Filed 11/19/15
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
YOUNG'S MARKET COMPANY, D068213
Petitioner, (San Diego County
Super. Ct. No.
v. 37-2015-00007265-CU-PT-CLT)
THE SUPERIOR COURT OF SAN
DIEGO COUNTY,
Respondent,
SAN DIEGO UNIFIED SCHOOL
DISTRICT,
Real Party in Interest.
Petition for writ of mandate from an order of the Superior Court of San Diego
County, Lisa C. Schall, Judge. Petition denied.
Allen Matkins Leck Gamble Mallory & Natsis and Kenneth Erik Friess, Nicholas
S. Shantar for Petitioner.
Stark & D'Ambrosio and James A. D'Ambrosio, George A. Rios, III for K1 Speed,
Inc., as Amicus Curiae on behalf of Petitioner.
Dannis Woliver Kelley and Janet L. Mueller, Cameron C. Ward, Kirsten Y. Zittlau
on behalf of Real Party in Interest.
Young's Market Company (Young's) petitions for a writ of mandate and/or
prohibition asking the superior court to vacate its order granting the petition of real party
in interest San Diego Unified School District (District) for a right of entry pursuant to the
Eminent Domain Law (Code Civ. Proc.,1 § 1245.010 et seq., at times the entry statutes).
By its petition, District sought to conduct certain investigations and environmental testing
on Young's property, which the superior court permitted under specified conditions.
Young's contends District's proposed activities go beyond the entry statutes, which to
comply with the state and federal Constitutions permit only innocuous and superficial
inspections before condemnation. According to Young's, District's actions constitute a
taking—a permanent physical occupation of its property—requiring District to file a
condemnation suit to litigate the need for the taking and provide Young's with a jury
determination of just compensation.
We disagree. District's proposed actions, which are temporary and limited
intrusions on the property, neither violate the entry statutes nor do they constitute a taking
requiring a jury determination of just compensation. Accordingly, we deny the writ
petition.
1 Statutory references are to the Code of Civil Procedure. Young's asserts it has
been erroneously identified as Young's Market Company and that the correct entity is
Young's Holdings, Inc. We will simply refer to it throughout as Young's.
2
FACTUAL AND PROCEDURAL BACKGROUND
Young's owns approximately two acres of real property in downtown San Diego
adjacent to an elementary school owned and operated by District. The property contains
an over 50,000 square foot industrial building, parking lot and landscaping. Young's
leases the property to K-1 Speed, Inc. (K-1), which operates an indoor kart racing center
with arcade lounges, eating areas and retail merchandising. K-1 operates seven days a
week.
In March 2015, District petitioned for an order granting it a right of entry under
sections 1245.010 and 1245.030, asserting it was interested in potentially acquiring the
property to expand the elementary school and construct other school facilities. District
alleged it was authorized to acquire property by eminent domain for those purposes, and
required access to conduct mandated preliminary studies and assessments. District had
sought Young's consent, but Young's declined to provide access, telling District it was
not interested in selling the property. District attached a survey prepared by an
environmental assessment consultant detailing the scope of the proposed work, which
included drilling boring holes to conduct groundwater and soil samples, then backfilling
with sand or bentonite grout and resurfacing with concrete, as well as bulk sampling of
building materials suspected to contain lead or asbestos.2 District stated it expected the
2 District's proposed work was detailed in a "Limited Phase II Environmental Site
Assessment and Hazardous Building Materials Survey" as: site reconnaissance and
marking of boring locations with white paint; a geophysical survey to evaluate the
proposed boring locations for potential subsurface utility conflicts; coring 10 locations of
concrete using a two-inch diameter drill bit in concrete up to six inches thick; boring 33
3
work would take eight to 10 business days to complete. It believed any compensation for
the activities would be nominal and stated it was prepared to deposit the probable amount
as determined by the court. District's proposed order stated in part that District "shall not
access the [property] on more than ten (10) business days within a sixty (60) day period
without the prior consent of this Court" and it would "deposit with this Court the total
probable amount of just compensation of One Thousand Dollars ($1,000) or __________
($______)."
Young's opposed the petition. Characterizing District's actions as a sweeping and
comprehensive drilling and sampling project, it argued the entry statutes only authorized
innocuous or superficial entries on property, akin to preparing a survey or map, and not
such an unrestricted property-wide occupation assertedly lasting from two weeks to 60
days or more. It asserted District's proposal went far beyond the entry statutes, and was
an unconstitutional taking under the United States and California Constitutions as
reflected in Jacobsen v. Superior Court of Sonoma County (1923) 192 Cal. 319
holes within a 50-foot square grid partially outside of the building's footprint, 30 holes at
three feet deep and three at 20 feet deep; collecting soil samples from the borings;
collecting groundwater samples from the 20-foot borings; boring three 15-foot holes
adjacent to the 20-foot holes per Department of Toxic Substances Control requirements;
collecting two soil vapor samples; abandoning the borings by backfilling the three-foot
holes with clean sand to near the ground surface and resurfacing with concrete;
backfilling the 20-foot holes with bentonite grout to near the ground surface and
resurfacing with concrete; surveying and inspecting the building to identify homogeneous
areas, suspect materials and suspect surfaces; non-destructive X-ray fluorescence testing
to test surfaces suspected to contain lead; bulk sampling by a Division of Occupational
Safety and Health Certified Asbestos Consultant or Site Surveillance Technician of
postage-stamp-sized pieces of building materials suspected to contain asbestos; and
visual identification and quantification of building materials falling under the Universal
Waste Rule.
4
(Jacobsen). Young's argued District's proposal to remove dirt and building materials
effected an obvious permanent physical occupation or per se taking for which it was
required to file a condemnation suit and pay just compensation as determined by a jury.
Young's alternatively asked the court to stay the action to await the California Supreme
Court's decision in a case concerning the constitutionality of the entry statutes,3 or, if it
were inclined to grant the petition and allow District to proceed, order District to deposit
a minimum of $500,000 toward compensation in lost rent, goodwill and property.
In reply, District argued Young's grossly mischaracterized the duration, nature and
extent of the proposed work, which was not as extensive as that in Jacobsen, supra, 192
Cal. 319.4 It presented the declaration of Lisa Bestard, an environmental testing scientist
with the consultant hired by District. Bestard explained that the purpose of the
3 In Property Reserve v. Superior Court (2014) 224 Cal.App.4th 828, review
granted June 25, 2014, No. S217738, involving the State of California's petition to enter
properties for environmental and geological studies so as to determine their suitability for
a proposed water tunnel, the California Supreme Court will address the following
questions: "(1) Do the geological testing activities proposed by the Department of Water
Resources constitute a taking? (2) Do the environmental testing activities set forth in the
February 22, 2011, entry order constitute a taking? (3) If so, do the precondemnation
entry statutes (Code Civ. Proc., §§ 1245.010-1245.060) provide a constitutionally valid
eminent domain proceeding for the taking?"
4 In part, District pointed out that in Jacobsen the proposed work included creating
four-by six-foot test pits, installing a boring rig and boring to depths of 150 feet or more,
and excavating the land. (Jacobsen, supra, 192 Cal. at p. 322.) It stated that for its
proposed work, no borings would occur inside the building facility, the borings would be
2 to 4 inches in diameter and closed off or covered when sampling was complete, and the
vast majority would be refilled with sand, not concrete, then resurfaced with concrete to
match the original composition. District revised its proposed order to permit it to obtain
access to the property for a maximum of 10 consecutive business days excluding
weekends.
5
investigative activities was to obtain initial data to evaluate if impacted soil, groundwater
and/or soil vapors were present at the property and if so, evaluate if contamination levels
precluded it from being used as a future school site. She stated her company's proposal
sought a maximum of eight to 10 business days, excluding weekends, to conduct the
work, which could be done on consecutive days. Bestard described the drilling rig as a
direct-push drill mounted in the bed of a utility truck that would fit within a regular-sized
parking space; she explained this type of drill disrupts very little soil around the actual
drill space, and approximately three people are involved in the drilling activities. Further,
Bestard explained the monitoring wells referenced in the project were temporary, as they
would stay open for 24 hours at the most. As for the building material sampling, Bestard
stated that under her company's proposal, "a small sample (less than the size of a postage
stamp) will be removed from an area that is not visible. For example, we would take a
small piece of the building material from underneath an electrical outlet (which we would
first remove) or remove a small piece of material from behind a piece of equipment
(namely, a refrigerator or snack machine)."
District argued its work did not constitute a taking, pointing out that borings and
samplings were expressly authorized by section 1245.010 of the entry statutes, and it was
statutorily mandated to perform such work before a proposed site could be approved as a
school site. Finally, District argued the $500,000 in compensation proposed by Young's
was speculative and exaggerated; there was no evidence K-1 would suffer any business
interruption or lost profits, or that Young's would lose rental income, and in the event of
unforeseen damage the court could modify its order for a deposit.
6
The superior court granted the petition, ordering District could enter the property
to conduct the investigations identified in its petition on condition that it deposit with the
court $5,000 as a probable amount of compensation and serve K-1 with a copy of the
order. Under the order, K-1 was given 45 days after service to either reach an agreement
with District or apply ex parte to enjoin District's investigations. If K-1 did not do so or
its ex parte application was denied, the court ordered District would then have the
"immediate right" to conduct its investigations.
Young's filed a verified petition for writ of mandate, prohibition or other
appropriate relief, largely repeating its arguments below.5 It sought an immediate stay
and a peremptory writ in the first instance directing the superior court to vacate its order,
or issue an alternative writ directing the court to grant that relief or show cause why it
should not be ordered to do so, and on return of that writ issue a peremptory writ of
mandate directing the court to vacate its order.
We issued an order to show cause, deemed absent objection District's informal
response a return to the petition, and stayed the trial court's order.
5 Young's had also argued below that the court should deny District's petition
because District did not join K-1, which was assertedly a necessary and indispensable
party that should have been given the opportunity to participate in the proceeding. But
Young's does not renew this argument or pray for any specifically related relief in its writ
petition before us.
7
DISCUSSION
I. Standard of Review
The parties dispute the applicable standard of review. In its return, District argues
the appropriate review standard is abuse of discretion; it suggests we must decide
whether the court applied the wrong legal standard and assess whether substantial
evidence supports its findings where the underlying facts are in conflict. Young's
maintains in reply that the facts are undisputed and the court's conclusion is "inherently
legal," requiring that we review its order using an independent, de novo standard of
review.
We apply a mixed review standard. The parties disputed the scope and extent of
District's proposed activities below, so we review the trial court's express or implied
factual findings on those matters for substantial evidence. (See In re Marriage of Bonds
(2000) 24 Cal.4th 1, 31; Lockaway Storage v. County of Alameda (2013) 216 Cal.App.4th
161, 183 (Lockaway Storage).) Under the substantial evidence standard, we "view the
evidence in the light most favorable to the [order] and the findings, express or implied, of
the trial court." (Lockaway Storage, at p. 183.) We resolve all conflicts in favor of
District, and indulge all legitimate and reasonable inferences to uphold the findings if
possible. (In re Marriage of Bonds, at p. 31.)
Having determined the historical facts, we then select the applicable legal
principles and apply those legal principles to the facts in deciding whether District's
actions constitute a compensable taking. (Lockaway Storage, supra, 216 Cal.App.4th at
8
p. 183; see also Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 269-270.)
Those inquiries involve questions of law that we review de novo. (Ibid.; see Shaw, at
p. 270; Allegretti & Co. v. County of Imperial (2006) 138 Cal.App.4th 1261, 1269.)
For Young's claim that District's actions violate the entry statutes under Jacobsen,
supra, 192 Cal. 319, we likewise apply an independent standard of review. (Bay Cities
Paving & Grading, Inc. v. City of San Leandro (2014) 223 Cal.App.4th 1181, 1187;
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 [appellate court reviews the
application of decisional law de novo].)
II. Takings Jurisprudence and the Entry Statutes
A. Takings Law
The state and federal Constitutions guarantee real property owners "just
compensation" when their land is taken for a public use. (Jefferson Street Ventures, LLC
v. City of Indio (2015) 236 Cal.App.4th 1175, 1192; see Mt. San Jacinto Community
College Dist. v. Superior Court (2007) 40 Cal.4th 648, 653 [addressing the California
Constitution].) The California Constitution provides: "Private property may be taken or
damaged for a public use and only when just compensation, ascertained by a jury unless
waived, has first been paid to, or into court for, the owner. The Legislature may provide
for possession by the condemnor following commencement of eminent domain
proceedings upon deposit in court and prompt release to the owner of money determined
by the court to be the probable amount of just compensation." (Cal. Const., art. I, § 19.)
The federal Constitution provides that private property shall not "be taken for public use
without just compensation." (U.S. Const., 5th Amend.) By including damage to property
9
as well as its taking, California " 'protects a somewhat broader range of property values'
than does the corresponding federal provision." (San Remo Hotel v. City and County of
San Francisco (2002) 27 Cal.4th 643, 664; Herzberg v. County of Plumas (2005) 133
Cal.App.4th 1, 13.) However, "the takings clause in the California Constitution is
'construed congruently with the federal clause.' " (Lockaway Storage, supra, 216
Cal.App.4th at p. 183; see also San Remo Hotel, at p. 664.)
" 'The paradigmatic taking requiring just compensation is a direct government
appropriation or physical invasion of private property' — a categorical taking." (Shaw v.
County of Santa Cruz, supra, 170 Cal.App.4th at p. 260; see Horne v. Department of
Agriculture (2015) ___ U.S. ___ [135 S.Ct. 2419, 2425-2426]; Lingle v. Chevron U.S.A.
Inc. (2005) 544 U.S. 528, 537.) Thus, a permanent physical occupation of property by
the government is a taking. (Arkansas Game and Fish Com'n v. U.S. (2012) ___ U.S.
___ [133 S.Ct. 511, 518] (Arkansas Game).) A taking will also result where a
government regulation "permanently requires a property owner to sacrifice all
economically beneficial uses of his or her land." (Ibid.; see also Shaw, at pp. 260-261.)
"Regulatory takings challenges outside these two categories, i.e., those that do not
involve a physical invasion or that leave the property owner with some economically
beneficial use of the property, are governed by the 'essentially ad hoc, factual inquiries'
set forth in Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104, 124 [Penn
Central]." (Shaw v. County of Santa Cruz, supra, 170 Cal.App.4th at pp. 260-261; see
also Allegretti & Co. v. County of Imperial, supra, 138 Cal.App.4th at p. 1270.) "The
Penn Central inquiry is not a formula but an ad hoc factual inquiry that weighs several
10
factors for evaluating a regulatory taking claim. [Citations.] Courts conducting such an
inquiry have identified three primary factors: (1) the 'economic impact' of the regulation
on the claimant, (2) the extent to which the regulation interfered with 'distinct
investment-backed expectations,' and (3) the 'character of the governmental action.'
[Citations.] These Penn Central factors are 'the principal guidelines' for resolving
regulatory takings claims that do not fall within the two per se categories." (Lockaway
Storage, supra, 216 Cal.App.4th at p. 184.) "[T]he goal is to assess the 'magnitude or
character of the burden a particular regulation imposes upon private property rights' in
order to determine whether its effects are 'functionally comparable to government
appropriation or invasion of private property.' " (Id. at p. 185.)
The Penn Central inquiry applies equally to temporary physical invasions by the
government; whether a compensable taking has occurred must be assessed by the same
"case-specific factual inquiry." (See Arkansas Game, supra, 133 S.Ct. at p. 522, citing
Loretto v. Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419, 435, fn. 12
(Loretto).) In Loretto, the court explained: "Not every physical invasion is a taking. . . .
[S]uch temporary limitations are subject to a more complex balancing process to
determine whether they are a taking. The rationale is evident: they do not absolutely
dispossess the owner of his rights to use, and exclude others from, his property."
(Loretto, 458 U.S. at p. 435, fn. 12.) Relevant in the temporary physical invasion context
are not only the three aforementioned primary factors, but also the duration of the
invasion, the character of the land at issue, and the severity of the interference with the
owner's rights in the parcel as a whole. (Arkansas Game, 133 S.Ct. at pp. 522-523, citing
11
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002) 535
U.S. 302, 342 ["duration of the restriction is one of the important factors that a court must
consider in the appraisal of a regulatory takings claim"]; Penn Central, supra, 438 U.S. at
pp. 130-131 [the court "focuses . . . both on the character of the action and on the nature
and extent of the interference with rights in the parcel as a whole"]; Portsmouth Harbor
Land & Hotel Co. v. United States (1922) 260 U.S. 327, 329-330 ["[W]hile a single act
may not be enough, a continuance of them in sufficient number and for a sufficient time
may prove [a taking]. Every successive trespass adds to the force of the evidence"].)
B. The Entry Statutes
Sections 1245.010 through 1245.060 are contained in chapter 4 of title 7 of the
Code of Civil Procedure, otherwise known as the Eminent Domain Law. (§ 1230.010.)
Section 1245.010 provides: "Subject to requirements of this article, any person
authorized to acquire property for a particular use by eminent domain may enter upon
property to make photographs, studies, surveys, examinations, tests, soundings, borings,
samplings, or appraisals or to engage in similar activities reasonably related to acquisition
or use of the property for that use." Where the entry and activities subject that person to
liability for actual damage or substantial interference with the possession or use of the
property (see § 1245.060), the condemnor must, before making its entry and undertaking
these activities, secure either: (1) the written consent of the owner to enter on the property
and to undertake the activities; or (2) an order for entry from the superior court.
(§ 1245.020.)
12
On a petition for an entry order, "the court shall determine the purpose for the
entry, the nature and scope of the activities reasonably necessary to accomplish such
purpose, and the probable amount of compensation to be paid to the owner of the
property for the actual damage to the property and interference with its possession and
use. [¶] . . . After such determination, the court may issue its order permitting the entry.
The order shall prescribe the purpose for the entry and the nature and scope of the
activities to be undertaken and shall require the person seeking to enter to deposit with
the court the probable amount of compensation." (§ 1245.030, subds. (b), (c).) The court
may modify any of the provisions of this order after notice and hearing. (§ 1245.040,
subd. (a).)
If the entry and activities cause actual damage or substantial interference with the
property's possession or use, the owner may recover for such damage or interference
either in a civil action, or by applying to the court to recover from the funds on deposit,
which are retained for six months following the entry unless extended by the court for
good cause. (§§ 1245.050, subd. (a); 1245.060, subd. (a).) When an owner applies to the
court to recover funds on deposit, the court determines and awards the amount the owner
is entitled to recover from those funds. (§ 1245.060, subd. (c).) If the deposit is
insufficient to pay the full amount of the award, the court may enter judgment for any
unpaid portion. (§ 1245.060, subd. (c).) The statute does not affect the availability of
"any other remedy the owner may have for the damaging of his property." (§ 1245.060,
subd. (d).)
13
Because the entry statutes are within the eminent domain law, and provide for a
remedy that is not obtained by filing a complaint or suit in equity, a section 1245.020
petition for an entry order constitutes a special proceeding in eminent domain. (See
§§ 21, [the two classes of judicial remedies are actions and special proceedings], 22
["action" defined] & 23 ["special proceeding" defined]; Cornette v. Department of
Transp. (2001) 26 Cal.4th 63, 76; Greenfield v. Superior Court (2003) 106 Cal.App.4th
743, 748 ["special proceedings 'are limited to cases that [are] neither actions at law nor
suits in equity' "].)
III. Neither District's Proposed Action Nor the Court's Order Violate the Entry Statutes
or the California Constitution
Young's contends the superior court's order must be set aside because District has
not followed the Eminent Domain Law. It repeats its argument that the "[e]ntry [s]tatutes
. . . authorize privileged entries onto property only for 'innocuous' and 'superficial'
inspections prior to condemnation"; that the entry statutes must be applied within the
confines of the California Constitution and "cannot serve as an end run" around the
prohibition against taking or damaging for public use without just compensation (Cal.
Const., art. I, § 19). According to Young's, District's petition is an unconstitutional
overreach because it gives it an "unfettered right to occupy the property in its entirety for
a period of 60 days or more, all while drilling some 46 borings and an unlimited number
of samples throughout the property, with no restrictions whatsoever on the time, place,
equipment, safety protocols, or other components necessary to enable Young's . . . , or its
tenant K-1, to use their property."
14
Young's bases its arguments on Jacobsen, supra, 192 Cal. 319, the California
Supreme Court's 1923 case decided under a prior version of the California Constitution
and the predecessor to the entry statutes, former section 1242, which permitted the state
to enter land to "make examinations, surveys and maps . . . ."6 Young's contends
Jacobsen demonstrates the District's entry order is not permissible under the current entry
statutes. As we will explain, we disagree.
In Jacobsen, a municipal water district sought to enter land and conduct
excavations and testing for the purpose of determining the land's suitability for dams and
reservoirs. (Jacobsen, supra, 192 Cal. at pp. 321-322.) The landowners used their
properties for dairy farming and crop cultivation, and refused the water district
6 Former section 1242 provided: "In all cases where land is required for public use,
the state, or its agents in charge of such use, may survey and locate the same; but it must
be located in the manner which will be most compatible with the greatest public good and
the least private injury, and subject to the provisions of section twelve hundred and forty-
seven. The state, or its agents in charge of such public use, may enter upon the land and
make examinations, surveys, and maps thereof, and such entry shall constitute no cause
of action in favor of the owners of the land, except for injuries resulting from negligence,
wantonness, or malice." (See Jacobsen, supra, 192 Cal. at pp. 328-329.) When Jacobsen
was decided, then article I, section 14 of the California Constitution provided in part:
"[I]n an action in eminent domain brought by the state, or a county, or a municipal
corporation, or a drainage, irrigation, levee, or reclamation district, the aforesaid state or
political subdivision thereof or district may take immediate possession and use of any
right of way required for a public use whether the fee thereof or an easement therefor be
sought upon first commencing eminent domain proceedings according to law in a court
of competent jurisdiction and thereupon giving such security in the way of money
deposits as the court in which such proceedings are pending may direct, and in such
amounts as the court may determine to be reasonably adequate to secure to the owner of
the property sought to be taken immediate payment of just compensation for such taking
and any damage incident thereto, including damages sustained by reason of an
adjudication that there is no necessity for taking the property, as soon as the same can be
ascertained according to law."
15
permission. (Id. at p. 321.) In a superior court action to enjoin the owners from
preventing the work, the water district described the work as installing a boring rig,
boring of test holes from 3 to 8 inches in diameter to the depth of 150 feet or more, and
digging test pits of about 4 by 6 feet up to a 15-foot depth. (Id. at p. 322.) The work
required four men for a period of about 60 days, with occasional visits by officials, and
the water district alleged it would trample and destroy some growing crops. (Id. at pp.
322-323.) The water district proposed to fill the holes and excavations to restore the land
to its original condition. (Id. at p. 323.) The superior court issued an order for a
temporary injunction permitting the water district to proceed with the work, and ordered
it to deposit $1,000 as security for damages. (Id. at pp. 323-324.)
On appeal, the water district contended that its actions would not amount to an
unconstitutional taking, but was expressly permitted by former section 1242. (Jacobsen,
supra, 192 Cal. at p. 324.) The California Supreme Court disagreed. It reviewed
California case law dealing with then Article I, section 14 of the California Constitution.
(Jacobsen, at p. 326.) The court held that the proposed activities amounted to an invasion
of the owners' property rights under the provisions of the California Constitution: "It is
idle to attempt to argue that such entry, occupation, disturbance, and destruction of the
properties . . . would not constitute such an interference with their exclusive rights to the
possession, occupation, use, and enjoyment of their respective holdings as would amount
to a taking and a damaging thereof to the extent and during the period of such entry upon
said lands and of the operations of the [water district] thereon." (Jacobsen, at p. 328.)
16
As for former section 1242, the court held: "[W]hatever entry upon or
examination of private lands is permitted by the terms of this section cannot amount to
other than such innocuous entry and superficial examination as would suffice for the
making of surveys or maps and as would not in the nature of things seriously impinge
upon or impair the rights of the owner to the use and enjoyment of his property. Any
other interpretation would . . . render the section void as violative of the foregoing
provisions of both the state and federal Constitution." (Jacobsen, supra, 192 Cal. at
p. 329.)
For several reasons, Jacobsen, supra, 192 Cal. 319 does not compel the conclusion
Young's urges us to draw. The entry statutes today are unlike former section 1242, the
statute under which Jacobsen invalidated the court's order. The present entry statutes
provide for a an eminent domain proceeding by which a petitioner is authorized to
conduct a broader range of examinations, including "tests," "borings" and "samplings."
Indeed, the entry statutes authorize only temporary entries for the limited purpose of
engaging in "activities reasonably related to acquisition or use of the property" for the
particular use that the property is to be acquired by eminent domain. (§ 1245.010.) And,
unlike former section 1242, which had no provision for damages other than for negligent,
willful, or malicious conduct (see footnote 6, ante), the proceeding under the current
entry statutes contains a means by which compensation is paid to the landowner. If the
landowner does not agree to the entry, the petitioner uses this eminent domain proceeding
to obtain an order in which the court establishes the probable amount of compensation,
deposits that amount with the court, and disburses the money on the owner's application.
17
(§§ 1245.030-1245.060.) The court may increase the deposit, if necessary, and stay the
activities until that amount is deposited. (§ 1245.040.) And, if the deposited amount is
insufficient to cover any damage or interference, the entry statutes permit the court to
enter judgment for any unpaid portion or leave the owner free to seek "any other remedy"
for property damage. (§ 1245.060, subds. (c), (d).)
Such a proceeding is precisely what is permitted under the California Constitution,
article 1, section 19's second clause, that is, an eminent domain proceeding with a deposit
of a court-determined amount of compensation prior to entry: "The Legislature may
provide for possession by the condemnor following commencement of eminent domain
proceedings upon deposit in court and prompt release to the owner of money determined
by the court to be the probable amount of just compensation." (Cal. Const., art. I, § 19.)
Nor does this proceeding run afoul of the federal Constitution's mandate that private
property shall not "be taken for public use, without just compensation." (U.S. Const., 5th
Amend.) As we explain below, the District's activities do not amount to a taking.
Furthermore, Jacobsen, supra, 192 Cal. 319, is factually distinct. Accepting the
facts and drawing all inferences in favor of the superior court's order as we must, we
observe Young's indeed mischaracterizes the timing and extent of District's work.
Contrary to the assertion by Young's that the superior court's entry order "prevent[s] [it]
from using the property indefinitely" or contains "virtually no restrictions on the access,"
the record shows District's proposed work is temporary and restricted in scope: taking
only between eight and 10 business days to complete without totally occupying the
property, as much of the work is conducted outside the building's footprint in a parking
18
lot, with three persons boring a limited number of 2-by 6-inch holes for soil and
groundwater sampling, which holes will be filled and restored with sand or grout at the
conclusion of the tests. District does not claim any continuing interest or right to the
property, and Young's is free to possess, access or dispose of the property (including the
sand and grout used to fill the bore holes) and any portion of it after the completion of the
work. Thus, the District's entry is strictly temporary for the purpose of conducting the
designated tests and sampling. As District points out, the water district's testing in
Jacobsen was to take a much longer period of time (60 days) and was more burdensome
and invasive, as it included digging large 4-by 6-foot test pits, and boring more than 150
feet deep below the surface, which the water district admitted would damage the owners'
growing crops. In this case, District does not admit that its testing will substantially
interfere with the use or enjoyment of the property. And in Jacobsen, the water district
proceeded via an action for injunctive relief, rather than by an eminent domain
proceeding, which article 1, section 14 of the California Constitution then required for
preliminary occupations. (Footnote 6, ante.)
Finally, Jacobsen's takings analysis was well before Penn Central and other
authorities that have developed the law on takings. Thus, the Jacobsen court necessarily
did not engage in the fact-specific inquiry necessary to assess whether a temporary
physical invasion—as is proposed here—constitutes a compensable taking or damaging
of property. Nor did the court conduct any such analysis in County of San Luis Obispo v.
Ranchita Cattle Company (1971) 16 Cal.App.3d 383 relied on by Young's as
"reaffirming" Jacobsen. Ranchita is dicta on its discussion of Jacobsen in any event, as
19
it involved the scope of a property owner's written right of access agreement with a flood
control district to enter for testing; the court observed that the access agreement was so
general and imprecise that it gave the district no more than a right of entry for surveys
and maps. (Ranchita, 16 Cal.App.3d at pp. 386-389.) The discussion of Jacobsen was
ultimately unnecessary to the Court of Appeal's holding, which was that the property
owner was barred from recovering any such damages because it did not file a claim for
damages based on its assertion that the district's actions went beyond their agreement and
constituted a trespass. (Ranchita, at pp. 389-390.) In sum, neither Jacobsen nor
Ranchita compel us to conclude that District's proposed testing, boring and sampling runs
afoul of the entry statutes or renders them unconstitutional.7
7 Young's further argues that Jacobsen and Ranchita are in accord with
"longstanding" out-of-state authorities. We are not bound to follow out-of-state
decisions. (Episcopal Church Cases (2009) 45 Cal.4th 467, 490.) But these decisions
are distinguishable in any event. In Hendler v. U.S. (Fed.Cir. 1991) 952 F.2d 1364, the
court found a permanent physical taking where the Environmental Protection Agency had
installed 100-foot deep monitoring wells lined with plastic and stainless steel, surrounded
by gravel and cement, capped with a cement casing lined with reinforced steel, and
enclosed by a railing of steel pipe set in cement. (Id. at pp. 1375-1376.) The first of such
wells had had been in place for "years." (Ibid.) Hendler rests on the permanency of the
wells, as well as regular government intrusions to monitor them. (Id. at p. 1376.) In
Burlington Northern and Santa Fe Railway Co. v. Chaulk (Neb. 2001) 631 N.W.2d 131,
the Nebraska Supreme Court reviewed the language of a specific state statute authorizing
a precondemnation entry, and held it permitted only " 'examining and surveying,' " not
the type of core drilling sought to be conducted by the railroad, and thus the tests
exceeded the statutory authority under the statute's plain meaning. (Id. at pp. 138-140.)
In Kane County v. Elmhurst Bank (Ill.App. 1982) 443 N.E.2d 1149, the court likewise
was addressing a particular statute permitting the county to "mak[e] surveys" and held
that it did not permit subsurface soil and geological studies. (Id. at p. 1151.) In stating
further that a precondemnation entry order for testing or surveying may not allow a
taking, the Kane County court relied in part on Jacobsen and Ranchita (Kane County, at
pp. 1153-1154), which as we have stated above are not persuasive on the issue. And, we
20
Young's does not argue that the entry statutes are facially constitutionally invalid.
Indeed, it cannot raise a facial challenge, as it concedes the entry statutes authorize some
entries onto property before condemnation. A facial challenge " 'considers only the text
of the measure itself, not its application to the particular circumstances of an individual.' "
(In re Taylor (2015) 60 Cal.4th 1019, 1039, fn. 9.) In such case, the challenger "must
establish that no set of circumstances exists under which the [statute] would be valid.
The fact that the [statute] might operate unconstitutionally under some conceivable set of
circumstances is insufficient to render it wholly invalid . . . ." (People v. Hatch (2000) 80
Cal.App.4th 170, 192-193; see also Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069,
1084 [to demonstrate facial unconstitutionality, petitioners must demonstrate that the act's
provisions " ' "inevitably pose a present total and fatal conflict with applicable
constitutional prohibitions" ' "].) Though Young's suggests a broad application of the
entry statutes to it would be unconstitutional because District's conduct constitutes a
taking, it does so based on Jacobsen, without any legal analysis or separate heading
asserting an as applied challenge. An as applied challenge " 'contemplates analysis of the
facts of a particular case . . . to determine the circumstances in which the statute . . . has
been applied and to consider whether in those particular circumstances the application
observe there is authority to the contrary. (See City of Northglenn v. Grynberg (Colo.
1993) 846 P.2d 175, 182 [drilling of 600-foot test hole did not rise to the level of a
taking, though it was a physical invasion, as the "drilling itself did not interfere with [the
cross-petitioner's] use, possession, enjoyment, or disposition of his coal lease" and it was
"a single, transitory physical invasion of [the] coal lease" which did not translate to an
exercise of dominion and control of the lease].)
21
deprived the individual to whom it was applied of a protected right.' " (In re Taylor, 60
Cal.4th at p. 1039, italics omitted.)
Notwithstanding the absence of a square as-applied constitutional challenge, we
conclude below that such a claim would nevertheless fail because District activities do
not rise to the level of a taking requiring a jury determination of just compensation. We
address and reject below the arguments of Young's to the contrary.
IV. District's Proposed Actions Do Not Effect a Per Se Taking
Young's contends that in addition to constituting a substantial invasion of its
property rights, District's proposed boring and sampling constitutes an "obvious
'permanent physical occupation' " regardless of the size or value of the property. Young's
relies on Loretto, supra, 458 U.S. 419, in which a state law required landlords to permit
cable companies to install cables and large cable boxes on the roof and sides of apartment
buildings, a "direct physical attachment of plates, boxes, wires, bolts and screws to the
building, completely occupying space immediately above and upon the roof and along
the building's exterior wall." (Id. at pp. 421-422, 438.) Characterizing its decision as
"very narrow" (id. at p. 441), the Loretto court held this constituted a "permanent
physical occupation," which effects "a taking to the extent of the occupation, without
regard to whether the action achieves an important public benefit or has only a minimal
impact on the owner." (Id. at pp. 434-435.) Loretto thus involved a situation where, as
the court described it, the government "chops through" each " 'strand' from the 'bundle' of
property rights . . . taking a slice of every strand." (Id. at p. 435.) Such an occupation
"forever denies the owner any power to control the use of the property; he not only
22
cannot exclude others, but can make no nonpossessory use of the property." (Id. at p.
436.) More recently, the U.S. Supreme Court held that a physical taking akin to Loretto
had occurred under a government program that required raisin growers to physically set
aside a portion of their crop to a United States government entity, the Raisin
Administrative Committee, free of charge. (Horne v. Department of Agriculture, supra,
135 S.Ct. at pp. 2424, 2428-2429.) There, title to the raisins passed to the Committee,
and the Committee "disposes of what become its raisins as it wishes," thus causing the
growers to lose the entire "bundle" of property rights in the appropriated raisins. (Horne,
135 S.Ct. at p. 2428.)
The record here shows no such permanent physical occupation that "forever denies
[Young's] any power to control the use of [its] property." (Loretto, supra, 458 U.S. at p.
436.) District's activities are arranged to ensure Young's is not completely divested of its
property rights; the land is not permanently occupied in any sense as District's testing
involves sampling minimal amounts of building surfaces (described by Bestard as "less
than the size of a postage stamp"), disturbing two-inch to six-inch diameter portions of
the land in order to take soil and groundwater samples, and refilling the holes with sand
or bentonite grout. The testing does not require access to the entirety of the property, and
will be completed in a maximum of ten business days. After that time, District does not
claim any property right, recurring right to enter, or right to continually monitor the
testing areas, as the cable companies presumably would monitor or service their
permanently affixed cable boxes in Loretto, supra, 458 U.S. 419, or permanent
23
appropriation as the government committee did in Horne v. Department of Agriculture,
supra, 135 S.Ct. 2419.
Rather, the challenged activities constitute a temporary and incidental disruption,
which does not affect the property's suitability as a parking lot or indoor cart racing
center. To the extent Young's claims the property's suitability for its present use is
permanently or even temporarily impacted by the proposed boring and sampling, the
claim is simply not supported by the factual record as to the scope of District's proposed
work.
Because in opposition to District's petition Young's maintained District's actions
amount to a permanent physical occupation, Young's did not apply the multi-factor test
for a temporary physical invasion of property by the government. (Arkansas Game,
supra, ___ U.S. ___ [133 S.Ct. at p. 522].) Thus, it did not develop a record or " 'bring
the relevant factual situation sufficiently into controversy.' " (Moerman v. State of
California (1993) 17 Cal.App.4th 452, 461.)8
Young's does not argue that its property will be "damaged" within the meaning of
the California Constitution. District's testing—conducted on a paved lot involving bore
holes that will be filled and repaired, or very small pieces of building materials taken
8 Were we to apply that fact specific test, it would support our conclusion. The
duration of District's entry on the property to conduct the testing is short, no more than
ten business days. As for the character of the land affected, the portions impacted by the
borings are paved and used for parking, and thus the severity of the interference in those
portions of Young's property is minimal, and, after the holes are filled and repaired,
nonexistent. That is equally the case with the de minimus postage-size stamp samples of
building materials to be removed for asbestos testing.
24
from unobtrusive places—is not comparable to cases involving property damage
amounting to a taking. (See, e.g., City of Los Angeles v. Superior Court (2011) 194
Cal.App.4th 210, 222 [citing cases in which a taking resulted when a construction of a
sewer caused compaction of soil and damage to structures on plaintiffs' adjacent
property; or when levees installed by a flood control district caused flooding on adjacent
land; or a contractor piled earth, rock and other materials and erected sheds and
temporary structures on plaintiffs' uncondemned property; or when an ordinance
prohibited growing vegetation or erecting structures on plaintiff's property in order to
keep airspace clear for nearby airport; or the construction of a railroad along the street in
front of the plaintiff's home lowered the grade of the street and cut off the plaintiff's
access].)
V. Amicus K-1's Arguments
This court granted K-1 leave to file an amicus curiae brief on behalf of Young's.
However, we address only those arguments that do not expand on the appellate issues
raised by Young's. Thus, to the extent K-1 seeks to raise the necessary party issue or its
own interests, we will not consider the arguments. (See Connerly v. State (2014) 229
Cal.App.4th 457, 463, fn. 6, citing Professional Engineers in California Government v.
Kempton (2007) 40 Cal.4th 1016, 1047, fn. 12.)
Our conclusions above resolve most of K-1's amicus arguments, including its
contentions that the column of sand or filler "destroys Young's Holdings . . . right to
possess, use, and dispose of that property to the extent of the column's size" and that the
superior court's order gives District "an ongoing property interest in the holes . . . ." But
25
K-1 additionally argues that the order grants District a "profit à prendre," that is, an
easement conferring the right to remove timber, gravel, minerals, oil, fish or wild animals
from the land. "A profit à prendre has been defined as the 'right to make some use of the
soil of another, . . . and it carries with it the right of entry and the right to remove and take
from the land the designated products or profit and also includes right to use such of the
surface as is necessary and convenient for exercise of the profit.' " (Kennecott Corp. v.
Union Oil Co. (1987) 196 Cal.App.3d 1179, 1186.) As this court explained in Kennecott,
such a profit interest "is a means by which a party may explore for and extract resources
until it chooses in its sole discretion to surrender its right to do so." (Kennecott Corp, at
pp. 1187-1188, italics added.) Here, the District's entry and "extraction" of materials is
not so unlimited under the superior court's entry order, which incorporates District's
description of the nature, scope and timing of the entry and testing in its petition.
And we reject K-1's argument that we must construe the superior court's order as
"permitting 'the most injurious use of the property reasonably possible.' " K-1 maintains
that if we construe the order in such a way, "there is nothing to stop the District from
attempting to drill within the building where K-1 operates its go kart racing business."
For this proposition, K-1 relies on County of San Diego v. Bressi (1986) 184 Cal.App.3d
112, which discusses a jury's determination of damages in a condemnation action: "The
jury in a condemnation action must '. . . once and for all fix the damages, present and
prospective, that will accrue reasonably from the construction of the improvement and in
this connection [the jury] must consider the most injurious use of the property reasonably
possible.' [Citation.] In determining the most injurious use of the property reasonably
26
possible, the jury must consider the entire range of uses permitted under the resolution of
necessity." (Id. at p. 123.) Bressi was not decided in the context of the precondemnation
entry statutes, under which the court determines the probable amount of compensation for
associated injuries from the entry; the case addressed the respondent's evidentiary
argument as to what evidence the jury could consider on retrial in a county's proceeding
to condemn certain easements. (Id. at pp. 121-124.) Bressi has no bearing on the issues
presented in this case.
In sum, District's activities do not violate either the entry statutes or the state or
federal Constitution, and they do not amount to a taking requiring a jury determination of
just compensation. The superior court did not err by granting District's petition for an
entry order. Accordingly, we deny the writ petition.
DISPOSITION
The petition is denied. The stay issued on July 1, 2015, is vacated. San Diego
Unified School District shall recover its costs of this writ proceeding.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
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