United States of America v. 160.00 Acres of Land et al.

Filing 29

FINDINGS OF FACT AND CONCLUSIONS OF LAW signed by Judge George H. Wu. (See document for details) (mrgo)

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MARC GORDON (DC Bar No. 430168)
[e-mail]
[phone]
[phone] (fax)
Trial Attorney
U.S. Department of Justice
Environment & Natural Resources Division
P.O. Box 7611 – Ben Franklin Station
Washington, D.C. 20044-7611

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Attorney for Plaintiff

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UNITED STATES DISTRICT COURT
CENTRIAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
v.
)
)
160.00 ACRES OF LAND, MORE )
OR LESS, SITUATE IN SAN
)
BERNARDINO COUNTY, STATE )
OF CALIFORNIA; CONSTANCIO )
G. OROGO; UNKNOWN
)
OWNERS; STATE OF
)
CALIFORNIA; AND SAN
)
BERNARDINO COUNTY TAX
)
COLLECTOR, et al.,
)
)
Defendants.
)

Case No. EDCV 16-1191-GW(KKx)
FINDINGS OF FACT
AND CONCLUSIONS OF LAW

Trial: November 9, 2017
Time: 8:30 a.m.
The Honorable George H. Wu

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Trial by narrative statement pursuant to Local Rule 43-1 commenced on

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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
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Gordon. No answer or appearance was made by any named defendant. Having
reviewed the pleadings and papers filed herein, and argument of counsel having

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been heard, the Court makes these Findings of Fact and Conclusions of Law

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pursuant to Fed. R. Civ. P. 52.

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I.

FINDINGS OF FACT
A.

THE SUBJECT PROPERTY

1.

This is an action by the United States to condemn real property. The

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property is described as follows (“Subject Property”):
The Southeast ¼ of Section 16, Township 31 South,
Range 46 East, Mount Diablo Base and Meridian, County of
San Bernardino, State of California, according to the Official
Plat thereof.
Excepting all oil, gas, oil shale, coal, phosphate, sodium,
gold silver and all other mineral deposits contained in said land,
together with the right to drill for an extract such deposits of oil
and gas, or gas, and to prospect for, mine, and remove such
deposits of other minerals from said land, and to occupy and
use so much of the surface of said land as may be required
therefor, upon compliance with the conditions and subject to
the provisions and limitations of Chapter 5, Part I, Division 6 of
the Public Resources Code, as reserved to the State of
California by Patent dated August 7, 1953 and Recorded
September 23, 1953 in book 3246, page 65 Official Records.
This Tract No. 313 is also known as Assessor’s Parcel
Number 0507-091-18-0000, containing 160.00 acres, more or
less.
Dkt. 1, Schedule B.

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2.

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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; excepting and excluding from the
taking all interests in oil, gas, oil shale, coal, phosphate,
sodium, gold, silver and all other mineral deposits which are
outstanding in parties other than the surface owners, the
appurtenant rights for the exploration, development and
removal of said minerals, and the right of the people to fish as
reserved in the patent from the State of California.

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Dkt. 1, Schedule C.
3.

Prior to the institution of this action, the Subject Property was owned

by Julie Orogo Luna (aka Julie Luna Orogo), as to an undivided ¼ interest; and

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Fred J. Davidson (aka Fred J. Davison), a widower, James F. Davidson (aka James

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F. Davison) and Donna M. Davidson (aka Donna M. Davison), his wife, as their

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interests may appear of record, as to the remainder.

Declaration of Robert W.

Colangelo (“Colangelo Decl.”) at ¶ 9.
4.

In August, 2011, Plaintiff’s agency, the United States Army Corps of

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Engineers (“Corps or COE”) entered into an Accepted Offer whereby the

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Davidsons agreed to sell the Subject Property to the Corps for the sum of

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$200,000.00. Colangelo Decl. at ¶ 4, Exhibit 1.
5.

The Corps was unable to complete the transaction because it was

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unable to locate Constancio G. Orogo, the former husband of Julie L. Orogo, who
was listed as an owner on the title report. Colangelo Decl. at ¶ 5, Exhibit 2.
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B.

PROCEDURAL HISTORY

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6.

This action was filed on June 7, 2016. Dkt. 1.

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7.

The deposit of estimated just compensation of $200,000.00 was made

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on July 20, 2016. Dkt. 8.

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8.

The Declaration of Taking was filed on September 19, 2016. Dkt. 13.

9.

Notice of Filing Proof of Service by publication was filed on January

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17, 2017. Dkt. 24.

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10.

Notice of Filing Proof of service by certified mail was filed on

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January 19, 2017. Dkt. 25.

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11.

No defendants have answered or appeared.

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II.

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The Court has jurisdiction over this action pursuant to 28 U.S.C. §

13.

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CONCLUSIONS OF LAW

Title to the property and estate as described in the complaint and

1358.

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Declaration of Taking vested in the United States upon the filing of the Declaration

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of Taking and the deposit of estimated just compensation. See 40 U.S.C. §
3114(b).

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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

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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

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U.S.C. § 3114, the two issues before the Court are: (1) the amount of just

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compensation to be paid by the United States for this taking; and (2) the

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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,

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956 (9th Cir. 2008) (“In the absence of a contractual arrangement among property

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owners, it was proper for the district court to apportion the total amount of just

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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).

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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

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property. Colangelo Decl. at ¶ 4, Exhibit 1. It is well-established that precondemnation contracts, like the one in the case at bar, are enforceable in a

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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),
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citing Danforth v. United States, 308 U.S. 271, 282-83 (1939); Albrecht v. United
States, 329 U.S. 599, 602-04 (1947). The United States is bound by the Accepted

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Offer. Therefore the full and just compensation for the Subject Property is

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$200,000.00.

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17.

Judgment shall be entered against the United States of America in the

amount of $200,000.00 in favor of Defendants.

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18.

Plaintiff has fully satisfied the Judgment by its deposit of the full

amount of just compensation, $200,000.00, into the Registry of the Court.
19.

Service having been properly made, and no other parties having

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appeared in this action, it is proper for this Court to find that title was held by Julie

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Orogo Luna (aka Julie Luna Orogo), as to an undivided ¼ interest; and Fred J.

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Davidson (aka Fred J. Davison), a widower, James F. Davidson (aka James F.
Davison) and Donna M. Davidson (aka Donna M. Davison), his wife, as their
interests may appear of record, as to the remainder.

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20.

The Clerk of the Court shall pay seventy-five percent (75%) of the

deposited funds ($150,000.00), plus 75% of any interest accrued thereon while

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within the Registry of the Court, less any authorized fees or costs, jointly to:
James F. Davidson, Fred J. Davidson and Donna M. Davidson
c/o James F. Davidson
5451 Twin Lakes Drive
Cypress, CA 90630

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21.

The Clerk of the Court shall pay twenty-five percent (25%) of the

deposited funds ($50,000.00), plus 25% of any interest accrued thereon while

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within the Registry of the Court, less any authorized fees or costs, to Julie Orogo

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Luna:

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Julie Orogo Luna
2104 Avila Place
Oxnard CA, 93036

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DATED: November 20, 2017

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_____________________________
GEORGE H. WU, U.S. DISTRICT JUDGE

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Respectfully submitted,
_/s/ ___________________
MARC GORDON (DC Bar No. 430168)
[e-mail]
[phone]
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

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