Stanford Law School - Robert Crown Law Library

Filed 2/22/07

IN THE SUPREME COURT OF CALIFORNIA

MT. SAN JACINTO COMMUNITY
COLLEGE DISTRICT,
Petitioner,
S132251
v.
Ct.App. 4/2 E035868
THE SUPERIOR COURT OF
RIVERSIDE COUNTY,
Riverside
County
Respondent;
Super. Ct. No. RIC349900
AZUSA PACIFIC UNIVERSITY,
Real Party in Interest.

When the government exercises its power of eminent domain, and
condemns or damages private property for public use, it must pay “just
compensation” to the owner. (Cal. Const., art. I, § 19.)1 The just compensation is
aimed at making the landowner whole for a governmental taking or damage to the

1 Article I, section 19 of the California Constitution provides that “Private
property may be taken or damaged 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 Legislature may provide for possession by the condemnor following
commencement of eminent domain proceedings upon deposit in court and prompt
release to the owner of money determined by the court to be the probable amount
of just compensation.” (See also, U.S. Const., 5th Amend. [private property shall
not “be taken for public use without just compensation”].)
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owner’s property. (Redevelopment Agency v. Gilmore (1985) 38 Cal.3d 790, 797
(Gilmore); see Escondido Union School Dist. v. Casa Suenos De Oro, Inc. (2005)
129 Cal.App.4th 944, 958 (Escondido).) In other words, “ ‘the owner is entitled
[to] the full and perfect equivalent of the property taken.’ ” (Gilmore, supra, 38
Cal.3d at p. 797, quoting Seaboard Air Line Ry. v. U.S. (1923) 261 U.S. 299, 304
(Seaboard).)
California’s statutory Eminent Domain Law (Code Civ. Proc., § 1230.010
et seq.)2 provides that if the compensation issue “is brought to trial within one year
after commencement of the proceeding, the date of [property] valuation is the date
of commencement of the proceeding.” (§ 1263.120.) The condemner may,
however, take early possession of the property before litigation is concluded
“upon deposit in court and prompt release to the owner of money determined by
the court to be the probable amount of just compensation.” (Cal. Const., art. I, §
19; see § 1255.410.) The immediate possession procedure is also known as a
“quick-take” eminent domain action. (Escondido, supra, 129 Cal.App.4th at p.
960.) Because compensation is immediately available to the property owner in a
quick-take action, the date of valuation of the property is statutorily required to be
no later than the date the condemner deposits “probable compensation” for the
owner. (§ 1263.110 et. seq.) The deposit earns statutory interest until it is
withdrawn. (§ 1268.310.) The property owner can immediately withdraw the
funds, but by doing so waives all rights to dispute the taking other than the right to
challenge the amount of just compensation. (§ 1255.260.)
This case involves a quick-take eminent domain action. We address two
constitutional issues. First, does a statutory property valuation date that occurs at

2 All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.
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the time the condemner deposits the probable compensation in court under section
1263.110, et seq. deny the property owner just compensation under the California
Constitution when litigation in the eminent domain action is not expected to end
until several years after the deposit is made? Second, is the owner’s statutory
waiver of rights after withdrawing the funds an unconstitutional condition on the
statutorily required “prompt release” of the deposit?
We conclude that the statutory date of valuation at the time the probable
compensation is deposited is constitutional, and that the requirement of a waiver
of claims and defenses for receipt of deposited probable compensation is
constitutional. We therefore affirm the Court of Appeal’s judgment.
FACTS AND PROCEDURAL HISTORY
The facts are summarized from the Court of Appeal opinion and the record.
In October 2000, Mt. San Jacinto Community College District (the District)
commenced an eminent domain action against Azusa Pacific University (the
University), seeking to condemn approximately 30 acres of vacant land in
Riverside County. On December 15, 2000, the District deposited $1.789 million
into court as probable compensation for the property. In October 2001, the
District applied for a prejudgment order for possession. The trial court granted the
application effective upon the University’s completion of improvements to the
property.3 The District took possession of the property in January 2002. The

3 The University began constructing the improvements (educational facilities) in
May 2001, after summons was served in this eminent domain action. Section
1263.240 provides that improvements made after the date the summons is served
“shall not be taken into account in determining compensation” unless, for
example, the improvements are made with the plaintiff’s written consent or are
authorized by court order. (§ 1263.240, subds. (b) & (c).) The University did not
obtain the District’s written consent and did not seek advance court approval
before constructing the improvements as required under the statute. Therefore, the
(Footnote continued on next page.)
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University did not move to stay the order for possession on hardship grounds or
pending the trial court’s adjudication of the District’s right to take the property. In
addition, the University did not withdraw any portion of the deposited funds.
In February 2002, the University petitioned the court to increase the deposit
of probable compensation from $1.789 million to $4.2 million. The University
argued that the property was worth $4.2 million when the deposit was made in
December 2000. The trial court determined that the amount of probable
compensation on December 15, 2000 was $1.789 million, and denied the
University’s petition.
The trial court bifurcated the issues of the District’s right to take possession
of the property and the amount of just compensation. The court ruled in June
2002 that the District had the right to take the property.
The parties filed cross-motions in limine to determine the date of valuation
before trial. The trial court recommended they seek a ruling from the appellate
court, as there was a “controlling question of law as to which there are substantial
grounds for difference of opinion.” The University petitioned the Court of Appeal
for a writ of mandate requesting the court resolve the issue. The Court of Appeal
denied the petition without prejudice, stating that the question of whether the

(Footnote continued from previous page.)

trial court found that the University could not recover the value of the
improvements. The University filed a separate inverse condemnation action
seeking the value of the improvements, but the Court of Appeal issued a writ
directing the trial court to enter summary judgment in the District’s favor. (Mt.
San Jacinto Community College Dist. v. Superior Court (2004) 117 Cal.App.4th
98, 110.) The court reasoned that the University could not recover on the
improvements because it failed to seek advance court approval for them in the
present eminent domain action, as required under section 1263.240. (117
Cal.App.4th at p. 110.)
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statutory date of valuation should be disregarded was dependent on the facts of the
case, and that the record was “not sufficiently developed” to allow the court to
rule. Following further briefing by the parties, the trial court ruled that the
property should be valued as of the date trial commenced—December 6, 2004.
The District then petitioned the Court of Appeal for a writ of mandate directing
the trial court to vacate its order and enter a new order setting the valuation date on
December 15, 2000.
The Court of Appeal initially observed that “[u]pon further consideration of
[the] issues, we conclude that the issues raised in [the University’s] prior petition,
and in [the District’s] present petition, are questions of law which did not, as we
previously stated, require further development of the record.” The court then
compared the valuation principles that apply in a quick-take proceeding with those
in a straight condemnation action, in which no deposit of probable compensation
is made and immediate possession is not sought. The court observed that the
statutory valuation rules reflect the principle that a taking occurs when the
property owner is paid. Applying this principle to a quick-take proceeding, the
court reasoned that the property should be valued on the date the plaintiff makes
the probable compensation available to the owner by depositing it with the court.
The Court of Appeal acknowledged, however, that the valuation must
satisfy constitutional requirements. The court considered the University’s
contention that the principle of just compensation entitled it to the property’s value
as of the date of the compensation trial, not the date of the deposit. The University
argued that because section 1255.260 required it to waive its right to litigate the
legality of the taking if it availed itself of the deposited funds, the University was
effectively precluded from withdrawing the deposited funds. Therefore, the
University argued, the property should be valued at the time of the commencement
of trial. The Court of Appeal found that the University received just compensation
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on the date of deposit, despite the requirement that it waive its statutory defenses if
it withdrew the funds. The court issued an alternative writ, granting the District’s
petition, and directing the trial court to set the date of valuation as of December
15, 2000. The University now challenges the date of valuation (§ 1263.110) and
the waiver of claims and defenses (§ 1255.260) as unconstitutional.
DISCUSSION
There is a “strong presumption in favor of the Legislature’s interpretation
of a provision of the Constitution.” (Methodist Hospital of Sacramento v. Saylor
(1971) 5 Cal.3d 685, 692.) “ ‘When the Constitution has a doubtful or obscure
meaning or is capable of various interpretations, the construction placed thereon
by the Legislature is of very persuasive significance.’ ” (Methodist Hospital,
supra, 5 Cal.3d at p. 693.) “ ‘For the purpose of determining constitutionality, we
cannot construe a section of the Constitution as if it were a statute, and adopt our
own interpretation without regard to the legislative construction.’ ” (Ibid., quoting
Pacific Indemnity Co. v. Indus. Acc. Com. (1932) 215 Cal. 461, 464.) We
therefore must consider the Legislature’s construction of the pertinent
constitutional provisions.
A. Development of Quick-take Procedure
As adopted in 1879, the California Constitution provided only that
“[p]rivate property shall not be taken or damaged for public use without just
compensation having been first made . . . .” (Cal. Const., art. I, former § 14,
repealed Nov. 5, 1974.) No constitutional provision allowed prejudgment
possession. Instead, it was statutorily provided under former section 1254 that a
condemner could take possession of the land as the condemnation proceeding was
pending if it deposited probable compensation into court. Under the statute, the
defendant was allowed to “apply to the court for the money,” but the condemner
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could take possession even without the court approving the payment. (Steinhart v.
Superior Court (1902) 137 Cal. 575, 576, 577 (Steinhart).)
Steinhart considered the constitutionality of this early possession provision.
As the Constitution at the time required that just compensation must have “first
[been] made,” the court held that a preliminary possession “cannot be authorized
until the damage . . . has been judicially determined and the amount has been paid
or tendered to the owner.” (Steinhart, supra, 137 Cal. at p. 578.) As the owner
could not immediately withdraw the funds, nor had the amount of compensation
yet been decided by a jury, the deposit statute was declared unconstitutional. (Id.
at pp. 578-579.)
In response to the Steinhart decision, California voters amended the
Constitution to authorize certain public agencies to take immediate possession of
the condemned property without first making payment to the owner. (See Taking
Possession and Passage of Title in Eminent Domain Proceedings (Oct. 1960) 3
Cal. Law Revision Com. Rep. (1961) p. B-10 (Commission Report).) Owners had
no right to withdraw the money,4 and were left to “vacate the property, locate new
property to replace that taken and move to the new location at a time when there
[was] little or no money available from the condemnation.” (Id. at p. B-7.)
In 1956, the California Law Revision Commission (Commission) was
authorized to study whether condemnation law should be revised to better
safeguard private property rights. (Commission Report, supra, at p. B-1.) Its
findings were incorporated into Proposition 7, which was passed by the voters in
1974. (Gates v. Superior Court (1995) 32 Cal.App.4th 481, 522-523.)

4 If the property was taken for highway purposes, it was provided that the owner
could withdraw 75 percent of the deposit. (See Commission Report, supra, at p.
B-7.)
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Proposition 7 repealed and replaced the former just compensation clause in article
I, section 14 of the California Constitution with the current clause in article I,
section 19.
The Commission concurrently recommended revision of a number of
statutory measures relating to eminent domain and the right to immediate
possession. (Commission Report, supra, at pp. B-12 to B-25.) The Legislature
enacted many of these recommendations into law. (See People ex rel. Department
of Transportation v. Southern California Edison (2000) 22 Cal.4th 791, 799-800;
Miro v. Superior Court (1970) 5 Cal.App.3d 87, 99-100.)
The Commission concluded that a constitutional amendment was
necessary, as “the policy underlying the Steinhart decision and the original
provisions of the 1879 Constitution is sound and the contrary policy of the present
provisions of the Constitution [under article I, former section 14] is undesirable.”
(Commission Report, supra, at p. B-10.) Under former article I, section 14, an
owner had no assurance he or she would actually receive compensation at the time
the property taking occurred. “A person’s property should not be taken from him
unless he has the right to be paid concurrently for the property, for it is at the time
of the taking that he must meet the expenses of locating and purchasing property
to replace that taken and of moving to the new location.” (Commission Report,
supra, at p. B-10.) The Commission recommended that the condemnee be
allowed to withdraw the entire deposit when the condemner takes actual
possession of the property. (Id. at p. B-7.)
The Commission reasoned that immediate possession proceedings were
more beneficial to both condemners and owners than straight condemnations. The
public interest would be promoted by shortening the delay between the beginning
of the condemnation proceeding and the actual taking of possession. “While the
need for public improvements of all kinds has become increasingly clear, the
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construction of these improvements has often been delayed for excessive periods
of time, largely because of the inability of the condemnor to expedite the taking of
possession.” (Commission Report, supra, at p. B-29.) These delays resulted in an
increase in the cost of the development, which in turn led to increased taxes.
(Ibid.) Because bond issues finance many developments, “the inability to take
immediate possession may cause inability to meet the bonding requirements and,
consequently, may not only retard but completely prevent the construction of the
improvement.” (Ibid., fn. omitted.)
The Commission also observed that, “Upon commencement of
condemnation proceedings, a landowner is deprived of many of the valuable
incidents of ownership. He can no longer place improvements upon the property
for which he may be compensated. He is practically precluded from selling or
renting the property for few persons want to purchase a law suit.” (Commission
Report, supra, at p. B-12.) In ordinary condemnation proceedings, the owner
received no compensation until the end of litigation. (Ibid.) The Commission
proposed that in quick-take or immediate possession proceedings, the owner
should have the right to withdraw compensation when the condemner actually
takes possession of the property, and therefore have the money available
immediately to use when planning for the future.5 (Id. at p. B-12.)

5 The Commission also examined the effect these changes would have on an
owners’ right to challenge the taking. It reasoned that “[t]he right of the
condemner to take the property is rarely disputed” and “the only question for
judicial decision in virtually all condemnation actions is the value of the property.”
(Commission Report, supra, at p. B-11.) Under the former law, “many vitally
needed public improvements [were] delayed even though there [was] no real issue
in the case of the public’s right to take the property.” (Id. at p. B-12.) “If the
property owner can be insured just compensation, there is little, if any,
justification for delaying public improvements and, thereby, increasing the tax
burden on the public.” (Id. at p. B-29.)
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The Commission suggested few alterations to the waiver provision when it
proposed the aforementioned constitutional and statutory changes, recommending
only that former section 1254.7 be amended and renumbered as (former) section
1243.7, and that the waiver of claims and defenses in subdivision (g) be retained.6
(Commission Report, supra, at pp. B-15 to B-16.) The Legislature followed this
recommendation and retained the waiver provision when it enacted section
1243.7. (Stats. 1961, ch. 1613, § 4, pp. 3444, 3446.)
The Commission later discussed the proper date of valuation. Before 1974,
the rule had been to value the property as of the date the summons was issued.
(Recommendation: Eminent Domain Law (Oct. 1974) 12 Cal. Law Revision
Com. Rep. (1974) pp. 1605, 1645-1646 (1974 Commission Report).) The
Commission again noted the condemning agency’s need for certainty: “In
acquiring property for public use, it is frequently essential that there be a definite
future date as of which all property needed for the public improvement will be
available. An undue delay in acquiring even one essential parcel can prevent
construction of a vitally needed public improvement and can complicate financial
and contractual arrangements for the entire project. . . . In general, the need of the
condemnor is not for haste but for certainty in the date of acquisition. The
variable conditions of court calendars and the unpredictable period required for the

6 California owners wishing to withdraw compensation have been required to
waive claims and defenses, with the exception of a claim for greater
compensation, since 1897. When the Legislature amended former section 1254 to
authorize prejudgment possession after a deposit was made, this section contained
a provision that a withdrawal waived all claims and defenses except a claim for
greater compensation. (Stats. 1897, ch. 127. § 1, p. 187.) While that statute was
struck down in Steinhart, it was not due to the waiver provision, but because
compensation was neither determined by a jury nor available for immediate
withdrawal by the owner. (Steinhart, supra, 137 Cal. at pp. 578-79.)
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trial of the issue of compensation preclude any certainty in the date of acquisition
if that date is determined solely by entry of judgment in the proceeding.” (Id. at p.
1658.)
The Commission considered the “oft-made proposal” that the date of
valuation should be the date trial commences in all cases. (1974 Commission
Report, supra, at p. 1645.) “It would seem more appropriate to ascertain the level
of the general market and the value of the particular property in that market at the
time the exchange of the property for ‘just compensation’ actually takes place.
Also, in a rapidly rising market, property values may have increased so much that
the property owner cannot purchase equivalent property when he eventually
receives the award. . . . Nonetheless, the existing California rules appear to have
worked equitably in most cases. The alternative rule might provide an undesirable
incentive to condemnees to delay the proceedings to obtain the latest possible date
of valuation. And, as a matter of convenience, there is merit in fixing the date of
valuation as of a date certain, rather than by reference to the uncertain date that the
trial may begin.” (Id. at pp. 1645-1646, fn. omitted.) The Commission
recommended retention of the existing rule. “In addition to providing a needed
incentive to condemnors to deposit approximate compensation, the rule would
accord with the view that the property should be valued as of the time payment is
made. . . . A date of valuation thus established should not be subject to change by
any subsequent development in the proceeding.” (Id. at p. 1646.)
Procedural safeguards under current eminent domain laws ensure the
deposit closely approximates the amount that a jury would actually award, and the
owner is guaranteed a jury trial on the award amount if requested. (Cal. Const.,
art. I, § 19.) The owner’s constitutional right to receive just compensation for the
property “ ‘cannot be made to depend upon state statutory provisions.’ ”
(Gilmore, supra, 38 Cal.3d at p. 797, citing Seaboard, supra, 261 U.S. at p. 306;
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see also Kirby Forest Industries Inc. v. United States (1984) 467 U.S. 1, 17
(Kirby).) The Legislature does have the power to place additional restrictions on
the exercise of eminent domain. (Saratoga Fire Protection Dist. v. Hackett (2002)
97 Cal.App.4th 895, 905-906 (Saratoga); see also Kelo v. City of New London
(2005) 544 U.S. 469, 489 [“ ‘Once the question of the public purpose has been
decided, the amount and character of land to be taken for the project and the need
for a particular tract to complete the integrated plan rests in the discretion of the
legislative branch’ ”].) The Legislature has incorporated a number of these
restrictions into its statutory scheme. (See City of Oakland v. Oakland Raiders
(1982) 32 Cal.3d 60, pp. 64-65, 69.) But state and federal statutory provisions
have been invalidated when necessary to ensure just compensation to the owner.
(See, e.g., Kirby, supra, 467 U.S. 1; Gilmore, supra, 38 Cal.3d 790; Saratoga,
supra, 97 Cal.App.4th at pp. 905-906.)
The statutory procedural safeguards in place today include a property
appraisal requirement. (§ 1255.010) A recent statute requires the condemner to
offer to pay the reasonable costs (up to $5,000) of an independent appraisal that
the property owner orders at the time the condemner offers to take the property.
(§ 1263.025, subd. (a).) Once the deposit is made, the owner may petition the
court to “determine or redetermine” whether it equals the probable compensation
that will be awarded. (§ 1255.030, subd. (a).) If the deposit does not meet the
amount of probable compensation and is not increased within the time allowed,
the deposit is void and will not be used to determine the date of valuation.
(§ 1263.110, subd. (b).)
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B. University’s Contentions
As discussed ante, at page 2, section 1263.110 would require that the
University’s property be valued on the date of deposit, or December 15, 2000.
The University asserts that due to fluctuations in the real estate market, using the
deposit date as the valuation date would deny its constitutional right to just
compensation. The University’s point is that if a property owner chooses to
challenge the condemner’s right to take the property, the condemner can set an
early valuation date by depositing funds, “and then reap the benefit of a large rise
in property values when the valuation trial does not occur for several years (while
retaining the option to abandon the action if values fall).” The University claims
the date of valuation should be the date trial on the just compensation issue
commenced, even though the District deposited the probable compensation on
December 15, 2000. The University’s contention is based on the fact that the
parties agree that the property has increased in value since the date of the deposit.
The University relies on Saratoga to assert that the statutory date of
valuation must be invalidated in this case. (Saratoga, supra, 97 Cal.App.4th at pp.
905-906.) Saratoga involved a straight condemnation proceeding where the Court
of Appeal held that section 1263.120 was unconstitutional as applied. (Saratoga,
supra, 97 Cal.App.4th at pp. 905-906.) In Saratoga, trial on the compensation
issue began 11 months after the date the proceeding commenced, during which
time the fair market value of the property increased from $2 million to $3.2
million. (Id. at pp. 897-898.) Even though section 1263.120 required the property
be valued as of the date the proceeding commenced, Saratoga held the principal of
just compensation required it be valued on the date of trial. (Ibid.)
As the Court of Appeal here stated, it is of critical importance that Saratoga
was a straight condemnation proceeding where there was no deposit of probable
compensation before trial. In order to provide just compensation, the court in
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Saratoga had to value the property closer to when payment would finally be made
available to the owner. Section 1263.120 had to be disregarded to ensure the
owner received just compensation at the time payment was tendered and the
property was actually taken.
In contrast to the condemner in Saratoga, the District here deposited the
probable amount of compensation well before the start of trial. As noted, the
University had the option to withdraw the funds at that time. (§ 1255.210.) The
deposit was supported by an appraisal, as required under section 1255.010.
Indeed, when the University made a motion under section 1255.030 to increase the
amount of the deposit, the trial court found that the amount deposited was
sufficient. When recommending the law, the 1960 Commission wanted to ensure
that the owner had the right to withdraw compensation when the condemner
actually takes possession of the property. (Commission Report, supra, at p. B-12.)
The University had this right but did not exercise it.
The University’s comparisons to Kirby, another straight condemnation
proceeding, are similarly misplaced. (Kirby, supra, 467 U.S. at pp. 16-17.) In
Kirby, the condemned property was valued at trial in 1979, yet the deposit was not
made until 1982. (Id. at p. 16.) The owner retained the rights to sell the land or
profit from it during that three-year period. (Id. at pp. 14-15.) The court held that
a condemnation award must be modified “when there is a substantial delay
between the date of valuation and the date the judgment is paid, during which time
the value of the land changes materially.” (Id. at p. 18.)
No credible reason exists to invalidate the statutory date of valuation here,
when a deposit was made before trial and the owner had access to the money at
that time.
The fact that the 1974 Commission specifically rejected using the date of
trial as the date of valuation in quick-take proceedings is significant. Although it
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considered the possibility of the issue before us today (see 1974 Commission
Report, supra, at p. 1645 [“in a rapidly rising market, property values may have
increased so much that the property owner cannot purchase equivalent property
when he eventually receives the award”]), the Commission emphasized the public
need for certainty when valuing land for condemnation proceedings. A date of
valuation based on a variable date of trial would not provide this certainty. In
addition, the Commission observed that a rule valuing property on the date trial
commenced “might provide an undesirable incentive to condemnees to delay the
proceedings to obtain the latest possible date of valuation.” (Id. at pp. 1645-1646.)
We agree with the Commission’s observation. If the date of valuation could be
delayed until the date of trial, owners in a rising market would have a considerable
incentive to delay proceedings for as long as possible to ensure a greater return on
their property.7
C. The Waiver of Claims and Defenses
Section 1255.260 provides: “If any portion of the money deposited
pursuant to this chapter is withdrawn, the receipt of any such money shall
constitute a waiver by operation of law of all claims and defenses in favor of the
persons receiving such payment except a claim for greater compensation.” This
waiver includes the right to contest the condemner’s right to take the property.
(Clayton v. Superior Court (1998) 67 Cal.App.4th 28, 33.)

7 The University’s contention that the Court of Appeal ignored Saratoga, supra,
97 Cal.App.4th 895, and its determination that an owner must be allowed to prove
that the statutory scheme does not provide adequate compensation under the facts
of a particular case is without merit. The court did not establish an inflexible rule
requiring that the issue of the proper valuation be resolved as a matter of law, and
clearly considered the facts in determining the date of valuation here.
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The University contends that even though the District made a deposit here,
and the University did not withdraw the money, the deposited amount was
effectively rendered unavailable because the University could not withdraw it
without waiving its right to fully and finally litigate the condemner’s right to take
the property. Thus, the University claims it is left without either the property or
the deposit, an unconstitutional choice. The University contends that this aspect
of the Legislature’s quick-take process violates article I, section 19, and allows the
government to take possession of the property while withholding the deposit from
the property owner, thus violating the governing principle of eminent domain
proceedings: financial equivalency. The University asserts that in order to avoid
this “Catch-22” situation, we should value the property on the date of trial, not the
date of the deposit. We disagree.
The University initially looks to Steinhart for support. Specifically, it relies
on the court’s observation that in an immediate possession proceeding, the money
must be deposited into court “for the owner,” and that this has not happened until
the owner can actually take it. (Steinhart, supra, 137 Cal. at p. 579.)
When Steinhart was decided, the California Constitution stated that
“[p]rivate property shall not be taken or damaged for public use without just
compensation having been first made . . . .” (Cal. Const., art. I, former § 14,
repealed Nov. 5, 1974.) The parties in that case were governed by former article I,
section 14, which did not authorize a condemner to take immediate possession
before trial or to deposit the likely amount of just compensation. In Steinhart, a
statute allowed a condemner to take possession before trial if it had made a
deposit, but did not allow the owner to withdraw the funds. (Steinhart, supra, 137
Cal. at p. 576.) The court declared that statute unconstitutional under former
article I, section 14, as just compensation had not “first [been] made” if the owner
could not withdraw the deposit. (Steinhart, supra, 137 Cal. at pp. 578-579.)
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Steinhart is inapposite. As previously discussed, the 1974 enactment of
article I, section 19 of the state Constitution authorizes the Legislature to provide
for prejudgment possession by the condemner upon deposit in court and prompt
release to the owner of its probable compensation. (Cal. Const. art. I, § 19.) In
addition, unlike the applicable statute in Steinhart, an owner under the present
statutory scheme has the ability to withdraw the deposit soon after it is made.
(§§ 1255.210-1255.240.)
The only constitutional limitations on the right of eminent domain are that
the taking be for a public use, and that just compensation be paid. (City of
Oakland v. Oakland Raiders, supra, 32 Cal.3d at p. 64; People v. Chevalier
(1959) 52 Cal.2d 299, 304.) “A litigant can be heard to question the validity of a
statute only when and in so far as it is applied to his disadvantage.” (Rindge Co. v.
Los Angeles County (1923) 262 U.S. 700, 709-710.) The University does not
claim that the condemnation is not for a public use. In addition, section 1255.260
does not require waiving a claim for greater compensation with withdrawal of the
deposit. Thus, the University is not being forced to waive a constitutional right.
As the Court of Appeal recognized, the University’s argument has been
advanced and rejected in several cases. In Pacific Gas & Electric Co. v. Superior
Court (1973) 33 Cal.App.3d 321 (PG&E), the condemner made a deposit after
trial on the compensation issue. The owner appealed, and the condemner sought
an order for possession pending the appeal. (Id. at p. 324.) The owner argued that
allowing the condemner to take possession pending the appeal would deprive it of
just compensation, since it could not withdraw the deposited funds without
waiving its right to a final adjudication on appeal of the condemner’s right to take
the property. (Id. at pp. 324-329.)
The court disagreed. The deposit of funds satisfied the owner’s right to just
compensation at the time of the taking, that is, at the time the condemner had a
17

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right to take possession following judgment. (PG&E, supra, 33 Cal.App.3d at p.
327.) “The fact that statutory limitations or conditions are imposed upon a
property owner’s ability to withdraw [deposited] funds in relation to his exercise
of his solely statutory right to appeal, does not operate so as to constitute a denial
of just compensation.” (Ibid.) The same reasoning applies here. The condemner
had a right to immediate possession of the property, and made a deposit of
probable compensation. The owner had the right immediately to withdraw that
deposit. The existence of conditions on withdrawal on the owner’s solely
statutory right to further litigate the legality of the taking does not deny the owner
just compensation.
PG&E also rejected the related argument that the owner was placed in a
position which required it “to give up one constitutional right, the right to just
compensation, in order to protect another, the right to take a meaningful appeal.”
(PG&E, supra, 33 Cal.App.3d at p. 328.) The University makes a similar claim
here, asserting that in order to receive the constitutionally required “prompt
release” of the deposit, it must give up its statutory right to fully litigate the
District’s right to take.
Here, no constitutional right to an appeal exists, only a statutory one.
(PG&E, supra, 33 Cal.App.3d at pp. 328-329.) This statutory right to appeal may
be made subject to reasonable conditions. (Id. at p. 329; see also Redevelopment
Agency v. Goodman (1975) 53 Cal.App.3d 424, 431-432.) In addition, as the
Court of Appeal observed in this case, “having to leave funds on deposit is a
reasonable condition to place on a condemnee’s statutory right to further litigate
the right to take issue, or pursue a final adjudication of the issue on appeal. In
enacting section 1255.260, the Legislature could have reasonably concluded that a
condemnee who denies the condemner’s right to take should not be able to
withdraw the probable amount of its just compensation. . . . [¶] Indeed, it would
18

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be inconsistent for [the University] to insist on adjudicating the [District’s] right to
take its property, while it enjoys the use and benefit of the probable amount of its
just compensation.” “A condemnee who denies the condemner’s right to take
cannot have it both ways. He cannot withdraw the deposit and challenge the right
to take. It is reasonable to require him to choose one or the other.”
In addition, the statutory scheme does provide for prompt resolution of
whether the condemner has the right to take the property in question. The owner
may request the issue be heard in a bifurcated proceeding, and the matter is
entitled to priority on the civil trial calendar. (§§ 1260.010, 1260.110.) The
owner may seek review of the issue by extraordinary writ. (§§ 598, 904.1; Plaza
Tulare v. Tradewell Stores, Inc. (1989) 207 Cal.App.3d 522, 523-524.) The
federal and state Constitutions also require that if the amount of compensation
finally determined in the proceeding exceeds the amount of the deposit of
probable just compensation, the property owner will be compensated for the delay
in payment by prejudgment interest on the balance owed. (U.S. Const., 5th
Amend.; Cal. Const., art. I, § 19.) The condemner must also pay prejudgment
interest on both the balance owed and any portion of the deposit that the property
owner chose not to withdraw, running from the date the condemner was
authorized to enter into possession of the property. (§§ 1268.310-1268.360.)
Thus, whatever the owner chooses to do, in view of the procedural due
process safeguards in place, the waiver rule of section 1255.260 in no way impairs
the owner’s constitutional right to a prompt release of the deposited funds or
imposes an unconstitutional choice on the owner. (Cal. Const., art. I, § 19;
§ 1255.210, et seq.; see Perry v. Sindermann (1972) 408 U.S. 593, 597 [right of
access to government benefit may not be conditioned on relinquishing
Constitutional right.].)
19

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In sum, the Legislature reasonably could have found that it would be
inconsistent for an owner to deny the condemner’s right to take with one hand
while it withdraws and uses the condemner’s deposit with the other. An owner
cannot have it both ways. It is reasonable to require the owner to choose one or
the other: either to deny the condemner’s right to take the property and litigate, or
to take the deposit.
CONCLUSION
Where, as here, a deposit of probable compensation is made, and the trial
court determines that the deposit equals or exceeds the probable amount of the
owner's just compensation, the property must be valued on the date of the deposit.
(§ 1263.110.) The value of the property on the date of the deposit is a fair amount
to award the owner for the taking of its property. A greater award would be unjust
to the condemner. “ ‘The just compensation required by the Constitution to be
made to the owner is to be measured by the loss caused to him by the
appropriation. He is entitled to receive the value of what he has been deprived of,
and no more. To award him less would be unjust to him; to award him more
would be unjust to the public.’ ” (Los Angeles County Metropolitan
Transportation Authority v. Continental Development Corp. (1997) 16 Cal.4th
694, 715, quoting Bauman v. Ross (1897) 167 U.S. 548, 574.)
In addition, as long as a probable compensation deposit based on such
valuation remains available to the property owner for “prompt release,” the further
imposition of a waiver of the right to challenge the validity of the taking if the
owner elects to withdraw the deposit does not undermine the constitutionality of
the statutory scheme nor the legislature’s chosen method of valuation.
20

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Based on the foregoing analysis, we affirm the Court of Appeal’s judgment and
remand the matter for further proceedings consistent with this conclusion.
CHIN, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.

21

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Mt. San Jacinto Community College District v. Superior Court
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 126 Cal.App.4th 619
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S132251
Date Filed: February 22, 2007
__________________________________________________________________________________

Court:

Superior
County: Riverside
Judge: Robert George Spitzer

__________________________________________________________________________________

Attorneys for Appellant:

Redwine and Sherrill, Justin M. McCarthy, David F. Hubbard, Steven B. Abbott, Scott R. Heil; Atkinson,
Andelson, Loya, Rudd & Romo and John W. Dietrich for Petitioner.

Myers, Widders, Gibson, Jones & Schneider and Katherine E. Stone for League of California Cities,
California State Association of Counties and Metropolitan Water District of Southern California as Amici
Curiae on behalf of Petitioner.

Bruce A. Behrens, Thomas C. Fellenz and Richard B. Williams for The People of the State of California,
acting by and through the Department of Transportation, as Amicus Curiae on behalf of Petitioner.

California Eminent Domain Law Group and Arthur J. Hazarabedian for Los Angeles Unified School
District and The Education Alliance of the California School Board Association as Amici Curiae on behalf
of Petitioner.

__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

Manatt, Phelps & Phillips, George M. Soneff and Michael M. Berger for Real Party in Interest.

Sedgwick, Detert, Moran & Arnold, Gregory H. Halliday, Geoffrey K. Willis and Gregory E. Woodward
for Transcan Riverside LLC as Amicus Curiae on behalf of Real Party in Interest.

James S. Burling for Pacific Legal Foundation as Amicus Curiae on behalf of Real Party in Interest.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Steven B. Abbott
Redwine and Sherrill
1950 Market Street
Riverside, CA 92501-1720
(951) 684-2520

Richard B. Williams
Department of Transportation
1120 N Street
Sacramento, CA 95812-1438
(916) 654-2630

Michael M. Berger
Manatt, Phelps & Phillips
11355 West Olympic Boulevard
Los Angeles, CA 90064-1614
(310) 312-4000

---

Opinion Information

Date:	Docket Number:
Thu, 02/22/2007	S132251

Disposition
Feb 22 2007	Opinion filed

Dockets
Mar 17 2005	Petition for review filed   by counsel for RPI (40.1b) c/a rec req
Mar 23 2005	Received Court of Appeal record   one doghouse
Apr 4 2005	Answer to petition for review filed   petitioner Mt. San Jacinto Community College Disrict
Apr 6 2005	Request for depublication (petition for review pending)   by Transcan Riverside, LLC (40.1(b))
Apr 14 2005	Reply to answer to petition filed   By counsel for RPI {Azusa Pacific University}
Apr 14 2005	Request for judicial notice received (pre-grant)   submitted by counsel for RPI re: recent decision by the 4 DCA , DIV. 1 (D042545).
May 5 2005	Time extended to grant or deny review   to and including June 15, 2005, or the date upon which review is either granted or denied.
May 18 2005	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
May 19 2005	Note:   Records sent to Cal-coordinator Office: 7, 8, 9, Depub. Req., Pet. for Rehrg., Pet. for Writ of Mandate, Exhibits= 3, Opp. to Mandate, Return, Response. to Mandate.
May 25 2005	Certification of interested entities or persons filed   by counsel for (RPI)
May 31 2005	Filed:   Substitution of Counsel (Mt. Jacinto Comm. College Dist. ) replaces David Frank Hubbard with Steven B. Abbott.
Jun 1 2005	Certification of interested entities or persons filed   by counsel for (Mt. Jacinto Comm. College)
Jun 2 2005	Request for extension of time filed   counsel for RPI (Azusa Pacific Univ.) requests extension of time to July 18, 2005, to file the opening brief on the merits.
Jun 7 2005	Extension of time granted   Real Party in Interest time to serve and file the opening brief on the merits is extended to and including July 18, 2005.
Jul 19 2005	Opening brief on the merits filed   by counsel for RPI (Azusa Pacific Univ.) (40.1 (b))
Aug 17 2005	Answer brief on the merits filed   petitioner Mt. San Jacinto Community College District
Sep 7 2005	Reply brief filed (case fully briefed)   by counsel for (Azusa Pacific Univ.) (40.1(b)
Sep 29 2005	Received application to file Amicus Curiae Brief   by counsel for League of California Cities, Calif. State Assoc. of Counties amd Metro Water District of Southern Calif. in support of petitioner.
Oct 5 2005	Received application to file Amicus Curiae Brief   Transcan Riverside, LLC [applctn w/i brief]
Oct 6 2005	Received application to file Amicus Curiae Brief   by counsel for (People) by and through the Dept. of Transportation requests permission to file amicus curiae brief in support of petitioner.
Oct 7 2005	Received application to file Amicus Curiae Brief   Pacific Legal Foundation in support of Real Party in Interest.
Oct 7 2005	Received application to file Amicus Curiae Brief   Los Angeles Unified School District and Education Legal Alliance of the California School Board Association
Oct 12 2005	Permission to file amicus curiae brief granted   League of California Cities et al., in support of petitioner.
Oct 12 2005	Amicus curiae brief filed   League of California Cities, et al., in support of petitioner is hereby granted.. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Oct 14 2005	Permission to file amicus curiae brief granted   Transcan Riverside, LLC.
Oct 14 2005	Amicus curiae brief filed   Transcan Riverside, LLC., in support of Real Party in Interest is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Oct 14 2005	Permission to file amicus curiae brief granted   (People) Department of Transportation.
Oct 14 2005	Amicus curiae brief filed   (People) Department of Transportation in support of petitioner is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Oct 20 2005	Permission to file amicus curiae brief granted   Los Angeles Unified School District, et al., in support of petitioner.
Oct 20 2005	Amicus curiae brief filed   Los Angeles Unified School District, et al., in support of petitioner. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Oct 20 2005	Permission to file amicus curiae brief granted   Pacific Legal Foundation in support of Real Party in Interest.
Oct 20 2005	Amicus curiae brief filed   Pacific Legal Foundation in support of Real Party in Interest. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Oct 31 2005	Request for extension of time filed   to Nov. 18, 2005, to file RPI's reply to three amicus curiae briefs
Nov 2 2005	Extension of time granted   Real Party in Interest time to serve and file the consolidated response to amicus curiae briefs is extended to and including November 18, 2005.
Nov 3 2005	Response to amicus curiae brief filed   to ac brief of Transcan Riverside, LLC>> petitioner Mt. San Jacinto Community College District
Nov 9 2005	Response to amicus curiae brief filed   to ac brief of Pacific Legal Foundation>> petitioner Mt. San Jacinto Community College District
Nov 21 2005	Response to amicus curiae brief filed   by counsel for Real Party in Interest (Azusa Pacific Univ.) to three of the amicus curiae briefs filed. (40.1(b)
Dec 5 2006	Case ordered on calendar   Tuesday, January 9, 2007, at 9:00 a.m., in San Francisco
Dec 13 2006	Application filed to:   divide oral argument time between petitioner Mt. San Jacinto Community College District (20 minutes) and amicus curiae Department of Transportation (10 minutes).
Dec 18 2006	Order filed   The request of counsel for petitioner in the above-referenced cause to allow two counsel to argue on behalf of petitioner at oral argument is hereby granted. The request of petitioner to allocate to amicus curiae Department of Transportation ten minutes of petitioner's 30-minute allotted time for oral argument is granted.
Jan 9 2007	Cause argued and submitted
Feb 22 2007	Opinion filed   Affirmed and remanded for further proceedings. OPINION BY : Chin, J. --- joined by: George, C.J., Kennard, Baxter, Werdegar, Moreno, Corrigan JJ.
Mar 28 2007	Remittitur issued (civil case)
Apr 5 2007	Received:   receipt for remittitur CA 4/2

Briefs
Jul 19 2005	Opening brief on the merits filed
Aug 17 2005	Answer brief on the merits filed
Sep 7 2005	Reply brief filed (case fully briefed)
Oct 12 2005	Amicus curiae brief filed
Oct 14 2005	Amicus curiae brief filed
Oct 14 2005	Amicus curiae brief filed
Oct 20 2005	Amicus curiae brief filed
Oct 20 2005	Amicus curiae brief filed
Nov 3 2005	Response to amicus curiae brief filed
Nov 9 2005	Response to amicus curiae brief filed
Nov 21 2005	Response to amicus curiae brief filed

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