California Supreme Court Determines That Legal Issues Motions Cannot Be Made in Inverse Condemnation Actions

It is Christmas in July for eminent domain practitioners! We have a California Supreme Court opinion on a condemnation case, which is rare. The case, Weiss v. People ex rel. Department of Transportation (2020 Cal. LEXIS 4357), is an inverse condemnation action where the main question is this: Can you make a Code of Civil Procedure Section 1260.040 motion, also known as a Legal Issues Motion, in an inverse condemnation action? According to the Supreme Court, the answer is no, these motions are meant to address valuation issues in eminent domain actions -- not determine liability in an ...

Temporary Construction Easement Expirations During the COVID-19 Pandemic

During Nossaman's recent webinar concerning Transit & Transportation Project Success in the Wake of the Pandemic, I addressed Temporary Construction Easement (TCE) issues. For a re-cap of my presentation on this topic please click here.

Additionally, to view our entire webinar "A Path to Transit & Transportation Project Success in the Wake of the Pandemic: A Panel Discussion Among Legal Professionals," please click here to access the full on-demand recording.

We continue to monitor developments related to COVID-19 and are available to respond to questions and discuss issues ...

Posted in New Legislation
California Adopts Statutory Backstop Legislation as PG&E Emerges from Bankruptcy

On June 30, 2020, Governor Newsom signed Senate Bill 350 (“SB 350”), which is intended to serve as a backstop for customers as Pacific Gas and Electric Company (“PG&E”) completes its restructuring process and begins implementing the reorganization plan recently confirmed by the United States Bankruptcy Court. The bill, named the Golden State Energy Act, gives the State authority to take certain actions if PG&E does not comply with the terms of its reorganization plan.

SB 350 establishes a new entity named Golden State Energy (“GSE”) to serve as a nonprofit public ...

Update on COVID-19 Takings Cases

As you may recall, it wasn’t too long after Governor Newsom issued his executive order mandating the closure of certain businesses in California that the first takings lawsuit was filed. (See our coverage of Gondola Adventures, Inc. v. Gavin Newsom, U.S.D.C. Case No. 2:20-cv-03789 here.) That lawsuit alleged that the response by the state and county agencies to the COVID-19 situation violated the state and federal constitutions, and resulted in a partial or complete taking in violation of the Fifth Amendment to the U.S. Constitution. Notably, the case was voluntarily dismissed ...

Inverse Condemnation Exposure and Management for the Energy Industry

Our presentation on "Inverse Condemnation Exposure and Management for the Energy Industry" will be available for viewing during the 2020 American Association of Professional Landmen's (AAPL) Annual Meeting. Due to the COVID-19 pandemic, this event will be held virtually and presentations will be prerecorded and available to view on demand after the scheduled live run time on June 18th. Registration is required, but access will be available as a complimentary benefit for all AAPL members.

The 2020 event still promises to be a professional development and land conference ...

WEBINAR: A Path to Transit and Transportation Project Success in the Wake of the Pandemic

For those of you involved in the transportation sector, we invite you to join us on Wednesday, June 3rd for a discussion on planning, procurement and financing strategies that can be implemented now to support timely project delivery in the wake of the COVID-19 pandemic.  We are planning a very interactive webinar where ample time will be set aside to answer questions received from attendees both prior to and during the event.

Topics that will be covered include:

  • How to prepare now to efficiently and effectively move projects forward
  • Procurement and contracting strategies that enable ...
Can’t Sue Here – Federal Court Closed to Takings Claim

Since the U.S. Supreme Court’s decision in Knick v. Township of Scott (2019) 139 S.Ct. 2162 eliminated the requirement for a plaintiff to exhaust state court remedies before pursuing a takings challenge in federal court, there has been a significant uptick in federal lawsuits alleging a Fifth Amendment takings claim. For example, as we recently reported, a federal lawsuit was filed earlier this month alleging that the response by California agencies to the COVID-19 situation violated the state and federal Constitutions, and resulted in a partial or complete taking in violation ...

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COVID-19 Takings Lawsuit Filed in California

As first reported by our good friends at inversecondemnation.com, a lawsuit has been filed in California alleging that the response by state and county agencies to the COVID-19 situation violates the state and federal Constitutions, and results in a partial or complete taking in violation of the Fifth Amendment to the U.S. Constitution. The named defendants include Governor Newsom, Attorney General Xavier Becerra, the State Public Health Officer, county Public Health Officers, and county representatives throughout Southern California. The complaint alleges ...

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Posted in Publications
Thank You for Reading!

Thank you to all of our readers for helping to make me a JD Supra 2020 Readers' Choice Award recipient! Last year, more than 50,000 authors published their insights and commentary on JD Supra. I am proud to be recognized as one of the top thought leaders in 26 popular categories who achieved the highest visibility and engagement among readers. My fellow top real estate category authors and I were chosen from a pool of more than 2,700 writers covering real estate matters on JD Supra. 

JD Supra is a daily source of need-to-know intelligence on professional and personal matters. They publish and ...

Amendments to Proposed Legislation Would Change Municipalization / Eminent Domain Takeovers of Electric, Gas and Water Utilities

We’ve previously reported on Senate Bill 917, which was introduced on February 3, 2020, by Senator Wiener (D-San Francisco) to establish a process for a potential government takeover of investor-owned electrical, gas and water corporations.  While the stated intention of the bill was to facilitate an eminent domain acquisition of PG&E by the state government, its wording goes much further.  Additionally, on April 3, a series of amendments were introduced that would potentially significantly change the burden of proof on a municipalization takeover effort. 

Specifically, the ...

Posted in New Legislation
Efforts at Reviving Redevelopment Continue

There is an ongoing global pandemic and the world is rightly focused on news related to COVID-19.  Given the circumstances, other news is slipping below the radar.  Something you may have missed is another effort to revive redevelopment in one form or another through Senate Bill 795.

SB 795 is focused on affordable housing and tries to give local municipalities some of the tools that were available through prior redevelopment agencies.  But when one mentions ‘redevelopment’ there seems to be an immediate negative reaction. Sure, there were redevelopment projects that were sketchy ...

Right of Way Professionals Opine on COVID-19 Impacts to the Profession

On April 1, Nossaman’s Eminent Domain Group hosted a webinar to discuss the impacts COVID-19 is having on the Right of Way industry.  First, I’d like to thank the people who attended, many of whom added thoughtful questions to the discussion.  It’s clear a lot of people are giving these issues a lot of thought.  Second, obviously things continue to evolve at a breathtaking pace, and even by the time this post goes from being drafted to appearing on the blog, things are likely to change. 

Note that this post is not meant to recap the things we discussed at the webinar.  If you weren’t able to join us and want to review what we covered, feel free to download the COVID-19 PowerPoint we used, or watch the entire recorded webinar.  No, the purpose of this post is to provide some insights as to what other right of way professionals are thinking about a few of these issues.  During the webinar, we asked several poll questions, and since the Nossaman team found the results interesting, I’m hoping some of you will as well ...

Does the Coronavirus Shutdown Trigger a Regulatory Taking?

With the recent government mandates surrounding COVID-19, many businesses are completely shut down and are legally unable to open their doors to the public.  Are those businesses -- movie theaters, gyms, retail stores, etc. -- entitled to compensation for a regulatory taking?  Similarly, landlords are experiencing massive losses as those tenants are unable to make rental payments; are those losses compensable?  Should governments worry about liability when issuing orders requiring the closure of businesses? 

While compensation arguably should be paid from a decency and “good ...

Posted in Right-of-Way
Navigating COVID-19 for the Right of Way Industry

COVID-19 has undoubtedly upended the world, including the way we do business and the future of our economy. We have received a number of questions and concerns from clients in the right of way industry on how the current pandemic affects the way we do business, and what to expect going forward. Please read on for links to helpful resources...

“Public Improvement” Narrowly Defined to Limit Inverse Condemnation Liability

Since the California Supreme Court’s 2019 Oroville decision, which narrowed inverse condemnation liability for public agencies, several court decisions have followed suit.  This week, the California Court of Appeal issued a published decision in Ruiz v. County of San Diego (2020 Cal. App. LEXIS 282), which further clarified and limited what constitutes a “public improvement” for purposes of inverse liability ...

Governor’s Use of Emergency Power to Commandeer Property Requires Payment of “Reasonable Value”

As COVID-19 spreads throughout the globe and the United States, our national, state and local governments are taking wide-reaching but necessary actions to respond to this novel coronavirus.

On March 4, 2020, Governor Gavin Newsom declared a State of Emergency and on March 12 issued Executive Order N-25-20, which, in part, allows the California Health and Human Services Agency and the Offices of Emergency Services to enter into contracts or, if agreements cannot be reached, “commandeer” property, such as hotels, medical facilities and other facilities that are needed “for ...

While inverse condemnation liability in California originates from the California Constitution, determining when it applies -- and under what circumstances -- is based on a lengthy morass of case law that has been described by one court as “seemingly inconsistent and irreconcilable.”  If you’re interested in learning more about the subject ...

Is California Coming for Your Beach House?

Yes, but the sea might beat them to it. In 2015, the California Coastal Commission adopted the Sea Level Rise Policy Guidance. This Guidance document discusses a number of potential measures for responding to sea level rise, including "managed retreat." As explained in the Guidance document, "[r]etreat strategies are those strategies that relocate or remove existing development out of hazard areas and limit the construction of new development in vulnerable areas." Examples of retreat strategies include the acquisition and buy-out of "threatened" properties. While many ...

Posted in New Legislation
New Legislation Proposes Government Takeover of PG&E

On February 3, 2020, Senator Scott Wiener (D-San Francisco) introduced Senate Bill 917 (“SB 917”), which would establish a new process for a potential government takeover of Pacific Gas and Electric Company (“PG&E”).

SB 917 would reestablish the California Consumer Energy and Conservation Financing Authority and authorize it to acquire, by eminent domain, the assets or ownership of certain electric or gas utilities that meet its criteria, including PG&E. Local publicly owned energy utilities may elect to join in the eminent domain action brought by the Authority and ...

Governor’s 2020 Budget Signals State’s Willingness to Takeover PG&E

Welcome to 2020! It is a new year and with every new year, comes a lot of new: new goals, new diet, new workout routines that leave every part of you sore...  In the professional setting, a new year brings a lot of “chores,” like closing out the financials for the previous year, perhaps completing year-end reviews, and on and on, and you are left asking, “We do this every year…??”  One of those chores is almost sure to be budgeting, which is universally considered to be unpleasant. Well, imagine having to kick off the year by preparing a budget for the entire state of California, the 5th largest economy in the world

Luckily, that chore was left to Governor Newsom and last week, he released his 2020 budget proposal. The proposed $222 billion dollar state budget ...

Brad Kuhn was quoted extensively in the Daily Journal article “Century-Old Doctrine  Haunts Fire Litigation.” The article provides an overview of how developments in inverse condemnation that occurred in 2019 pose numerous questions for 2020 in California. 

In the article, Brad commented on inverse condemnation—a legal provision under California state law that holds if a power company’s equipment starts a fire, it is responsible for paying property damages, even if they are not found to have been negligent.

He stated that the “inverse doctrine in and of itself is ...

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Tags: Wildfires
Will Long-Awaited Changes to NEPA Materially Alter Federal Environmental Reviews?

On January 10, 2020, the Council on Environmental Quality (CEQ) proposed amendments to National Environmental Policy Act (NEPA) implementing regulations.  The Proposed Rule would represent the first significant overhaul of CEQ’s NEPA regulations in more than 40 years.

The changes in the Proposed Rule are substantial and numerous. 

While the stated purpose of the changes is to facilitate more effective and timely environmental review of federal agency actions, the practical impact of the proposed changes is far from clear.  Below, we focus on some of the more significant ...

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Posted in Lawsuit, Projects
Mojave Air & Space Port to Use Eminent Domain if Negotiations Fail to Lift Off

Eminent domain is typically used for roads, utilities, schools, and even airports, but in California, it is quite unusual (perhaps even unheard of) to use eminent domain for space travel.  

But according to an article in the Antelope Valley Press, Eminent domain possible if airport land buy fails, that is exactly what's about to happen.  According to the article, the Mojave Air and Space Port Board of Directors agreed to move ahead with eminent domain for acquiring several vacant parcels of land if negotiations fail.  The properties are apparently necessary to expand the safety zone ...

Last year, the United States Supreme Court made headlines (at least in our eminent domain world) by issuing a ruling in Knick v. Township of Scott that property owners can bypass the state courts and directly file a Fifth Amendment takings claim in federal court (you can find our write-up on Knick here).  This was a stark shift from prior law, which held that a property owner had to first finalize their pursuit of compensation through any applicable state procedures.  We are still feeling the effects from the Supreme Court's holding, but one question that has been raised is how does the ...

Posted in Lawsuit
Martin’s Beach Saga Continues With California’s New Lawsuit

On November 25, 2019, the California Court of Appeal ruled that the public’s use of a road for more than half a century to access Martin’s Beach was permissive, and therefore “did not ripen into a public dedication that would give the public a permanent right to use the property.” (See our coverage of that decision here.) In so ruling, the Court handed a seemingly significant defeat to the plaintiff, a group entitled Friends of Martin’s Beach, and a significant victory to Vinod Khosla, the billionaire who purchased the 90 acres of beachfront property and the gated access road to ...

Posted in Videos

We are pleased to provide the final installment of our video series from Nossaman’s 2019 Eminent Domain Seminars. In this segment, Eminent Domain & Valuation Partner Rick Rayl discusses the different types of Right-to-Take Challenges and how they affect both parties to an eminent domain case.

We look forward to seeing everyone for our March 2020 Seminars in San Francisco and Orange County. Please contact us through the blog if you wish to receive save-the-date information.

Posted in Videos

We are pleased to provide the next installment of our video series from Nossaman’s 2019 Eminent Domain Seminars. In this segment, Eminent Domain & Valuation Partner Bernadette Duran-Brown discusses the first day of trial, the trial process and components, and some of the unique aspects of an eminent domain trial proceeding.

Posted in Videos

We are pleased to provide the next installment of our video series from Nossaman’s 2019 Eminent Domain Seminars. In this segment, Eminent Domain & Valuation Partner Rick Rayl discusses timing and preparation of Notices of Possession and other preliminary steps in the filing of a condemnation action.

Posted in Videos

We are pleased to provide the next installment of our video series from Nossaman’s 2019 Eminent Domain Seminars. In this segment, Eminent Domain & Valuation Attorney Katrina Wu discusses best practices for a successful large-scale document review and production process in preparation for an eminent domain trial.

Federal Bankruptcy Court Denies PG&E’s Attempt to Set Aside Inverse Condemnation Liability

On November 27, 2019, U.S. Bankruptcy Judge Dennis Montali issued a Memorandum Decision on Inverse Condemnation (“Memorandum Decision”) in PG&E Corporation and Pacific Gas & Electric’s (together, “PG&E”) Chapter 11 Bankruptcy proceeding in the U.S. Bankruptcy Court for the Northern District of California (Case No. 19-30088).  PG&E challenged the application of the doctrine of inverse condemnation in connection with the 2015, 2017, and 2018 California wildfires.  In the Memorandum Decision, Judge Montali ruled against PG&E and instead concluded that the doctrine ...

Posted in Court Decisions
Martin's Beach - The Public Taking that Almost Was, and Still May Be

The Fifth Amendment to the U.S. Constitution states: “nor shall private property be taken for public use, without just compensation.” The California Constitution contains a similar provision. Reading these constitutional provisions, one might reasonably assume that private property cannot be acquired for public use without just compensation. However, that assumption would be incorrect. In California, like many other states, private property may be acquired for public use without the payment of any compensation through an implied dedication. Whether there was or was ...

As we have written about in past posts, the issue of inverse condemnation remains on the forefront in the state given the continuing, severe wildfire risks and other climate change impacts.  Brad Kuhn was recently quoted in the Wall Street Journal in “PG&E Isn’t Alone in Facing Liability Risk Over California Fires,” addressing liability associated with inverse condemnation.  Willis Hon also commented on the current legislative situation in an E&E News EnergyWire article:  “Legal 'whipsaw' threatens PG&E's future.”  If you’re interested in potential legislative ...

Posted in Videos

We are pleased to provide the next installment of our video series from Nossaman’s 2019 Eminent Domain Seminars. In this segment, Eminent Domain & Valuation Partner Bernadette Duran-Brown discusses strategy and procedural issues to remember during the final preparation for an eminent domain trial. 

Get Geared Up for 2020 Eminent Domain & Inverse Condemnation Projects with Nossaman

As we all get into the holiday spirit, don’t forget to keep your skills and knowledge sharp for what is looking to shape up as a very active 2020 in the projects arena.  Join our Nossaman Partners for the following year-end conferences before settling in for your long winter’s nap! ...

Posted in Court Decisions
Commercial Tenants Can Assign Right to Just Compensation

In an eminent domain proceeding, tenants of property subject to condemnation have constitutional rights to just compensation. However, those rights can be assigned to the landlord through a lease agreement. A recent unpublished Court of Appeal decision confirmed that commercial tenants can assign all claims to just compensation through the terms of a lease agreement ...

Posted in Court Decisions
When Does the California Coastal Act Bar a Takings Challenge?

In a recent published decision, the California Court of Appeal had the opportunity to address this issue when the property owners of a beachside residence in the City of Los Angeles challenged a setback condition that the California Coastal Commission imposed on their proposed home remodel.  (See Greene v. Cal. Coastal Com. (Oct. 9, 2019) Case No. B293301.)

Background

Under the Coastal Act, property owners are required to obtain a Coastal Development Permit for “development” within the coastal zone.  “Development” is defined very broadly in the Coastal Act, and includes ...

Posted in Videos

We are pleased to provide the next installment of our video series from Nossaman’s 2019 Eminent Domain Seminars.  In this segment, Eminent Domain & Valuation Partner Rick Rayl discusses strategies for avoiding liability and potential damages claims during precondemnation planning.

Government’s Property Regulation Terminating Cannabis License is Not a Taking

It is commonplace for a local government agency to require a property or business owner to secure a license or permit for a particular type of operation (such as a liquor license, medical marijuana license, etc.).  If the property owner expends substantial funds developing the business or property in reliance on that license or permit, and a government regulation thereafter prohibits that use, does it trigger a taking entitling the property or business owner to just compensation?  According to a recent California district court decision, the answer is no.  In ...

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Posted in Videos

We are pleased to provide the next installment of our video series from Nossaman’s 2019 Eminent Domain Seminars.  In this segment, Eminent Domain & Valuation Associate Katrina Wu discusses the discovery process leading up to trial.

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Posted in Court Decisions

In California, we have an admittedly odd way of determining whether the property or business owner in an eminent domain case is entitled to recover attorneys’ fees.  (Note that I’m specifically talking about an owner’s ability to recover; California law does not provide for a condemning agency’s ability to recover fees).  It’s actually fairly simple:  just before trial, the owner and the agency exchange a Final Demand and a Final Offer.  (See Code of Civil Procedure section 1250.410.)   If the case thereafter proceeds to trial, a jury will typically decide the amount of ...

Unpublished Decision Looks at Valuation Methodologies

In Freeport Reg’l Water Auth. v. M&H Realty Partners VI, L.P., 2019 Cal. App. Unpub. LEXIS 6126 (Sept. 16, 2019), the court walked through a complicated fact pattern involving – in its simplest form – a 40-foot easement for an underground water pipeline.  For our purposes, the key issues were valuing (1) the easement being acquired, (2) the severance damages caused to the remainder parcel, and (3) a temporary construction easement for the pipeline’s installation.  Though it was not technically a eminent domain case because the parties had reached an agreement concerning the ...

We recently reported on the California Supreme Court’s decision in Oroville which provided a relaxed standard for public agencies facing inverse condemnation claims.  Since that decision, a new unpublished Court of Appeal decision provides further guidance and supports the “reasonableness” analysis considered in Oroville, although in this case the decision was not as favorable to public entities with respect to determining whether the damage is caused by a public or private improvement ...

Sea-Level Rise, Managed Retreat and Eminent Domain in California

Thanks to all of you who were able to attend Nossaman’s Coastal Law Conference last week.  If you missed the event, I provided an update on sea-level rise, managed retreat, and potential eminent domain / regulatory takings issues in California.  Specifically, I touched on: ...

Posted in Videos

We are pleased to provide the next installment of our video series from Nossaman’s 2019 Eminent Domain Seminars.  In this segment, Eminent Domain & Valuation Partner Bernadette Duran-Brown discusses Motions In Limine, a key component of preparation in many trials.

Posted in Videos

We are pleased to provide the next installment of our video series from Nossaman’s 2019 Eminent Domain Seminars.  In this segment, Eminent Domain & Valuation Partner Artin Shaverdian discusses approaches to settling a case before it goes to trial.

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On August 15, 2019, the California Supreme Court issued its first inverse condemnation opinion in more than 22 years in the case City of Oroville v. Superior Court of Butte County, Case No. S243247.  The Court held that to succeed on an inverse condemnation claim, a property owner must show more than just a causal link between the existence of a public improvement and damage to private property:  it must demonstrate that “the property damage was the probable result or necessary effect of an inherent risk associated with the design, construction, or maintenance of the relevant ...

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Posted in Videos

We are pleased to provide the next installment of our video series from Nossaman’s 2019 Eminent Domain Seminars.  In this segment, Litigation Department Chair David Graeler discusses best practices for preparing expert witnesses for trial.

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Posted in Videos

We are pleased to provide the next installment of our video series from Nossaman’s 2019 Eminent Domain Seminars.  In this segment, Eminent Domain Partner Artin Shaverdian discusses implications and best practices when increasing the scope of a taking.

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Will California's Sea-Level Rise Trigger Use of Eminent Domain?

We've been tracking the impacts of sea-level rise in California, and previously reported on a potential recommendation by the California Coastal Commission to utilize eminent domain for "managed retreat" -- buying or condemning threatened homes and relocating them or tearing them down, which would thereafter free the coastline and preserve the beaches.  That recommendation has been met with widespread opposition.  According to an article in the San Diego Reader, "Don't say retreat when talking about sea rise in California," some local cities in San Diego are taking that option off ...

Lessons in Litigating Inverse Condemnation Claims

Inverse condemnation litigation and liability has become a particularly hot topic in California over the last several years.  Not many attorneys specialize in this area, and there are a number of traps for the unwary lawyers, public agencies, and property owners involved in such litigation.  A recent Court of Appeal decision provides some important lessons for all parties involved, including the risks of settling inverse condemnation claims with insurance companies, and pitfalls in recovering attorneys' fees ...

California Eminent Domain Report is a one-stop resource for everything new and noteworthy in eminent domain. We cover all aspects of eminent domain, including condemnation, inverse condemnation and regulatory takings. We also keep track of current cases, project announcements, budget issues, legislative reform efforts and report on all major eminent domain conferences and seminars in the Western United States.

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