Volume 4, Number 1

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December 2008     

 


Special Message

 Dear Members,
     I can't remind everyone often enough about the Crocker Symposium. It's one of the most important events for Real Property Law in Los Angeles County. We encourage everyone to participate. Visit the
Crocker Symposium's Web site for details.
     We are delighted that so many companies, law firms, accounting firms, financial institutions and others in the real estate industry are stepping up to sponsor this major event.
     Please
take a copy of our sponsor invitation packet, if you are interested in sponsoring. Information and the signup form are available to make you an official sponsor. Please visit the  Crocker Symposium Web site to express interest 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 EventsView All Real Property EventsSign Up Now


January 21, 2009: Who Holds the MoneyReal Property section hosts a discussion of the role of servicers during workouts and asset management. One hour of CLE credit. Register Now.

January 27, 2009: Ethical Pitfalls to Avoid in Construction LawONE HOUR OF ETHICS CREDIT. Come and receive an hour of ethics credit while learning something that is applicable to your practice. This one hour presentation will focus on ethical issues faced by lawyers who practice in the area of construction law. Register Now.

January 28, 2009: Understanding AB32: Carbon Footprints and Their Implications to Landlords, Tenants and DevelopersThis program will explore the following issues: What is a “carbon footprint?” How does one measure it? What do you do with the data when you do measure it? Why is it now important to consider a carbon footprint? What are the current regulations dealing with carbon footprints (AB 32, CARB regulations)? What are likely future regulations of carbon footprints? One hour of CLE credit. Register Now.

May 5, 2009: Crocker Symposium 2009—More Information.

Recent Cases

Cases from November 1 through November 30


-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
     
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-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
     
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-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
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-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

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-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
     
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-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  

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-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
    
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-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
    
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-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
     
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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.