This is an eminent domain action in which plaintiff The People of the State of California, acting by and through the California Department of Transportation ("State"), condemned certain real property owned by defendants James and Robert Constant1 in a "quick take" action pursuant to Code of Civil Procedure ("C.C.P") §1263.110.2 The State took possession of the property on 11/19/02 and filed a Notice of Deposit on 11/20/02. Money was deposited with the State Treasurer. As required by California's Constitution, no deposit was made in court and no prompt release of payment to appellant was made by the State. (Clerk's Transcript "CT" 748).

In 2007, the jury made an award substantially greater than the quick take deposit in 2002(CT 628). Post verdict motions were filed. The trial court denied petitioner's Motion for a New Trial and, having determined that petitioner was not qualified to testify as an expert(CT 606,611), granted the State's Motion for Judgment Notwithstanding the Verdict ("JON")CT 636) on grounds the jury did not follow Instruction CACI 3515 awarding petitioner half the JON award "for his half interest" in the property(App 48,53), in effect, sharing the award with the State. Petitioner filed a Motion to Dismiss Case for failure to pay which was denied by the trial court (App 45).

The court of appeal reversed the judgment in Case E046012 (costs) and affirmed the judgments in consolidated Cases E044802 (merits and constitutional claims) and E045320 (constitutional claim).(App 44). A Petition for Rehearing was denied. The California Supreme Court denied petitioner's Petition for Review and Motion to Dismiss Case without opinion(App 23,25). The courts below refused to hear petitioner's constitutional claims and made all decisions depend on state statutory provisions(App 37).

Petitioner contends the decisions below are repugnant to the California and Federal Constitutions because they condemn private property without making valuation, payment, and adjustments for rapid increases in land values before taking private property, because without a valid policy reason they create a disparity between the State and property owners (take now pay later after protracted litigation), and because they do not provide pre deprivation discovery that would enable owners to prepare their defenses to the taking.

QUESTION 1 presented is a 5th Amendment question (taking and compensation). The 5th Amendment requires valuation and payment before taking private property, and adjustments for rapid increases in land values and delay in payment.

There are two parts of Cal. Const. Art. 1, §19. The first part conforms with the 5th Amendment and the second part authorizes "quick action" for taking private property upon deposit in court and prompt release to the owner of money determined by the court to be the probable compensation by a jury.

In the trial and appeal courts, petitioner contends that quick action is unconstitutional because it fails the 5th Amendment requirements and fails the prompt payment "quick action" part of Cal. Const. Art. 1, §19.

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