BILL NUMBER: SB 698	CHAPTERED
	BILL TEXT

	CHAPTER  436
	FILED WITH SECRETARY OF STATE  OCTOBER 10, 2007
	APPROVED BY GOVERNOR  OCTOBER 10, 2007
	PASSED THE SENATE  SEPTEMBER 5, 2007
	PASSED THE ASSEMBLY  AUGUST 30, 2007
	AMENDED IN ASSEMBLY  JULY 10, 2007
	AMENDED IN SENATE  APRIL 17, 2007

INTRODUCED BY   Senator Torlakson

                        FEBRUARY 23, 2007

   An act to amend Section 1255.410 of the Code of Civil Procedure,
and to amend Section 7267.2 of the Government Code, relating to
eminent domain.



	LEGISLATIVE COUNSEL'S DIGEST


   SB 698, Torlakson. Eminent domain.
   The California Constitution authorizes governmental entities to
take or damage private property for public use only when just
compensation, ascertained by a jury unless waived, has first been
paid to, or into court for, the owner.
    The Eminent Domain Law provides the procedure for the exercise of
the constitutional power and authorizes the plaintiff to make an
application to the court to take possession of property prior to
judgment and sets forth the procedures the plaintiff must follow.
Existing law requires, in this regard, that the plaintiff describe
the property which the plaintiff is seeking to possess in his or her
motion, to include a statement describing the defendant's right to
oppose the motion, and serve a copy of that motion on the defendant
owner of the property and the occupants, if any. Existing law permits
a defendant or occupant of the property to oppose the motion and
seek a hearing on the motion regardless of whether the hardship of
having possession taken at the time specified in the order is
substantial. Existing law requires the written opposition to be
signed under penalty of perjury. Existing law requires a public
entity to establish an amount that it believes to be just
compensation for property to be acquired, and to make an offer to the
owner or owners of record to acquire the property for the amount
established, prior to adopting a resolution of necessity for the
taking and initiating negotiations for the acquisition of real
property.
   The bill would provide that, if the defendant opposes the motion
to take possession of the property prior to judgment, and if the
written opposition asserts a hardship, it shall be supported by a
declaration signed under penalty of perjury stating facts supporting
the hardship. The bill would also require a public entity exercising
the power of eminent domain, at the time it makes the offer to
acquire the property, as described above, to provide the property
owner an informational pamphlet outlining the process of eminent
domain and the property owner's rights under the Eminent Domain Law.



THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 1255.410 of the Code of Civil Procedure is
amended to read:
   1255.410.  (a) At the time of filing the complaint or at any time
after filing the complaint and prior to entry of judgment, the
plaintiff may move the court for an order for possession under this
article, demonstrating that the plaintiff is entitled to take the
property by eminent domain and has deposited pursuant to Article 1
(commencing with Section 1255.010) an amount that satisfies the
requirements of that article.
   The motion shall describe the property of which the plaintiff is
seeking to take possession, which description may be by reference to
the complaint, and shall state the date after which the plaintiff is
seeking to take possession of the property. The motion shall include
a statement substantially in the following form: "You have the right
to oppose this motion for an order of possession of your property. If
you oppose this motion you must serve the plaintiff and file with
the court a written opposition to the motion within 30 days from the
date you were served with this motion." If the written opposition
asserts a hardship, it shall be supported by a declaration signed
under penalty of perjury stating facts supporting the hardship.
   (b) The plaintiff shall serve a copy of the motion on the record
owner of the property and on the occupants, if any. The plaintiff
shall set the court hearing on the motion not less than 60 days after
service of the notice of motion on the record owner of unoccupied
property. If the property is lawfully occupied by a person dwelling
thereon or by a farm or business operation, service of the notice of
motion shall be made not less than 90 days prior to the hearing on
the motion.
   (c) Not later than 30 days after service of the plaintiff's motion
seeking to take possession of the property, any defendant or
occupant of the property may oppose the motion in writing by serving
the plaintiff and filing with the court the opposition. If the
written opposition asserts a hardship, it shall be supported by a
declaration signed under penalty of perjury stating facts supporting
the hardship. The plaintiff shall serve and file any reply to the
opposition not less than 15 days before the hearing.
   (d) (1) If the motion is not opposed within 30 days of service on
each defendant and occupant of the property, the court shall make an
order for possession of the property if the 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.
   (2) If the motion is opposed by a defendant or occupant within 30
days of service, the court may make an order for possession of the
property upon consideration of the relevant facts and any opposition,
and upon completion of a hearing on the motion, if the 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.
   (e) (1) Notwithstanding the time limits for notice prescribed by
this section and Section 1255.450, a court may issue an order of
possession upon an ex parte application by a water, wastewater, gas,
electric, or telephone utility, as the court deems appropriate under
the circumstances of the case, if the court finds each of the
following:
   (A) An emergency exists and as a consequence the utility has an
urgent need for possession of the property. For purposes of this
section, an emergency is defined to include, but is not limited to, a
utility's urgent need to protect the public's health and safety or
the reliability of utility service.
   (B) An emergency order of possession will not displace or
unreasonably affect any person in actual and lawful possession of the
property to be taken or the larger parcel of which it is a part.
   (2) Not later than 30 days after service of the order authorizing
the plaintiff to take possession of the property, any defendant or
occupant of the property may move for relief from an emergency order
of possession that has been issued under this subdivision. The court
may modify, stay, or vacate the order upon consideration of the
relevant facts and any objections raised, and upon completion of a
hearing if requested.
  SEC. 2.  Section 7267.2 of the Government Code is amended to read:
   7267.2.  (a) (1) Prior to adopting a resolution of necessity
pursuant to Section 1245.230 of the Code of Civil Procedure and
initiating negotiations for the acquisition of real property, the
public entity shall establish an amount which it believes to be just
compensation therefor, and shall make an offer to the owner or owners
of record to acquire the property for the full amount so
established, unless the owner cannot be located with reasonable
diligence. The offer may be conditioned upon the legislative body's
ratification of the offer by execution of a contract of acquisition
or adoption of a resolution of necessity or both. In no event shall
the amount be less than the public entity's approved appraisal of the
fair market value of the property. Any decrease or increase in the
fair market value of real property to be acquired prior to the date
of valuation caused by the public improvement for which the property
is acquired, or by the likelihood that the property would be acquired
for the improvement, other than that due to physical deterioration
within the reasonable control of the owner or occupant, shall be
disregarded in determining the compensation for the property.
   (2) At the time of making the offer described in paragraph (1),
the public entity shall provide the property owner with an
informational pamphlet detailing the process of eminent domain and
the property owner's rights under the Eminent Domain Law.
   (b) The public entity shall provide the owner of real property to
be acquired with a written statement of, and summary of the basis
for, the amount it established as just compensation. The written
statement and summary shall contain detail sufficient to indicate
clearly the basis for the offer, including, but not limited to, all
of the following information:
   (1) The date of valuation, highest and best use, and applicable
zoning of property.
   (2) The principal transactions, reproduction or replacement cost
analysis, or capitalization analysis, supporting the determination of
value.
   (3) Where appropriate, the just compensation for the real property
acquired and for damages to remaining real property shall be
separately stated and shall include the calculations and narrative
explanation supporting the compensation, including any offsetting
benefits.
   (c) Where the property involved is owner occupied residential
property and contains no more than four residential units, the
homeowner shall, upon request, be allowed to review a copy of the
appraisal upon which the offer is based. The public entity may, but
is not required to, satisfy the written statement, summary, and
review requirements of this section by providing the owner a copy of
the appraisal on which the offer is based.
   (d) Notwithstanding subdivision (a), a public entity may make an
offer to the owner or owners of record to acquire real property for
less than an amount which it believes to be just compensation
therefor if (1) the real property is offered for sale by the owner at
a specified price less than the amount the public entity believes to
be just compensation therefor, (2) the public entity offers a price
which is equal to the specified price for which the property is being
offered by the landowner, and (3) no federal funds are involved in
the acquisition, construction, or project development.
   (e) As used in subdivision (d), "offered for sale" means any of
the following:
   (1) Directly offered by the landowner to the public entity for a
specified price in advance of negotiations by the public entity.
   (2) Offered for sale to the general public at an advertised or
published, specified price set no more than six months prior to and
still available at the time the public entity initiates contact with
the landowner regarding the public entity's possible acquisition of
the property.