Undertaking Was Prudent Given Condemnor Was Appealing Abandonment Denial Decision, Such That Attorney’s Fees Might Be In Order Down The Line.
Eminent domain and inverse condemnation are boutique practice areas, but we attempt to report on all substantive areas. Here is a very technical decision relating to postjudgment withdrawal of an increased deposit made by a condemning agency.
In Medical Acquisition Co., Inc. v. Superior Court (Tri-City Healthcare District), Case No. D072509 (4th Dist., Div. 1 Jan. 11, 2018) (published), condemning agency (condemnor) made a pretrial deposit of $4.7 million and sought immediate possession of the subject property. Condemnee withdrew the deposit under the “quick-take” provision of the California Constitution. Later, a jury determined that just compensation for the taking was nearly $17 million, with condemnor ordered to increase its deposit by about $12.2 million. Condemnor filed a notice of abandonment of the eminent domain proceeding, but the trial court granted condemnee’s motion to set aside the abandonment—which generated an appeal by condemnor, which ultimately deposited the additional funds. Condemnee wanted a withdrawal of the additional funds without bond or undertaking, a request opposed by condemnor. The trial judge allowed an additional $4.4 million withdrawal without any undertaking but required a bond before condemnee could withdraw the remaining amount. This resulted in an appellate writ petition brought by condemnee.
The appellate court denied writ relief, determining that the trial judge did have discretion to allow condemnee to withdraw a portion without a bond but also mandate an undertaking with respect to the additional amounts under Code of Civil Procedure section 1268.140. One of the reasons justifying the undertaking on the amount over $4.4 million was because condemnor had a claim to those fees if its appeal on the abandonment issue ultimately was successful in the future.
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