Volume 3, Number 12

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November 2008     

 

 

Crocker Symposium Web site


Special Message

 Dear Members,
     The Crocker Symposium is one of the most prominent events for Real Property Law in Los Angeles County, indeed, southern California. We invite you to participate in this major event. Visit the
Crocker Symposium's Web site for details.
     Companies, law firms, accounting firms, financial institutions and others in the real estate industry are invited to become sponsors of the Crocker Symposium.
     If you are interested in sponsoring the Crocker Symposium 2009, please
take a copy of our sponsor invitation packet, which includes information on the symposium and the signup form to complete your application as a sponsor. If you would like more information, please visit the  Crocker Symposium Web site to complete an expression of interest form or contact the Symposium Executive Producer at crocker2009@pivotalevents.com.

     Sincerely,

     Norm Chernin, co-editor, Real Property Newsletter

P. S.
Please note that the California State Bar Association will host its second annual Real Property Boot Camp soon:
Friday, Feb. 6 – Sunday, Feb. 8: State Bar Real Property Law Section presents 2009 Real Property Boot Camp, Ojai Valley Inn & Spa, Ojai. For more information, contact Pam Wilson at the Calif. State Bar at 415-538-2395. 


Real Property Scheduled Events -- View All Real Property Events -- Sign Up Now

11/18/2008: Title Insurance for Workout of Troubled Commercial Loans (12:30 PM) Register Now.

11/19/2008: When borrower defaults, it is lender vs. lender (12:30 PM) Register Now.

12/10/2008: Nuts & Bolts of Land Use (12:30 PM) Register Now.

05/05/2009: Crocker Symposium 2009


-CEQA-
Under California Environmental Quality Act, county was not required to respond to comments filed after expiration of public comment period before issuing a conditional use permit, approving rezoning, and certifying environmental impact report in connection with proposed quarry project. Any inadequacy in response to late comments was not sufficient to render approval of project ineffective or contrary to law. CEQA does not require a lead agency to conduct every recommended test and perform all recommended research to evaluate impacts of a proposed project. Fact that additional studies might be helpful does not mean such tests are required. EIR’s conclusion that proposed mitigation measures were adequate was not supported by substantial evidence where it lacked evidence showing mitigation measures were feasible or effective in remedying potentially significant problem of decline in water levels of neighboring wells, and EIR should have been recirculated after emergence of significant new information. Absent evidence of significant physical changes to environment or loss in property value that might arise from potential decline in water levels in private wells, county was not required to address economic impacts of project. County improperly deferred detailing mitigation measures relating to traffic impacts absent any evidence that county even had a mitigation plan in place involving improvement or maintenance of various local roadways because of increased vehicle traffic. EIR failed to adequately analyze project’s impacts on noise levels where it merely concluded that impact would not be significant. EIR did not fail to adequately analyze project’s impacts on biological resources and wildlife habitat where it relied on multiple biological surveys determining project area was not suitable breeding habitat for species, even though surveys did not comply with methodology prescribed in joint California Fish and Game–U.S. Fish and Wildlife Service "Interim Guidance on Site Assessment and Field Surveys for Determining Presence or a Negative Finding of the Tiger Salamander." Substantial evidence supported decision to exclude secondary emissions from health risk assessment where their inclusion in methodology used to evaluate air contamination would have resulted in a lower concentration of contaminants. Where county required project lighting be hooded and directed away from adjacent properties, it committed itself to mitigation and specific performance standards, and plan’s failure to offer specific details was not an improper deferral. Environmental impact report failed to adequately analyze project’s cumulative impacts where county failed to analyze probable future projects for which applicant sought regulatory review. EIR adequately analyzed growth-inducing impacts where it considered barriers to growth, including zoning of lands surrounding project site. County was entitled to deference in its decision to approve project despite inconsistencies with county’s general plan, and county did not violate Surface Mining and Reclamation Act by approving reclamation plan that failed to incorporate classification of mineral lands because substantial evidence indicated that state geologist had not classified project site. County violated Water Code by failing to prepare a water supply assessment for project where only feasible mitigation measure would require construction of a water system, and code requires preparation of a water supply assessment for water systems.
     Gray v. County of Madera - filed October 24, 2008, Fifth District
     Cite as 2008 SOS 5856
     
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-CEQA-
Under California Environmental Quality Act, city’s conditional agreement to sell land for private development, coupled with financial support, public statements, and other actions by city officials committing city to development, was an approval of project that was required to have been preceded by preparation of an environmental impact report. Before conducting CEQA review, agencies must not take any action that significantly furthers a project in a manner that forecloses alternatives or mitigation measures that would ordinarily be part of CEQA review of that public project. City’s approval of EIR during pendency of appeal did not render appeal moot where no irreversible physical or legal change occurred and plaintiff could still be awarded relief it sought. A claim that a lead agency approved a project with potentially significant environment effects before preparing and considering an EIR for project is predominantly a claim of improper procedure.
     Save Tara v. City of West Hollywood (Waset, Inc.) - filed October 30, 2008
     Cite as 2008 SOS 5963
     
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-Covenants-
Where declaration of covenants, conditions, and restrictions provided that plaintiffs had an exclusive easement of access, ingress, and egress across defendants’ property created for plaintiffs’ benefit, expressly restricting use of easement to plaintiffs and plaintiffs’ family, friends, guests, tenants, and invitees; imposed burden of development and maintenance of easement area on plaintiffs; imposed a duty on plaintiffs to indemnify defendants from any liability arising from use of easement area; and did not contain an express reservation in favor of defendants, defendants were not entitled to use surface of easement area in any manner. An express exclusive easement may be created by an instrument clearly stating intention that easement be exclusive, and is valid and enforceable under California law.
     Gray v. McCormick - filed October 23, 2008, Fourth District, Div. Three
     Cite as 2008 SOS 5842
     
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-Deeds-
An agreement by which a lender agreed to forbear from exercising its right of foreclosure under a deed of trust securing an interest in real property comes within statute of frauds. Payment of money in reliance on forbearance agreement was insufficient as a matter of law to estop defendant from asserting statute of frauds where plaintiffs did not allege they changed their position in reliance on agreement in any way other than by making such payment.
     Secrest v. Security National Mortgage Loan Trust 2002-2 - filed October 9, 2008, Fourth District, Div. Three
     Cite as 2008 SOS 5701
     
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-Easements-
Landowner whose property was surrounded entirely by national park could not claim a common law easement over federal land for motorized vehicle access; landowner’s right to access his property across federal land was subject to reasonable regulation by park service. Where landowner had year-round access to his property, and park only restricted access to nonmotorized means during winter, owner enjoyed sufficient access to defeat a finding of easement by necessity. Although conveyance of property and "appurtenances" will transfer an existing easement, such conveyance does not create an easement. Where landowner’s predecessor in interest did not have express easement over adjoining federal land, landowner did not have an express easement. Language in Homestead Act recognizing a right to enter public lands to establish a homestead did not create an implied easement; although government has historically provided access across federal land to reach private property, such access was granted in form of a license. Where park service determined that road through national park should be closed due to concerns for wildlife and recreation during winter season, park service did not act arbitrarily, capriciously, or in violation of law in denying landowner’s request for license to operate motorized vehicles on road during winter.
     McFarland v. Kempthorne - filed October 2, 2008
     Cite as 06-36106
     
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-Easements-
Where Congress appropriated funds to federal agency to construct energy transmission lines and attendant facilities, agency’s exercise of eminent domain for construction of a high-voltage electricity transmission line was congressionally authorized and for a public purpose. State law requiring review of project by state commission was preempted where plaintiff challenging agency’s action failed to point to an unequivocal pronouncement by Congress to overcome presumption of preemption. District court did not err in allowing action to proceed without requiring government to join all owners of fractional interests in condemned property under Federal Rule of Civil Procedure 71.1(c) where government investigated title history and current interests in land, enrolled services of an outside title investigator, and attempted to cooperate with defendants in an effort to identify all interest owners. Government was not required to serve non-objecting defendants who did not file a notice of appearance with its motion for judgment on pleadings. District court did not err in granting summary judgment sua sponte where losing party never raised any issue that required resolution of any question of fact. District court did not abuse its discretion in apportioning total compensation by accepting at face value the ownership information provided by the government in the absence of a contractual agreement among the property owners where no property owner objected to the court’s apportionment or presented conflicting ownership data, and the court provided an opportunity for unknown fractional owners to obtain a share of award at a later time.
     United States v. 14.02 Acres of Land - filed June 24, 2008, amended October 24, 2008
     Cite as 05-17347
     
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-Eminent Domain
Where Congress appropriated funds to federal agency to construct energy transmission lines and attendant facilities, agency’s exercise of eminent domain for construction of a high-voltage electricity transmission line was congressionally authorized and for a public purpose. State law requiring review of project by state commission was preempted where plaintiff challenging agency’s action failed to point to an unequivocal pronouncement by Congress to overcome presumption of preemption. District court did not err in allowing action to proceed without requiring government to join all owners of fractional interests in condemned property under Federal Rule of Civil Procedure 71.1(c) where government investigated title history and current interests in land, enrolled services of an outside title investigator, and attempted to cooperate with defendants in an effort to identify all interest owners. Government was not required to serve non-objecting defendants who did not file a notice of appearance with its motion for judgment on pleadings. District court did not err in granting summary judgment sua sponte where losing party never raised any issue that required resolution of any question of fact. District court did not abuse its discretion in apportioning total compensation by accepting at face value the ownership information provided by the government in the absence of a contractual agreement among the property owners where no property owner objected to the court’s apportionment or presented conflicting ownership data, and the court provided an opportunity for unknown fractional owners to obtain a share of award at a later time.
     United States v. 14.02 Acres of Land - filed June 24, 2008, amended October 24, 2008
     Cite as 05-17347
     
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-Environmental Law-
Under California Environmental Quality Act, county was not required to respond to comments filed after expiration of public comment period before issuing a conditional use permit, approving rezoning, and certifying environmental impact report in connection with proposed quarry project. Any inadequacy in response to late comments was not sufficient to render approval of project ineffective or contrary to law. CEQA does not require a lead agency to conduct every recommended test and perform all recommended research to evaluate impacts of a proposed project. Fact that additional studies might be helpful does not mean such tests are required. EIR’s conclusion that proposed mitigation measures were adequate was not supported by substantial evidence where it lacked evidence showing mitigation measures were feasible or effective in remedying potentially significant problem of decline in water levels of neighboring wells, and EIR should have been recirculated after emergence of significant new information. Absent evidence of significant physical changes to environment or loss in property value that might arise from potential decline in water levels in private wells, county was not required to address economic impacts of project. County improperly deferred detailing mitigation measures relating to traffic impacts absent any evidence that county even had a mitigation plan in place involving improvement or maintenance of various local roadways because of increased vehicle traffic. EIR failed to adequately analyze project’s impacts on noise levels where it merely concluded that impact would not be significant. EIR did not fail to adequately analyze project’s impacts on biological resources and wildlife habitat where it relied on multiple biological surveys determining project area was not suitable breeding habitat for species, even though surveys did not comply with methodology prescribed in joint California Fish and Game–U.S. Fish and Wildlife Service "Interim Guidance on Site Assessment and Field Surveys for Determining Presence or a Negative Finding of the Tiger Salamander." Substantial evidence supported decision to exclude secondary emissions from health risk assessment where their inclusion in methodology used to evaluate air contamination would have resulted in a lower concentration of contaminants. Where county required project lighting be hooded and directed away from adjacent properties, it committed itself to mitigation and specific performance standards, and plan’s failure to offer specific details was not an improper deferral. Environmental impact report failed to adequately analyze project’s cumulative impacts where county failed to analyze probable future projects for which applicant sought regulatory review. EIR adequately analyzed growth-inducing impacts where it considered barriers to growth, including zoning of lands surrounding project site. County was entitled to deference in its decision to approve project despite inconsistencies with county’s general plan, and county did not violate Surface Mining and Reclamation Act by approving reclamation plan that failed to incorporate classification of mineral lands because substantial evidence indicated that state geologist had not classified project site. County violated Water Code by failing to prepare a water supply assessment for project where only feasible mitigation measure would require construction of a water system, and code requires preparation of a water supply assessment for water systems.
     Gray v. County of Madera - filed October 24, 2008, Fifth District
     Cite as 2008 SOS 5856
     
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-Homesteads-
Where debtor had transferred dwelling to a corporation in which debtor was sole shareholder, property was not owned by a natural person and debtor was not entitled to protection of homestead exemption under Code of Civil Procedure Sec. 704.740; where debtor leased dwelling and resided elsewhere while retaining right to be temporarily present in a room within dwelling, debtor also did not meet continuous residence requirement of homestead exemption. Creditor's lien was not affected by debtor's bankruptcy absent evidence that it was discharged.
     California Coastal Commission v. Allen - filed October 1, 2008, Second District, Div. Four
     Cite as 2008 SOS 5567
     
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-Land Use-
Where city enacted moratorium on construction of new homes in response to landslides in area, and owners of vacant lots otherwise zoned for single-family dwellings sought exclusion from moratorium under established administrative process, but city passed resolution toughening criteria for obtaining exclusion while owners' application was pending, making it impossible for owners to build, resolution deprived plaintiffs' land of all economically beneficial use, and city had burden at trial in owners' suit under takings clause of California Constitution to prove that construction ban was justified by "background principles" of state law of property and nuisance. City failed to meet burden of justifying moratorium--as applied to plaintiffs' lots--through evidence showing a reasonable probability of personal injury or property damage other than possibility of damage to plaintiffs' desired homes in distant future, which could be repaired; a permanent ban on home construction cannot be based merely on a fear of personal injury or significant property damage.
     Monks v. City of Rancho Palos Verdes - filed October 1, 2008, Second District, Div. One
     Cite as 2008 SOS 5581
     
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-Land Use-
City’s adoption of a resolution giving public notice of potential legislation that might be adopted that would affect zoning regulations in area where plaintiff owned property did not implicate any of plaintiff’s rights because resolution could not have any consequences for plaintiff unless and until city formally adopted legislation. Fact that plaintiff and defendants disagreed over resolution’s meaning and application did not create a justiciable controversy.
     Stonehouse Homes v. City of Sierra Madre - filed October 9, 2008, Second District, Div. Eight
     Cite as 2008 SOS 5670
     
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-Land Use-
Developer was estopped from contesting California Coastal Commission’s jurisdiction to disapprove parcel map and coastal development permit where developer participated in commission proceedings in a significant manner for several years after developer contended commission had lost jurisdiction. Although developer may have believed it was attempting to amicably resolve commissioner’s concerns over its proposed development and facilitate approval of project, developer had an obligation to contest jurisdiction promptly after date that it contends commission lost it.
     Mt. Holyoke Homes, LP v. California Coastal Commission (Schelbert) - filed October 21, 2008, Second
     District, Div. Seven
     Cite as 2008 SOS 5771
     
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-Purchase and Sale Agreements-
Where purchaser defaulted on agreement to buy property from estate and property was resold at a lower price, Probate Code Sec. 10350(e)(1)authorized probate court to award estate damages in an amount equal to difference between defaulting and successful purchase prices. Because estate was entitled to retain defaulted buyer’s deposit as statutory award for damages, it made no legal difference that deposit amount covered bothestate’s interest in property and that of co-owner because Sec.10350(e)(1) did not authorize a pro rata share of damages based on sellers’ respective interests in the property.
     Estate of Felder - filed October 9, 2008, Second District, Div. Five
     Cite as 2008 SOS 5706
     
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-Real Property Litigation-
Action for equitable remedy of restitution--whether termed unjust enrichment, quasi-contract, or quantum meruit--is based on a common law obligation, so three-yearstatute of limitations, Code of Civil Procedure Sec. 338--and not the four-year statute applicable to actions for breach of written contracts--applies. Action by lender’s assignee to recover funds erroneously paid to defendant property seller instead of being applied to satisfaction of purchase-money note--due to erroneous reconveyance--was based on "mistake" within meaning of Sec. 338 so that three-year limitations period ran from date that plaintiff discovered, or by the exercise of due diligence should have discovered, its mistake. Lender did not discover, and should not have reasonably discovered, its unjust enrichment cause of action based on mistaken reconveyance until, at the earliest, the date that defendant’s mortgage payment became subject to a late charge. Where defendant prevailed on claim for breach of a written contract containing an attorney fees provision, but plaintiff prevailed on noncontract causes of action, defendant was entitled to an award of reasonable attorney fees properly apportioned between contract and noncontract causes of action.
     Federal Deposit Insurance Corporation v. Dintino - filed September 9, 2008, publication ordered October 2,
     2008, Fourth District, Div. One
     Cite as 2008 SOS 5611
     
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-Real Property Litigation-
Where gravamen of plaintiff's complaint related not to contemplated litigation but to attempts at persuasion and negotiation between co-owners of property regarding how best to manage their property, complaint's allegations did not fall within Civil Code Sec. 47's litigation privilege, and trial court erred in dismissing complaint under anti-SLAPP statute.
     Haneline Pacific Properties, LLC v. May - filed October 1, 2008, Fourth District, Div. Three
     Cite as 2008 SOS 5564
     
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-Rent Control-
County rent review board violated due process where it declined to allow a mobile home park owner to cross-examine tenants challenging an increase in rent during administrative hearing. Tenants’ 12-month lease agreements were facially valid under Civil Code Sec. 798.15 where each set forth specific term of tenancy and rent, but board had authority to find owner was estopped from claiming tenancies were exempt from rent control ordinance due to alleged misrepresentations by owner.
     Manufactured Home Communities, Inc. v. County of San Luis Obispo - filed October 15, 2008, Second
     District, Div. Six
     Cite as 2008 SOS 5734
     
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-Rent Control-
Where litigants to an unlawful detainer action tried other issues aside from right of possession, unlawful detainer judgment was conclusive as to those other litigated issues. Trial court erred in disregarding effect of rulings in prior unlawful detainer action on amount of rent a landlord could demand. Landlord and tenant could not exempt a property from Los Angeles’ Rent Stabilization Ordinance by mutual agreement. Where trial court erroneously instructed jury that tenant could not claim landlord charged more than ordinance allowed, jury’s verdicts involving breach of lease and recovery of excess rent were fatally flawed. Where two independent bases existed to support jury’s verdict, only one of which was lawful, verdict will stand where record did not affirmatively show jury relied on improper grounds. Where jury found landlord had retaliated against tenant for exercising his rights as a tenant, any error in court’s instruction that tenant had an obligation to be current in rent as a precondition to tenant’s retaliation claim was harmless.
     Gombiner v. Swartz - filed October 29, 2008, Second District, Div. Eight
     Cite as 2008 SOS 5996
     
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-Unlawful Detainer-
Where litigants to an unlawful detainer action tried other issues aside from right of possession, unlawful detainer judgment was conclusive as to those other litigated issues. Trial court erred in disregarding effect of rulings in prior unlawful detainer action on amount of rent a landlord could demand. Landlord and tenant could not exempt a property from Los Angeles’ Rent Stabilization Ordinance by mutual agreement. Where trial court erroneously instructed jury that tenant could not claim landlord charged more than ordinance allowed, jury’s verdicts involving breach of lease and recovery of excess rent were fatally flawed. Where two independent bases existed to support jury’s verdict, only one of which was lawful, verdict will stand where record did not affirmatively show jury relied on improper grounds. Where jury found landlord had retaliated against tenant for exercising his rights as a tenant, any error in court’s instruction that tenant had an obligation to be current in rent as a precondition to tenant’s retaliation claim was harmless.
     Gombiner v. Swartz - filed October 29, 2008, Second District, Div. Eight
     Cite as 2008 SOS 5996
     
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Los Angeles County Bar Association
2008 Real Property Section Newsletter
REAL PROPERTY SECTION REVIEW
Daniel L. Goodkin, Editor    *   Norman A. Chernin, Co-Editor

SECTION OFFICERS
Chair
Donald C. Nanney

First Vice-Chair
Michael S. Klein

Second Vice-Chair
Pamela L. Westhoff

Treasurer
Gregg J. Loubier

Secretary
Theresa C. Tate

Immediate Past-Chair
Timothy M. Truax

Chair Emeritus
Norma J. Williams,

Section Administrator
Terrina Scott

EXECUTIVE COMMITTEE MEMBERS

Eric Altoon
Nedra E. Austin
Susan J. Booth
James L. Brat
Norman A. Chernin
Brant H. Dveirin
Daniel L. Goodkin
Rebecca H. Lessley

Peter J. Niemiec
D. Eric Remensperger
David C. Sampson
Michael G. Smooke
Linda E. Spiegel
Sarah J. Spyksma
Valerie Wisot
Andrew J. Yamamoto


SUB-SECTION CHAIRS
Commercial Development & Leasing, Marcia Z. Gordon
Construction Law, Brian Ostler
Land Use Planning & Environmental Law, Claire Hervey Collins
Real Estate Finance, Caroline Dreyfus
General Real Estate Law, Nadav Ravid
Title Insurance, David M. Marcus

 

Readers are advised that changes in the law may affect the accuracy of this publication or the functionality of links after the publication date.