-CEQA-
Government Code Sec. 66499.37 requirement that summons in an action challenging a local government decision "concerning a subdivision" be served within 90 days of the decision may be applied to a petition for writ of mandate alleging a CEQA cause of action. Where CEQA cause of action could have been pled under Subdivision Map Act, it "concern[ed] a subdivision" and was subject to 90-day service of summons requirement.
     Friends of Riverside’s Hills v. City of Riverside (Rancho La Sierra West Partnership) - filed October 24, 2008,
     publication ordered November 24, 2008, Fourth District, Div. Two
     Cite as 2008 SOS 6391
      Full text

Back to Top

-CEQA-
Plaintiff’s failure to exhaust administrative remedies and to secure a final decision on EIR prior to bringing action to vacate city’s water supply assessment (“WSA”)--which under Water Code Sec. 10910 is a prerequisite to approval of certain development projects--for same project did not preclude judicial review of the WSA under unusual circumstances in which, by the time Court of Appeal was called upon to consider the matter, city had certified EIR, which was being challenged by same plaintiff in another lawsuit on the same grounds advanced in the Court of Appeal. Judgment upholding WSA as adequate is reviewed under an abuse-of-discretion standard. In analyzing adequacy of groundwater supplies under Sec. 10910(f)(5), supplier need not conduct basin-wide study of past and future pumping by all users; statute affords substantial discretion to the water supplier and its experts to select a methodology appropriate for assessing groundwater sufficiency for a proposed project. City’s adoption of WSA did not amount to an abuse of discretion where there was adequate evidentiary support for the geographical study area relied upon by the WSA.
     O.W.L. Foundation v. City of Rohnert Park (University District LLC) - filed November 19, 2008, First District, Div. Three    
     Cite as 2008 SOS 6311
      Full text

Back to Top

-Community Property-
Where husband and wife entered into an inter vivos trust that became irrevocable upon death of either spouse, wife could not withdraw her share of community property from trust after husband’s death. Joint trust was irrevocable following husband’s death and precluded wife from withdrawing any property. Irrevocable trusts are binding, even on their trustors.
     Aguilar v. Aguilar - filed November 6, 2008, Fourth District, Div. Three
     Cite as 2008 SOS 6103
     Full text

Back to Top

-Environmental Law-
Government Code Sec. 66499.37 requirement that summons in an action challenging a local government decision "concerning a subdivision" be served within 90 days of the decision may be applied to a petition for writ of mandate alleging a CEQA cause of action. Where CEQA cause of action could have been pled under Subdivision Map Act, it "concern[ed] a subdivision" and was subject to 90-day service of summons requirement.
     Friends of Riverside’s Hills v. City of Riverside (Rancho La Sierra West Partnership) - filed October 24, 2008, 
     publication ordered November 24, 2008, Fourth District, Div. Two
     Cite as 2008 SOS 6391
      Full text

Back to Top

-Environmental Law-
Plaintiff’s failure to exhaust administrative remedies and to secure a final decision on EIR prior to bringing action to vacate city’s water supply assessment (“WSA”)--which under Water Code Sec. 10910 is a prerequisite to approval of certain development projects--for same project did not preclude judicial review of the WSA under unusual circumstances in which, by the time Court of Appeal was called upon to consider the matter, city had certified EIR, which was being challenged by same plaintiff in another lawsuit on the same grounds advanced in the Court of Appeal. Judgment upholding WSA as adequate is reviewed under an abuse-of-discretion standard. In analyzing adequacy of groundwater supplies under Sec. 10910(f)(5), supplier need not conduct basin-wide study of past and future pumping by all users; statute affords substantial discretion to the water supplier and its experts to select a methodology appropriate for assessing groundwater sufficiency for a proposed project. City’s adoption of WSA did not amount to an abuse of discretion where there was adequate evidentiary support for the geographical study area relied upon by the WSA.
     O.W.L. Foundation v. City of Rohnert Park (University District LLC) - filed November 19, 2008, First District, Div. Three
     Cite as 2008 SOS 6311
      Full text

Back to Top

-Inverse Condemnation-
Manufactured home park owner who challenged county municipal rent control ordinance as unconstitutional under Due Process and Equal Protection clauses and as a government taking requiring payment of compensation had standing to file suit based on financial interest in park. Where owner had not attempted to obtain relief through state procedure designed to provide compensation for rent control losses, as-applied takings claim was unripe; California’s creation and implementation of adjustment process provided an adequate procedure for seeking just compensation, and owner could not claim a violation of Just Compensation Clause until owner used procedure and was denied just compensation. Because injury was measured as having occurred when ordinance was enacted, owner’s facial takings claim failed for lack of standing because injury occurred to previous landowner. Ordinance did not violate Due Process Clause where it bore rational relationship to legitimate state purpose of consumer welfare protection. Where county sought to regulate mobile home park rents because of shortage of space; and high cost, impracticability, and potential for damage resulting from moving mobile homes, ordinance rationally furthered legitimate state interests. Where state proceedings for constitutional claims were filed after federal proceedings were initiated, federal court properly abstained from hearing claims that were capable of being determined in state proceedings, and no showing of bad faith, harassment, or other extraordinary circumstance that would make abstention inappropriate was present.
     Equity Lifestyle Properties, Inc. v. County of San Luis Obispo - filed November 25, 2008
     Cite as 05-55406
     Full text

-Land Use Litigation-
Government Code Sec. 66499.37 requirement that summons in an action challenging a local government decision "concerning a subdivision" be served within 90 days of the decision may be applied to a petition for writ of mandate alleging a CEQA cause of action. Where CEQA cause of action could have been pled under Subdivision Map Act, it "concern[ed] a subdivision" and was subject to 90-day service of summons requirement.
     Friends of Riverside’s Hills v. City of Riverside (Rancho La Sierra West Partnership) - filed October 24, 2008,
     publication ordered November 24, 2008, Fourth District, Div. Two
     Cite as 2008 SOS 6391
      Full text  

Back to Top

-Rent Control-
Manufactured home park owner who challenged county municipal rent control ordinance as unconstitutional under Due Process and Equal Protection clauses and as a government taking requiring payment of compensation had standing to file suit based on financial interest in park. Where owner had not attempted to obtain relief through state procedure designed to provide compensation for rent control losses, as-applied takings claim was unripe; California’s creation and implementation of adjustment process provided an adequate procedure for seeking just compensation, and owner could not claim a violation of Just Compensation Clause until owner used procedure and was denied just compensation. Because injury was measured as having occurred when ordinance was enacted, owner’s facial takings claim failed for lack of standing because injury occurred to previous landowner. Ordinance did not violate Due Process Clause where it bore rational relationship to legitimate state purpose of consumer welfare protection. Where county sought to regulate mobile home park rents because of shortage of space; and high cost, impracticability, and potential for damage resulting from moving mobile homes, ordinance rationally furthered legitimate state interests. Where state proceedings for constitutional claims were filed after federal proceedings were initiated, federal court properly abstained from hearing claims that were capable of being determined in state proceedings, and no showing of bad faith, harassment, or other extraordinary circumstance that would make abstention inappropriate was present.
     Equity Lifestyle Properties, Inc. v. County of San Luis Obispo - filed November 25, 2008
     Cite as 2008 SOS 50-55406
     Full text

Back to Top

-Trust Deed Foreclosure-
Civil Code Sec. 2924 deems statutorily required mailing, publication, and delivery of notices in non-judicial foreclosure, and performance of statutory non-judicial foreclosure procedures, to be privileged communications under qualified, common-interest privilege of Sec. 47(c)(1). Where plaintiff obtained a trustee’s sale guaranty indicating that deed of trust was still of record and that no prior reconveyance had been recorded before recording notice of default, plaintiff did not act with malice, and trial court properly concluded that plaintiff’s conduct constituted privileged communications and properly relieved plaintiff of liability for defendant’s slander of title and negligence claims. Although beneficiaries who acted as trustees in enforcement of power of sale in a deed of trust would be entitled to privilege protection under Secs. 2924 and 47, party who provided written instructions, a declaration of default, and a demand for sale were not protected because such documents were neither notices required by statute nor procedures set forth in statutory scheme. Actions seeking to enjoin non-judicial foreclosure and clear title based on provisions of a deed of trust were actions on a contract under Sec. 1717, permitting prevailing party to recovery attorney fees. Where litigant did not merely defend against tort claims but rather consistently allied itself with plaintiffs on essential issues by filing joint briefs and joining in motions, litigant was not a neutral party, and trial court did not abuse its discretion in holding that prevailing defendants were entitled to attorney fees from litigant. Litigant immune from tort liability based on privilege can be liable for attorney fees based on contract.
     Kachlon v. Markowitz - filed November 17, 2008, Second District, Div. Four
     Cite as 2008 SOS 6200
     Full text

Back to Top

-Trust Deed Foreclosure-
Where plaintiff had declared bankruptcy, and plaintiff’s home was in foreclosure when defendant purchased property, and sale did not proceed after notice to creditors and a hearing as required by Bankruptcy Code, sale was not authorized by statute and therefore not subject to exception from Home Equity Sales Contract Act.
     Spencer v. Marshall - filed November 24, 2008, First District, Div. Two
     Cite as 2008 SOS 6450
      Full text

Back to Top

Reader Reactions
So - What do you think of the Real Property News?  Please send us your comments and suggestions.  This is your newsletter.