BDHOV, LP v. Benitez

(03) Tentative Ruling

Re: BDHOV, LP v. Benitez Case No. 24CECG04880

Hearing Date: June 25, 2026 (Dept. 403)

Motion: Plaintiffs’ Application for Default Judgment

Tentative Ruling:

To grant plaintiffs’ application for default judgment condemning a portion of defendants’ property for the purpose of an easement for the purpose of installing, constructing, inspecting, and maintaining utilities to plaintiffs’ property. (Civ. Code, § 1001.)

Explanation:

“Any owner of real property may acquire by eminent domain an appurtenant easement to provide utility service to the owner's property.” (Civ. Code § 1001, subd. (b).) The easement is limited to use for water, gas, electric, drainage, sewer, or telephone service. (Id. at § 1001, subd. (a).) In order to acquire the easement, the condemning party must prove by a preponderance of the evidence that there is a “great necessity” for the taking, that the location to be condemned provides the most reasonable service to the property and the least damage to the burdened property, and the hardship to the condemning party “clearly outweighs” the hardship to the owner of the burdened property. (Id. at §1001, subd. (c)(1)-(3); Linggi v. Garovotti (1955) 45 Cal.2d 20, 27.)

The requirement of “great necessity” is a stricter standard and more difficult to prove than the usual standard for eminent domain by a public agency of “public interest and necessity.” (Linggi v. Garovotti, supra, 45 Cal.2d at p. 27.) “’Great necessity’ will exist only when a condemnation alternative is the sole reasonably acceptable means of providing utility service to a piece of property.” (L & M Professional Consultants, Inc. v. Ferreira (1983) 146 Cal.App.3d 1038, 1051.)

In the case at bench, plaintiffs are seeking a default judgment of an order of condemnation of a portion of real property located at 2010 South Hazelwood Boulevard in Fresno, California, owned by defendants Andrew Benitez, Sr., and Mary Hellen Benitez for the purpose of a utility easement. Plaintiffs are the owners of 1935 South 3rd Street in Fresno, California, and in attempting to reconnect utility services with Pacific Gas and Electric Company learned a new connection would need to be established. (Hovannisian Decl., ¶¶ 2, 5-6.) Without the utilities easement, plaintiffs will be unable to bring the property to a habitable state and risk condemnation by the City of Fresno. (Id. at ¶ 10.)

Plaintiffs originally believed that the easement could be located at either the Hazelwood property owned by the Benitezes, or the 1919 property owned by Ulloa and Arce. (Id. at ¶ 8.) However, they were later informed by PG&E that the 1919 property 5

was not a feasible location for the easement, and that it would need to be located on the Hazelwood property. (Ibid.) Plaintiffs also originally believed that the easement might be either for above or below-ground utilities. (Id. at ¶ 9.) However, after the filing of the complaint, plaintiffs were informed by PG&E that the utilities would have to be installed above ground. (Ibid.)

Plaintiffs engaged Real Property Analysts to prepare a valuation the proposed utilities easement. (Stevens Decl., ¶ 2, Hovannisian decl., ¶ 11.) The final appraisal value is $2,450. (Id. at ¶ 4, Ex. A.) The amount will be deposited with the court upon the court signing the order granting permission to lodge the funds. (Hovannisian Decl., ¶¶ 11, 12.) Plaintiffs will be more burdened than defendants if the easement is not granted, since the residence on their property will be uninhabitable and the City could demolish the residence at the cost of $37,000 to plaintiffs. (Id. at ¶ 13.) Plaintiffs’ property will be essentially unmarketable and of no value without the necessary utilities. (Ibid.)

Plaintiffs have also submitted the declaration of Ryan Chairez, Senior New Business Representative for PG&E, who attests to plaintiffs having contacted PG&E to connect utilities for the plaintiffs’ property and his informing them that a new design for the connection was required. (Chairez Decl., ¶ 1-3.) Chairez identified the Benitez property as property for which an easement was needed for PG&E’s approved design to provide electrical service to plaintiffs’ property. (Id. at ¶ 3.) PG&E originally determined that the easement could also be located at 1919 S. 3rd Street in Fresno. (Id. at ¶ 4.) However, after speaking with the property owner, the owner stated that he had no interest in allowing the utilities to be installed on his property. (Ibid.) Thus, the only remaining option is to install the utilities across the Hazelwood property. (Ibid.)

Chairez also states that “[i]n comparison to an above-ground utility installation, an underground installation consists of a larger clearance area and to maintain it would require digging into the ground to conduct any necessary construction, reconstruction, replacement, or maintenance.” (Id. at ¶ 5.) Chairez attempted to contact the property owners, to obtain an easement through their property; however, he had no success in obtaining an easement deed. (Id. at ¶ 6.)

Thus, plaintiffs have now provided evidence demonstrating their need for a utilities easement, and that the condemnation of a portion of the Benitez property is the sole reasonably acceptable means of providing utility service to plaintiffs’ property. Plaintiffs have now submitted a declaration from PG&E’s representative, Ryan Chairez, who states that, due to the delay in remodeling plaintiffs’ property, “a system upgrade was required, and the prior utilities service point was not usable because of the need for a new panel.” (Chairez decl., ¶ 3.) Thus, plaintiffs have now submitted evidence that explains why the existing power infrastructure is inadequate and needs to be upgraded.

Chairez has also now clarified that the easement will be used to construct and install above-ground utilities power lines. He also states that the only possible option for installing the utilities is to obtain an easement on the Benitez’s property, as the owner of the other adjacent property has refused to consent to have the easement on his property.

Plaintiffs have also provided evidence showing that they will suffer great harm if the order condemning the Hazelwood property to install the easement is not granted, as their property will be left without power and the City will likely require them to demolish the residence on the property at the cost of approximately $37,000. Their property will be left essentially useless and unmarketable, as it has no utilities service. Thus, plaintiffs are likely to suffer substantial harm if the order is not granted.

While plaintiffs have not submitted evidence on the question of the relative harm to defendants’ property rights, it appears that the harm would be relatively small in comparison to the harm plaintiffs will suffer if the order is not granted. The easement is for a relatively small portion of defendants’ parcel, and it will be used to install power poles and lines, which should not take up much space or create any harm to the surrounding parcel. Therefore, the court intends to find that plaintiffs have met their burden of showing that the harm to defendants will be minimal compared with the harm to the plaintiffs if the order is not granted.

As a result, the court intends to grant the requested default judgment condemning defendants’ parcel to allow installation of the utilities.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: SMC on June 24, 2026. (Judge’s initials) (Date)

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