Motion,Ex Parte: CITY OF MODESTO vs WLMBS INC

On August 25, 2020 a Motion,Ex Parte was filed involving a dispute between City Of Modesto, and Wlmbs Inc, for Eminent Domain/Invs Condemnation: Unlimited in the District Court of Stanislaus County.

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Electronically Filed
9/30/2020 5:04 PM
PALMIERI, HENNESSEY & LEIFER, LLP Superior Court of California
Michael H. Leifer oan Oo 138237 County of Stanislaus
Clerk of the Court
Neha Kee
eo Bar No. "724030
By: Sabrina Bouldt, Deputy
Pathe oe oon
Irvine, CA 92614-2518 $60 PAID
Telephone: (949) 851-7388
Facsimile: $30 NOT PAID
Attol s for Defe
WLMB INC. dba BURNSIDE BODY SHOP

SUPERIOR COURT OF CALIFORNIA
COUNTY OF STANISLAUS
10

11 CITY OF MODESTO, Case No. CV-20-003640
12 Plaintiff, DEFENDANT'S NOTICE OF MOTION
AND MOTION TO STR
13 VS. MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF
14 WLMBS, INC. dba BURNSIDE BODY MICHAEL I. KEHOE IN SUPPORT
SHOP; DOES 1 Thro 100, Inclusive; and
15 ALL PERSONS IOWN CLAIMING IR foquest me Notice and Denunrer
ANY TITLE OR INTEREST IN OR TO THE
16 PROPERTY DESCRIBED HEREIN
Assigned for All
17 Defendants. page Hon. John D. Relend
18
Date: November6, 2020
19 Time: 8:30am.
20 Complaint Filed: Aucust 25, 2020
21

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TABLE OF CONTENTS
Page

Introduction
Statement of Facts
A motion to strike improper allegations is proper
The City is not authorizedto condemn business ill ora claim for
loss of as it was only authorized to condemn
Property to implement the State Route 132 Project.
.
Defendant’ s pen ously-filed co aint for inverse condemnation is the
appropriate um to address the claim for loss of goodwill 10
The City’s allegations to “condemn” any “real property”
are moot as the
10 City admits it already owns the real property 11
11 Conclusion. 13
12

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20

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TABLE OF AUTHORITIES
Page(s)

Cases

Chhourv. Communit
(1996) 46 Cal. Raph
ne Agency sesessecssessessessesseesscssesseesessecssssscsseeseenessessess 9, 10, 11
City of Stocktonv. Marina Towers LLC
(2009) 171 Cal.App.4th 93 9, 10, 12
msumer Cause, Inc. v. Johnson & Johnson
(2005) 132 Cal. App.4th 1175 11, 12
of San Diego v. Bressi
(1985) 184 CaLApp. BG 112 oes essessesseesssesssesssesssesssesssesssesssesssessuessessuessesseesseess 9,12
10 Elk Hills Power, LLC v. Board of Equalization
(2013) 57 Cal.4th 593...
11
Grieves v.
12 (1984) 57 Cappy: 3d 159
13 mre Marria
(1974) SS Cal 3d 57
14
cyv. Norm's Slauson
15 mae Te Cray pp.3d 1121 10
16 County Flood Control Dist. v. Grabowski
(1988) 205 Cal.App.3d 885 12
17
SanJ ose Parki ior Court
18 (2003) 110 Cal App.4th 1321 oo... eeceessesssesssessseesseessesssessnesssesssesssesssesssesssessnessseessess 68,9
19 Wilson & Wilson v. Cit Council of Redwood City
(2011) 191 Cal.App.4th 1559 12
20
Statutes
21
Code Civ. Proc. §435 5,9
Code Civ. Proc., §1245.230 11, 13
Code Civ. Proc., §1245.330 13
24
Code Civ. Proc., §1250.370 11
25
Code Civ. Proc., §481.203
26
Code
of Civ. Proc., §1245.250 10
27
Evidence Code section 452 12

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DEFENDANT'S NOTICE OF MOTION AND MOTION TO STRIKE; MEMORANDUM OF POINTS AND

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TO ALL PARTIES AND THEIR ATTORNEY S OF RECORD:
PLEASE TAKE NOTICE THAT defendant WLMBS, Inc. dba Bumside Body Shop on
November6, 2020, at 8:30 am., or as soon thereafter as the matter may be heard in
Department 23 of the above-entitled court, located at 810 10 Street, Modesto, CA. 95354, will

and hereby does move the Court to strike
the plaintiff City of Modesto’s Complaint
in Eminent
Domain on the grounds that said allegations are imelevant, conclusory, or improper pursuant to
Code of Civil Procedure §§435 and 436.
Altematively, defendant will and hereby does move the Coutt to strike the following
portions of plaintiff City of Modesto’s Complaint in Eminent Domain on the grounds that said
10 allegations are irrelevant, conclusory, or improper
matter pursuant to Code of Civil Procedure
11 §§435 and 436:
12 1 Paragraph 6, page 3, lines 3 to 4: “City now seeks to acquire all remaining
13 interests
in the Property, namely the tenant’
s interest, if any.”
14 Paragraph 10 in its entirety
as set forth on page 3, lines 18 to 21.
15 Paragraph 19 in its entirety as set forth on page 5, lines
8 to 16.
16 Prayer
for relief, paragraph1 in its entirety as set forth
on, page 6, lines 3 to 4.
17 Prayer
for relief, paragraph
2 in its entirety as set forth
on page 6, lines 5 to 6.
18 Prayer
for relief, paragraph
3 in its entirety as set forth
on page 6, line 7.
19 7. Prayer
for relief, paragraph
4 in its entirety as set forth
on page 6, lines 8 to 9.
20 8. Prayer
for relief, paragraph
5 in its entirety as set forth
on page 6, lines 10 to 11.
21 Defendant further requests that, based on the foregoing motion, the Court dismiss this
action.

This motion is based on this notice, the attached memorandum of points and authorities,
24 all pleadings and papers on file herein, all matters
of which this court must or may take judicial
25 notice, and upon such other evidence and argument as the court deems just and proper.!
26

27
1 WLMBS has concurrently filed a general demurrer to the City’s complaint. This motion is brought in
the event the Court believes a motion to strike is the appropriate method to challengethe City defective
allegations.
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Dated: September 30, 2020 PALMIERI, HENNESSEY & LEIFER, LLP

By: /s/ Michael I. Kehoe
Michael H. Leifer
Michael I. Kehoe
WLMBS,
SHOP
for Defendant
INC. dba BURNSIDE BODY

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20

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Memorandum of Points and Authorities
1 Introduction.
The City’s allegations concede
the City already owns all the “real property” it was
authorized
to condemn for the State Route 132 Project. The City alleges it acquired all real
property claims of defendant WLMBS, Inc. dba Bumside Body Shop. (Compl., 1.9.) The City
cannot therefore seek to condemn what it admits
to own.
Further, the City’s Resolution of Necessity, which is the fundamental authorization fora
Complaint in Eminent Domain, demonstrates that the City required acquisition of real
property, not personal property, forits project. The City’s Complaint, however, asserts “City
10 seeks to acquire any compensable interests of the Body Shop including, without limitation, the
11 Body Shop's loss of business goodwill.” (Compl., 110, 3:18-19.) The City cannot acquire
12 intangible personal property, i.e., goodwill, when
it was only authorized
to acquire “real
13 property.” San
J ose Parkingv. Superior Court (2003) 110 Cal.App.4th 1321, 1325.)
14 Therefore, the allegations that the City seeks to “condemn” real property interests it has
15 already acquired
and personal property it was never authorized to acquire
are improper and
16 should be stricken. Because those allegations go to core of the Complaint, the Complaint

17 should be stricken in its entirety and this action dismissed.

18 2 Statement of Facts.
19 On August 14, 2018, the City Council for plaintiff City of Modesto adopted Modesto
20 City Council Resolution No. 2018-335, a resolution of necessity. (Compl. Ex. 4.) In the
21 Resolution, the City “found and determined” that the property identified in “Exhibit A hereto”
‘was necessary for the City’s described roadway project. (Compl., Ex. 4, 13.) The public
23 project for which the property in “Exhibit A” was to be condemned was the construction of the
24 State Route 132 West Freeway/Expressway - Phase 1 Project. (Compl., 13.) To that end, the
25 City authorized the City attomey as follows:
26

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8 The City Attorney and/or his designee, is hereby authorized and

"empowered to acquire in the name of the City of Modesto by condemnation th
to prepare, prosecute and conduct to conclusion in the

name of the City of Modesto such proceedings in the proper co

id to make such action as may be deemed advisable or necessary in

connection therewith; to deposit the probable amount of just compensation, based on an

approved appraisal.

(Compl., Ex. 4, exh. A thereto, 18, highlights added.)
10
The property described
in “Exhibit A” was identified
as “Real property in the City of
11
Modesto, County of Stanislaus” commonly referred to by Assessor Parcel Numbers 101-002-
12
007 and -008.” (Compl., Ex. 4, exh. A thereto, emphasis added.) As the “Real Property” is
13
tangible, real property, it was identified
by a metes and bounds legal description. (Ibid.)
14
Acquisition of the “Real Property” resulted in the displacement/relocation of the
15
personal property:
16
Itis hereby understood and agreed by WLMBS, Inc. dba Bumside
4 Body Shop, Brent & Stephanie
17 Bumside (Claimant), and # of Modesto ine through; the Relocation Assistance Program|
initiate: Modesto CA 95352 (Subject Property)
18 for the SR 132 Expressway, that the total amount of S. 760,888 will be paid
to Claimant for the
relocation of ail personal property | located within the Subject
19
detailed in attached inventory list,
Properly. meee
20 the replacement property.

21 (Compl., Ex. 3, p. 1.)
22 As evidenced by the grant deed and agreements attached to the City’s complaint, the
23 || City acquired the fee title on December 13, 2018. (Compl., Ex. 1.) Further, because the City’s
24.| acquisition of the “Real Property” and its project construction displaced the property owners’
25 || separate business entity, commonly referred to as Bumside Body Shop, the business entity
26 || entered into an agreement with the City on or about January 23, 2019. (Compl., Ex. 3.) As
27 | part of that agreement, the City acquired the corporation’s interest
in the “Real Property”
28 | including any claims for “leasehold bonus value, improvements pertaining to realty, fixtures
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and equipment.” (Compl., 8.) Thus, based upon the exhibits attached
to the Complaint, as
of January 23, 2019, the City acquired under threat of condemnation all interests in the “Real
Property” authorized to be acquired by the City’s August 2018 resolution of necessity.
3 A motion to strike improper allegations is proper.
Pursuant
to Code of Civil Procedure §435(b)(1), a motion
to strike
may be made by

“[alny party within the time allowed
to respond
to a pleading may serve and file a notice of
motion to strike the whole or any part thereof[.]” The court may, upon noticed motion or in its
own discretion, strike out any irrelevant, false, or improper
matter inserted in any pleading.
(Code Civ. Proc. §436, subd. (a).) A motion to strike is the accepted
method of eliminating
10 improper claims for relief. (See, e.g., Grieves v. Superior Court (1984) 157 Cal.App.3d 159,
11 164, 166-168 [holding a motion
to strike is the appropriate way to challenge a defective prayer
12 for punitive damages].)
13 4. The City is not authorized to condemn business goodwill or a claim for loss of
14 business goodwill as it was only authorized to condemn Real Property to
15 implement the State Route 132 Project.
16 When
an agency is only authorized
to condemn “real property”, it cannot maintain an
17 eminent domain action to conden intangible, personal property. (San Jose Parking v.
18 Superior Court (2003) 110 Cal.App.4th 1321, 1325.) In paragraph ten of the Complaint, the
19 City alleges “Through this action, City seeks to acquire any compensable
interest of the Body
20 Shop including, without limitation, the Body Shop's loss of business goodwill.” (Compl.,
21 10, 3:18-19.) Putting aside for the moment that the personal property, including choses in
action, went with the business to the replacement property, the City’s exhibits contradict the
23 City’s allegation. The resolution of necessity authorized condemnation of the “Real Property”
24 described
in “Exhibit
A” to the resolution. (Compl., Ex. 4, exh. A thereto.) “Real property” is
25 an interest
in real property. (Code Civ. Proc., §481.203.) In this case, itis 612 N. Franklin
26 Street.
27 Goodwill, however, is an “intangible” form of personal property. (In re Marriage of
28 Foster (1974) 42 Cal.App.3d 577, 582, fn. 2 [goodwill “is founded upon personal skill or
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reputation”]; Elkills Power, LLC v. Board of Equalization (2013) 57 Cal.4th 593, 619

[goodwill of business intangible property]; see also Chhour v. Community Redevelopment
Agency (1996) 46 Cal.App.4th 273, 282 [noting legislative comment that “goodwill is not an
interest acquired for public ”| (“Chhour”).) Because the City was only authorized
by its

resolution
to acquire 612 N. Franklin Street, the “Real Property” described
in Exhibit A to the
resolution for the widening of State Route 132, the City has no authority to maintain an
eminent domain action to acquire intangible, personal property from a business
that is no
longer at 612 N. Franklin Street. The decision in San
J ose Parkingv. Superior Court, supra,
110 Cal.App.4th 1321 is instructive on this point.
10 In SanJose Parking, supra, the agency was, by statute, only authorized
to condemn
11 “real property.” (San Jose Parking, supra, 110 Cal.App.4th
at p. 1325.) There, the agency
12 owned the real property in question but filed an eminent domain action to acquire
a private
13 party’ s agreement with the agency “regarding development negotiations” that related to the
14 real property. (Id. at pp. 1323-1324) The appellate court determined, however, that the
15 agreement was not
a “real property interest.” (Id. at pp. 1329-1330.) Because
the agency was
16 limited by statute to condemning only real property, the court held the agency had no authority

17 to condemn the agreement as the agreement was not an interest
in real property. (Id. at 1332.)
18 Here, the authority to file the present condemnation action is based upon the City’s
19 resolution of necessity, a mandatory prerequisite to filing an eminent domain action. (Marina
20 Towers, supra, 171 Cal.App.4th at p. 104.) That resolution, also an exhibit to the Complaint,
21 defined what the City authorized
to be condemned. (Compl., Ex. 4 and exh. A thereto.) By
defining the “property” to be condemned, the City set the limit of its authority. “The resolution
23 of necessity conclusively establishes the extent of the taking.” (County of San Diego v. Bressi
24 (1985) 184 Cal.App.3d 112, 122 citing Code of Civ. Proc., §1245.250(a).) In the resolution of
25 necessity, the rights to be taken are unambiguously “Real Property.” The City cannot “seek to
26 acquire” personal property.
27 Further, the City’s power to acquire is also limited in that it can only condemn property
for a determined public use. That public use, i.e., the public project, must be stated
in the
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resolution of necessity. (City of Stocktonv. Marina Towers LLC (2009) 171 Cal.App.4th 93,

107-108.) The City is bound by its description of the project. (Ibid.) Further, a condemnor
can only condemn what it needs for the identified public project and must making a finding
that “the property described
in the resolution is necessary for the proposed project.” (Code
Civ. Proc., §1245.230, subd. (c)(3).) The City did not resolve that acquisition of WLMBS’

business goodwill component of the personal property was needed to realign State Route 132.
(Compl., Ex. 4.)
In this case, the public use set forth in the resolution of necessity, and admitted
by the
complaint, is a street realignment/widening
project. (Compl., 913-4, 2:14-20; Ex. 4.) The
10 City’ s resolution identifies that it needs “Real Property” to build the public road project. There
11 is no finding
in the City’s resolution
that it needs or is seekingto acquire
the body shop's “loss
12 of goodwill” to carry out a street alignment and widening project. And for good reason, as

13 sucha “finding” would
be nonsensical, arbitrary and capricious and itself subject to attack.
14 (See, Code Civ. Proc., §1250.370, subd. (d); Redevelopment Agency v. Nornts Slauson (1985)
15 173 Cal.App.3d 1121, 1129.)
16 Because the City lacks the authority to acquire
the personal property claim for loss of
17 goodwill, the allegations related to this claim should be stricken.
18 5 Defendant's previously-filed complaint for inverse condemnation is the
19 appropriate forum to address the claim for loss of goodwill.
20 When
a public agency acquires real property for
a public project
that displaces a
21 business from the acquired property and the acquiring agency did not file an Eminent Domain
proceeding
to displace
the business, the business
is entitled
to file an inverse condemnation
to
23 recover
for loss of business goodwill. (Chhour, supra, 46 Cal.App.4th at p. 282.)
24 In Chhour, supra, the agency acquired
the property on which the business operated.
25 The agency did not file an eminent domain action. (Chhour, supra 46 Cal.App.4th at p. 277.)
26 The agency then displaced the business. The business filed a complaint for inverse
27 condemnation
to recover for its loss of business goodwill caused by the displacement. The

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agency demunred
and the trial court sustained
the demurrer. (Ibid.) The appellate court
reversed.
The Chhour court held that the business displaced by a public project where no eminent
domain action was filed to acquire
the real property properly seeks
to recover its loss of
goodwill by filing an inverse condemnation action. (Id. at p. 282.)
In this case, as in Chhour, supra, the City elected to not file a direct condemnation
action to acquire the “Real Property” described in the resolution. Instead, it acquired the real
property occupied
by the business by agreement under threat of condemnation. The Complaint
admits
as much. (Compl., 115, 8-9; Exs. 1, 3.) The City did so almost
two years ago. The
10 City admittedly
has not compensated
the business for its loss of goodwill. As a result, the
11 business filed its inverse action on August 3, 2020.? In an attempt to avoid this appropriately
12 filed inverse action, the City filed its sham “eminent domain” complaint on August 25"
13 seeking “to acquire any compensable interest of the Body Shop including, without limitation,
14 the Body Shop's loss of business goodwill.” (Compl., 110, 3:18-19.) Asin Chhour, supra,
15 the appropriate forum to address defendant's claim for loss of goodwill is the earlier-filed
16 inverse condemnation action. The allegations in the City’s Eminent Domain Complaint
17 seeking to acquire “loss of goodwill” should therefore be stricken.
18 6. The City’s allegations to “condemn” any “real property” are moot as the City
19 admits it already owns the real property.
20 Courts will not decide a case that is moot. “A judicial tribunal ordinarily may consider
21 and determine only an existing controversy, and not a moot question or abstract proposition.”
(Consumer Cause, Inc. v. Johnson & Johnson (2005) 132 Cal.App.4th 1175, 1183.) “When
23 events render a case moot, the court, whether trial or appellate, should generally dismiss it.”
24

26
2 Pursuant to Evidence Code section 452 subdivision (d), defendant requests that the Court take
27 judicial notice of the defendant’ s previously-filed Complaint in Inverse Condemnation and the Cit
Answer to the Complaint in Inverse Condemnation. WLMBS filed that action on August 3, 2020.
28 Only after WLMBS filed its inverse condemnation complaint did the City file this action some three
later on August 25, 2020.
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(Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal-App.4th 1559, 1574;

accord, Consumer Cause, Inc. v. Johnson
& Johnson, supra, at p. 1183.)
The City’s allegations admit that it has acquired the “real property” identified in its
resolution of necessity. (Compl.,{915, 9; Ex. 4 and exh. A thereto.) Having acquired the “Real
Property” set forth in the resolution, the City’s allegations to condemn such property are
improper
as the issue is moot.

The resolution of necessity sets the boundaries for what the govemment may seek to
condemn by eminent domain for its project. The City cannot condenn property unless it has
first adopted a resolution of necessity “that meets all statutory requirements” including those
10 set forth in Code Civ. Proc., §1245.230. (Marina Towers, supra, 171 Cal.App.4th at p. 104.)
11 Code Civ. Proc., §1245.230 requires that the resolution of necessity describe the “property”
12 sought to be condemned. (Code Civ. Proc., §1245.330, subd. (b).) Strict compliance with the
13 statutory provisions is mandatory. (San Bernardino County Flood Control Dist. v. Grabowski
14 (1988) 205 Cal.App.3d 885, 893.) The City is bound by its description of the “property” stated.
15 in the resolution of necessity. During the Court proceeding, the City cannot claim it is
16 condemning more or less than the scope of the authority set forth in the resolution of necessity.
17 (Bressi, supra, 184 Cal.App.3d at pp. 122-123.)
18 Here, the resolution authorized the City to condenm the property described in “Exhibit
19 A” to the resolution. (Compl., Ex. 4, resolution pp. 2-3.) That “property” is the 612 N.
20 Franklin “Real Property.” (Compl., Ex. 4, exh. A thereto.) While claiming to file this action to
21 condenm the “tenant’s interest, if any” in the “Real Property” (Compl., 16), just afew

paragraphs later the City alleges prior acquisition of tenant WLMBS’ interest in the “Real
23 Property” as all such real property claims
have been “fully and completely settled and
24 resolved.” (Compl., 1.9, 3:16.) To drive the point home that the tenant has no claim for any
25 interest
in the Real Property, the City attaches another agreement with WLMBS setting forth
26 that the tenant has resolved all claims in the Real Property including any claims for “leasehold
27 bonus value, improvements pertaining
to realty, fixtures and equipment” (Compl., Ex. 3, 48.)

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In light of the admissions made in the City’s complaint, the City’s allegations that it
seeks to condemm WLMBS’ interest in the “Property” are improper, unauthorized and moot.
These allegations, along with the corollary prayer for relief based on these allegations, should
be stricken. Further, because striking the improper allegations leaves the City without a cause
of action for eminent domain, the Complaint should be dismissed in its entirety.
7 Conclusion.
Based on the foregoing, WLMBS, Inc. dba Bumside Body Shop respectfully requests
that the Court grant this motion to strike and dismiss
the City’s complaint.

10 Dated: September 30, 2020 PALMIERI, HENNESSEY & LEIFER, LLP
11

12 By: /s/ Michael I. Kehoe
Michael H. Leifer
13 Michael I. Kehoe
14 WLMBS,
SHOP
for Defendant
INC. dba BURNSIDE BODY
15

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20

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DECLARATION OF MICHAEL I. KEHOE

I, Michael I. Kehoe, declare:
1. Iam partner
at the law firm of Palmieri, Hennessey & Leifer, LLP, counsel of
record for defendant, WLMBS, Inc. dba Bumside Body Shop. I have personal knowledge of
the facts stated
in this declaration
and could testify to such facts if called as a witness.
2. On Friday, September 25, 2020, myself
and my partner, Michael
H. Leifer,
participated in a telephonic conference call with plaintiff’ s counsel, Artin Shaverdian and
Kristin Mendenhall. The call lasted approximately
twenty minutes. We sought
to discuss the
10 deficiencies of the City’s complaint including that the City already acquired all the real
11 property it was authorized to acquire. Mr. Shaverdian disagreed with defendant’ s position
12 making this motion to strike necessary.
13 I declare under penalty of perjury under
the laws of the State of Califomia
that the
14 foregoing is true and correct.
15 Executed this 29 day of September, 2020, at Irvine, Califomia.
16

17 /s/ Michael I. Kehoe
Michael I. Kehoe
18

19
20

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EXHIBIT A

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PALMIERI, HENNESSEY & LEIFER, LLP Electronically Filed
Michael H. Leifer oan Oo 138237 8/3/2020 12:34 PM
Superior Court of California
Neha Kee
eo Bar No. "724030 County of Stanislaus
Clerk of the Court
Pathe oe oon
Irvine, CA 92614-2518 By: J oshua Teixeira, Deputy
Telephone: (949) 851-7388 $435 PAID
Facsimile:

Attol s for Plait
WLMB INC. dba BURNSIDE BODY SHOP

SUPERIOR COURT OF CALIFORNIA
COUNTY OF STANISLAUS
10

11 WLMBS, INC. dba BURNSIDE BODY Case No. CV-20-003270

12 COMPLAINT FOR INVERSE
Plaintiff, CONDEMNATION
13
VS.
14
CITY OF MODESTO, a Municij

ie pl
15 | col on; COUNTY OF STA SLAUS, a
litic; SiaAge OF CALIFORNIA,
16 | acti the Department of’
oN DO 'S 1 through 20,
17
Defendants.
18

19 Plaintiff WLMBS, Inc. dba Bumside Body Shop (“Bumside Body Shop” or “Plaintiff”)
20 hereby alleges as follows:
21 GENERAL ALLEGATIONS
1. Plaintiff Bumside Body Shop is a duly formed corporation under the laws of the
State of Califomia.
24 2. Defendant City of Modesto is a municipal corporation in the State of Califomia
25 operating pursuant to Charter (“City”).
26 3. Defendant Stanislaus County is a body politic acting within the State of
27 Califomia (“County”)
This case
as been aselgned
to Judge Speiller, Stacy
Deparment, ‘for all purposes including Tria.
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EXHIBIT A
4. Defendant People of the State of Califomia, acting by and through the
Department of Transportation, is public entity formed under the Califomia Constitution
(“Caltrans”).
5. Defendant Stanislaus County is a body politic acting within the State of
Califomia (“County”).

6. Plaintiff is ignorant of the true names of defendants sued herein as DOES 1
through 20, inclusive, and therefore sues said defendants by those fictitious names. Plaintiff
will amend the complaint to allege the true names and capacities of defendants when the same
have been ascertained. Plaintiff is informed and believes, and based thereon alleges, that each
10 named defendant was and is in some manner responsible for the wrongful conduct alleged in

11 this complaint. Plaintiff is informed and believes, and based thereon alleges, that the
12 defendants
were and are, at all times mentioned
in this complaint, the agents, servants, and
13 employees of their co-defendants and were acting within their authority as such with the
14 consent and permission of their co-defendants.
15 7. Plaintiff is informed and believes and thereon alleges that Defendants are
16 carrying out a public project for the expansion of State Route 132 Expressway. Plaintiff is
17 informed
and believes and thereon alleges that City and County entered into a Joint Powers
18 Agreement for right of way acquisition activities for the Project in or around October 24, 2017.
19 Plaintiff is informed and believes and thereon alleges that Caltrans and City entered into a
20 cooperative agreement on or about March 2, 2018, with the State exercising oversight control
21 of the Project.

8. As part
of the Project jointly carried out by Defendants, the City acquired under
23 threat of eminent domain Bumside Body Shop’s business location, namely, 612 N. Franklin
24 Street and 309 Beech Street, Modesto CA 95352.
25 9. Priorto the Project, Bumside Body Shop successfully operated an automotive
26 collision repair/body shop business on the Subject Property. Through its years of operational
27 experience, locational advantages, skill, knowledge, and reputation, the business was able to
attract and retain patrons. The business
was able to generate millions of dollars of revenue
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COMPLAINT FOR INVERSE CONDEMNATION
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|
EXHIBIT A
from its operations on the Subject Property. As a result, and prior to the Project impacts,
Plaintiff possessed business goodwill from its operations on the Subject Property.
10. In or about 2017 through 2018, Defendants, through their employees, agents
and/or consultants, informed Bumside Body Shop that the Subject Property must be acquired
for the Project. Defendants informed Plaintiff that the business must be displaced to allow the
Project
to proceed. In furtherance of its acquisition
of the Subject Property under threat of
condemnation, Defendants commissioned the appraisal of the Subject Property for acquisition
as the initiation of the eminent domain process under Govemment Code section 7260, et seq.
11. On or about October 8, 2018, the City, acting on behalf of Defendants
to carry
10 out the Project, acquired the Subject Property for the Project
in lieu of condemnation thereby
11 taking the Subject Property and requiring displacement of the business.

12 12. Because of the displacement threatened and required by Defendants, Bumside
13 Body Shop went through a very lengthy and time-consuming process to find a relocation site.
14 After considering multiple locations, Defendants through its consultants CPSI urged the
15 business to relocate to 526 10th Street, Modesto.
16 13. In fall of 2019, Plaintiff relocated the business to 526 10" Street, Modesto. The
17 move was disruptive and damaged the business. Due to the displacement
of the business and
18 all the attendant impacts and disruptions, Bumside Body Shop lost patronage. The relocation
19 of the business required significant
work, time, and effort that diverted the business from
20 retaining/attracting customers and being as productive
as it would have absent the Project. The
21 displacement caused by Defendants uprooted an established business. The relocation resulted
in the business essentially
starting over at a new and, froma business operational standpoint,
23 economically inferior location when compared to the Subject Property, with greater occupancy
24 costs, less revenue
and greater risk. Among other things, the business incurred increased
25 expenses, lost revenue, lost profits. The business
has suffered loss of business goodwill.
26 14. Since relocation, Bumside Body Shop has further sought and requested that the
27 City compensate
the business for the losses caused by Defendants. In furtherance of that
request and months prior to this litigation, Plaintiff in good faith provided the City numerous
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COMPLAINT FOR INVERSE CONDEMNATION
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EXHIBIT A
financial documents and records demonstrating the business’ income, profitability, and
goodwill that existed prior to the Project. Plaintiff also informed the City of negative impacts
caused
by the relocation. Bumside Body Shop requested
that the City help to mitigate
the
losses by providing an interim payment of compensation for damages and losses suffered by
the business. City has, to date, refused to do so.

FIRST CAUSE OF ACTION
(For Inverse Condemnation A gainst All Defendants)

15. Plaintiff incorporates by reference the allegations set forth in paragraphs 1
through 14, as if fully set forth herein.
10 16. Prior to the Defendants’ Project, Bumside Body Shop had established itself as a
11 reputable, long-standing automotive collision repair/body shop at the Subject Property.
12 Among other things and without limitation, the business enjoyed the locational benefits of
13 established occupancy being the oldest body shop in the City; near downtown with drive-by
14 traffic; excellent freeway proximately; and an efficient, well-laid out physical site all of which
15 allowed
the business to attract and retain

Case Info

Judge

Speiller, Stacy Track Judge’s New Case

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Document Filed Date

September 30, 2020

Case Filing Date

August 25, 2020

County

Parties

CITY OF MODESTO Plaintiff
KEHOE, MICHAEL I, Esq. Attorney for the Defendant
SHAVERDIAN, ARTIN N, Esq. Attorney for the Plaintiff
WLMBS INC Defendant
Michael Leifer Attorneys for Defendants
Kristin Mendenhall Attorney
Thomas Boze Attorneys for Plaintiffs
Robert Taro Attorneys for Defendants

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Motion,Ex Parte: CITY OF MODESTO vs WLMBS INC

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