City of Morgan Hill v. Alberti

Opinion

ELIA, J.

Appellants Carmella Alberti and Carol Moniz appeal an order of immediate possession entered pursuant to the so-called “quick take” provisions of the Eminent Domain Law. We conclude that the order is not appealable and dismiss.

Facts and Procedural Background

On October 22, 1987, respondent City of Morgan Hill filed its complaint seeking to condemn a portion of appellants’ property. On the same date, respondent invoked the “quick-take” provision set out in Code of Civil Procedure

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section 1255.410. That procedure permits a condemning agency to obtain possession of condemned property prior to trial and judgment by filing an ex parte application for an order of immediate possession. (Code Civ. Proc., § 1255.410.) The trial court granted the request for immediate possession by order dated October 22, 1987.

Appellants objected to the order and to the city’s resolution of necessity which the City tendered in support of its request for immediate possession. Appellants requested an evidentiary hearing to determine whether the proposed “quick take” and resolution of necessity complied with the requirements of section 1240.030. On October 26, 1987, after hearing arguments from both parties, the trial court asked appellants to submit additional papers and affidavits in support of their request for an evidentiary hearing.

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On November 5, 1987, the trial court issued its decision. The court, treating appellants’ papers as a section 1255.430 application to stay the order of possession, denied the application and granted respondent’s request for immediate possession of the property. However, the court did stay execution of its order until November 9 to permit appellants to seek review.

On November 6, 1987, appellants filed a notice of appeal from the November 5 order. On November 9, 1987, appellants filed a writ of mandate with this court seeking review of the November 5 order. We stayed the order of immediate possession and requested points and authorities from the parties. On November 25, we denied the petition for writ of mandate and dissolved the temporary stay. Appellants’ petition for review was denied by our Supreme Court.