City of Goleta vs Santa Barbara Nissan LLC et al
City of Goleta vs Santa Barbara Nissan LLC et al
Case Number
24CV04053
Case Type
Hearing Date / Time
Mon, 11/18/2024 - 10:00
Nature of Proceedings
Motion: Order for Prejudgment Possession; Memorandum of Points and Authorities
Tentative Ruling
City of Goleta v. Santa Barbara Nissan, LLC, et al.
Case No. 24CV04053
Hearing Date: November 18, 2024
HEARING: Plaintiff City of Goleta’s Motion for Order for Prejudgment Possession
ATTORNEYS: For Plaintiff City of Goleta: Scott W. Ditfurth, Best Best & Krieger LLP
For Defendant Santa Barbara Nissan LLC: No Appearance
For Defendant Nissan Motor Acceptance Company, LLC: Andrew S. Elliot, Severson & Werson
For Defendant Fidelity National Title Company: Sinny B. Thai, Fidelity National Law Group
TENTATIVE RULING:
The motion of plaintiff City of Goleta’s for an order for prejudgment possession is granted. The court will sign the proposed order submitted by City of Goleta.
Background:
Plaintiff City of Goleta (“City”) filed its complaint in eminent domain as to Assessor Parcel Nos. 071-090-089 and 071-090-063, on July 22, 2024, against defendants Santa Barbara Nissan, LLC (“SB Nissan”), Nissan Motor Acceptance Corporation (“NMAC”), and Fidelity National Title Company (“Fidelity”)
As alleged in the complaint:
“The City seeks to acquire, by eminent domain, three temporary construction easement interests in portions of certain real property located at 5580 and 5590 Hollister Avenue in Goleta, in the County of Santa Barbara, California, more particularly described as Assessor Parcel Nos. 071-090-089 and 071-090-063, for Project Connect, which will replace Hollister Avenue Bridge over San Jose Creek and provide street improvements along Hollister Avenue related to the Ekwill Street and Fowler Road Extensions Project (the “ ‘Project’ ”).” (Compl., ¶ 2.)
“On June 18, 2024, after a noticed hearing, and by at least a two-thirds vote of all members of its City Council, the City adopted Resolution No. 24-45 a true and correct copy of which is attached hereto and made a part hereof as Exhibit B . Resolution No. 24-45 declared that the public interest and necessity require the acquisition by eminent domain proceedings of temporary construction easement interests in certain real property located in the Santa Barbara County, California, more particularly described as Assessor Parcel Numbers 071-090-089 and 071-090-063, for Project Connect, which will replace Hollister Avenue Bridge over San Jose Creek and provide street improvements along Hollister Avenue related to the Ekwill Street and Fowler Road Extensions Project, in Santa Barbara County, and for such other uses as are permitted by Government Code § 37350 et seq. and Code of Civil Procedure §§ 1240.110 and 1240.120. The City found and determined in that Resolution that:
“(1) The public interest and necessity require the proposed Project;
“(2) The proposed Project is planned or located in a manner that will be most compatible with the greatest public good and the least private injury;
“(3) The acquisition of the portion of the real property is necessary for the Project; and
“(4) The offer to purchase the Property required by Government Code § 7267.2 was made.” (Compl., ¶ 3.)
SB Nissan is the record owner of the property, NMAC is named pursuant to a notice of pendency of action and beneficiary of a deed of trust recorded, and Fidelity is named as trustee of a deed of trust. (Compl., ¶ 6.)
On August 8, 2024, Fidelity filed a disclaimer of interest in the property that is the subject of this action.
On October 22, 2024, NMAC filed its answer to City’s complaint in eminent domain, asserting a general denial and affirmative defenses.
SB Nissan has yet to make an appearance.
City filed the present motion for prejudgment possession on July 25, 2024. The motion served on all defendants, along with the summons, complaint, and other documents, on July 26, 2024.
No defendant has filed opposition to the motion.
Analysis:
“(a) 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.
“(b) 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.
“(c) 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.
“(d)(1) 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.
“(2) If the motion is opposed by a defendant or occupant within 30 days of service, the court may make an order for possession of the property upon consideration of the relevant facts and any opposition, and upon completion of a hearing on the motion, 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.
“(D) The hardship that the plaintiff will suffer if possession is denied or limited outweighs any hardship on the defendant or occupant that would be caused by the granting of the order of possession.
“(e)(1) Notwithstanding the time limits for notice prescribed by this section and Section 1255.450, a court may issue an order of possession upon an ex parte application by a water, wastewater, gas, electric, or telephone utility, as the court deems appropriate under the circumstances of the case, if the court finds each of the following:
“(A) An emergency exists and as a consequence the utility has an urgent need for possession of the property. For purposes of this section, an emergency is defined to include, but is not limited to, a utility’s urgent need to protect the public’s health and safety or the reliability of utility service.
“(B) An emergency order of possession will not displace or unreasonably affect any person in actual and lawful possession of the property to be taken or the larger parcel of which it is a part.
“(2) Not later than 30 days after service of the order authorizing the plaintiff to take possession of the property, any defendant or occupant of the property may move for relief from an emergency order of possession that has been issued under this subdivision. The court may modify, stay, or vacate the order upon consideration of the relevant facts and any objections raised, and upon completion of a hearing if requested.” (Code Civ. Proc., § 1255.410.)
As noted above, defendants were timely served, and no opposition has been filed by any defendant.
City supports its motion with the declaration of Gerald Comati, P.E. Comati is the President of COM3 Consulting, Inc., a civil engineering project management firm and serves the City as the project manager of the Hollister Avenue Bridge and Ekwill-Fowler Projects. (Comati Decl., ¶ 1.)
“The City’s Ekwill Street and Fowler Road Extensions Project . . . and Hollister Avenue Bridge replacement over San Jose Creek Channel are two projects located in Goleta Old Town that have been in development for several years and are considered two of the highest priority transportation projects in the City. The two projects are closely intertwined because they overlap each other along Hollister Avenue near Hollister Avenue intersection with the southbound ramps of State Route 217. This overlap prompted the joint decision by the City and Caltrans to construct the two projects under a single construction contract, thereby minimizing disruption and lane closures along Hollister Avenue during construction. This combined project is known as “ ‘Project Connect.’ ” The City awarded a construction contract for Project Connect in December 2023 and construction began in March 2024.” (Comati Decl., ¶ 4.)
“Due to delays in the start of construction for Project Connect, as a consequence of COVID and other factors, a Stipulation for a TCE [Temporary Construction Easement] extension through December 31, 2024, was requested by the City from Santa Barbara Nissan, LLC which was subsequently granted. However, further construction delays have prompted an additional request by the City to extend the life of the TCEs to December 31, 2026. This request has been denied by Santa Barbara Nissan, LLC unless the City agreed to a modified and increased valuation of the entire Nissan interests to be acquired by the City. Construction of Project Connect began in March 2024, and the City needs the term of the TCEs to be extended through December 31, 2026, to avoid construction delay claims.” (Comati Decl., ¶ 5.)
Project Connect will result in improved traffic flow, reduce some road congestion on Hollister Avenue, provide enhanced bike and pedestrian access through Old Town Goleta, and provide better public transit routes. (Comati Decl., ¶ 6.) It will also result in improvements that will reduce flooding in Old Town Goleta. (Compl., ¶ 7.)
“The City has an immediate and overriding need for possession of the Property prior to judgment, The Project has already been waylaid and delayed by years. Now that the construction of the Project is underway, it is imperative that the City obtain prejudgment possession of the Property, which will ensure the City has access and usage of the TCE’s until December 31, 2026, to ensure no further delays occur, and to ensure the Project can be completed. Additionally, the City may be liable for construction delay claims if it does not obtain prejudgment possession of the Property. To the extent possession is not obtained, the City will be forced to stop construction, potentially incur claims for delay and potentially pay increased construction costs when the construction can begin again, which could ultimately undermine the entire Project.” (Comati Decl., ¶ 17.)
On August 12, 2024, City filed and served a notice of deposit in the amount of $56,636.00 to the State Treasurer’s Offices, for deposit in the State of California Condemnation Deposits Fund as probable just compensation for the property that is the subject of this action. The notice of deposit includes the declaration of Stephen G. Schott, MAI, a licensed real property appraiser, who, after investigating market transactions, reviewing the proposed project, and investigating other pertinent factors, concludes that $56,636.00 is probable just compensation. (Schott Decl., ¶ 2 & Exh. B.)
The City has shown that it is entitled to take the property by eminent domain and that they have deposited adequate funds. As stated above, the motion is unopposed. The court finds that there is an overriding need for City to possess the property prior to the issuance of final judgment in the case, and City will suffer a substantial hardship if the application for possession is denied or limited. The court further finds that the hardship that City will suffer if possession is denied or limited outweighs any hardship on the defendants that would be caused by the granting of the order of possession.
As such, the motion will be granted. The court has reviewed the proposed order, submitted by City, and finds that it meets all of the requirements of Code of Civil Procedure section 1255.460, which provides:
“An order for possession issued pursuant to Section 1255.410 shall:
(a) Recite that it has been made under this section.
(b) Describe the property to be acquired, which description may be by reference to the complaint.
(c) State the date after which plaintiff is authorized to take possession of the property.”
The court will sign the proposed order.