County of Fresno v. Shelton

• Decision Date: 09 September 1998
• Docket Number: No. F023910,F023910
• Citation: 66 Cal.App.4th 996,78 Cal.Rptr.2d 272
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 7100, 98 Cal. Daily Op. Serv. 7449, 98 Daily Journal D.A.R. 9783 COUNTY OF FRESNO, Plaintiff and Appellant, v. Bernadynne B. SHELTON et al., Defendants and Respondents.

Page 272

78 Cal.Rptr.2d 272

66 Cal.App.4th 996, 98 Cal. Daily Op. Serv. 7100,

98 Cal. Daily Op. Serv. 7449,

98 Daily Journal D.A.R. 9783

COUNTY OF FRESNO, Plaintiff and Appellant, v. Bernadynne B. SHELTON et al., Defendants and Respondents.

No. F023910.

Court of Appeal, Fifth District, California.

Sept. 9, 1998.

Certified for Partial Publication. ^*

As Modified Sept. 22, 1998.

[66 Cal.App.4th 999] Phillip S. Cronin, County Counsel and Philip J. Norgaard, Deputy, for Plaintiff and Appellant.

Kimball, MacMichael & Upton, and Jon Wallace Upton, Lozano, Smith, Smith, Woliver & Behrens, and Jerome M. Behrens, Fresno, for Defendant and Respondent.

OPINION

ARDAIZ, Presiding Justice.

BACKGROUND

It appears as though Ms. Donleavey brought a separate but related inverse condemnation action against the County of Fresno (County) seeking just compensation for the taking of her roadway easement that resulted from the County's construction and operation of its wastewater treatment facility on property adjacent to her own. ¹

In settlement of this inverse condemnation action, the County agreed, in part, to purchase a certain interest in the real property owned by Ms. Donleavey. ² The April 1991 settlement was initially drafted in such a way so as to make Ms. Donleavey's obligations contingent on the County's being able to convey to her an appurtenant 60-foot non-exclusive private road easement for access and utility service to the portion of the Donleavey property not being sold and which would become landlocked once the County obtained title to the property interest it had agreed to purchase from her. In August of 1993, that settlement agreement was modified so that Ms. Donleavey agreed to extend the period of time for the County to convey title to the easement for additional one year periods if, despite its diligent efforts at prosecuting the necessary condemnation action, the County was not able to convey said title within 18 months of the modified agreement. She also retained discretion to declare the entire agreement void and proceed with an inverse condemnation lawsuit should the County fail to prosecute the needed condemnation action diligently or was unable to condemn the needed easement.

In March of 1995, in an attempt to meet its obligation under this agreement, the County initiated the present condemnation action under Code of Civil Procedure section 1240.350 against various persons, including the Kriegbaums and Ms. Shelton, and other legal entities who held some cognizable interest in the real property where the easement Defendants Kriegbaums and Ms. Shelton demurred to the County's first amended complaint on the ground, inter alia, that the County lacked standing to bring such an action until such time as the County "acquired" property for public use - an event they claimed would not occur until the County obtained title to the portion of the Donleavey property it had agreed to purchase thereby leaving landlocked the remaining or unpurchased portion of the Donleavey property.

                was needed. 3  Through this action (Fresno County Superior Court case No. 528982-2), the County sought to condemn a sixty-foot non-exclusive easement on Solitude Lane that crossed property owned by the Kriegbaums and Ms. Shelton in order to provide access and utility service to the portion of the Donleavey property that was not being purchased by the County
                

In opposition to the demurrer, the County insisted it had standing to bring the action since ownership of the Donleavey property was not a prerequisite to its bringing the section 1240.350 condemnation action - all that was required was that the purchase be "underway." Since its purchase of the Donleavey property was then in escrow, the County asked that the demurrers be denied in their entirety.

In their reply, the Kriegbaums asked the trial court to take judicial notice of the Donleavey documents and reiterated their claim that the County lacked standing. They argued that, even if section 1240.350 were interpreted in such a way so as to provide for condemnation proceedings where title had not yet passed, the County should be required to demonstrate that it had a binding contract that could be specifically enforced so that, at a minimum, an argument of equitable conversion could be made. The Kriegbaums argued that equitable conversion could not occur in this case because the County had no current right to purchase the Donleavey property and would not obtain that right until such time as it was in a position to convey title to the Solitude Lane easement referenced in the Donleavey settlement agreements.

On April 21, 1995, the demurrer came on for hearing. While the County was arguing its case, the court interrupted and the following colloquy took place:

"THE COURT: But the key word there is 'if.' And what happens in this case if you proceed to obtain the easement and then the taking of the Donleavy [sic] property doesn't go through?

"MR. NORGAARD [counsel for the County]: But the taking - everything on the Donleavy [sic] property is ready to go. The dollars are in escrow and--

"THE COURT: But what if it doesn't go through?

"MR. NORGAARD: Your Honor, if-if it doesn't go through, the only reason is because the court has decided that it's improper for this easement to be ... granted. That's the only thing holding up this Donleavy [sic] transaction. If the County can obtain prejudgment possession of that easement, the Donleavy [sic] deal is done.

"THE COURT: Well, I don't think you're answering my question.... And the question in my mind is if you're right and that I should overrule the demurrer, what happens if the Donleavy [sic] thing doesn't go through and the easement has already now been taken?

"MR. NORGAARD: Well, Your Honor, that, obviously, could be the--the County would have every right to--to abandon the easement and give it back to the property owner, for one.

"THE COURT: Well, apparently, they'd have the right to keep it too.

"MR. NORGAARD: They'd have the right to keep it, too, correct.

"THE COURT: It wouldn't be for the purpose for which it was asserted to be taken in the first place.

"MR. NORGAARD: That's true.

"THE COURT: So it would become an idle act."

County counsel then argued that the situation before the trial court was no different than that which occurs when a substitute The court then made the following findings:

easement is condemned as part of a highway building project and the main project is later changed so that the substitute easement is no longer needed.

"I read CCP Section 1240.350 to limit the ability of the public entity to acquire the easement right once the subject property has been acquired by eminent domain.

"I think under these facts as alleged, that acquisition has not taken place, and I think that it is premature for the County to exercise its rights under this statute to claim that easement before the subject property has in fact been acquired by eminent domain.

"The court is going to sustain the demurrer without leave to amend on that basis and deny as moot the County's application for prejudgment possession.

"The defendants have asked for fees and expenses under Section 1260.120, subdivision (c), and without prejudicing that request, now that the court has granted the demurrer, I think that that should be noticed as a separate matter under that code section. So I'll leave that to the defendant to do that if the defendant wishes to do it."

By written order dated May 4, 1995, the trial court noted that it had taken judicial notice of the grant deed recorded February 2, 1994, ⁴ the April 30, 1991, Agreement for Settlement of Lawsuit, the Escrow Instructions, and the August 24, 1993, First Addendum (to which the County did not object). Based on its reading of these documents, the trial court concluded that the County had not yet acquired the Donleavey property. It then went on to find:

"(1) That the plain language of Code of Civil Procedure Section 1240.350 requires that the County have acquired property necessitating the need to provide utility service to or access to a public road, which is the subject of the litigation; and

"(2) That the County of Fresno has not acquired property giving rise to a need to provide utility service to or access to a public road; and therefore;

"(3) That the County does not currently have standing to pursue this action."

The trial court thus sustained the demurrers to the first amended complaint filed by the Kriegbaums and Ms. Shelton without leave to amend and ordered the first amended complaint dismissed. The trial court also granted the Kriegbaums and Ms. Shelton leave "to request and recover all reasonable expenses" they incurred in defending this action as allowed by section 1260.120, subdivision (c), and in accordance with the procedure specified in section 1268.610.

The County timely filed its notice of appeal on June 8, 1995.

In June of 1995, while this case was pending on appeal, the parties agreed and stipulated to the following:

"1. The defendants' motions for attorneys fees and costs may be granted by the Court in the total amount of $23,882.31 for the Kriegbaum defendants and in the total amount of $12,073.54 for defendant Bernadynne Shelton."

"2. The County of Fresno is appealing the Court's judgment and may seek other extraordinary relief. The Court may therefore issue an order staying its judgment dismissing this case and such other collateral relief as the Court may grant including, but not limited to, this stipulated order granting defendants' motions for attorneys' fees and costs."

The trial court's order issued in response to the foregoing stipulation provided as follows:

"The Court, having reviewed the stipulation, and good cause appearing,

"HEREBY ORDERS that defendants' motions for attorneys' fees and costs are granted in their entirety.

"IT IS FURTHER ORDERED that a stay of enforcement is issued, staying the Court's judgment dismissing this case...