREJUDGMENT POSSESSION [C.C.P. 1A LODGING SANTA CLARA, LLC, a Section 1 14 Delaware limited liability company; IA LODGING SANTA CLARA TRS, LLC, a Judge Hon. Mary E. Arand 15 Delaware limited liability company; and DOES | - 50, Date : September 5, 2019 16 Time : 9:00am. Defendant. Dept. : 9 17 Complaint Filed: January 2, 2019 18 Trial Date: None Set 19 20 The City of Santa Clara's (the “City”) Motion for Prejudgment Possession was calendared 21 for a regularly-noticed hearing on September 5, 2019, at 9:00 a.m. After considering the papers 22 presented by the parties, the Court’s Tentative Ruling was to grant the City’s Motion. Since that 23 Tuling was not contested, the Court’s Tentative Ruling became its final ruling. This Court 24 therefore finds as follows and hereby GRANTS the City’s Motion and makes the following 25 finding: 26 1 The City seeks to acquire an equitable servitude in favor of Defendants created by a 27 a Recreation Facilities Agreement, dated April 30, 1985 as amended, (“RFA”) which affords 28 ORDER GRANTING CITY OF SANTA CLARA'S MOTION FOR PREJUDGMENT POSSESSION [C.C.P. Section 1255.410] SCLA\S53792155664.1 1 Defendants ccrtain preferential rights in the use a City owned property, to wit the Santa Clara Golf and Tennis Club (as described in Exhibit A), for purposes of construction of temporary and permanent system of public roads. 2. The City is authorized under Government Code §§ 37350.5 and 40404 and California Code of Civil Procedure §1240.010, ef seq., to exercise the power of eminent domain to acquire the subject property rights necessary for the Project. 3. On December 11, 2018, after giving notice to the record owner of the Subject Property Rights, the City held a public hearing and adopted a Resolution of Necessity conclusively establishing: (1) that public interest and necessity required the Project; (2) the Project is planned 10 or located in a manner that will be most compatible with the greatest public good and the least It private injury; and (3) the acquisition of the Property is necessary for the Project. (CCP 12 $§1240.030, 1245.235, & 1245.250(a).) 13 4. The City is authorized to condemn the Property and to obtain an Order for 14 Possession Before Judgment. (CCP §§1255.410(d){I)(A) and 1255.410(d)(2)(A).) 15 5. The City has deposited the probable amount of just compensation (cstablished by 16 an appraisal) in the amount of $306,000 with the State Treasurer (CCP an 1)(B) & 17 1255.410(d)(2)(B).) 18 6. The City has an overriding need for pre-judgment possession of the Subject 19 Property Rights in order to maintain the planning, schedule for the Project, which justifies pre- 20 |judgment possession. (CCP§1255.410(d)(2)(C).) 21 7 Defendants will not suffer any hardship from an award of possession prior to 22 judgment. Whereas, the phased construction schedule for construction of a Temporary Road to be followed by a new, permanent road nctwork will be imperiled if the City does not obtain an order 24 to pre-judgment possession. Accordingly, the relative balance of hardships in this case supports 25 granting the City pre-judgment possession of the Property. (CCP §1255.410(d)(2)(D).) 26 ITIS SO ORDERED, 27 1 The City’s request for immediate possession of the Property is GRANTED. 28 ORDER GRANTING CITY OF SANTA CLARA'S MOTION FOR PREJUDGMENT POSSESSION [C.C.P. Scction 1255410) SCLA\S537912155664,1 2 I 2 The City is ordered to serve a copy of this Order on the record owner of the Subject 2 || Property Rights and/or its counsel of record. 3. 3 The City is hereby authorized to enter upon and take immediate possession of the 4 | Property and property interests being condemned herein at 12:01 a.m., thirty (30) days after ‘ | service of this Order. 6 | Dated: September 23, 2019 7 8 By Mor s dnad 9 JUDGE O' THE SUPERIOR COURT | 10} WW Approvcy,its to form. 12 13 John 1. Collins Attorney for [A LODGING SANTA CLARA, LLC, \4 and IA LODGING SANTA CLARA TRS, LLC 15 16 {7 18 19) 20} 221 22 23 24 25 26 27 28 PROOF OF SERVICE City of Santa Clara v. D.E. II Restaurants, Inc., et al. 19CV340508 At the time of service, I was over 18 years of age and not a party to this action. Iam employed in the County of San Francisco, State of California. My business address is 351 California St, Suite 1110, San Francisco, CA 94104. On October 16, 2019, I served true copies of the following document(s) described as CITY OF SANTA CLARA’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR PREJUDGMENT POSSESSION on the interested parties in this action as follows: Scott E. Jenny Attorneys for Defendant Jenny & Jenny D.E. IT RESTAURANTS, INC. 736 Ferry Street Martinez, CA 94553 10 Ph: 925-228-1265 Fax: 925-228-2841 ll Email: seilawoffice@cs.com 12 BY MAIL: J enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and 13 mailing, following our ordinary business practices. I am readily familiar with the practice of Miller Starr Regalia for collecting and processing correspondence for mailing. On the same day 14 that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I 15 am a resident or employed in the county where the mailing occurred. The envelope was placed in the mail at San Francisco, California. 16 BY ELECTRONIC SERVICE: I served the document(s) on the person listed in the 17 Service List by submitting an electronic version of the document(s) to One Legal, LLC, through the user interface at www.onelegal.com. 18 I declare under penalty of perjury under the laws of the State of California that the 19 foregoing is true and correct. 20 Executed on October 16, 2019, at San Francisco, California. 21 22 Woes Janice Anderson 23 24 25 26 27 28