Young's Mkt. Co. v. Superior Court of San Diego Cnty.
| Decision Date | 19 November 2015 |
| Docket Number | D068213 |
| Court | California Court of Appeals Court of Appeals |
| Parties | YOUNG'S MARKET COMPANY, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent, San Diego Unified School District, Real Party in Interest. |
Allen Matkins Leck Gamble Mallory & Natsis and Kenneth Erik Friess, Nicholas S. Shantar, Irvine, 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, San Diego, 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.
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 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, 219 P. 986 (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, 219 P. 986.4 It presented the declaration of Lisa Bestard, an environmental testing scientist with the consultant hired by District. Bestard explained that the purpose of the 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,
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.
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.
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, 99 Cal.Rptr.2d 252, 5 P.3d 815 ; Lockaway Storage v. County of Alameda (2013) 216 Cal.App.4th 161, 183, 156 Cal.Rptr.3d 607 (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, 156 Cal.Rptr.3d 607.) 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, 99 Cal.Rptr.2d 252, 5 P.3d 815.)
Having determined the historical facts, we then select the applicable...
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Young's Mkt. Co. v. Superior Court of San Diego Cnty.
...matter comes to us on remand from the California Supreme Court, with directions to vacate our earlier decision (Young's Market Co. v. Superior Court (2015) 242 Cal.App.4th 356, review granted Jan. 13, 2016, S230808) and reconsider the cause in light of its opinion in Property Reserve, Inc. ......