IN THE SUPREME COURT OF
CALIFORNIA
TOWN OF APPLE VALLEY,
Plaintiff and Appellant,
v.
APPLE VALLEY RANCHOS WATER et al.,
Defendants and Respondents.
S289391
Fourth Appellate District, Division Two
E078348
San Bernardino County Superior Court
CIVDS1600180
August 24, 2026
Justice Kruger authored the opinion of the Court, in which Chief
Justice Guerrero and Justices Corrigan, Liu, Groban, Evans,
and Langhorne Wilson* concurred.
*
Associate Justice of the Court of Appeal, First Appellate
District, Division One, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS
WATER
S289391
Opinion of the Court by Kruger, J.
Under California’s Eminent Domain Law (Code Civ. Proc.,
§ 1230.010 et seq.), a public entity’s right to take private
property for public use depends, broadly speaking, on whether
the taking is necessary to serve the public interest. As a general
rule, public necessity is a matter for the public entity to decide,
subject to limited judicial review: Ordinarily, when a public
entity has adopted the statutorily required “resolution of
necessity,” the relevant public necessity requirements are
“conclusively establishe[d]” unless a court finds that the public
entity has grossly abused its discretion in adopting the
resolution. (Id., §§ 1245.250, subd. (a), 1245.255, subd. (b).)
In 1992, however, the Legislature created special rules for
the taking of privately owned public utility property. Under
those rules, even after adopting a resolution of necessity, a
public entity’s decision to take over a privately owned electric,
gas, or water public utility does not conclusively establish the
propriety of the taking, but merely creates a “rebuttable
presumption” that the statutory requirements for taking the
property are met. (Code Civ. Proc., § 1245.250, subd. (b), added
by Stats. 1992, ch. 812, § 3, p. 3846; see id., § 1240.650, subd.
(c), added by Stats. 1992, ch. 812, § 2, p. 3846.)
The question in this case is what these special rules mean
for judicial review of a public entity’s decision to take property
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Opinion of the Court by Kruger, J.
belonging to a privately owned public utility. The Town of Apple
Valley, which seeks to take over a privately owned water utility,
argues that its decision to take the utility is subject to the usual
standard governing judicial review of a resolution of necessity —
meaning, in effect, that the court can disallow the taking only if
it concludes that the Town has grossly abused its discretion.
The Court of Appeal accepted this argument. We do not.
The Town’s argument for gross abuse of discretion review
cannot be squared with the 1992 amendments, which make the
Town’s resolution rebuttable, rather than conclusive, on the
critical question of whether public necessity requires the taking
of the utility’s property. To evaluate a challenge to the taking
of privately owned public utility property, the trial court, sitting
as trier of fact, must exercise its independent judgment to
determine whether the utility owner challenging the taking has
rebutted the relevant presumptions and has thus established by
a preponderance of the evidence that the taking is not
authorized by the Eminent Domain Law.
We reverse the judgment of the Court of Appeal and
remand for further proceedings.
I.
A.
In California, the power of eminent domain is governed by
a set of statutory rules dating back to 1872, when the
Legislature enacted a comprehensive Code of Civil Procedure
that included a “new and valuable” “Title on Eminent Domain.”
(1 Ann. Code Civ. Proc. (1st ed. 1872, Haymond & Burch,
commrs.-annotators) preface, p. vi.) The current Eminent
Domain Law, which was enacted a century later (Code Civ.
Proc., § 1230.010 et seq., added by Stats. 1975, ch. 1275, § 2, p.
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Opinion of the Court by Kruger, J.
3410), extensively revised California’s eminent domain statutes
“ ‘to cover, in a comprehensive manner, all aspects of
condemnation law and procedure’ and to produce ‘a modern
Eminent Domain Law within the existing California statutory
framework.’ ” (City of Oakland v. Oakland Raiders (1982) 32
Cal.3d 60, 65, quoting Eminent Domain Law, 13 Cal. Law
Revision Com. Rep. (1975) pp. 1010–1011.)
Like its historic precursor, the current Eminent Domain
Law permits public entities to exercise the power of eminent
domain “to acquire property only for a public use.” (Code Civ.
Proc., § 1240.010.) A public entity seeking to condemn property
by eminent domain must make certain substantive showings.
In all cases, the condemning entity must establish that “[t]he
public interest and necessity require the project” in question
(id., § 1240.030, subd. (a)); that “[t]he project is planned or
located in the manner that will be most compatible with the
greatest public good and the least private injury” (id.,
§ 1240.030, subd. (b)); and that “[t]he property sought to be
acquired is necessary for the project” (id., § 1240.030, subd. (c)).
These three required showings are commonly referred to as
“ ‘the public necessity elements.’ ” (SFPP v. Burlington
Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 468;
Town of Apple Valley v. Apple Valley Ranchos Water (2025) 108
Cal.App.5th 62, 74 (Apple Valley).) In addition, if the targeted
property is already in public use, the public entity must
establish a fourth element — that “the use for which the
property is sought to be taken is a more necessary public use
than the use to which the property is appropriated.” (Code Civ.
Proc., § 1240.610.) This element has been referred to as the
“ ‘more necessary public use’ ” element. (Apple Valley, at p. 73.)
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Opinion of the Court by Kruger, J.
The public entity must also satisfy certain procedural
requirements, including the “adopt[ion] [of] a resolution of
necessity.” (Code Civ. Proc., § 1240.040.) The adoption of a valid
resolution of necessity is a prerequisite to “commenc[ing] an
eminent domain proceeding.” (Id., § 1245.220.) In addition to
other requirements, the resolution must contain “[a] declaration
that the governing body of the public entity has found and
determined each” of the public necessity elements to be true.
(Id., § 1245.230, subd. (c).) When the property is already in
public use, there is no comparable requirement to explicitly
state that the condemning entity has found the “more necessary
public use” element to be true, but the resolution must “refer
specifically” to section 1240.610, which sets out that
requirement. (Id., § 1240.610.)
Before adopting a resolution of necessity, the public entity
must “give[] each person whose property is to be acquired by
eminent domain . . . notice and a reasonable opportunity to
appear and be heard on the matters referred to in Section
1240.030” — that is, the public necessity elements. (Code Civ.
Proc., § 1245.235.) The resolution must state that the public
entity made an offer to purchase the property, or that “the owner
cannot be located with reasonable diligence” (id., § 1245.230,
subd. (c)(4)), and must be approved “by a vote of two-thirds of all
the members of the governing body of the public entity” (id.,
§ 1245.240). After adopting a resolution, the public entity may
initiate the eminent domain proceeding by filing a complaint in
court. (Id., § 1250.110.)
Generally a validly adopted resolution of necessity is all
that is required to justify the proposed taking. Code of Civil
Procedure section 1245.250 (section 1245.250) provides that a
resolution “conclusively establishes the matters referred to in
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Opinion of the Court by Kruger, J.
Section 1240.030,” i.e., the three public necessity elements.
(§ 1245.250, subd. (a); see id., § 1240.030.) Code of Civil
Procedure section 1240.650 (section 1240.650) contains an
analogous instruction concerning the more necessary public use
element, although the instruction is not, in terms, keyed to the
adoption of a valid resolution of necessity: It provides that
“[w]here property has been appropriated to a public use by any
person other than a public entity, the use thereof by a public
entity for the same use or any other public use is a more
necessary use . . . .” (Id., subd. (a).)
There are, however, exceptions to the general rule treating
a resolution of necessity as conclusive. One long-standing
exception, included in the Eminent Domain Law as a
continuation of prior, pre-1975 law, applies to extraterritorial
takings by a local public entity — that is, takings where “the
property described in the resolution is not located entirely
within the boundaries of the local public entity.” (§ 1245.250,
subd. (c) (section 1245.250(c)); see Stats. 1975, ch. 1275, § 2, p.
3425; Sen. Legis. Com. com., 19 West’s Ann. Code Civ. Proc.
(2007 ed.) foll. § 1245.250, p. 431 [1975 Addition].) In this
scenario, “the resolution of necessity creates a presumption that
the matters referred to in Section 1240.030 are true,” which “is
a presumption affecting the burden of producing evidence.”
(§ 1245.250(c).)
Another exception, first enacted as part of the Eminent
Domain Law in 1975, provides that when the state (as opposed
to other public entities) seeks to appropriate property that is
already in public use “for the same use or any other public use,”
the state’s appropriation, rather than conclusively establishing
the more necessary public use element, instead creates a
presumption of a more necessary public use, which is a
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Opinion of the Court by Kruger, J.
“presumption[] affecting the burden of proof.” (Code Civ. Proc.,
§ 1240.640 (section 1240.640); see Stats. 1975, ch. 1275, § 2, p.
3419.) The legislative committee commentary accompanying
this provision explains that “unlike prior law, the presumptions
of this section are made rebuttable rather than absolute.” (Sen.
Legis. Com. com., 19 West’s Ann. Code Civ. Proc. (2007 ed.) foll.
§ 1240.640, p. 390 [1975 Addition].)
In 1992, the Legislature added a set of provisions specific
to the taking of privately owned public utility property. (Stats.
1992, ch. 812, §§ 2–3, p. 3846 (Sen. Bill. No. 1757 (1991–1992
Reg. Sess.)) (Senate Bill No. 1757).) Using language essentially
identical to the language of section 1240.640, the first of these
public utility provisions states that “[i]f the taking is by a local
public entity . . . and the property is electric, gas, or water public
utility property, the resolution of necessity creates a rebuttable
presumption that the matters referred to in Section 1240.030
are true. This presumption is a presumption affecting the
burden of proof.” (§ 1245.250, subd. (b) (section 1245.250(b)), as
amended by Stats. 1992, ch. 812, § 3, p. 3846.) A second
provision created a parallel presumption regarding the “more
necessary use” element: if the property “is electric, gas, or water
public utility property which the public entity intends to put to
the same use, the presumption of a more necessary use
established by subdivision (a) is a rebuttable presumption
affecting the burden of proof.” (§ 1240.650, subd. (c)
(section 1240.650(c)), as amended by Stats. 1992, ch. 812, § 2, p.
3846.) For ease of reference, we refer to these rebuttable
presumptions as the “utility presumptions.”
In all cases, the Eminent Domain Law permits a property
owner to challenge a resolution of necessity in court. (Code Civ.
Proc., § 1245.255 (section 1245.255), subd. (a).) This was not
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Opinion of the Court by Kruger, J.
always the case; “[p]rior to the enactment of the 1975 eminent
domain law, a resolution of necessity could not be collaterally
attacked.” (Anaheim Redevelopment Agency v. Dusek (1987) 193
Cal.App.3d 249, 254 (Dusek).) But section 1245.255 now
delineates two pathways for challenging a resolution of
necessity. “Before the commencement of the eminent domain
proceeding,” an owner may challenge a resolution “by petition
for a writ of mandate pursuant to [Code of Civil Procedure]
Section 1085.” (§ 1245.255, subd. (a)(1).) Otherwise, a challenge
may be raised “[a]fter the commencement of the eminent domain
proceeding, by objection to the right to take pursuant to this
title.” (§ 1245.255, subd. (a)(2).) Section 1245.255 further
provides that a resolution “does not have the effect prescribed in
Section 1245.250” — meaning that the resolution does not give
rise to either a conclusive or a rebuttable presumption of public
necessity — “to the extent that its adoption or contents were
influenced or affected by gross abuse of discretion by the
governing body.” (§ 1245.255, subd. (b) (section 1245.255(b));
see also § 1245.250.)
For purposes of challenging a resolution of necessity, the
Courts of Appeal have held that “ ‘a gross abuse of discretion
may be shown by a lack of substantial evidence supporting the
resolution of necessity’ ” (City of Saratoga v. Hinz (2004) 115
Cal.App.4th 1202, 1221 (Hinz); see Sen. Legis. Com. com., 19
West’s Ann. Code Civ. Proc. (2007 ed.) foll. § 1245.255, p. 435
[1975 Addition]); or, alternatively, by demonstrating that the
adoption of the resolution “was arbitrary, capricious, or
. . . [that] the governing body failed to follow the mandated
procedure, or . . . was irrevocably committed to taking the
property regardless of the evidence presented at the resolution
of necessity hearing” (Council of San Benito County
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Opinion of the Court by Kruger, J.
Governments v. Hollister Inn, Inc. (2012) 209 Cal.App.4th 473,
485).
The Eminent Domain Law contains a separate set of
provisions permitting defendants in an eminent domain
proceeding to challenge the public entity’s right to take their
property. Code of Civil Procedure section 1250.350 explains how
and on what grounds an owner can object “to the plaintiff’s right
to take.” Section 1250.360 lists objections that are available
“regardless of whether” the public entity has adopted a valid
resolution of necessity, including that the taking is not for a
more necessary public use. (Id., § 1250.360, subd. (f).) Section
1250.370 provides additional grounds “where the plaintiff has
not adopted a resolution of necessity that conclusively
establishes” the public necessity elements (id., § 1250.370, citing
id., § 1240.030), and allows the owner to dispute those elements
(id., § 1250.370, subds. (b)–(d).) Courts are required to “hear
and determine all objections to the right to take” (id.,
§ 1260.120, subd. (a)), and “may, on motion of any party, after
notice and hearing, specially set such objections for trial” (id.,
§ 1260.110, subd. (b)).
B
The Town of Apple Valley is served by a water system
operated by a private water utility. In December 2010, the then-
owner of the water system, defendant Apple Valley Ranchos
Water Company (Water Company), was sold to an investment
fund, Carlyle Infrastructure Partners, which implemented
significant price increases. In response, the Town began to
consider taking over the water system.
In November 2015, the Town approved two resolutions of
necessity. One resolution covered the portion of the system
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Opinion of the Court by Kruger, J.
within the Town’s boundaries, and the other covered small
portions of the system outside those boundaries. The
resolutions described the Town’s project as “the public
ownership, operation and maintenance of the Apple Valley
Water System to provide water service to the public.” Not long
after issuing the resolutions, the Town filed an eminent domain
complaint against the Water Company.
In the meantime, defendant Liberty Utilities had acquired
the Water Company from Carlyle. In its answer to the eminent
domain complaint, Liberty objected to the taking under Code of
Civil Procedure sections 1250.360 and 1250.370, arguing that
the public necessity and more necessary public use elements
were not met. Liberty did not challenge the validity of the
resolutions of necessity. It instead argued that the resolutions
“do not conclusively establish the elements of necessity” and
only “creates a rebuttable presumption” because they target
public utility property.1
Before trial, the parties litigated what the trial court
termed the “standard of review” applicable to the rebuttable
presumptions for a taking of utility property. (§§ 1245.250(b),
1240.650(c).) The Town argued that the court’s review of
Liberty’s objections was governed by the gross abuse of
discretion standard in section 1245.255(b). Liberty argued that
this standard did not apply because a trial court’s role is to
decide the existence of the four elements in the first instance, as
the trier of fact, and that its burden as defendant was to
1
In the case of the resolution targeting areas outside the
limits of the Town’s boundaries, Liberty also argued that the
resolution created only a rebuttable presumption because it
involved an extraterritorial taking.
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Opinion of the Court by Kruger, J.
disprove any of the elements by a preponderance of the evidence.
The trial court agreed with Liberty, concluding that under the
special rules for public utility takings added by the 1992
amendments to the Eminent Domain Law, the public necessity
and more necessary public use elements “are to be decided by
the court when put in issue by a public utility’s objection to the
agency’s right to take.” The court explained that, as a result of
the 1992 amendments, a utility owner disputing the existence of
the public necessity elements could either (1) invalidate the
resolution of necessity by showing an abuse of discretion, or (2)
object directly under Code of Civil Procedure section 1250.370 to
the existence of an element, in which case the owner’s burden is
to disprove the element by a preponderance of the evidence.
Following a 67-day bench trial, the trial court found that
the Town did not have the right to acquire the water system and
entered judgment for Liberty. After making extensive findings
about Liberty’s track record in managing the water system and
the risks of management by the Town, the court explained that
Liberty had overcome the rebuttable presumptions and
disproven two of the public necessity elements as well as the
more necessary public use element.
The Court of Appeal reversed. (Apple Valley, supra, 108
Cal.App.5th at p. 83.) The court concluded that the trial court
erred in failing to apply a gross abuse of discretion standard and
thus failing “to give the appropriate deference” to the Town’s
decisions and findings. (Id. at p. 71.) Under the proper
standard, the court reasoned, “ ‘the [public entity’s] findings are
presumed procedurally valid and presumed supported by
substantial evidence, and a private utility must convince the
trial court, using evidence outside the administrative record if
necessary, that the resolution is procedurally invalid or that the
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Opinion of the Court by Kruger, J.
[public entity’s] findings are not supported by substantial
evidence.’ ” (Id. at p. 89.)
The Court of Appeal went on to conclude that, “regardless
of what standard of review applies, the trial court made a series
of related errors in applying the rebuttable presumption to the
evidence that the court deemed relevant and admissible.”
(Apple Valley, supra, 108 Cal.App.5th at p. 90.) Among other
things, the court concluded that the trial court erroneously
allowed Liberty to rebut the resolutions using evidence of post-
resolution facts and developments not pleaded in its answer to
the eminent domain complaint. (Id. at pp. 92–94.) The court
remanded with instructions for the trial court to determine what
further proceedings were warranted on remand. (Ibid.)
The Court of Appeal’s decision in this case expressly
parted company with the then-recent decision in Pacific Gas &
Electric Co. v. Superior Court (2023) 95 Cal.App.5th 819
(PG&E), which raised a similar set of issues. In that case, the
South San Joaquin Irrigation District adopted a resolution of
necessity and filed an eminent domain action to take the part of
PG&E’s electric grid within the irrigation district’s boundaries.
(Id., at pp. 826–827.) PG&E objected to the taking on the
grounds that the public necessity and more necessary public use
elements were not established. (Id. at p. 827; see Code Civ.
Proc., §§ 1250.360, 1250.370.) The trial court characterized this
challenge as one to the validity of the resolution and concluded
that PG&E had “ ‘to show that the District committed a gross
abuse of discretion in adopting the Resolution.’ ” (PG&E, at pp.
827–828.) The Court of Appeal disagreed, reasoning that PG&E
was not challenging the validity of the resolution and thus was
not required to demonstrate a gross abuse of discretion in its
adoption. (Id. at pp. 833, 837.) Instead, because PG&E was
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Opinion of the Court by Kruger, J.
challenging the irrigation district’s right to take under Code of
Civil Procedure sections 1250.360 and 1250.370, its burden was
to disprove one of the elements by a preponderance of the
evidence. (PG&E, at p. 832.)
We granted review to resolve the conflict between PG&E
and the Court of Appeal’s decision in this case concerning the
standard a trial court should apply in adjudicating a private
utility owner’s challenge to a public entity’s right to take its
property.
II.
A.
The issue before us presents a question of statutory
interpretation, which we consider de novo. (People v. Walker
(2024) 16 Cal.5th 1024, 1032.) “ ‘ “ ‘ “We first examine the
statutory language, giving it a plain and commonsense
meaning. . . . If the language is clear, courts must generally
follow its plain meaning.” ’ ” ’ ” (Raines v. U.S. Healthworks
Medical Group (2023) 15 Cal.5th 268, 278–279.) The plain
meaning of the statute supplies a clear answer to the question
presented.
We observe at the outset that nothing in the plain
language of the statute supports the Town’s argument for
applying a gross abuse of discretion standard to a challenge to
the taking of public utility property. The gross abuse of
discretion standard is set forth in section 1245.255, which
applies to challenges to the validity of a resolution of necessity.
(§ 1245.255, subds. (a) [detailing how “[a] person having an
interest in the property described in a resolution of
necessity . . . may obtain judicial review of the validity of the
resolution” (italics added)], (b) [“A resolution of necessity does
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Opinion of the Court by Kruger, J.
not have the effect prescribed in Section 1245.250” — which is
to say, it does not “conclusively establish[]” (§ 1245.250, subd.
(a)) the requisite public necessity for the taking of private
property — “to the extent that its adoption or contents were
influenced or affected by gross abuse of discretion by the
governing body” (§ 1245.255(b)].) Nothing in section 1245.255
purports to extend the gross abuse of discretion standard to the
kind of challenge Liberty brings here, which aims at the Town’s
right to take its property rather than its adoption of a resolution
of necessity.
Although the Town does not seriously dispute this point,
it contends that the gross abuse of discretion standard still
should apply because any challenge to a public entity’s right to
take private property necessarily aims at the validity of its
resolution of necessity. The plain terms of the statute refute the
argument; a challenge to the right to take is distinct from, and
does not necessarily depend on, an objection to the resolution of
necessity.
This basic point tends to be obscured in day-to-day
practice because the typical eminent domain case involves an
intraterritorial taking in which the resolution of necessity
conclusively establishes the substantive public necessity
elements, leaving challengers with no choice but to attack the
resolution of necessity under the gross abuse of discretion
standard. But while the adoption of a resolution of necessity is
a prerequisite to condemnation by a public entity (Code Civ.
Proc., §§ 1245.220, 1240.040), the statute makes clear that a
resolution of necessity is not the only possible focus of a
challenge to a proposed condemnation. A property owner may
also challenge the public entity’s right to take the property in
question on the basis that the substantive statutory
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requirements for a taking — i.e., the public necessity
elements — have not been satisfied. (Id., §§ 1250.360,
1250.370.)
As noted above, challenges to the right to take are
governed by different provisions from challenges to a resolution
of necessity. Section 1245.255, which sets out the gross abuse of
discretion standard, is located in chapter 4, titled
“Precondemnation Activities,” and article 2, titled “Resolution of
Necessity,” of the Eminent Domain Law. But the provisions
detailing the grounds on which an owner may object to the right
to take are all housed in a different part of the Eminent Domain
Law, in chapter 5, titled “Commencement of Proceeding,” article
5, titled “Objections to Right to Take.” (See Code Civ. Proc.,
§§ 1250.350–1250.370.) The primary provision governing
objections to the right to take is section 1250.350, which
provides: “A defendant may object to the plaintiff’s right to
take . . . on any ground authorized by Section 1250.360 or
Section 1250.370.” (Code Civ. Proc., § 1250.350.) The cited
sections authorize grounds for objection not aimed at the
resolution of necessity. Section 1250.360 lists “[g]rounds for
objection to the right to take, regardless of whether the plaintiff
has adopted a resolution of necessity that satisfies the
requirements of Article 2 . . . of Chapter 4,” including that the
taking does not satisfy the more necessary public use element.
(Id., § 1250.360, subd. (f), italics added.) Section 1250.370
provides additional grounds “where the plaintiff has not adopted
a resolution of necessity that conclusively establishes the
matters referred to in Section 1240.030,” and allows the owner
to challenge the existence of the Code of Civil Procedure section
1240.030 public necessity elements. (Id., § 1250.370, subds. (b)–
(d), italics added.)
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In the context of proposed utility takings like the one in
this case, these provisions allow a utility owner to challenge the
rebuttable presumptions created by sections 1245.250 and
1240.650 without challenging the validity of any underlying
resolution of necessity. That is because a resolution targeted at
utility property only gives rise to a rebuttable presumption
(§ 1245.250(b)) and thus permits the objections available under
Code of Civil Procedure section 1250.370 “where the plaintiff
has not adopted a resolution of necessity that conclusively
establishes” the public necessity elements.
And the presumption of a more necessary public use
(§ 1240.650(c)) may be objected to “regardless of whether the
plaintiff has adopted” a valid resolution of necessity. (Code Civ.
Proc., § 1250.360, subd. (f).) Indeed, it could hardly be
otherwise, as this presumption is not triggered by the adoption
of a resolution, and instead applies by operation of statute
whenever a public entity seeks to take utility property or other
property already dedicated to public use. (§ 1240.650, subds. (a),
(c); see also Code Civ. Proc., § 1240.610 [stating that where a
condemnor seeks to take property appropriated to public use
“the complaint, and the resolution of necessity if one is required,
shall refer specifically to this section” (italics added)].) In other
words, at least for a privately owned public utility, the road to
successfully challenging the condemnation of its property need
not run through section 1245.255.
Of course, determining that the gross abuse of discretion
standard does not, in terms, apply to Liberty’s objections does
not tell us what standard does apply. And the Eminent Domain
Law does not expressly specify. But it does provide that the
utility presumptions are both “presumption[s] affecting the
burden of proof” on the questions of public necessity and more
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Opinion of the Court by Kruger, J.
necessary use. (§§ 1245.250(b), 1240.650(c).) Naturally
understood, the reference to a “burden of proof” in an eminent
domain proceeding suggests a proceeding in which the trial
court will act as a finder of the relevant facts to be proved, rather
than merely reviewing the regularity of a public entity’s
findings. And under the Evidence Code, “[e]xcept as otherwise
provided by law, the burden of proof requires proof by a
preponderance of the evidence.” (Evid. Code, § 115.) This is the
default rule in every kind of civil proceeding. (Id., § 300 [“Except
as otherwise provided by statute, this code applies in every
action before the Supreme Court or a court of appeal or superior
court”]; see, e.g., Guardianship of Saul H. (2022) 13 Cal.5th 827,
842 [“[P]reponderance of the evidence is the default burden of
proof for findings of fact in civil cases”].) And the Eminent
Domain Law explicitly states that eminent domain proceedings
are ordinarily subject to the same rules as other civil actions.
(Code Civ. Proc., § 1230.040 [“Except as otherwise provided in
this title, the rules of practice that govern civil actions generally
are the rules of practice for eminent domain proceedings”].) The
preponderance of the evidence standard is also supported by
Evidence Code section 606, which describes how a presumption
affecting the burden of proof operates: “The effect of a
presumption affecting the burden of proof is to impose upon the
party against whom it operates the burden of proof as to the
nonexistence of the presumed fact.” The commentary to this
provision explains that “[i]n the ordinary case, the party against
whom it is invoked will have the burden of proving the
nonexistence of the presumed fact by a preponderance of the
evidence.” (Cal. Law Revision Com. com., 29B pt. 2A West’s
Ann. Evid. Code (2019 ed.) foll. § 606, p. 81 [1965 Addition].)
16
TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.
Thus, absent statutory indications to the contrary, it
follows from the creation of the rebuttable presumptions in
sections 1245.250(b) and 1240.650(c) that the questions of public
necessity and more necessary public use are factual questions to
be resolved by the trial court, as the trier of fact, under a
preponderance of the evidence standard. The burden of rebuttal
falls on the party seeking to challenge the condemnation.
B.
This straightforward understanding of the rebuttable
presumptions created by the 1992 amendments is bolstered by
considering the similar rebuttable presumption for
extraterritorial takings.2 (See Prang v. Los Angeles County
Assessment Appeals Bd. (2024) 15 Cal.5th 1152, 1170 [In
interpreting statutory language, “ ‘[w]e consider the ordinary
meaning of the relevant terms, related provisions, terms used in
other parts of the statute, and the structure of the statutory
scheme’ ”].)
Since well before the 1992 amendments, the Eminent
Domain Law has provided that where a public entity seeks to
take property outside of its boundaries, “the resolution of
2
As previously noted, the Eminent Domain Law also
contains another rebuttable presumption where the state seeks
to appropriate property in public use “for the same use or any
other public use.” (§ 1240.640, subd. (a).) This section bears a
particularly close resemblance to section 1245.250(b), as both
create rebuttable presumptions “affecting the burden of proof.”
(§§ 1240.640, 1245.250(b).) But while there is a substantial
body of case law interpreting the extraterritorial exception,
there does not appear to be any case law interpreting section
1240.640. The parties thus naturally focus on the
extraterritorial exception rather than section 1240.640, and we
do the same.
17
TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.
necessity creates a presumption that the matters referred to in
Section 1240.030 are true,” which “is a presumption affecting
the burden of producing evidence.” (§ 1245.250(c); see Sen.
Legis. Com. com., 19 West’s Ann. Code Civ. Proc. (2007 ed.) foll.
§ 1245.250, p. 431 [1975 Addition]; see Stats. 1913, ch. 293, § 1,
pp. 549–550.) This provision now neighbors the provision
establishing a rebuttable presumption of public necessity for
utility takings. (§ 1245.250(b).)
By the time of the 1992 amendments, the Courts of Appeal
had long held, in addressing extraterritorial takings: (1) that a
rebuttable presumption can be overcome without challenging
the underlying resolution of necessity, and (2) that the trial
court, as trier of fact, independently assesses whether the
required elements are established. (See San Bernardino County
Flood Control Dist. v. Grabowski (1988) 205 Cal.App.3d 885, 898
[“the end result is the same whether (1) the Resolution of
Necessity is successfully challenged . . . or (2) the presumption
of truth created by” a valid resolution “is overcome by the
introduction of contradicting evidence at trial”]; City of Carlsbad
v. Wight (1963) 221 Cal.App.2d 756, 761 (Wight) [explaining that
Code Civ. Proc. former § 1241, a predecessor to § 1245.250
“limits the power of the condemning agency when the proposed
taking is outside its territorial limits” and that “it devolves upon
the courts to determine whether the taking of the particular
land is necessary”]; City of Los Angeles v. Keck (1971) 14
Cal.App.3d 920, 925 (Keck) [explaining that former § 1241 “has
specifically provided that the courts shall pass upon” an
extraterritorial taking]; cf. City of Oakland v. Superior Court
(1983) 150 Cal.App.3d 267, 279 [explaining that because “[t]he
extraterritorial exception is inapplicable” and the resolution
was not influenced by a gross abuse of discretion or the result of
18
TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.
bribery, “the trial court was foreclosed from inquiring into” the
public necessity elements].)
The Legislature that enacted the 1992 amendments is
presumed to have been aware of how courts had implemented
the rebuttable presumption in the extraterritorial takings
context. (E.g., Belridge Farms v. Agricultural Labor Relations
Bd. (1978) 21 Cal.3d 551, 557 [“ ‘[W]hen legislation has been
judicially construed and a subsequent statute on the same or an
analogous subject is framed in identical language, it will
ordinarily be presumed that the Legislature intended that the
language as used in the later enactment would be given a like
interpretation.’ ”]. The enactment of a parallel rebuttable
presumption in an adjacent subdivision of section 1245.250
naturally suggests the Legislature contemplated a similar
approach.
The Town argues that because the two presumption
provisions use different language, the Legislature must have
intended for trial courts to apply different standards. We
disagree. It is true that the provisions are not precisely
identical: the section 1245.250(c) presumption affects the
burden of production, while section 1245.250(b) affects the
burden of persuasion. But they are alike in the way that
matters: because both are rebuttable, both lack conclusive
effect. (See Evid. Code, § 601 [presumptions are either
conclusive or rebuttable]; compare § 1245.250, subd. (a) [a
resolution of necessity ordinarily “conclusively establishes” the
public necessity elements].) Accordingly, both permit
challenges to the right to take based on the nonexistence of the
public necessity elements. (See id., § 1250.370 [providing
“grounds for objection . . . where the plaintiff has not adopted a
resolution of necessity that conclusively establishes the matters
19
TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.
referred to in Section 1240.030”].) And ordinarily, under both
types of presumptions, the trial court independently reviews the
evidence to determine whether, as a matter of fact, the relevant
propositions have been established. (See Evid. Code, §§ 604 [if
presumption affecting burden of producing evidence is rebutted,
“the trier of fact shall determine the existence or nonexistence of
the presumed fact from the evidence and without regard to the
presumption” (italics added)], 115 [“ ‘Burden of proof’ means the
obligation of a party to establish by evidence a requisite degree
of belief concerning a fact in the mind of the trier of fact or the
court” and “[e]xcept as otherwise provided by law . . . requires
proof by a preponderance of the evidence” (italics added)].) The
inference therefore holds: When the Legislature enacted a
rebuttable presumption for utility takings, it presumably
contemplated that courts would apply the same standard they
have long applied in adjudicating the rebuttable presumption
applicable to extraterritorial takings.
C.
Given the clarity of the statutory text, we see no genuine
ambiguity about the question before us: The gross abuse of
discretion standard of review does not apply to Liberty’s
challenge to the Town’s right to take the water utility. But to
the extent the text leaves any possible doubt, we note that our
reading of the statutes is also consistent with the legislative
history of the 1992 amendments.3
3
We grant the request for judicial notice filed on July 3,
2025, by Liberty; the request for judicial notice filed on January
21, 2026, by amicus curiae Golden State Water Company; and
the request for judicial notice filed on January 21, 2026, by
amicus curiae California-American Water Company.
20
TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.
The legislative history of Senate Bill No. 1757, which was
eventually enacted into law in the 1992 amendments (Stats.
1992, ch. 812), confirms that the bill’s purpose was to permit
privately owned public utilities greater scope for challenging a
condemnation, specifically by enhancing their ability to
challenge the public necessity elements. The Assembly
Judiciary Committee report explained that while existing law
protected a public entity’s decision to take, following the
adoption of a resolution, “by providing a conclusive presumption
that the content of the resolution is true,” Senate Bill No. 1757
provides “a rebuttable, rather than a conclusive presumption”
which provided “a private electric, gas or water utility” with
“much greater ability to challenge any decision to condemn their
property.” (Assem. Com. on Judiciary, Analysis of Sen. Bill No.
1757 (1991–1992 Reg. Sess.) as amended May 13, 1992, pp. 4, 1
(Assembly Judiciary Report).)
The Senate Judiciary Committee report likewise
explained that “[t]his bill would repeal those two conclusive
presumptions [in sections 1240.650 and 1245.250] and instead
provide for a rebuttable presumption” which would “allow
private utility companies to challenge the decision of a public
entity to take over the utility property.” (Sen. Com. on
Judiciary, Analysis of Sen. Bill No. 1757 (1991–1992 Reg. Sess.)
as amended May 4, 1992, p. 2 (Senate Judiciary Report).) The
report elaborates that “[u]nlike a conclusive presumption, which
cannot be challenged or contradicted, a rebuttable presumption
21
TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.
affecting the burden of proof permits a challenge to the fact
being assumed.” (Id. at p. 3.)4
The legislative history indicates that the Legislature
understood Senate Bill No. 1757 as overriding a status quo that
gave utility owners limited ability to challenge a public entity’s
findings as to the necessity of a taking. Given this
understanding, the Town’s view that Senate Bill No. 1757
overlaid the existing gross abuse of discretion standard of
review onto the newly enacted rebuttable presumptions is
implausible. The Town’s approach would not meaningfully
expand public utilities’ ability to challenge the substantive
determinations underlying a public entity’s decision to take over
their property; it would instead largely preserve the status quo,
under which public utilities would be required to focus their
challenges on the regularity of the condemning entity’s
decisionmaking.
The Town points to a statement by Jackie Speier, the
assembly member who introduced Senate Bill No. 1757. In the
statement, which was printed in the Assembly Journal by
unanimous consent, Speier stated that “SB 1757 makes a
procedural change in how, under limited circumstances, the
question of necessity and better public use is proven in eminent
domain actions,” and described the bill as “a procedural change,
evidentiary in nature” that “does not affect basic rights but only
allows introduction of evidence on the subject of the
presumption.” (6 Assem. J. (1991–1992 Reg. Sess.) p. 9647.)
4
The report’s reference to the “similar rebuttable
presumption of ‘more necessary use’ ” in section 1240.640 (Sen.
Judiciary Rep., supra, at p. 3), reinforces the conclusion that the
resemblance between the provisions is not accidental.
22
TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.
The Town, like the Court of Appeal, insists that gross
abuse of discretion review was “among the ‘basic rights’ the 1992
amendments were intended not to affect.” (Apple Valley, supra,
108 Cal.App.5th at p. 87.) Like the Court of Appeal in PG&E,
we find the argument unpersuasive — both because it is
contrary to the plain language of the statute and because
Speier’s unelaborated reference to “basic rights” is “too vague for
us to understand.” (PG&E, supra, 95 Cal.App.5th at p. 837.)
Nothing in the statement indicates that Speier was using the
term “basic rights” to refer to the technical legal standards
governing the adjudication of eminent domain challenges, as
opposed to, for instance, the substantive necessity elements that
check the exercise of the right to take. And the former
interpretation seems particularly unfounded, since the enacted
statute contains no indication whatsoever of a legislative intent
to apply the gross abuse of discretion standard in a challenge to
the taking of utility property.
D.
The Town argues that even if the text and history favor a
different approach, we should adopt a gross abuse of discretion
standard to avoid serious separation of powers concerns. We are
not persuaded.
The Town’s separation of powers argument relies heavily
on Dusek, in which the court characterized a public entity’s
decision to take property within its territorial boundaries as
“quasi-legislative.” (Dusek, supra, 193 Cal.App.3d at p. 260.)
Specifically, the Dusek court rejected the contention that a
public entity’s resolution of necessity was defective because it
failed to include specific findings. The court reasoned that no
such requirement applied because the decision to condemn
23
TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.
property required weighing the interests of the owners against
those of the entity’s other constituents and thus involved “ ‘a
fundamental political question’ and therefore a quasi-legislative
act.” (Ibid.)
The Town contends that this characterization is important
because the courts’ power to second-guess legislative
determinations is “extremely limited” (Connecticut Indem. Co.
v. Superior Court (2000) 23 Cal.4th 807, 814), and “excessive
judicial interference” with legislative decisionmaking “would
conflict with the well-settled principle that the legislative
branch is entitled to deference from the courts because of the
constitutional separation of powers” (Western States Petroleum
Assn. v. Superior Court (1995) 9 Cal.4th 559, 572.)
To avoid “excessive judicial interference” of this sort, the
Town urges us to read the 1992 amendments as preserving gross
abuse of discretion review for intraterritorial utility
condemnations. Notwithstanding the notable resemblance
between the rebuttable utility presumptions and the pre-
existing rebuttable presumption for extraterritorial takings, the
Town argues that the extraterritorial cases are not instructive
here because the extraterritorial takings cases themselves
recognize that extraterritorial takings do not implicate the same
separation of powers concerns. (See Wight, supra, 221
Cal.App.2d at p. 761 [“[W]hen a city seeks to condemn land
without its corporate limits, it devolves upon the courts to
determine whether the taking of the particular land is necessary
for the use”]; Keck, supra, 14 Cal.App.3d at p. 925 [explaining
that while a public entity targeting property inside its limits has
full knowledge of local conditions and is accountable to both the
property owners and the taxpayers, both factors are lacking
when a public entity targets extraterritorial property].)
24
TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.
How, then, should we understand the Legislature’s
decision to introduce the rebuttable presumption for utility
takings? The Town posits that this change was intended to
overturn prior law that, as the Town understands it, prevented
property owners from presenting evidence outside the
administrative record. (See Huntington Park Redevelopment
Agency v. Duncan (1983) 142 Cal.App.3d 17, 24–27.) In the
Town’s view, the Legislature was motivated by this “evidentiary
limitation . . . to add the rebuttable presumptions for utility
condemnations,” which “expanded what evidence judges may
consider for utility condemnations” without eliminating the
deference given to quasi-legislative, intraterritorial resolutions.
The Town’s argument encounters a number of difficulties.
For starters, the argument relies heavily on characterizations of
the eminent domain power in various mid-20th century cases
while ignoring a number of older cases that, at least facially,
seem to contradict its position. As amici curiae Golden State
Water Company points out, before the passage of statutes
making the adoption of a resolution of necessity conclusive on
the question of public necessity (Stats. 1913, ch. 293, § 1, pp.
549–550), it appears the issue was in fact decided by courts as
finders of fact. (See Vallejo & N.R. Co. v. Reed Orchard Co.
(1915) 169 Cal. 545, 555–556, 561 (Vallejo) [putting the
“question as to the necessity for the taking” to the jury under
the 1874 amendment to Code Civ. Proc. § 592]; Cummings v.
Peters (1880) 56 Cal. 593, 594 (Cummings) [submitting the
question of whether “ ‘the land sought to be condemned, or any
part of it, [was] necessary for’ ” a proposed ditch to the jury].)
These cases at least suggest that, if the governing statutory law
so permits, issues of necessity are generally considered
“questions of fact, on which issues may be joined, to be decided
25
TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.
at the trial.” (Southern Pac. R. R. Co. v. Raymond (1878) 53 Cal.
223, 227–228 (Southern Pac. R. R. Co.).) The Town offers no
response. At a minimum, the cases tend to undermine the
Town’s supposition — based entirely on mid-20th century case
law — that the question of necessity for an intraterritorial
taking case is a matter constitutionally committed to the
substantial discretion of the condemning entity, subject only to
deferential judicial review.
More fundamentally, the mid-century case law on which
the Town relies concerns review of a public entity’s decision to
adopt a resolution of necessity — i.e., its decision to invoke the
statutory mechanism necessary to begin the process of
condemnation. But as already discussed, it is a different
question whether the condemnation itself, once the public entity
has chosen that course of action, is consistent with the governing
law. Nothing in the Town’s cases holds that, regardless of what
the Legislature might have to say about the matter, courts
necessarily must take a hands-off approach in evaluating
whether a proposed condemnation represents a proper exercise
of the right to take private property by eminent domain. Indeed,
the case law suggests the contrary is true: It is within the
Legislature’s power to decide whether and to what extent to
place justiciable limits on the eminent domain power. (See
People v. Chevalier (1959) 52 Cal.2d 299, 306 (Chevalier)
[approvingly citing the “majority rule” that “ ‘[o]nce it is
judicially established that a use is public, it is within the
exclusive province of the Legislature to pass upon the question
of necessity for appropriating private property for that use,
unless the question of necessity has been made a judicial one,
either by the Constitution or by statute’ ” (italics added)].) Thus,
even if the Town’s adoption of the resolutions of necessity were
26
TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.
a “legislative act” to which courts were constitutionally required
to defer, Liberty’s objections do not place the validity of that
legislative act at issue, nor do they otherwise threaten to
encroach on any cognizable legislative power. Liberty simply
challenges the Town’s right to take its property, invoking the
statutory mechanism that the Legislature has provided for that
very purpose.
The Town’s argument seems to assume that judicial
review of an act committed to another branch is at odds with the
separation of powers. This is, of course, not the case. For
example, “the traditional charging power of the prosecutor”
means there is “no judicial ‘review’ of the prosecutor’s exercise
of discretion to file charges in criminal court.” (Manduley v.
Superior Court (2002) 27 Cal.4th 537, 559; People v. Birks (1998)
19 Cal.4th 108, 134 [prosecutors “ordinarily have the sole
discretion to determine whom to charge with public offenses and
what charges to bring,” and this discretion is based “on the
principle of separation of powers, and generally is not subject to
supervision by the judicial branch”].) But that does not mean
that courts may not decide questions concerning the validity of
charges once filed. Similarly, while the separation of powers
means that “a court may not compel the Legislature to enact a
legislative measure” (Mandel v. Myers (1981) 29 Cal.3d 531,
539), that does not mean that legislation is not subject to judicial
review. So too here: while the decision to initiate a
condemnation proceeding by adopting a resolution of necessity
belongs to the public entity, once initiated, it falls to the courts
to determine whether that condemnation satisfies the statutory
prerequisites for exercising the power of eminent domain.
Nor does the case law support the idea that the
Legislature is constitutionally restricted in its ability to set
27
TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.
limits on the eminent domain power. The cases discussed by the
Town set out no such constitutional limitation; unsurprisingly,
they instead anchor their reasoning, first and foremost, in the
Legislature’s statutory directives. Chevalier, for instance,
explained that “our statutory provisions . . . have placed the
determination of the question of ‘necessity’ within the exclusive
province of the condemning body” by giving conclusive effect to
the condemner’s finding of necessity, and that holding otherwise
would “thwart the legislative purpose in making such
determinations conclusive.” (Chevalier, supra, 52 Cal.2d at pp.
306–307, italics added, citations omitted.)5 Likewise Dusek,
which faulted the trial court for failing to look to “the specific
statutory standard compelled under the eminent domain law
(Code Civ. Proc., § 1245.255),” and for instead beginning “its
analysis with a determination of whether the adoption of a
resolution was an adjudicative or legislative act.” (Dusek, supra,
193 Cal.App.3d at p. 254, italics added.)6
5
The Legislature subsequently overruled Chevalier by
enacting section 1245.255, which “provided for a very limited
collateral attack on a resolution of necessity” under the gross
abuse of discretion standard. (Dusek, supra, 193 Cal.App.3d at
p. 254.)
6
The other Court of Appeal cases on which the Town relies
likewise focus on the terms of the statute, rather than
purporting to elaborate a constitutionally-rooted right of public
entities to take private property with only limited judicial
oversight. (See Wight, supra, 221 Cal.App.2d at p. 761
[explaining that a municipality “derives power from statutory
law to condemn land,” that one provision “of the Code of Civil
Procedure limits the power of the condemning agency when the
proposed taking is outside its territorial limits” and that no
statute contains “an express grant of power enabling the
28
TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.
Finally, we reject the Town’s argument that, regardless of
its ability to do so, the Legislature that enacted the utility
presumptions in 1992 did not intend to alter the standard of
review for intraterritorial utility takings, and instead merely
sought to allow owners to introduce additional evidence to rebut
the relevant presumptions.
The statutory text provides no support for the Town’s
claim that the 1992 amendments merely repealed a prior
limitation on the evidence a challenger may introduce in an
eminent domain proceeding. If the Legislature merely intended
to permit the introduction of evidence outside of the
administrative record, it could have said so. It instead enacted
rebuttable presumptions affecting “the burden of proof.”
(§§ 1245.250(b), 1240.650(c).) The most natural understanding
of these presumptions — particularly considered in light of the
legislative history and prior experience employing similar
presumptions in other contexts — is that the Legislature
intended to make necessity a question for the court to decide as
trier of fact, placing on utilities the burden of disproving the
findings reflected in the public entity’s resolution of necessity.
Arguing that the Legislature did not intend to modify the
standard of review also erroneously presupposes that the gross
abuse of discretion standard applied to challenges to the right to
take intraterritorial property before the 1992 amendments.
This again conflates the standard of review for the adoption of
plaintiff to reach its hand outside its boundaries”]; Keck, supra,
14 Cal.App.3d at p. 925 [finding it “apparent that the
Legislature, in differentiating between property inside and
outside the territorial limits of the condemning agency,
recognized the differences . . . in these contrasting situations”
(italics added)].)
29
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Opinion of the Court by Kruger, J.
the resolution of necessity with the burden of proof at a trial on
an owner’s objections. As we have explained, these legal
standards apply to distinct challenges. The Legislature thus
had no reason to modify the standard of review in section
1245.250 once it had replaced the conclusive presumptions with
rebuttable presumptions.
The Town’s position also finds no support at all in the
legislative history. The Town seizes on references in the
legislative committee reports to resolutions of necessity as
“legislative” determinations (see, e.g., Sen. Judiciary Rep.,
supra, at p. 3); these references, the Town argues, demonstrate
a recognition of separation of powers concerns that “require[]
gross abuse of discretion review to avoid judicial usurpation of
local policymaking.”7 But the committee reports say nothing
about separation of powers or the gross abuse of discretion
standard. And the same materials demonstrate that the
Legislature understood that it was the “conclusive
presumption[s]” — not the “legislative” nature of the
resolutions — that required judicial deference to a public
entity’s determinations at a subsequent trial. By altering the
conclusive nature of those presumptions, the Legislature
likewise altered the degree of deference that courts must afford
to a public entity’s decision to take utility property.
The Town also advances various arguments based on what
the legislative history “doesn’t say.” According to the Town, it is
7
The argument ignores the fact that the legislative
committee reports also expressly described “[a] resolution of
necessity [as] an administrative determination that the
statutory prerequisites for the taking . . . have been met.”
(Assem. Judiciary Rep., supra, at p. 1.)
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TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.
significant that “the legislative history does not state that the
change from ‘conclusive’ to ‘rebuttable’ means resolutions are no
longer legislative/quasi-legislative acts or that intraterritorial
utility condemnations should be treated the same as
extraterritorial takings”; that the history does not mention
extraterritorial cases; and that the history does not state that
the administrative record and gross abuse of discretion standard
are irrelevant. The court below similarly claimed that the
legislative history “repeatedly acknowledges the ‘gross abuse of
discretion’ standard codified in section 1245.250” but “did not
touch it nor suggest that it should not apply in public utility
condemnations after the 1992 amendments,” and did not
“suggest that utility condemnations should be treated the same
as extraterritorial takings.” (Apple Valley, supra, 108
Cal.App.5th at p. 87.) This reliance on the Legislature’s
purported silence is misplaced; the Town offers no sound basis
to override the usual rule that “[t]he objective manifestation of
the legislative intent (the words of the amended statute)
controls over silence in the legislative history record.” (Hayes v.
Temecula Valley Unified School Dist. (2018) 21 Cal.App.5th 735,
753.)
Finally, and perhaps most fundamentally, the Town’s
proposed approach fails because it is simply unworkable. (See
Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554,
567, quoting Wasatch Property Management v. Degrate (2005)
35 Cal.4th 1111, 1122 [Courts construing a statute also “ ‘apply
common sense to the language at hand and interpret the statute
to make it workable and reasonable’ ”].)
As the court in PG&E explained, “ ‘[a] presumption
affecting the burden of proof places on the party against whom
it operates . . . the affirmative obligation to prove it false by a
31
TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.
preponderance of the evidence, unless a different standard of
proof is required by law.’ ” (PG&E, supra, 95 Cal.App.5th at p.
835, quoting Farr v. County of Nevada (2010) 187 Cal.App.4th
669, 681; see also Evid. Code, § 115.) In contrast, under the
gross abuse of discretion standard — which, again, may be
satisfied by showing “ ‘a lack of substantial evidence supporting
the resolution of necessity’ ” (Hinz, supra, 115 Cal.App.4th at p.
1221) — “ ‘ “the reviewing court defers to the factual findings
made below [and] does not weigh the evidence presented by both
parties . . . . Instead, it determines whether the evidence the
prevailing party presented was substantial.” ’ ” (PG&E, at p.
835, quoting Coastal Environmental Rights Foundation v.
California Regional Water Quality Control Bd. (2017) 12
Cal.App.5th 178, 187–188.) In other words, while “a[] [litigant]
whose evidence constitutes 60 percent proof would satisfy the
preponderance of the evidence,” the litigant would still fail to
demonstrate the absence of “any substantial factual basis
because 40 percent proof would qualify as a substantial factual
basis.” (Bichai v. DaVita, Inc. (2021) 72 Cal.App.5th 1126,
1140.) Thus, layering the gross abuse of discretion standard
onto the rebuttable utility presumptions would render those
presumptions a nullity: a property owner who demonstrated the
nonexistence of the required elements by a preponderance of the
evidence would still not have thereby demonstrated “ ‘that the
[public entity’s] findings are not supported by substantial
evidence.’ ” (Apple Valley, supra, 108 Cal.App.5th at p. 89.)
The Town resists this conclusion by disputing the nature
of substantial evidence review, insisting that even under this
standard, trial courts must consider “ ‘ “ ‘evidence that fairly
detracts from the evidence supporting the agency’s decision.’ ” ’ ”
(Cate v. State Personnel Bd. (2012) 204 Cal.App.4th 270, 281.)
32
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Opinion of the Court by Kruger, J.
This proposition, which echoes the United States Supreme
Court’s seminal substantial evidence case, Universal Camera
Corp. v. NLRB (1951) 340 U.S. 474, 487, establishes a standard
for reviewing administrative decisionmaking. (Cate, at p. 282.)
But as courts have made clear, this approach “does not
constitute independent review where the court substitutes its
own findings and inferences”; rather, the standard means that
a court “may reverse [the agency’s] decision only if, based on the
evidence before [the agency], a reasonable person could not have
reached the conclusion reached by [the agency].” (Kirkorowicz
v. California Coastal Com. (2000) 83 Cal.App.4th 980, 986.)
Engaging in this form of record-based review of agency action is,
of course, not the same thing as applying a rebuttable
presumption imposing a burden of proof with respect to the
existence of a particular set of facts.
The Town suggests, evidently in the alternative, that
because the text of the 1992 amendments does not expressly
refer to the preponderance of the evidence standard, the burden
of proof could be a heavier burden, akin to a clear and convincing
standard, more in line with gross abuse of discretion review.
But as explained above, the default rule is that the standard of
proof is by a preponderance of the evidence (Evid. Code, § 115),
and the Town points to nothing in the text or the history of the
statute suggesting that the Legislature intended to prescribe a
heavier burden.
The Town also attempts to deflect these criticisms by
arguing that it is actually Liberty’s approach that would be
illogical. The Town reasons that “[t]he Legislature left in place
only two routes for attacking” resolutions of necessity — either
via a Code of Civil Procedure section 1085 mandamus petition
before the public entity files an eminent domain complaint (see
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TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.
§ 1245.255, subd. (a)(1)), or objecting in the eminent domain
proceeding if the public entity has already sued (see id., subd.
(a)(2)). In the Town’s view, imposing two different standards in
these scenarios — gross abuse of discretion in the first,
independent review in the second — would permit “different
review standards to apply depending on who sues first.” But as
we have explained, a challenge to a resolution is distinct from
an objection to the right to take. There is nothing illogical about
prescribing two different standards for adjudicating two
different kinds of challenges.8
E.
The parties vigorously dispute the policy implications of
their respective positions. The Town argues that Liberty’s
8
The Town also asks us to follow the reasoning of Dusek,
which concluded that the gross abuse of discretion standard of
review applicable under Code of Civil Procedure section 1085,
the traditional mandamus statute, also applies where a
challenge to a resolution of necessity is raised in an already
initiated eminent domain proceeding. (Dusek, supra, 193
Cal.App.3d at p. 258; see also § 1245.255, subd. (a)(2).) But
Dusek does not embrace the proposition that, regardless of
whether the owner attacks the resolution itself, all objections
that contradict a resolution’s findings are subject to the gross
abuse of discretion standard; Dusek addressed only the
challenge before it, in which the property owners challenged the
resolution for not including findings of fact. (Id. at pp. 252, 258.)
Other cases cited by the Town concerning the standard of review
for a challenge to the resolution simply have no bearing on
whether there would be any incongruity in permitting
independent review by the trial court of the public necessity
elements in an eminent domain proceeding. (See, e.g.,
Inglewood Redevelopment Agency v. Aklilu (2007) 153
Cal.App.4th 1095, 1114 [addressing standard for reviewing
challenge to a resolution of necessity].)
34
TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.
approach allows trial courts to make policy determinations that
rightly belong to public entities and, furthermore, prevents
these entities from pursuing objectives that privately owned
utilities cannot or do not effectively pursue, such as improving
water recycling, fire prevention, environmental review, and the
coordination of city services and land use development.
Liberty’s construction, we are told, also turns the acquisition of
private utilities into “a crapshoot where a judge has ultimate
say,” despite the democratically expressed will of the voters, and
exposes municipalities to astronomical attorney fees, such as
the $13.2 million fee in this case. For its part, Liberty argues
that the Legislature had good reason for allowing greater
judicial scrutiny where a public entity seeks to take utility
property, and that allowing the appellate court’s decision in this
case to stand will have “a dramatic adverse impact on utility
services throughout the state” by producing less informed
decisions regarding whether a given taking actually serves the
public interest. The utilities that advocated for the 1992
amendments made a similar argument to the Legislature,
urging that such oversight guards against the risk that public
entities will target utilities as a means of generating revenue.
(Assem. Judiciary Rep., supra, at p. 3.)
Consideration of the Town’s policy concerns does not
persuade us to depart from the best reading of the statutory text.
We would observe, in that regard, that it is not unprecedented
to treat the question of public necessity as a question of fact for
the court, rather than a matter committed largely to the
discretion of the condemning authority. (See, e.g., Vallejo,
supra, 169 Cal. at pp. 561, 577; Cummings, supra, 56 Cal. at p.
594; Southern Pac. R. R. Co., supra, 53 Cal. at pp. 227–228; see
also, e.g., Cersosimo v. Town of Townshend (1981) 139 Vt. 594,
35
TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.
597; Central Puget Sound Regional Transit Authority v. WR-SRI
120th North LLC (2018) 191 Wn.2d 223, 250.) In all events,
given the complex and multifaceted nature of the policy
considerations involved, the Town’s objection to this approach
“ ‘is best directed to the Legislature, which can study the various
policy and factual questions and decide what rules are best for
society.’ ” (Brown v. City of Inglewood (2025) 18 Cal.5th 33, 55,
quoting Carrisales v. Department of Corrections (1999) 21
Cal.4th 1132, 1140.) We, however, are bound to give effect to
the statutory provisions the Legislature has already enacted.
Ultimately, the Town and the Court of Appeal have
accorded to resolutions of necessity a significance that is not
supported by the statutory text, or by any of the other aids to
interpretation. The resolution is not the be-all and end-all of a
condemnation proceeding; the Eminent Domain Law allows an
owner to object to the right to take “regardless of whether the
plaintiff has adopted a resolution of necessity that satisfies the
requirements of Article 2” (Code Civ. Proc., § 1250.360), and
authorizes further grounds for objection where the resolution
lacks conclusive effect (id., § 1250.370).
That does not mean that the adoption of a resolution is an
empty formality. Again, where a conclusive presumption
applies, a valid resolution “conclusively establishes” the public
necessity elements. (§ 1245.250, subd. (a).) And even a mere
rebuttable presumption shifts a burden of proof that would
ordinarily be borne by the public entity, as the plaintiff in the
eminent domain action, to the property owner. (See Code Civ.
Proc., § 1230.040; Evid. Code, § 500.) But in all events, the
adoption of a resolution of necessity serves other purposes
besides achieving litigation advantage. “Implicit in t[he]
requirement of a hearing and the adoption of a resolution of
36
TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.
necessity is the concept that, in arriving at its decision to take,
the Agency engage in a good faith and judicious consideration of
the pros and cons of the issue. . . .” (Redevelopment Agency v.
Norm’s Slauson(1985) 173 Cal.App.3d 1121, 1125–1126.)
III.
The parties debate what should follow from our conclusion
that the trial court in this case applied the correct standard in
adjudicating Liberty’s challenge to the Town’s eminent domain
action. The Town argues that the Court of Appeal’s reversal
should nonetheless stand because, separate and apart from the
standard applied by the trial court, the Court of Appeal found
other reversible errors in the trial court’s judgment that were
not included in this court’s limited review grant.
It is not clear, however, that any of the additional
supposed errors the court identified were truly independent of
the court’s understanding of the meaning and import of the
rebuttable utility presumptions. The Court of Appeal explained
that, in its view, “the trial court erred in three principal
respects: (1) it did not apply the gross abuse of discretion
standard; (2) it did not properly apply the rebuttable
presumption; and (3) it erroneously relied solely on post-
[resolution] evidence to find that Liberty met its burden.” (Apple
Valley, supra, 108 Cal.App.5th at p. 93.) The court reasoned
that, “[t]aken together, these errors were prejudicial because it
is reasonably probable that [the Town] would have obtained a
better result had the errors not occurred.” (Ibid., italics added.)
The final statement makes it unclear whether the court
considered the second or third grounds, standing alone, to be
sufficient grounds for reversal. In any event, the court’s
analysis as to the second and third grounds was not independent
37
TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.
of its understanding of the standard of review. With respect to
the second ground, the court held that “[t]o successfully
challenge [the] eminent domain action, Liberty had to rebut [the
Town’s] presumptively correct findings,” which it could not do
“unless the [resolution] and its underlying findings/objectives in
the [administrative record] and [the Town’s] reasons for
adopting the [resolution] were considered at the outset.” (Apple
Valley, supra, 108 Cal.App.5th at p. 90.) Although the court
deemed the exclusion of the administrative record harmless, it
nonetheless found error because the trial court did not “ ‘begin
its review with a presumption of the correctness of
administrative findings.’ ” (Id. at p. 91, quoting Fukuda v. City
of Angels (1999) 20 Cal.4th 805, 819.) But this premise — that
Liberty could not rebut the rebuttable presumptions without
considering the resolution’s “underlying findings/objectives” —
conflates the resolution of necessity with the right to take.
(Apple Valley¸ at p. 90.) In the context of a challenge to the right
to take utility property, the trial court’s “ ‘starting point’ ” (id. at
p. 91) is the rebuttable presumption itself (§ 1245.250(c)), and
not the resolution of necessity.
The third ground also appears to rest on the premise that
the necessary object of Liberty’s challenge is the resolution of
necessity. The court explained that “the [resolution] ‘is the
fundamental predicate to the entire condemnation process’ ”
and would be “meaningless . . . if it could be invalidated with
exclusively post-[resolution] evidence.” (Apple Valley, supra,
108 Cal.App.5th at p. 93, quoting City of Stockton v. Marina
Towers LLC (2009) 171 Cal.App.4th 93, 107.) The court should
have the opportunity to reconsider that conclusion in light of the
guidance this opinion offers.
38
TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.
On this last point, renewing an argument it made in its
petition, Liberty asks us to decide that the Court of Appeal erred
in limiting its ability to rely on post-resolution evidence. We
specifically limited review to not address this issue and again
decline to address it. Liberty may be correct that the answer to
this question is necessarily informed by our resolution of the
issue on which we did grant review. But this question is best
addressed by the Court of Appeal in the first instance.
IV.
The Court of Appeal erred in concluding that the Town’s
decision to take over the privately owned public water utility
was subject to review only for gross abuse of discretion. We
reverse the judgment of the Court of Appeal and remand for
further proceedings consistent with this opinion.
KRUGER, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
GROBAN, J.
EVANS, J.
LANGHORNE WILSON, J.*
*
Associate Justice of the Court of Appeal, First Appellate
District, Division One, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
39
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Town of Apple Valley v. Apple Valley Ranchos
Water
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 108 Cal.App.5th 62
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S289391
Date Filed: August 24, 2026
__________________________________________________________
Court: Superior
County: San Bernardino
Judge: Donald R. Alvarez
__________________________________________________________
Counsel:
Greines, Martin, Stein & Richland, Edward L. Xanders, Timothy T.
Coates, Joseph V. Bui; Best Best & Krieger, Kendall H. MacVey,
Christopher M. Pisano and Guillermo A. Frias for Plaintiff and
Appellant.
Rutan & Tucker, Douglas J. Dennington and Jayson Parsons for the
Monterey Peninsula Water Management District as Amicus Curiae on
behalf of Plaintiff and Appellant.
David Chiu, City Attorney (San Francisco), Theresa L. Mueller,
Kristen A. Jensen and Brian F. Crossman, Deputy City Attorneys, for
the City and County of San Francisco and the California State
Association of Counties as Amici Curiae on behalf of Plaintiff and
Appellant.
Matteoni, O’Laughlin & Hechtman, Gerry Houlihan; Murphy & Evertz
and Douglas Evertz for the Association of California Water Agencies,
the League of California Cities, the California Municipal Utility
Association, the California Special Districts Association and the South
San Joaquin Irrigation District as Amici Curiae on behalf of Plaintiff
and Appellant.
Manatt, Phelps & Phillips, Edward G. Burg, Michael M. Berger,
George M. Soneff, David Moran, Benjamin Shatz, Joanna S.
McCallum; Horvitz & Levy, Bradley S. Pauley and Robert H. Wright
for Defendant and Respondent Apple Valley Ranchos Water.
Nossaman, Bradford B. Kuhn and Rick Rayl for the California Water
Association, Southern California Edison Company and San Diego Gas
& Electric Company as Amici Curiae on behalf of Defendant and
Respondent Apple Valley Ranchos Water.
Manatt, Phelps & Phillips, Edward G. Burg, George M. Soneff, Joanna
S. McCallum and David T. Moran for the Golden State Water
Company and the California-American Water Company as Amici
Curiae on behalf of Defendant and Respondent Apple Valley Ranchos
Water.
Munger Tolles & Olson, Teresa A. Reed Dippo, Kyle A. Groves and
Elaine J. Goldenberg for Pacific Gas and Electric Company as Amicus
Curiae on behalf of Defendant and Respondent Apple Valley Ranchos
Water.
No appearance for Defendants and Respondents Jess Ranch Water
Company and Jess Ranch Development Company.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Edward L. Xanders
Greines, Martin, Stein & Richland LLP
6420 Wilshire Boulevard, Suite 1100
Los Angeles, CA 90048
(310) 859-7811
Bradley S. Pauley
Horvitz & Levy LLP
505 Sansome Street, Suite 1550
San Francisco, CA 94111
(818) 995-5887
Elaine J. Goldenberg
Munger Tolles & Olson LLP
601 Massachusetts Avenue, NW, Suite 500 E
Washington, DC 20001
(202) 220-1114