Israni v. Superior Court

In Israni v. Superior Court (2001) 88 Cal.App.4th 621, the City of San Diego filed a complaint in eminent domain to acquire property owned by Ashok Israni. The city also filed, without notice to Israni, an ex parte application for an order permitting it to take immediate possession of the property pursuant to section 1255.410. This section permits the court to make such an order, prior to entry of judgment on the complaint, upon a showing the plaintiff has an urgent need for possession and no person then in lawful possession will be displaced. The court granted the application and issued an "order of immediate possession" (OIP) the same day, to take effect a week later. The city served Israni the following day with copies of the complaint and OIP. Israni promptly applied to the court to vacate or stay the OIP on the ground he had not been given notice of and an opportunity to be heard at the ex parte proceeding, in violation of his right to due process guaranteed by the state and federal Constitutions, as well as rule 379. The court stayed the OIP pending a hearing on Israni's request, but it denied the request once the hearing was completed. Israni then petitioned the appellate court for a writ of mandate directing the lower court to vacate the OIP. The appellate court denied the petition. It acknowledged Israni was entitled to notice prior to the ex parte hearing, but concluded he had suffered no loss of due process because he had received notice and an opportunity to be heard before the effective date of the OIP. "Israni had the opportunity at the hearing to show that the OIP should not have initially been granted because section 1255.410's conditions were not satisfied. Had his showing convinced the trial court, it would have been required by section 1255.440 to vacate the OIP. In that event, the OIP would never have become effective and Israni could not have been deprived of any significant property interest. Israni effectively received a de novo hearing on the issuance of the OIP before its effective date. As a result, he was not denied his procedural due process rights and was not prejudiced by any violation of California Rules of Court, rule 379(a)." (Israni v. Superior Court, supra, 88 Cal.App.4th at p. 634 106 Cal. Rptr. 2d 48.)