1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 20cv0428 DMS(KSC)

UNITED STATES OF AMERICA,

11 Plaintiff, FINDINGS OF FACT AND 12 v. CONCLUSIONS OF LAW 13 0.56 ACRES OF LAND, MORE OR

LESS, SITUATED IN THE CITY OF

14

TECATE, SAN DIEGO COUNTY,

15 STATE OF CALIFORNIA, AND ESTATE OF JOHN C. DONLEVY, et al., 16 Defendants. 17

18 19 This is an eminent domain action brought by the United States of America to acquire 20 fee simple interest in a 303-foot-long section of California State Highway 188, also known 21 as Tecate Road, consisting of approximately 0.56 acres of land in Tecate, California 22 (“Subject Property”). The United States acquired title to the Subject Property on July 17, 23 2020 (“Date of Taking”). The Court granted the United States possession over the Subject 24 Property on August 11, 2020. (ECF No. 18.) On April 22, 2024, the case came on for 25 bench hearing to determine title and just compensation. Scott Stemetski appeared for the 26 United States. There were no other appearances. 27 / / / 28 / / / 1 I. 2 FINDINGS OF FACT ON DETERMINATION OF TITLE 3 1. On the Date of Taking, the Subject Property’s owners of record were Clara 4 Donlevy (“Clara”), John C. Donlevy, Jr. (“John Jr.”), and Barbara Jean Donlevy 5 (“Barbara”). The Subject Property was owned subject to easements held by the State of 6 California (“State”), County of San Diego (“County”), the San Diego Gas and Electric 7 Company (“SDG&E”), and Pacific Bell, d/b/a AT&T California (“AT&T”) (SDG&E and 8 AT&T are referred to as the “Utility Companies”). 9 2. Clara is deceased. 10 3. Clara was the wife of John Donlevy, Sr. (“John Sr.”). 11 4. John Sr. is deceased. 12 5. John Jr. was the son of Clara and John Sr. 13 6. John Jr. married Edith Donlevy (“Edith”). 14 7. Alice Woodside (“Alice”) is the only child of John Jr. and Edith. 15 8. John Jr. is deceased. 16 9. Edith is deceased. 17 10. Alice is currently living. 18 11. Barbara had two children, Steven Shields (“Steven”) and John Patrick Shields 19 (“John Patrick”). 20 12. Kelly Shields (“Kelly”) is John Patrick’s only child. 21 13. Barbara is deceased. 22 14. John Patrick is deceased. 23 15. Steven is currently living. 24 16. Kelly is currently living. 25 17. After the case was filed, the United States identified Alice, Steven, and Kelly 26 as the currently living heirs of Clara, John Jr., and Barbara, the owners of record of the 27 Subject Property as of the Date of Taking. Alice, Steven, and Kelly were added as parties 28 to this action. (ECF Nos. 32, 35–36.) 1 18. Alice, Steven, and Kelly later disclaimed their interest in the Subject Property 2 by way of filings in this case. (ECF Nos. 43, 46, 48.) 3 19. The United States effected service by publication, pursuant to Fed. R. Civ. P. 4 71.1(d)(3)(B), on the Unknown Heirs of Clara and John Jr. (“Unknown Heirs”)1 and 5 Barbara. (ECF No. 14.) 6 20. The United States also published notice of the April 22, 2024 hearing date in 7 this case for the Unknown Heirs. (ECF No. 33.) 8 21. Prior to the Date of Taking, the State and County both held highway 9 easements in the portion of the Subject Property over Tecate Road. 10 22. The Utility Companies held utility easements over the Subject Property.2 11 23. A planned project on the Subject Property would have affected a local 12 shopping center located at 404 Tecate Road and owned by S&R Razooky, LLC 13 (“Razooky”). (ECF No. 3-5.) As a result, the United States originally included in this 14 taking property interests appurtenant to the adjoining property located at 404 Tecate Road. 15 (ECF No. 3-5.) The United States originally named Razooky as a party to this case. (ECF 16 No. 3-7.) 17 24. After the filing of this case, Razooky and the United States stipulated to a 18 revestment of Razooky’s interest in the Subject Property, and the Court dismissed Razooky 19 / / / 20 21 22 1 The original caption of this case identified the “Estate of John Donlevy” as a party to this 23 action. (ECF No. 1; see Fed. R. Civ. P. 71.1(c)(1) (caption in condemnation case must “name as defendants both the property . . . and at least one owner of some part of or interest 24 in the property”)). The Unknown Heirs of John Donlevy Jr., named as parties to this action 25 and served via publication, represent the Estate of John Donlevy as the interested parties in this matter. (See ECF No. 1-9 (naming Unknown Heirs of John Jr. as parties); ECF No. 26 14 (proof of service on Unknown Heirs of John Jr. by publication)). 27 2 AT&T was originally named as Southern California Telephone Co. (“SCTC”). (ECF No. 3-7.) The United States substituted AT&T for SCTC in its First Amended Complaint. 28 1 from this case. (ECF No. 56.) The United States moved to amend the complaint and 2 Declaration of Taking to reflect the revestment of property. (ECF No. 59.3) 3 25. The State, the County, and the Utility Companies were all added as parties to 4 this case. (ECF No. 3-7.) Each of these parties either waived service or were served. (ECF 5 Nos. 7, 11–12, 14–15.) 6 26. The State, the County, and the Utility Companies disclaimed their interests in 7 the Subject Property. (ECF Nos. 9, 13, 38, 47.) 8 27. Each party known by the United States to have an interest in the Subject 9 Property has disclaimed their interest or settled with the United States. 10 II. 11 FINDINGS OF FACT AS TO JUST COMPENSATION 12 28. The Subject Property consists of the final 303 feet (“Condemned Road”) of 13 Highway 188 before the road terminates at the United States-Mexico Border. 14 29. The United States condemned the Subject Property in connection with its 15 operation of the adjacent Tecate Land Port of Entry and to aid in its efforts to secure the 16 United States-Mexico Border. 17 30. As a result of the United States having revested the property interests 18 condemned in 404 Tecate Road back to Razooky, the Subject Property consists solely of 19 the Condemned Road. 20 31. After this taking, the public is entitled to the same level of access to the 21 Condemned Road and the Tecate Land Port of Entry that the public enjoyed prior to this 22 taking. 23 32. The United States is now obligated to operate and maintain the Condemned 24 Road. 25

26 27 3 As used hereafter, the term “Subject Property” does not include the interests in 404 Tecate Road revested as part of the settlement between the United States and S&R Razooky, LLC. 28 1 33. Neither the State nor the County need to replace the Condemned Road to serve 2 their constituents. 3 34. Neither the State nor the County have any further obligation to maintain the 4 Condemned Road following this condemnation. 5 35. Neither the State nor the County will incur any further costs related to the 6 operation of the Condemned Road following this condemnation. 7 III. 8 CONCLUSIONS OF LAW 9 1. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1358. 10 2. Condemnation is an action in rem against the taken property itself. United 11 States v. 32.42 Acres, 683 F.3d 1030, 1034 (9th Cir. 2012) (citing A. W. Duckett & Co., 12 Inc. v. United States, 266 U.S. 149, 151 (1924)). Through these proceedings, the United 13 States obtains clear title to the Subject Property and must justly compensate the owners of 14 the property for the interests taken. Id. 15 3. The United States brought this case under the Declaration of Taking Act (“DT 16 Act”), 40 U.S.C. § 3114 et seq., and Federal Rule of Civil Procedure 71.1. 17 4. The United States acquired title to the Subject Property on July 17, 2020, the 18 date it deposited its estimate of just compensation with the Court. 40 U.S.C. § 3114(b)(1); 19 ECF No. 16. 20 5. Pursuant to 40 U.S.C. § 3114(a), the United States filed a Declaration of 21 Taking that stated the authority and public purpose for the taking and described the 22 property and estate to be acquired. ECF No. 3. 23 6. Under the DT Act, just compensation in this case “shall be determined and 24 awarded in the proceeding and established by judgment.” 40 U.S.C. § 3114(c)(1). 25 7. Compensation is due to any person who owned an interest in the condemned 26 property at the time of the taking. See Danforth v. United States, 308 U.S. 271, 284 (1939). 27 / / / 28 / / / 1 8. Two issues remain for adjudication: (1) identification of the parties entitled to 2 just compensation; and (2) determination of and entry of judgment for the amount of just 3 compensation. 4 9. “In an action involving eminent domain under federal law, the court tries all 5 issues, including compensation” unless a party demands a jury to decide compensation. 6 Fed. R. Civ. P. 71.1(h)(1); cf. United States v. Reynolds, 397 U.S. 14, 18–19 (1970). 7 10. No defendant or other potential landowner filed an answer in this action. 8 11. No party has demanded a jury or lodged an objection to the taking. See Fed 9 R. Civ. P. 71.1(e)(2), (h)(1)(B). 10 12. This Court held a hearing to determine just compensation on April 22, 2024. 11 13. No defendant appeared at the hearing or otherwise challenged the amount of 12 just compensation deposited by the United States in this matter. 13 14. With no party demanding a jury in this matter, the Court must determine the 14 proper parties to this action and the just compensation due in this case. 15 A. Determination of Title 16 15. In federal condemnation cases, district courts must determine who held title 17 to the property prior to the taking and are therefore entitled to share in the award of just 18 compensation. Bullen v. De Bretteville, 239 F.2d 824, 830 (9th Cir. 1956), rev’d on other 19 grounds, Lacey v. Maricopa Cty., 693 F.3d 896, 925–28 (9th Cir. 2012); see also United 20 States v. 3 Acres, No. 3:22-cv-1325, 2023 WL 2468955, at *2 (S.D. Cal. Mar. 10, 2023). 21 16. The United States takes no advocacy position on title matters; instead, it may 22 aid the Court on title and distribution matters as amicus curiae. Fed. R. Civ. P. 71.1 advisory 23 committee’s note to 1951 amendments, Supp. Report (“[T]he distribution of the award is a 24 matter in which the United States has no legal interest. . . . United States attorneys are 25 expected to aid the court in such matters as amici curiae.”); see also 3 Acres, 2023 WL 26 2468955, at *2. At the Court’s request, the United States submitted proposed findings of 27 fact and evidence relating to the Court’s title determination in this case. 28 / / / 1 17. Alice, Steven, and Kelly are the sole living heirs of Clara, John Jr., and 2 Barbara, the recorded fee owners of the Subject Property on the date of taking. 3 18. Alice, Steven, and Kelly were the individuals entitled to assert the fee owners’ 4 interests in the Subject Property as of the Date of Taking and just prior to the passage of 5 title to the United States. 6 19. The following parties had interests in the Subject Property prior to the Date 7 of Taking and thus are the proper parties in this case entitled to share in the award of just 8 compensation: 9 Proper Party Basis for Interest in Compensation 10 11 California Department of 1972 Cal. Stat. Ch. 1216 p. 2352 § 30 12 Transportation 13 The County of San Diego As holder of Easement dated January 7, 14 1935 and recorded January 17, 1935 at 15 Page 155, Book 374. 16 17 Per Dedication and Acceptance of State 18 Highway 188 as disclosed on Map No. 19 4771 and recorded on May 23, 1961 at 20 Page 89253, Series 2, Book 1961. 21 AT&T California As holder of Easement dated February 22 f/k/a Pacific Bell Telephone Company 26, 1937 and recorded April 9, 1937 at 23 Page 213, Book 637. 24 25 26 27 28 1 San Diego Gas & Electric Company As holder of Easement dated May 26, 2 (formerly known as San Diego 1939 and recorded June 30, 1939 at 3 Consolidated Gas & Electric Company) Page 183, Book 918. 4 5 As holder of Easement dated April 2, 6 1949 and recorded November 1, 1949 at 7 Page 246, Book 3371. 8 Alice Woodside Heir to Clara Donlevy and John C. 9 Donlevy, Jr. and successor to their 10 interests in grant deed dated February 11 15, 1941, and recorded February 18, 12 1941 at Page 134, Book 1143. 13 Steven Shields Heir to Barbara Jean Donlevy and 14 successor to her interest in grant deed 15 dated February 14, 1945, and recorded 16 December 27, 1945 at Page 290, Book 17 2010. 18 Kelly Shields Heir to Barbara Jean Donlevy and 19 successor to her interest in grant deed 20 dated February 14, 1945, and recorded 21 December 27, 1945 at Page 290, Book 22 2010. 23 24 20. Each of these parties has filed a “Disclaimer of Interest” in this case. ECF 25 Nos. 9, 13, 38, 43, 46, 47, 48. In each of these filings, these parties disclaimed any interest 26 in the compensation to be awarded in this case. Id. 27 / / / 28 / / / 1 B. Just Compensation 2 21. The United States must provide just compensation to the parties who held 3 interests in the Subject Property prior to this condemnation. U.S. Const., amend. V; Kirby 4 Forest Indus., Inc. v. United States, 467 U.S. 1, 9–10 (1984). 5 22. Such compensation is reduced to a judgment in condemnation proceedings. 6 40 U.S.C. §3114(c)(1). 7 23. “The property owner bears the burden of proving the value of the condemned 8 land.” United States v. 4 Acres, 175 F.3d 1133, 1140 (9th Cir. 1999). 9 24. Landowners may present evidence at a trial or hearing on the proper amount 10 of just compensation even if they have not answered or appeared. Rule 71.1(e)(3). 11 25. “Just compensation . . . means in most cases the fair market value of the 12 property on the date it is appropriated.” Kirby Forest, 467 U.S. at 10; see also California 13 v. United States (“Naval Shipyard”), 395 F.2d 261, 265 (9th Cir. 1968); California v. 14 United States (“San Francisco Tidelands”), 169 F.2d 914, 923 & n.3 (9th Cir. 1948). The 15 property taken is valued as encumbered. Naval Shipyard, 395 F.2d at 266–67 & n.12. 16 26. Public roads typically have only nominal market value, because they are 17 normally narrow strips of land that have been solely and legally dedicated to use as roads, 18 depriving them of market value except as thoroughfares. See San Francisco Tidelands, 169 19 F.2d at 924 (a public road “has no substantial value. It cannot be used for any purpose 20 which will bring to the owner either profit or enjoyment.”) (citing Mayor and City Council 21 of Baltimore v. United States, 147 F.2d 786, 789–90 (4th Cir. 1945)); see also United States 22 v. Streets, Alleys & Pub. Ways in Vill. of Stoutsville, 531 F.2d 882, 887 (8th Cir. 1976). 23 27. The same nominal market value applies to privately owned fee land 24 underlying a public road easement. See San Francisco Tidelands, 169 F.2d at 924.; see also 25 United States v. 50 Acres (“Duncanville”), 469 U.S. 24, 31–33 (1984) (holding that there 26 are not separate rules of just compensation for public and private condemnees). 27 28. Deviation from the market-value measure of just compensation may be 28 warranted in some cases, such as when the United States provides substitute facilities to 1 the landowner in lieu of paying the market value of the property. See Duncanville, 469 U.S. 2 at 33; see also, e.g., United States v. 10.56 Acres, No. 2:07-cv-1261, 2008 WL 3977614, 3 at *2 (W.D. Wash. Aug. 22, 2008). 4 29. When the property taken is a street, just compensation often includes the 5 provision of a substitute facility in the form of an alternate road. Washington v. United 6 States (“Hanford”), 214 F.2d 33, 39 (9th Cir. 1954), cert. denied, 348 U.S. 862 (1954); 7 San Francisco Tidelands, 169 F.2d at 924; see also Vill. of Stoutsville, 531 F.2d at 885. 8 30. However, “the federal government as condemnor . . . must furnish only 9 substitute facilities that are reasonably necessary in the circumstances.” Vill. of Stoutsville, 10 531 F.2d at 885; see also United States v. 1.57 Acres, No. 3:12-cv-3055, 2015 WL 11 5254558, at *2 (S.D. Cal. Sep. 9, 2015). 12 31. If a federal taking of property owned by a state or local entity does not make 13 it necessary for the state or locality to replace the road, or for the condemnor to provide 14 another substitute facility, then the United States need only pay nominal compensation. 15 Hanford, 214 F.2d at 39–44 (affirming the trial court’s award of $1 as nominal just 16 compensation for the United States’ taking of a state road where replacement highway was 17 not necessary); San Francisco Tidelands, 169 F.2d at 924, 926 (same). 18 32. In this case, the United States has only4 condemned a portion of a public road. 19 33. Only nominal compensation is required in this case because a substitute road 20 is unnecessary. The Condemned Road remains open to the public. The United States is 21 now obligated to operate and maintain the Condemned Road. Neither the State nor the 22 County need to replace, maintain, or incur costs related to the Condemned Road to serve 23 their constituents. 24 / / / 25

26 27 4 The United States previously condemned separate interests in the shopping center adjacent to Tecate Road but has revested that interest back to the shopping center owner, 28 1 34. The Condemned Road is a long, narrow strip of land that was already 2 encumbered with a highway easement when condemned, so there is no viable alternative 3 purpose for the Condemned Road that could give it anything more than nominal market 4 value. 5 35. Nominal compensation in the amount of $1.00 constitutes just compensation 6 for this taking. 7 36. Each known party named by the United States in this case has disclaimed all 8 interests in the award of just compensation in this matter. 9 37. Judgment will be entered by separate order of the Court in the amount of $1.00 10 against the United States and in favor of the Unknown Heirs of Clara Donlevy and John C. 11 Donlevy, Jr. 12 38. The United States deposited $1.00 in the Court’s registry in this matter. 13 39. The United States’ deposit satisfied the judgment to be entered in this case. 14 40. This money shall not be withdrawn from the Court’s registry except by order 15 of the Court. 28 U.S.C. § 2042. 16 41. The parties identified in Paragraph 37 above and awarded judgment in this 17 case may, by application, seek to withdraw the $1.00 from the Court’s registry. 18 42. If this amount has remained so deposited for at least five years from the date 19 of judgment unclaimed by the parties identified in Paragraph 37 above, the Court shall 20 cause such money to be deposited in the Treasury in the name and to the credit of the 21 United States. Any claimant entitled to any such money may, on petition to the court and 22 upon notice to Counsel for the United States and full proof of the right thereto, obtain an 23 order directing payment to him. 28 U.S.C. § 2042. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 43. Because the United States paid the full amount of just compensation into the 2 ||Registry of the Court, no interest is awarded in this matter. See 40 U.S.C. §§ 3 3114(c)(1), 3116. 4 IT IS SO ORDERED. 5 ||Dated: April 22, 2024 em Dh 6 an Yn. Hon. Dana M. Sabraw, Chief Judge United States District Court 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28