September 2022 Update
This update addresses the most significant cases and statutory changes since the previous update was published and adds numerous practice tips and expert commentary. Among the most significant recent developments and additions are the following.
In 2021, the Supreme Court ruled that a California Labor Board regulation allowing union organizers to enter private property was a per se taking; the duration of the entry only went to the amount of compensation. Cedar Point Nursery v Hassid (2021) ___ US ___, 141 S Ct 2063. However, the California statutory scheme for precondemnation entry to conduct studies and tests related to potential acquisition provides a compensation mechanism. See §8.27A
At the recommendation of the California Law Revision Commission, the following amendments were enacted, effective January 1, 2022:
CCP §1245.020 makes clear that the party seeking a precondemnation entry shall secure the right either by agreement or court order. See §8.27A.
CCP §1245.060(a) provides that the owner may recover any damage or interference with possession or use in the subsequent condemnation action for the property or by application to the court under subdivision (c) where funds are on deposit for the prejudgment entry. Further, subdivision (c) is amended to provide the owner the right to a jury trial, unless waived. See §8.27A.
CCP §1250.320(c), where the owner seeks compensation under a precondemnation entry authorized by agreement or court order, and CCP §1250.320(d), where the owner seeks compensation for loss caused by plaintiff’s unreasonable conduct prior to commencing the eminent domain proceeding, the defendant property owner shall include a statement in the answer to the subsequent condemnation complaint that the claim is being made, but need not specify the amount of compensation. See §§8.27A, 8.52.
CCP §1260.230(d) and (e) require a separate assessment by the trier of fact of compensation awarded under §1250.320(c) and (d). See §8.27A.
In Amjadi v Brown (2021) 68 CA5th 383, 389, the court clarified that if a client is not participating directly in settlement discussions, their consent to an offer amount must be secured; but there can be prior written authorization allowing the attorney to settle if the amount offered reaches or exceeds a specific number. See §1.22.
In City of Escondido v Pacific Harmony Grove Dev., LLC (2021) 68 CA5th 213, 238, where a city’s general plan’s circulation element was in place before annexation of property later condemned to implement a planned parkway to mitigate traffic in the area, a claim of precondemnation damage was denied. The condemnation action was filed 2 days after the resolution authorizing the filing; it did not delay development of the property where the owners did not seek approval to develop. See §§4.5, 4.8, 4.12, 4.83.
In Foley Invs., LP v Alisal Water Corp. (2021) 72 CA5th 535, the court concluded that inverse liability principles did not apply to a water main installed by a privately owned water company under a private contract with the developer to meet minimum flow requirements for fire hydrants serving its apartment complex. See §6.4.
In AIDS Healthcare Found. v City of Los Angeles (2022) 78 CA5th 167, the court denied a writ of mandate challenging the city’s approval of a mixed-use development, based on its failure to meet the minimum affordable housing unit requirement under the Community Redevelopment Law and the local redevelopment plan. The Dissolution Law (Health & S C §§34170–34191.6) rendered the redevelopment law requirement inoperative and the city, as the successor in interest, could not rely on its general police powers to enforce it. See §6.6.
In PennEast Pipeline Co., LLC v New Jersey (2021) ___ US ___, 141 S Ct 2244, the United States Supreme Court considered the issue of taking by a private party where the state of New Jersey unsuccessfully asserted sovereign immunity to deny condemnation of its property interests by a private gas pipeline company, operating under a federal certificate of convenience and necessity. Sovereign immunity does not bar condemnation actions by private parties exercising delegated eminent domain power as authorized by the Natural Gas Act against nonconsenting states. See §§6.11, 11.30.
In People v Veamatahau (2020) 9 C5th 16, the California Supreme Court clarified the meaning of case-specific inadmissible hearsay, permitting an expert to relate to the jury background facts and an opinion regarding the identification of seized pills “[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to them at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” See §9.64.
In Strobel v Johnson & Johnson (2021) 70 CA5th 796, 822, the court concluded that third-party documents relied on by an expert witness to establish asbestos exposure were admissible because the expert could testify to ultimate facts under Evid C §805, using documents specific to the defendant and product; but other experts’ opinions were inadmissible in part because those experts relied on information outside their areas of expertise. See §9.64.
In Foley Invs., LP v Alisal Water Corp. (2021) 72 CA5th 535, the court denied an inverse liability claim where a water main was installed by private contract with the developer to meet minimum flow requirements for fire hydrants serving an apartment complex. See §§13.3B, 14.6B.
In Ballinger v City of Oakland (9th Cir 2022) 24 F4th 1287, the court rejected an unconstitutional taking claim under an ordinance requiring the landlord, who, choosing to move back into their home gave notice to a tenant to terminate their lease, to pay relocation assistance to the tenant. First, the relocation fee was not a charge on the property but a user fee on the owner who willfully chose to lease the property and evict under the city ordinance. Second, because the tenants were not willful participants in joint activity with the state, they cannot be fairly treated as acting under “state action.” See §§15.19, 15.28A.
In City of Escondido v Pacific Harmony Grove Dev. LLC (2021) 68 CA5th 213, the court held that dedication of a road extension through the property condemned to mitigate traffic in the immediate area satisfied the nexus test, because “requiring dedication of land for a roadway in exchange for development approval is logically related to the public interest in mitigating traffic impacts caused by that development.” See §15.27.
The case of Tiburon Open Space Committee v County of Marin (2022) 78 CA5th 700, provides an example of a county’s land use hearing process for a development project following a stipulated judgment for relief in the context of continuing citizen opposition. The court rejected the project opponents’ claim that by complying with the judgment’s requirement that the county approve a 43-unit project, the county impermissibly ignored the “environmentally superior” project alternative under CEQA, and ruled that the environmental impact report was extensive in its analysis (nearly 850 pages); the EIR was not a “pro forma” exercise; identified environmental impacts do not mandate denial of a project; and the board properly exercised its discretion. See §16.13.