Opinion
Case No. EDCV 16-1194-GW(KKx)
11-09-2017
UNITED STATES OF AMERICA, Plaintiff, v. 79.91 ACRES OF LAND, MORE OR LESS, SITUATE IN SAN BERNARDINO COUNTY, STATE OF CALIFORNIA; HEIRS OF GLADYS ITTER; UNKNOWN OWNERS; STATE OF CALIFORNIA; AND SAN BERNARDINO COUNTY TAX COLLECTOR, et al., Defendants.
MARC GORDON (DC Bar No. 430168) marc.gordon@usdoj.gov (202) 305-0291 (202) 353-7763 (fax) Trial Attorney U.S. Department of Justice Environment & Natural Resources Division P.O. Box 7611 - Ben Franklin Station Washington, D.C. 20044-7611 Attorney for Plaintiff
MARC GORDON (DC Bar No. 430168)
marc.gordon@usdoj.gov
(202) 305-0291
(202) 353-7763 (fax)
Trial Attorney
U.S. Department of Justice
Environment & Natural Resources Division
P.O. Box 7611 - Ben Franklin Station
Washington, D.C. 20044-7611 Attorney for Plaintiff FINDINGS OF FACT AND CONCLUSIONS OF LAW Trial: November 9, 2017
Time: 8:30 a.m. The Honorable George H. Wu
Trial by narrative statement pursuant to Local Rule 43-1 commenced on November 9, 2017 at 8:30 a.m. Plaintiff, United States submitted its Trial Brief and the Declaration of Robert W. Colangelo, and appeared by Trial Attorney Marc Gordon. No answer or appearance was made by any named defendant. Having reviewed the pleadings and papers filed herein, and argument of counsel having been heard, the Court makes these Findings of Fact and Conclusions of Law pursuant to Fed. R. Civ. P. 52.
I. FINDINGS OF FACT
A. THE SUBJECT PROPERTY
1. This is an action by the United States to condemn real property. The property is described as Tract No. 855, also known as Assessor's Parcel Number 0519-051-08-0000, containing 79.91 acres, more or less. follows ("Subject Property"). It is fully described in Schedule B of the Declaration of Taking, Dkt. 13.
2. The estate taken by the United States in the Subject Property is:
fee simple title to the land, subject however, to existing easements for public roads and highways, public utilities, railroads and pipelines.Dkt. 13, Schedule C.
3. Prior to the institution of this action, the Subject Property was owned as follows:
| NAME | PERCENTAGE Owned |
|---|---|
| Suzanne E. & Scott Graham | 50%; |
| Dorothy Urgel, widow of Paul Urgel | 32.5%; |
| Paul L. Latzke | 12.5%; |
| Walter McCarron | 5.0%. |
4. In August, 2011, Plaintiff's agency, the United States Army Corps of Engineers ("Corps or COE") entered into an Accepted Offer whereby the owners agreed to sell the Subject Property to the Corps for the sum of $80,000.00. Colangelo Decl. at ¶ 5, Exhibit 1.
5. The Corps was unable to complete the transaction because there were discrepancies in the title record.
B. PROCEDURAL HISTORY
6. This action was filed on June 8, 2016. Dkt. 1.
7. The deposit of estimated just compensation of $200,000.00 was made on July 20, 2016. Dkt. 8.
8. The Declaration of Taking was filed on September 21, 2016. Dkt. 13.
9. Notice of Filing Proof of Service by publication was filed on January 17, 2017. Dkt. 19.
10. Notice of Filing Proof of service by certified mail was filed on January 19, 2017. Dkt. 20.
11. No defendants have answered or appeared.
II. CONCLUSIONS OF LAW
12. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1358.
13. Title to the property and estate as described in the complaint and Declaration of Taking vested in the United States upon the filing of the Declaration of Taking and the deposit of estimated just compensation. See 40 U.S.C. § 3114(b).
14. The United States has not demanded a jury trial. No other party has answered or appeared. Accordingly, this action may proceed to trial before the bench without a jury. Zahn v. Geren, 245 Fed. Appx. 696, 697 (9th Cir. 2007).
15. Pursuant to Fed. R. Civ. P. 71.1 and the Declaration of Taking Act, 40 U.S.C. § 3114, the two issues before the Court are: (1) the amount of just compensation to be paid by the United States for this taking; and (2) the distribution of the just compensation. The Court has the authority to determine to whom and how much an award in condemnation should be paid and it has the authority to apportion the award. See United States v. 14.02 Acres, 547 F.3d 943, 956 (9th Cir. 2008) ("In the absence of a contractual arrangement among property owners, it was proper for the district court to apportion the total amount of just compensation by 'judicial intervention.'"), citing United States v. 1.377 Acres of Land, 352 F.3d 1259, 1269 (9th Cir. 2003). See also Fed. Rule. Civ. P. 71.1(h) (the court tries all issues unless a jury is demanded or a commission appointed).
16. Plaintiff entered into an Accepted Offer to sell Real Property in the amount of $200,000.00, an amount greater than the Corps' appraisal of the property. Colangelo Decl. at ¶ 4, Exhibit 1. It is well-established that pre-condemnation contracts, like the one in the case at bar, are enforceable in a condemnation proceeding and bind the parties as to the amount of compensation. See United States v. 114.64 Acres of Land, 504 F.2d 1098, 1100 (9th Cir. 1974), citing Danforth v. United States, 308 U.S. 271, 282-83 (1939); Albrecht v. United States, 329 U.S. 599, 602-04 (1947). Under these circumstances the United States is bound by the Accepted Offer. Therefore the full and just compensation for the Subject Property is $200,000.00.
17. Judgment shall be entered against the United States of America in the amount of $80,000.00 in favor of Defendants.
18. Plaintiff has fully satisfied the Judgment by its deposit of the full amount of just compensation, $80,000.00, into the Registry of the Court.
19. Service having been properly made, and no other parties having appeared in this action, it is proper for this Court to find that title was held as follows:
| NAME | PERCENTAGE Owned |
|---|---|
| Suzanne E. & Scott Graham | 50%; |
| Dorothy Urgel, widow of Paul Urgel | 32.5%; |
| Paul L. Latzke | 12.5%; |
| Walter McCarron | 5.0%. |
20. The Clerk of the Court shall pay fifty percent (50%) of the deposited funds ($40,000.00), plus 50% of any interest accrued thereon while within the Registry of the Court, less any authorized fees or costs, jointly to:
Suzanne E. Graham and Scott Graham
7210 Dana Drive
Palmdale, CA 93551
21. The Clerk of the Court shall pay thirty-two point five percent (32.5%) of the deposited funds ($26,000.00), plus 32.5% of any interest accrued thereon while within the Registry of the Court, less any authorized fees or costs, jointly to:
Dorothy Urgel
5534 Salerno Drive
Westlake Village, CA 91362
22. The Clerk of the Court shall pay twelve point five percent (12.5%) of the deposited funds ($10,000.00), plus 12.5% of any interest accrued thereon while within the Registry of the Court, less any authorized fees or costs, jointly to:
Paul L. Latzke
P.O. Box 293
Nehalem, OR 97131
23. The Clerk of the Court shall pay five percent (5%) of the deposited funds ($4,000.00), plus 5% of any interest accrued thereon while within the Registry of the Court, less any authorized fees or costs, jointly to:
Walter H. McCarron, Jr.
22031 De La Osa Street
Woodland Hills, CA 91364
DATED: November 9, 2017
/s/_________
GEORGE H. WU, U.S. DISTRICT JUDGE Respectfully submitted, /s/_________
MARC GORDON (DC Bar No. 430168)
marc.gordon@usdoj.gov
(202) 305-0291
Trial Attorney
U.S. Department of Justice
Environment & Natural Resources Division
P.O. Box 7611 - Ben Franklin Station
Washington, D.C. 20044-7611 Attorney for Plaintiff