Code Section Group

Code of Civil Procedure - CCP

PART 3. OF SPECIAL PROCEEDINGS OF A CIVIL NATURE [1063 - 1822.60]

  ( Part 3 enacted 1872. )

TITLE 7. EMINENT DOMAIN LAW [1230.010 - 1273.050]

  ( Title 7 repealed [comm. with Section 1237] and added by Stats. 1975, Ch. 1275. )

CHAPTER 6. Deposit and Withdrawal of Probable Compensation; Possession Prior to Judgment [1255.010 - 1255.480]

  ( Chapter 6 added by Stats. 1975, Ch. 1275. )

ARTICLE 1. Deposit of Probable Compensation [1255.010 - 1255.080]
  ( Article 1 added by Stats. 1975, Ch. 1275. )

1255.010.
  

(a) At any time before entry of judgment, the plaintiff may deposit with the State Treasury the probable amount of compensation, based on an appraisal, that will be awarded in the proceeding. The appraisal upon which the deposit is based shall be one that satisfies the requirements of subdivision (b). The deposit may be made whether or not the plaintiff applies for an order for possession or intends to do so.

(b) Before making a deposit under this section, the plaintiff shall have an expert qualified to express an opinion as to the value of the property (1) make an appraisal of the property and (2) prepare a written statement of, or summary of the basis for, the appraisal. The statement or summary shall contain detail sufficient to indicate clearly the basis for the appraisal, including, but not limited to, all of the following information:

(A) The date of valuation, highest and best use, and applicable zoning of the property.

(B) The principal transactions, reproduction or replacement cost analysis, or capitalization analysis, supporting the appraisal.

(C) If the appraisal includes compensation for damages to the remainder, the compensation for the property and for damages to the remainder separately stated, and the calculations and a narrative explanation supporting the compensation, including any offsetting benefits.

(c) On noticed motion, or upon ex parte application in an emergency, the court may permit the plaintiff to make a deposit without prior compliance with subdivision (b) if the plaintiff presents facts by affidavit showing that (1) good cause exists for permitting an immediate deposit to be made, (2) an adequate appraisal has not been completed and cannot reasonably be prepared before making the deposit, and (3) the amount of the deposit to be made is not less than the probable amount of compensation that the plaintiff, in good faith, estimates will be awarded in the proceeding. In its order, the court shall require that the plaintiff comply with subdivision (b) within a reasonable time, to be specified in the order, and also that any additional amount of compensation shown by the appraisal required by subdivision (b) be deposited within that time.

(Amended by Stats. 2001, Ch. 428, Sec. 5. Effective January 1, 2002.)

1255.020.
  

(a) On making a deposit pursuant to Section 1255.010, the plaintiff shall serve a notice of deposit on all parties who have appeared in the proceeding and file with the court a proof of service together with the notice of deposit. The plaintiff shall so serve parties who appear thereafter on their appearance. The notice of deposit shall state that a deposit has been made and the date and the amount of the deposit. Service of the notice of deposit shall be made in the manner provided in Section 1255.450 for service of an order for possession.

(b) The notice of deposit shall be accompanied by a written statement or summary of the basis for the appraisal referred to in Section 1255.010.

(c) If the plaintiff has obtained an order under Section 1255.010 deferring completion of the written statement or summary, the plaintiff:

(1) On making the deposit, shall comply with subdivision (a) and include with the notice a copy of all affidavits on which the order was based.

(2) Upon completion of the written statement or summary, shall comply with subdivision (b).

(Amended by Stats. 1990, Ch. 1491, Sec. 10.)

1255.030.
  

(a) At any time after a deposit has been made pursuant to this article, the court shall, upon motion of the plaintiff or of any party having an interest in the property for which the deposit was made, determine or redetermine whether the amount deposited is the probable amount of compensation that will be awarded in the proceeding. The motion shall be supported with detail sufficient to indicate clearly the basis for the motion, including, but not limited to, the following information to the extent relevant to the motion:

(1) The date of valuation, highest and best use, and applicable zoning of the property.

(2) The principal transactions, reproduction or replacement cost analysis, or capitalization analysis, supporting the motion.

(3) The compensation for the property and for damages to the remainder separately stated, and the calculations and a narrative explanation supporting the compensation, including any offsetting benefits.

(b) If the plaintiff has not taken possession of the property and the court determines that the probable amount of compensation exceeds the amount deposited, the court may order the plaintiff to increase the deposit or may deny the plaintiff possession of the property until the amount deposited has been increased to the amount specified in the order.

(c) If the plaintiff has taken possession of the property and the court determines that the probable amount of compensation exceeds the amount deposited, the court shall order the amount deposited to be increased to the amount determined to be the probable amount of compensation. If the amount on deposit is not increased accordingly within 30 days from the date of the court’s order, or any longer time as the court may have allowed at the time of making the order, the defendant may serve on the plaintiff a notice of election to treat that failure as an abandonment of the proceeding. If the plaintiff does not cure its failure within 10 days after receipt of such notice, the court shall, upon motion of the defendant, enter judgment dismissing the proceeding and awarding the defendant his or her litigation expenses and damages as provided in Sections 1268.610 and 1268.620.

(d) After any amount deposited pursuant to this article has been withdrawn by a defendant, the court may not determine or redetermine the probable amount of compensation to be less than the total amount already withdrawn. Nothing in this subdivision precludes the court from making a determination or redetermination that probable compensation is greater than the amount withdrawn.

(e) If the court determines that the amount deposited exceeds the probable amount of compensation, it may permit the plaintiff to withdraw the excess not already withdrawn by the defendant.

(f) The plaintiff may at any time increase the amount deposited without making a motion under this section. In that case, notice of the increase shall be served as provided in subdivision (a) of Section 1255.020.

(Amended by Stats. 2001, Ch. 428, Sec. 6. Effective January 1, 2002.)

1255.040.
  

(a)  If the plaintiff has not made a deposit that satisfies the requirements of this article and the property includes a dwelling containing not more than two residential units and the dwelling or one of its units is occupied as his or her residence by a defendant, the defendant may serve notice on the plaintiff requiring a deposit of the probable amount of compensation that will be awarded in the proceeding. The notice shall specify the date by which the defendant desires the deposit to be made. The date shall not be earlier than 30 days after the date of service of the notice and may be any later date.

(b) If the plaintiff deposits the probable amount of compensation, determined or redetermined as provided in this article, on or before the date specified by the defendant, the plaintiff may obtain an order for possession that authorizes the plaintiff to take possession of the property 30 days after the date for the deposit specified by the defendant or any later date as the plaintiff may request.

(c) Notwithstanding Section 1268.310, if the deposit is not made on or before the date specified by the defendant or such later date as the court specifies on motion and good cause shown by the plaintiff, the compensation awarded to the defendant in the proceeding shall draw legal interest from that date. The defendant is entitled to the full amount of such interest without offset for rents or other income received by him or her or the value of his or her continued possession of the property.

(d) If the proceeding is abandoned by the plaintiff, the interest under subdivision (c) may be recovered as costs in the proceeding in the manner provided for the recovery of litigation expenses under Section 1268.610. If, in the proceeding, the court or a jury verdict eventually determines the compensation that would have been awarded to the defendant, then the interest shall be computed on the amount of the award. If no determination is ever made, then the interest shall be computed on the probable amount of compensation as determined by the court.

(e) The serving of a notice pursuant to this section constitutes a waiver by operation of law, conditioned upon subsequent deposit by the plaintiff of the probable amount of compensation, of all claims and defenses in favor of the defendant except his or her claim for greater compensation.

(f) Notice of a deposit made under this section shall be served as provided by subdivision (a) of Section 1255.020. The defendant may withdraw the deposit as provided in Article 2 (commencing with Section 1255.210).

(g) No notice may be served by a defendant under subdivision (a) after entry of judgment unless the judgment is reversed, vacated, or set aside and no other judgment has been entered at the time the notice is served.

(Amended by Stats. 2006, Ch. 594, Sec. 2. Effective January 1, 2007.)

1255.050.
  

If the property to be taken is subject to a leasehold interest and the plaintiff has not made a deposit that satisfies the requirements of this article, the lessor may serve notice on the plaintiff requiring a deposit of the probable amount of compensation that will be awarded in the proceeding in the same manner and subject to the same procedures and conditions as a motion pursuant to Section 1255.040 except that, if the plaintiff fails to make the deposit, the interest awarded shall be offset by the lessor’s net rental profits on the property.

(Added by Stats. 1975, Ch. 1275.)

1255.060.
  

(a) The amount deposited or withdrawn pursuant to this chapter may not be given in evidence or referred to in the trial of the issue of compensation.

(b) In the trial of the issue of compensation, an appraisal report, written statement and summary of an appraisal, or other statement made in connection with a deposit or withdrawal pursuant to this chapter may not be considered to be an admission of any party.

(c) Upon objection of the party at whose request an appraisal report, written statement and summary of the appraisal, or other statement was made in connection with a deposit or withdrawal pursuant to this chapter, the person who made the report or statement and summary or other statement may not be called at the trial on the issue of compensation by any other party to give an opinion as to compensation. If the person who prepared the report, statement and summary, or other statement is called at trial to give an opinion as to compensation, the report, statement and summary, or other statement may be used for impeachment of the witness.

(Amended by Stats. 2002, Ch. 295, Sec. 2. Effective January 1, 2003.)

1255.070.
  

In lieu of depositing the money with the State Treasury as provided in Section 1255.010, upon written request of the plaintiff, the court shall order the money be deposited in the county treasury. If money is deposited in the State Treasury pursuant to Section 1255.010, it shall be held, invested, deposited, and disbursed in the manner specified in Article 10 (commencing with Section 16429) of Chapter 2 of Part 2 of Division 4 of Title 2 of the Government Code, and interest earned or other increment derived from its investment shall be apportioned and disbursed in the manner specified in that article. As between the parties to the proceeding, money deposited pursuant to this article shall remain at the risk of the plaintiff until paid or made payable to the defendant by order of the court.

(Amended by Stats. 1990, Ch. 1491, Sec. 11.)

1255.075.
  

(a) Prior to entry of judgment, a defendant who has an interest in the property for which a deposit has been made under this chapter may, upon notice to the other parties to the proceeding, move the court to have all of such deposit invested for the benefit of the defendants.

(b) At the hearing on the motion, the court shall consider the interests of the parties and the effect that investment would have upon them. The court may, in its discretion, if it finds that the interests of justice will be served, grant the motion subject to such terms and conditions as are appropriate under the circumstances of the case.

(c) An investment under this section shall be specified by the court and shall be limited to United States government obligations or interest-bearing accounts in an institution whose accounts are insured by an agency of the federal government.

(d) The investment of the deposit has the same consequences as if the deposit has been withdrawn under this chapter.

(Added by Stats. 1975, Ch. 1275.)

1255.080.
  

By depositing the probable compensation pursuant to this article, the plaintiff does not waive the right to appeal from the judgment, the right to move to abandon, or the right to request a new trial.

(Added by Stats. 1975, Ch. 1275.)

CCPCode of Civil Procedure - CCP1.