Tentative Ruling

Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
County of Santa Barbara v. Lawrence P. Grassini, et al.
Case No: 19CV06001
Hearing Date: Mon Mar 16, 2020 9:30

Nature of Proceedings: Motion Order for Prejudgment Possession

Motion Order for Prejudgment Possession

Motion for Order for Prejudgment Possession

ATTORNEYS:

For Plaintiff County of Santa Barbara: Michael C. Ghizzoni, Scott Greenwood, Office of County Counsel; Duff Murphy, Oliver, Sandifer & Murphy

For Defendants Lawrence P. Grassini, Trustee or any Successor Trustee of the Lawrence P. Grassini Qualified Personal Residence Trust, udt date July 18, 2000, as to an undivided one half interest, and Kathleen S. Grassini: Trustee or any Successor Trustee of the Kathleen S. Grassini Qualified Personal Residence Trust, udt date July 18, 2000, as to an undivided one half interest: Todd A. Amspoker, Price, Postel & Parma LLP

RULING: To address the issues set forth herein, the motion of plaintiff County of Santa Barbara for an order for prejudgment possession is continued to April 6, 2020. Plaintiff shall file and serve supplemental papers on or before March 23, 2020. Any responding papers shall be filed and served on or before March 30, 2020.

Background:

On November 8, 2019, plaintiff County of Santa Barbara (County) filed its complaint in eminent domain against defendants Lawrence P. Grassini, Trustee or any Successor Trustee of the Lawrence P. Grassini Qualified Personal Residence Trust, udt date July 18, 2000, as to an undivided one half interest, and Kathleen S. Grassini: Trustee or any Successor Trustee of the Kathleen S. Grassini Qualified Personal Residence Trust, udt date July 18, 2000, as to an undivided one half interest (collectively, defendants) to obtain a native landscaping and fish passage easement (the Easement) in connection with the Fernald Point Land Bridge Replacement Project at Romero Creek (the Project).

On December 15, 2019, defendants were served with the summons and complaint in this action. (Proof of Service, filed Dec. 27, 2019; Proof of Service, filed Dec. 30, 2019.) Defendants were also served with this motion by County for an order for prejudgment possession of the Easement pursuant to Code of Civil Procedure section 1255.410. (Ibid.)

This motion was filed on December 27, 2019.

On January 14, 2020, defendants filed their answer to the complaint, admitting and denying allegations thereof and asserting six affirmative defenses.

On February 13, 2020, County filed its notice of deposit of probable compensation stating that a deposit was made in the amount of $7,600.00 on December 5, 2019, pursuant to Code of Civil Procedure section 1255.010.

No opposition or other response to this motion has been filed by defendants.

Analysis:

“At the time of filing the complaint or at any time after filing the complaint and prior to entry of judgment, the plaintiff may move the court for an order for possession under this article, demonstrating that the plaintiff is entitled to take the property by eminent domain and has deposited pursuant to Article 1 (commencing with Section 1255.010) an amount that satisfies the requirements of that article. [¶] 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. The motion shall include a statement substantially in the following form: “You have the right to oppose this motion for an order of possession of your property. If you oppose this motion you must serve the plaintiff and file with the court a written opposition to the motion within 30 days from the date you were served with this motion.” If the written opposition asserts a hardship, it shall be supported by a declaration signed under penalty of perjury stating facts supporting the hardship.” (Code Civ. Proc., § 1255.410, subd. (a).)

The motion describes the property by reference to the complaint and states that it seeks possession not later than March 31, 2020.

“The plaintiff shall serve a copy of the motion on the record owner of the property and on the occupants, if any. The plaintiff shall set the court hearing on the motion not less than 60 days after service of the notice of motion on the record owner of unoccupied property. If the property is lawfully occupied by a person dwelling thereon or by a farm or business operation, service of the notice of motion shall be made not less than 90 days prior to the hearing on the motion.” (Code Civ. Proc., § 1255.410, subd. (b).)

The motion was served on the owners in December 2019 for this hearing in March 2020. The motion has been timely served.

“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.” (Code Civ. Proc., § 1255.410, subd. (c).)

No opposition has been filed with the court.

“If the motion is not opposed within 30 days of service on each defendant and occupant of the property, the court shall make an order for possession of the property if the court finds each of the following:

“(A) The plaintiff is entitled to take the property by eminent domain.

“(B) The plaintiff has deposited pursuant to Article 1 (commencing with Section 1255.010) an amount that satisfies the requirements of that article.” (Code Civ. Proc., § 1255.410, subd. (d)(1).)

Plaintiff County has presented evidence of its immediate and permanent need for the Easement and its legal right to acquire the Easement through eminent domain. (Bensel decl., ¶¶2-17; Code Civ. Proc., §§ 1240.110, 1240.120; Gov. Code, § 25350.5.) County has shown, and the court finds, that County is entitled to take the property, i.e., the Easement, by eminent domain.

County has presented evidence of its deposit of $7,600.00. (Murphy decl., ¶ 2.)

“At any time before entry of judgment, the plaintiff may deposit with the State Treasury the probable amount of compensation, based on an appraisal, that will be awarded in the proceeding. The appraisal upon which the deposit is based shall be one that satisfies the requirements of subdivision (b). The deposit may be made whether or not the plaintiff applies for an order for possession or intends to do so.” (Code Civ. Proc., § 1255.010, subd. (a).)

“Before making a deposit under this section, the plaintiff shall have an expert qualified to express an opinion as to the value of the property (1) make an appraisal of the property and (2) prepare a written statement of, or summary of the basis for, the appraisal. The statement or summary shall contain detail sufficient to indicate clearly the basis for the appraisal, including, but not limited to, all of the following information:

“(A) The date of valuation, highest and best use, and applicable zoning of the property.

“(B) The principal transactions, reproduction or replacement cost analysis, or capitalization analysis, supporting the appraisal.

“(C) If the appraisal includes compensation for damages to the remainder, the compensation for the property and for damages to the remainder separately stated, and the calculations and a narrative explanation supporting the compensation, including any offsetting benefits.” (Code Civ. Proc., § 1255.010, subd. (b).)

“On noticed motion, or upon ex parte application in an emergency, the court may permit the plaintiff to make a deposit without prior compliance with subdivision (b) if the plaintiff presents facts by affidavit showing that (1) good cause exists for permitting an immediate deposit to be made, (2) an adequate appraisal has not been completed and cannot reasonably be prepared before making the deposit, and (3) the amount of the deposit to be made is not less than the probable amount of compensation that the plaintiff, in good faith, estimates will be awarded in the proceeding. In its order, the court shall require that the plaintiff comply with subdivision (b) within a reasonable time, to be specified in the order, and also that any additional amount of compensation shown by the appraisal required by subdivision (b) be deposited within that time.” (Code Civ. Proc., § 1255.010, subd (c).)

The evidence presented to the court in connection with this motion does not show compliance with Code of Civil Procedure section 1255.410, subdivision (d)(1)(B), because, although there is evidence that $7,600.00 was deposited as required, there is no evidence upon which the court can find that the amount of $7,600.00 satisfies the requirements of section 1255.010, subdivision (b). No evidence has been presented that the amount is based upon a qualified appraisal as required by section 1255.010, subdivision (b), or even that the required appraisal had actually be prepared. There is also no evidence presented that the deposit is made pursuant to subdivision (c). In other words, there is simply no evidence presented as to why the amount $7,600.00 meets the requirements of section 1255.010.

The court anticipates that the lack of such evidence is an oversight and that the $7,600.00 amount was actually determined in a manner complying with section 1255.010. However, section 1255.410 requires that the court make findings based upon evidence even where the motion is unopposed. The court will therefore continue the hearing on this motion to April 6, 2020, to permit the filing of supplemental materials.