Preview
ELECTRONICALLY FILED
Superior Court of California,
County of Placer
DANIEL S. CUCCHI (SBN 287132) 9-17-20
dcucchi@aklandlaw.com
By: Lisa M Perry, Deputy Clerk
GLEN C. HANSEN (SBN 166923)
ghansen@aklandlaw.com
ABBOTT & KINDERMANN, INC.
2100 21st Street
Sacramento, CA 95818
Telephone: (916) 456-9595
Facsimile: (916) 456-9599
Attorneys for Defendant THEODORE BACK, in his
individual capacity and as Special Administrator of
the Estates of George Back and Dorothy Back
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF PLACER
12
13 NEVADA IRRIGATION DISTRICT, CASE NO. S-CV-0040316
14 Plaintiff,
DEFENDANT THEODORE BACK’S
15 Vv. TRIAL BRIEF
16 GEORGE H. BACK, GEORGE BACK, the
heirs and devisees of GEORGE BACK,
17 deceased, and all persons claiming by, through Trial Date: September 28, 2020
or under said decent, DOROTHY BACK, the Time: 8:30 a.m.
18 heirs and devisees of DOROTHY BACK, Dept.: 42 or TBD
deceased, and all persons claiming by, through
19 or under said decedent and THEODORE L.
BACK; ALL PERSONS UNKNOWN Action Filed: December 22, 2017
20 CLAIMING AN INTEREST IN THE
PROPERTY, including DOES 1-50, inclusive,
21
Defendants.
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24 This is a special proceeding of a civil nature prosecuted under the Eminent Domain Law,
25 Part 3, Division 7 of the California Code of Civil Procedure, commencing at section 1230.010.
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27 //
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DEFENDANT THEODORE BACK’S TRIAL BRIEF
PARTIES
Plaintiff Nevada Irrigation District (“NID”) is a public agency operating under the
California Irrigation District Law, Division 11 of the California Water Code, commencing at
section 20500.
Defendants include the heirs and devisees of George Back, deceased, and the heirs and
devisees of Dorothy Back, deceased. In or about September 2019, Defendant Theodore Back was
appointed special administrator of the Estates of George and Dorothy Back. Mr. Back is the son
of George Back and Dorothy Back and has a legal interest in the property identified in this
Eminent Domain action. Mr. Back is a defendant in this case in both his individual capacity and
10 as the special administrator of the Estates of George Back and Dorothy Back. Ruth Graupmann is
11 the daughter of George Back and Dorothy Back. Ms. Graupmann has been named and served by
12 Plaintiff as a Defendant in her individual capacity.
13 ATTORNEYS
14 Defendant Theodore Back (“Back’’), in both his individual capacity and as the special
15 administrator of the Estates of George Back and Dorothy Back, is represented by Abbott &
16 Kindermann, Inc. and Daniel S. Cucchi and Glen C. Hansen. Defendant Ruth Graupmann has
17 appeared and represents herself. NID is represented by Minasian, Meith, Soares, Sexton &
18 Cooper, LLP and M. Anthony Soares.
19 PROPERTY SOUGHT TO BE ACQUIRED
20 NID seeks to acquire an easement for a haul road and access purposes across lands owned
21 by the Estates of George Back and Dorothy Back located south of the Bear River in Placer
22 County, California. The easement, if acquired, would include a 60-foot wide strip of land, with
23 the incidental rights to grade and pave the entire width of the strip, as well as incidental rights to
24 improve and maintain drainage, slope maintenance, vegetation removal and install safety
25 measures. There is an existing road located within the proposed 60-foot wide strip of varying
26 widths that was constructed by Plaintiff in or about 1963 with the permission of George Back.
27 NID’s stated uses for the road are: (1) access to its Chicago Park Powerhouse and water
28 conveyance facilities for maintenance and operations; and (2) access to Rollins Reservoir and the
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DEFENDANT THEODORE BACK’S TRIAL BRIEF
surrounding area to remove and transport gravel and sediment that is encroaching upon the water
storage capacity of the reservoir. Both uses began when the road was constructed in 1963 and
continued for several decades. The Chicago Park Powerhouse use is ongoing, while the gravel
and sediment operations ceased in the late 1990s.
LIMITATIONS ON AN AGENCY’S AUTHORITY TO CONDEMN
While the power of eminent domain is inherent to sovereignty, it is limited by both the
U.S. Constitution and the California Constitution, as well as by statute. Property may only be
taken or damaged for a public use. (U.S. Const., Amends. V and XIV; Cal. Const., art. I, §14.)
When property is taken, just compensation must be awarded. (/d.)
10 To exercise the power of eminent domain, California law establishes certain findings that
11 must be made and procedures that must be followed. First, a finding of public necessity must be
12 made, which establish:
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(i) the public interest and necessity require the project;
14 (au) the project is planned or located in the manner that will be most
compatible with the greatest public good and the least private
15 injury; and
iil the property sought to be acquired is necessary for the project.
16 [Code Civ. Proc. §1240.030.]
17 Second, the agency must hold a hearing to consider whether these findings can be made. (Code
18 Civ. Proc. §1245.235.) Notice of that hearing and an opportunity to be heard at that hearing must
19 be provided to the property owner. (/d.) If the agency determines the findings can be made to
20 support the taking and in order to file a condemnation action, the agency must adopt a resolution
21 of necessity. (Code Civ. Proc. §§1240.040; 1245.220.)
22 California law also prescribes limits on a local public entity’s use of the power of eminent
23 domain outside their jurisdictional boundaries, as follows:
24 A local public entity may acquire by eminent domain only property within
its territorial limits except where the power to acquire by eminent domain
25 property outside its limits is expressly granted by statute or necessarily
implied as an incident of one of its other statutory powers. [Code Civ.
26 Proc. §1240.050.]
27 California law also provides that local public entities may take extraterritorial eminent
28 domain actions only for certain specified purposes, as follows:
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Except as otherwise expressly provided by statute and subject to any
limitations imposed by statute, a local public entity may acquire property
by eminent domain outside its territorial limits for water, gas, or electric
supply purposes or for airports, drainage or sewer purposes if it is
authorized to acquire property by eminent domain for the purposes for
which the property is to be acquired. [Code Civ. Proc. §1240.125.]
Extraterritorial takings by local public entities for implied purposes are also subject to additional
scrutiny, requiring an agency to demonstrate it has met a much higher standard of “legal
necessity.” (Kenneth Mebane Ranches v. Superior Court (1992) 10 Cal.App.4th 276, 289.)
Whether an agency has pled sufficient facts to support this standard is a question of law and is
jurisdictional. (Harden v. Superior Court (1955) 44 Cal.2d 630, 637-38.)
10 ISUES FOR TRIAL
11 Mr. Back, in both his individual capacity and as the special administrator of the Estates of
12 George Back and Dorothy Back, has raised objections to NID’s “right to take,” as has Ms.
13 Graupmann. These objections, which must be heard and determined prior to the determination of
14 issues of compensation (Code Civ. Proc. §1260.110), have been set for trial on September 28,
15 2020.
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A CONTRARY TO NID’S POSITION, MR. BACK HAS NOT WAIVED HIS
OBJECTIONS.
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18 The trial brief filed by NID on January 21, 2020, relies on People ex. rel. Dep’t of
19 Transportation v. Cole (1992) 7 Cal.App.4th 1281, 1284-86, to argue that Mr. Back has waived
20 the right to object to the Resolution of Necessity adopted by the NID’s Board of Directors at a
21 hearing held on July 12, 2017. NID’s waiver argument is based solely on NID’s assertion that it
22 mailed the notice under Code of Civil Procedure section 1245.235, to a post office box controlled
23 by Mr. Back. That argument is unavailing for the following two reasons.
24 First, unlike in Cole where the defendants failed to appear at the hearing to make their
25 objections even though they acknowledge receiving the notice, Mr. Back will testify that he did
26 not actually receive NID’s notice until after the hearing had already been held by NID, and after
27 the Resolution of Necessity was adopted by NID. At trial, Mr. Back will provide the notice that
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he eventually received from NID after the statutorily-required hearing had already taken place.
Therefore, the waiver discussed in Cole does not apply under the facts in this case.
Because Mr. Back did not actually receive the statutorily required notice prior to the
hearing, Mr. Back should not be saddled with the deprivation of his statutory and constitutionally-
based rights of the opportunity to be heard and raise objections to the governmental taking of
one’s own private property. Such a conclusion would be at odds with the fundamental principles
embodied in the Fifth Amendment to the U.S. Constitution, as well as the notice and hearing
requirements required in Code of Civil Procedure section 1245.235.
Second, Section 1245.235 expressly limits its procedures, and the consequences that flow
10 from those procedures as stated in Cole, to “the matters referred to in Section 1240.030.” Thus,
11 even if this Court was inclined to impose the waiver on Mr. Back pursuant to Section 1245.235,
12 any waiver would not apply to Mr. Back’s objections arising out of Sections 1240.050 or
13 1240.125.
14 For these reasons, NID’s request to find that Mr. Back has waived his right to raise
15 objections should be rejected. Mr. Back should retain the right to raise objections at trial.
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B NID’S CANNOT ESTABLISH THE RIGHT TO TAKE THE EASEMENT
17 IN THIS CASE.
18 Mr. Back will raise the following objections to NID’s “right to take” at trial.
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1 NID Has Failed To Demonstrate That The Proposed Taking Is
20 Legally Necessary .
21 When a local public entity seeks to take private property for an asserted “necessarily
22 implied” purpose, the public entity cannot rely on the same reasonable or practical necessity
23 standard used to meet the “public convenience and necessity” and “necessary” findings under
24 Section 1240.030, subdivisions (a) and (c), respectively. Instead, the public entity must
25 demonstrate that the project meets a much higher “legal necessity” standard which requires a
26 showing of “urgency, or extreme expediency, or legal necessity, or that the proposed taking is
27 indispensable.” (City of Carlsbad v. Wright (1963) 221 Cal.App.2d 756, 764.) “[E]vidence that
28 the taking of the land sought to be condemned ‘would be a great convenience’ to the plaintiff,
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1 “would enhance the value of its property, and would result in economy, established practical
necessity, but was not sufficient proof
to justify [legal necessity].” (/d. at 763.) The burden of
alleging sufficient facts to meet this requirement falls to Plaintiff and is jurisdictional. (Harden v.
Superior Court (1955) 44 Cal.2d 630, 637-38.)
In Kenneth Mebane Ranches v. Superior Court (1992) 10 Cal.App.4th 276 (“Kenneth
Mebane’’), the Fifth District Court of Appeal considered whether a local flood control district
could condemn extraterritorial property for the implied purpose of environmental mitigation
which the district argued it was obligated to do under the California Environmental Quality Act
(“CEQA”) for a project constructed within its territory. Applying the higher “legal necessity”
10 standard, the appellate court held that the district did not meet its burden, because it was not
11 required to acquire the extraterritorial property “in order to mitigate the environmental effects of
12 its flood control project.” (/d. at 291.) It reasoned that CEQA only requires agencies to implement
13 “feasible mitigation” and, thus, if taking extraterritorial property for environmental mitigation
14 was beyond its authority, then the mitigation would not actually be feasible and the project could
15 proceed without the mitigation. (/d. at 292.)
16 In this case, NID cannot meet its burden of proving that higher “legal necessity” standard.
17 NID is seeking to take extraterritorial private property for the implied purposes of access to NID
18 facilities and a sediment and gravel haul road. Just as in Kenneth Mebane, NID has the burden of
19 demonstrating that such a taking is “legally necessary” or otherwise “required” to take private
20 property for the purpose of accessing NID facilities at that location. With this Trial Brief, Mr.
21 Back is submitting Requests for Judicial Notice (as Exhibits 1 and 2) that establish that NID
22 could access the same NID facilities without the requirement to take any private property. In
23 short, NID cannot meet its burden of proving the requisite necessity for a taking here.
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2 NID’s Proposed Taking Is Not Most Compatible With The
25 Greatest Public Good And The Least Private Injury.
26 Code of Civil Procedure section 1240.030, subdivision (b), requires the condemning
27 agency to make a finding in its Resolution of Necessity that “[t]he project is planned or located in
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1 the manner that will be most compatible with the greatest public good and the least private
injury.” The Court of Appeal has described that requirement as follows:
Proper location is based on two factors: public good and private injury.
Accordingly, the condemnor’s choice is correct or proper unless another
site would involve an equal or greater public good and a lesser private
injury. A lesser public good can never be counter-balanced by a lesser
private injury to equal a more proper location. Nor can equal public good
and equal private injury combine to make the condemnor’s choice an
improper location. [SFPP v. Burlington Northern & Santa Fe Ry. Co.
(2004) 121 Cal.App.4th 452, 470 (citations omitted).]
NID cannot satisfy that requirement in this case.
NID found that the present taking is for “road purposes” that will allow for access to
Plaintiff's lands, facilities and improvements, including hauling “equipment, materials, debris,
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sediment, aggregate, and deposits.” (NID Resolution No. 2017-20, Finding 11.) Thus, the greatest
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public good provided by the proposed taking of Defendants’ property is to provide an access road
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to NID’s lands, facilities and improvements, while NID concludes that taking Defendants’
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property constitutes the least private injury to achieve that public good. Not so. As discussed
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above, Mr. Back will present evidence at trial that NID could have sought an alternative route that
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would also provide an access road to the same location on NID’s property as the proposed taking,
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while avoiding the need to impose private injury on Defendants or anyone else.
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18 3 NID Abused Its Discretion By Seeking To Take More
Expansive Easement Rights Than It Intends To Put Towards
19 The Public Use.
20 Under Code of Civil Procedure section 1250.360, subdivision (c), an agency does not
21 have the “right to take” where “the plaintiff does not intend to devote the property described in
22 the complaint to the stated purpose.” That objection lies in this case. Here, NID is seeking a
23 permanent 60-foot wide easement across Defendants’ property “for road purposes” to access
24 NID’s land, facilities and improvements, including hauling “equipment, materials, debris,
25 sediment, aggregate, and deposits,” and public access for recreational use. (NID Resolution No.
26 2017-20, Finding 11.) However, the evidence at trial will demonstrate that NID has already been
27 using the existing road across Defendants’ property to access NID’s land, facilities and
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improvements under a private agreement since 1963 to today, including for hauling sediment,
aggregates and deposits through the late 1990s.
Instead of seeking a permanent easement consistent with the existing roadway which has
been adequate for NID for the last several decades, NID now seeks an easement that includes the
right to “pave the surface of the entire easement.” The breadth of NID’s requested easement is an
abuse of discretion because NID’s own publicly available documentation demonstrates that the
scope of the easement is unnecessary to achieve NID’s stated purpose. Mr. Back will present
evidence at trial that NID has publicly stated that only minor safety improvements are needed to
achieve the desired purpose underpinning this eminent domain action.
10 Cc EVIDENCE AND BURDEN OF PROOF.
11 Mr. Back intends to offer as evidence the following exhibits:
12 1 County of Nevada, “County Maintained Mileage and CSA/PRD Road Listings
13 2/21/2019,” found at
14 https://www.mynevadacounty.com/DocumentCenter/View/15897/County-
15 Maintained-Road-List-PDF?bidId= (last visited Sept. 16, 2020);
16 2. 43 Code of Federal Regulations, Part 2800 et seq. [“RIGHTS-OF-WAY UNDER
17 THE FEDERAL LAND POLICY AND MANAGEMENT ACT”);
18 Excerpts from the “Final Environmental Impact Report for the Bear River
19 Sediment Removal at Rollins Reservoir,” dated November 2015;
20 Notice of Hearing for the Resolution of Necessity, which was received by Mr.
21 Back after the date of the hearing that was held on July 12, 2017.
22 Copies of these exhibits will be produced at trial.
23 Code of Civil Procedure section 1245.250, subdivision (c), provides that upon NID’s
24 adoption of the Resolution of Necessity the findings required under Section 1240.030 are
25 presumed to be true. This rebuttable presumption shifts the burden of proof to Defendants to
26 produce evidence sufficient to show that one or more of these findings are not true. As discussed
27 above, NID is seeking to condemn extraterritorial property for an implied use, and therefore NID
28 has an additional burden to demonstrate that the findings in the Resolution of Necessity or in its
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Complaint allege facts sufficient to demonstrate the “legal necessity” required for the use of an
implied power to take extraterritorial property through eminent domain. Only then would NID
receive the evidentiary presumption provided in Section 1245.250, subdivision (c). However, as
also discussed above, NID cannot meet that evidentiary burden.
CONCLUSION
Mr. Back respectfully requests that this Court (1) find that Mr. Back may present at trial
his objections to NID’s “right to take”; and (2) find that NID does not have the right to acquire by
eminent domain the property described in the Complaint.
Respectfully submitted,
10 DATED: September 16, 2020 ABBOTT & KINDERMANN, INC.
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By:
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Dani . Cucchi
Glen C. Hansen
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Attorneys for Defendant THEODORE
BACK, in his individual capacity and as
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Special Administrator of the Estates of
George Back and Dorothy Back
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