§ 1255.410.Motion For Possession

This section is the core of Article 3 -- the mechanism letting a plaintiff take possession of property before the eminent domain case is finally resolved. The plaintiff can move for a possession order at the time the complaint is filed or any time afterward, up until judgment, by showing entitlement to take the property by eminent domain and a deposit under Article 1 (§ 1255.010 and following) that satisfies that article's requirements. The motion describes the property (which can be done by reference to the complaint), states the date after which the plaintiff wants possession, and must include statutory language telling the defendant of the right to oppose within 30 days; any opposition based on hardship needs a declaration, signed under penalty of perjury, stating the facts behind that hardship.

Notice periods scale with how the property is used. The plaintiff serves the motion on the record owner and any occupants, and sets the hearing at least 60 days after service on the record owner of unoccupied property -- but if the property is lawfully occupied by someone living there, or by a farm or business operation, the hearing has to be at least 90 days out. A defendant or occupant who wants to oppose has 30 days from service to file written opposition (again with a declaration if hardship is the basis), and the plaintiff's reply is due at least 15 days before the hearing.

What the court has to find depends on whether anyone opposes. If nobody opposes within 30 days, the court issues the possession order on just two findings: that the plaintiff is entitled to take the property by eminent domain, and that the plaintiff has made a qualifying deposit under Article 1. If a defendant or occupant does oppose, the court adds two more findings after a hearing -- that there's an overriding need for the plaintiff to possess the property before final judgment and the plaintiff would suffer substantial hardship if possession were denied or limited, and that the plaintiff's hardship from denial outweighs whatever hardship the order would cause the defendant or occupant. That weighing test is what makes early possession a truly contested question rather than a formality once someone objects.

Subdivision (e) carves out a narrow emergency track for utilities. Notwithstanding the usual notice periods, a court can grant a water, wastewater, gas, electric, or telephone utility an ex parte possession order if it finds a true emergency creating an urgent need for possession -- including threats to public health, safety, or service reliability -- and that the order won't displace or unreasonably affect anyone in actual and lawful possession. A defendant or occupant hit with that kind of order still gets a chance to challenge it: within 30 days of service, they can move for relief, and the court can modify, stay, or vacate the order after considering the facts and any objections, with a hearing if requested.