Case Number: BC707518 Hearing Date: November 27, 2018 Dept: 34

SUBJECT: Motion for Prejudgment Possession

Moving Party: Plaintiff Antelope Valley-East Kern Water Agency

Resp. Party: None

The Court will CONTINUE this motion to allow plaintiff to supply the missing appraisal.

BACKGROUND:

Plaintiff commenced this action on May 25, 2018, against Defendants Louie Michael Siapno and Geraldine Loy Siapno, the owners of certain property, and Defendant Southern California Edison Company, which owns an easement on the property, for eminent domain.

Default was entered against Defendants on 10/3/2018.

ANALYSIS:

Plaintiff moves to take prejudgment possession of the property.

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

If the motion is unopposed within thirty days of service on each defendant and occupant of the property, the court shall enter an order for possession of the property if it finds both that the plaintiff has made the required deposit and that “[t]he plaintiff is entitled to take the property by eminent domain.” (Code Civ. Proc., § 1255.410, subd. (d)(1).)

“It should be noted that the determination of the plaintiff’s right to take the property by eminent domain is preliminary only. The granting of an order for possession does not prejudice the defendant’s right to demur to the complaint or to contest the taking.” (Legislative Committee Comments to Code Civ. Proc., § 1255.410.)

Plaintiff’s Right to Take the Property by Eminent Domain

Code of Civil Procedure section 1240.030 provides:

The power of eminent domain may be exercised to acquire property for a proposed project only if all of the following are established:

(a) The public interest and necessity require the project.

(b) The project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury.

(c) The property sought to be acquired is necessary for the project.

A public entity must adopt a resolution of necessity prior to commencing an eminent domain proceeding. (Code Civ. Proc., § 1245.220.)

Here, Plaintiff adopted a resolution of necessity on April 9, 2018, which complies with the requirements of Code of Civil Procedure section 1245.230. (See Compl., Ex. C.) This resolution conclusively establishes the matters referred to in Code of Civil Procedure section 1240.030. Thus, Plaintiff has established its right to take the Property by eminent domain.

Plaintiff’s Deposit with the State Treasurer

A plaintiff may deposit with the state treasury the probable amount of compensation that will be awarded in the eminent domain proceeding, at any time before entry of judgment, whether or not the plaintiff applies for an order for possession or intends to do so. (Code Civ. Proc., § 1255.010, subd. (a).) The deposit must be based on an appraisal by a qualified expert as to the value of the property. (Code Civ. Proc., § 1255.010, subd. (b).) The qualified expert must prepare a written statement of, or summary of the basis for, the appraisal, and the statement or summary must include 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.” (Ibid.)

Here, Plaintiff deposited with the State Treasury the sum of $70,900.00, representing the probable amount of compensation that will be awarded. (See McElhaney Decl. ¶ 2, Exh. 1 [Notice of Deposit].)

This deposit amount purports to be based on the appraisals of qualified experts who prepared written statements as required by Code of Civil Procedure section 1255.010, subdivision (b). (See Notice of Deposit [“The probable amount of compensation deposited with the State Treasury is based on the appraisal of the property made by Mason & Mason. A written statement of the basis for the appraisal is attached to this notice.”].) However, Plaintiff has not actually provided that statement to the Court, and the Court is therefore unable to verify the appraisal complied with CCP § 1255.010(b).

Conclusion

Normally, the Court would deny, without prejudice, this motion. However, given that defendant has been defaulted, and because plaintiff repeatedly states that this is a time-sensitive matter, the Court will CONTINUE the motion to allow plaintiff to file the missing appraisal report.