Plaintiff's Motion for Order for Prejudgment Possession
Case No.: VCU328781 Date: June 25, 2026 Time: 8:30 A.M. Dept. 1-The Honorable David C. Mathias Motion: Plaintiff's Motion for Order for Prejudgment Possession Tentative Ruling: To grant the motion as indicated herein.
Facts In this eminent domain action, the County of Tulare seeks to acquire approximately 0.61 acres of road right-of-way and fee title, and approximately 3.17 acres of temporary construction easements contained within APNs 069-390-011 & 069-390-010 (the "Subject Property") owned by Defendant Haley. (Declaration of Doré P.9; Declaration of Miller P.4.)
The Subject Property is located near the Mineral King Road Bridge over East Fork Kaweah River, is vacant, and is necessary as to the construction of a replacement bridge adjacent to the historic Oak Grove Bridge, which has been determined to be structurally deficient, while preserving the existing bridge in place as a historic resource. (Declaration of Schenke P.P.4, 5, 8.)
Schenke, a professional engineer and director of the RMA further declares "The permanent right-of-way is needed for the new bridge as well as the related road realignment necessary to use the new bridge. The temporary construction easement is needed to provide the County's contractor with sufficient work area to construct the proposed improvements, including parking, storage, and staging of materials during construction. The Project will not interfere with Haley's access to his remaining parcel and other neighboring parcels." (Declaration of Schenke P.8.)
Additionally, Schenke states: "The County has worked for over a decade to complete the design and obtain the materials, funding and permits necessary to implement the Project. Possession of the subject property is the only remaining impediment to putting the Project out to bid and beginning construction. If the County does not immediately obtain the subject property, then the safety and security of the public that travels this corridor will be put at risk, as the current bridge is structurally deficient and cannot allow all types of vehicles to pass, including some safety vehicles and equipment.
By constructing this replacement bridge as part of the Project, the roadway will be brought to current standards thereby providing a public benefit. If possession is delayed, the County is unable to proceed with the proposed replacement bridge in a timely manner. Delays will cause an increase in both the administrative-related and construction-related costs as a result of additional staff time and inflationary pressures. Further, excessive delay may result in further deficiencies in the bridge thereby reducing the size of vehicles that may use this road even further." (Declaration of Schenke P.10.)
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On August 5, 2025, a resolution of necessity ("RON") was passed by the Board of Supervisors, finding that: "a. The public interest and necessity require the proposed Project. b. The proposed Project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury. c. Acquisition of the Subject Property is necessary for the proposed Project. d. The County made a pre-condemnation offer of just compensation to acquire the Subject Property to the owners of record in accordance with California Government Code section 7267.2.
Said offer included a summary of the basis for the amount established and offered as just compensation for the Subject Property. e. The County has complied with all conditions and statutory requirements necessary to exercise the power of eminent domain to acquire the Subject Property. f. A portion of the Subject Property may be acquired for a more necessary public use pursuant to CCP section 1240.610. The Board further finds and determines that insofar as said parcel has heretofore been dedicated to a public use for telephone and/or electric utility purposes, the acquisition and use of said parcel by the County for the Project is for a more necessary public use than the use for which that portion of the Subject Property is currently being used. g.
The County plans that the date of use of the Subject Property for the proposed Project will be within three years from the date the complaint for eminent domain proceedings is filed. h. The County has fully complied with all provisions of the California Environmental Quality Act and its implementing regulations for the Project." (RON 2025-0673.)
On the issue of deposit, Code of Civil Procedure section 1255.010(d) provides that "the plaintiff may deposit with the State Treasury the probable amount of compensation, based on the appraisal, that will be awarded in the proceeding."
On or about August 20, 2025, Plaintiff deposited $14,200 with the State Treasurer which is an amount of probable compensation to be awarded to the Defendant for the Subject Property and is based on an appraisal prepared by a duly qualified appraiser, Lance Doré, as evidenced by the written statement of the basis for the appraisal under Code Civ. Proc section 1255.010(b). (Declaration of Miller P.P.2, 3; Declaration of Doré P.P.11, 12 - Ex. 1)
On April 13, 2026, based on the above, Plaintiff filed this motion for prejudgment possession seeking an order authorizing it to take possession of the Subject Property upon service of the court's order for possession.
In opposition, Plaintiff notes the RON indicates completion of the project in three years, but the complaint alleges five years to complete the property, causing uncertainty. Further, that Plaintiff has failed to offer relocation services for personal property located on the Subject Property. Additionally, Defendant objects to Paragraphs 8 and 11 of the declaration of Schenke, arguing that it misstates the evidence and assumes facts not in evidence. Defendant notes that the property is not vacant or unoccupied, as it contains personal property of Defendant. The Court overrules the objections, finding a reasonable interpretation of the declaration is that the Subject Property is not the residence of any persons, despite the presence of personal property thereon.
Authority and Analysis Plaintiff's motion for early possession may be granted if this 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. (C) There is an overriding need for the plaintiff to possess the property prior to the issuance of final judgment in the case, and the plaintiff will suffer a substantial hardship if the application for possession is denied or limited. (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." (Code Civ. Proc., Sec. 1255.410(d)(2).)
Entitled to Take The Court finds that Plaintiff established the first element, its entitlement to take the property, by its the adoption of RON as the legislative body of a local public entity pursuant to Code of Civil Procedure section 1245.201(a). Defendant does not challenge the right to take element.
Deposit The Court finds that plaintiff has deposited pursuant to Article 1 (commencing with Code Civ. Proc., Sec. 1255.010) an amount that satisfies the requirements of that article as to probable compensation. (Code Civ. Proc., Sec. 1255.410,(d)(2)(B).) Under Code of Civil Procedure section 1255.010, subdivision (a), "... the plaintiff may deposit with the State Treasury the probable amount of compensation, based on an appraisal, that will be awarded in the proceeding... ." Defendant remains free, as Defendant has been since the deposit was made and noticed, to file a separate motion seeking to increase the amount of the deposit under Code of Civil Procedure section 1255.030, to the extent permitted under that statute on the basis of any personal property relocation issues.
Plaintiff's Overriding Need and Suffering of Substantial Hardship As to overriding need and suffering of substantial hardship, Plaintiff states the need for early possession in order to proceed with bidding and construction in order to timely complete the Project. The current bridge is structurally defective and cannot allow all types of vehicles to pass. Additionally, delays will increase administrative and construction costs. Further, Plaintiff argues that the Property is unimproved and unoccupied as to persons.
As noted above, Defendant opposes the motion on grounds that there is an uncertain date of completion. However, this issue, as to date of completion, would be present should the County take possession by judgment after trial and are not increased by early possession. (See Code Civ. Proc. Sec.1255.410(d)(2)(D).) As to the relocation expenses and time to relocate personal property, the Court notes that this lawsuit was served February 17, 2026, over four months ago, providing sufficient time to relocate the property.
Any such cost incurred thereon is an issue of just compensation, not hardship that would preclude immediate possession.
Order The Court is not without the power to fashion an order granting prejudgment possession that permits a reasonable time to relocate the property. The Court is satisfied that the Plaintiff has satisfied the requirements to take prejudgment possession and therefore grants the motion.
The Court directs the parties to circulate a proposed order that addresses the following issue: A notice period of at one week to relocate any such personal property located within the Subject Property impacted by immediate possession.
If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.
Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.
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