Volume 4, Number 2

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January 2009     

 


Special Message

 Dear Members,
     The Benjamin S. Crocker Symposium on Real Estate Law and Business will be taking place on Tuesday, May 5, 2009, at the Los Angeles Convention Center. Please save the date and check the symposium Web site (www.crockersymposium.com) in early February for registration details.

      It is one of the most important events in Southern California for real property attorneys and professionals. We encourage everyone to participate.

     Many real estate companies, law firms and service providers 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 .



The State Bar of California REAL PROPERTY LAW SECTION 2009 BOOT CAMP is scheduled FEBRUARY 6 – 8 at the OJAI VALLEY INN & SPA.
BOOT CAMP is an intensive 48-hour training program on real estate transactional practice for attorneys with one to five years of real estate law experience.

The all inclusive program fee ($1250) includes 2-nights hotel accommodations and resort fee at the Ojai Valley Inn & Spa (Friday and Saturday), meals, special activities, course instruction and materials.

12 hours of CLE training will be conducted by a team of experienced, successful real estate lawyers who will be available for individual consultations throughout the weekend program.

Learn the business of real estate, including --
• Why what we do matters, and When what we do doesn’t matter
• Acquiring and financing real estate
• Development and construction
• Leasing the project
• Pulling out the cash and keeping as much as possible
• What to do “when things go south”

Added BONUS: Participants will receive one year of complimentary access to CEB’s Real Property Law Library on OnLAW. The online Real Property Law Library contains all of CEB’s 26 Real Property Law titles and normally entails for $1095 per year.

Register by January 29th at www.calbar.ca.gov/rpsection.

Enrollment is limited to 45 cadet registrants.




     Sincerely,

     Norm Chernin, co-editor, Real Property Newsletter


Real Property Scheduled Events View All Real Property Events Sign Up 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 December 1 through December 31


-Barnkruptcy-
Where chapter 11 debtor who farmed land under lease from Indian tribe filed $2 million inverse condemnation action against Bureau of Indian Affairs for removing bridge providing only access to portion of property, district court erred in holding that debtor's failure to apply for formal bridge permit did not render claim unripe because debtor took reasonable and necessary steps to allow BIA to exercise full discretion in considering development plans. District and bankruptcy courts lacked jurisdiction to entertain claim under Tucker Act because its waiver of sovereign immunity is limited to suits filed in U.S. Court of Federal Claims, the appropriate venue for takings claims exceeding $10,000, but district and bankruptcy courts retain in rem jurisdiction over Tucker Act claims, and courts' approval is required to confer standing to pursue claim before Court of Federal Claims; given uncontested district court jurisdiction over bankruptcy case, coupled with authority from Federal Circuit Court of Appeals indicating district court had jurisdiction over debtor's claim, interest of justice supported transfer, rather than dismissal.
     McGuire v. United States - filed December 29, 2008
     Cite as 06-15812
     
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-Boundary Dispute-
Boundary settlement--in which State Lands Commission, other entities of the state, a city, and affected homeowners specifically described a long chain link fence as an essential component of an agreed-upon boundary separating a sandy beach easement for public use from adjacent privately owned land--was statutorily exempt from the purview of the Coastal Commission, which had no jurisdiction to require a permit for the fence.
     Burke v. California Coastal Commission - filed December 1, 2008, Second District, Div. Two    
     Cite as 2008 SOS 6507
     
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-Construction Law-
Under Right to Repair Act, a builder may recover from a product manufacturer for economic losses caused by manufacturer's violation of standards set forth in Act through an equitable indemnity action, but a builder may not recover for these losses through a direct negligence claim against manufacturer. Standards for plumbing systems outlined in Act do not refer only to installation of plumbing products. Act abrogates economic loss rule in actions brought by homeowners against individual product manufacturers for a violation of Act's standards based on manufacturer's negligence or breach of contract. Act bars actions in which claimant seeks to recover for a defect in a product that did not violate one of Act’s standards.
     Greystone Homes, Inc. v. Midtec, Inc. - filed December 2, 2008, Fourth District, Div. One
     Cite as 2008 SOS 6534
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-Construction Law-
General contractor owed duty of care to independent contractor hired by subcontractor; rule that the hirer of an independent contractor owes no duty of care to an employee of an independent contractor does not apply where the injured person is the independent contractor rather than an employee since the independent contractor has no workers’ compensation remedy.
     Tverberg v. Fillner Construction, Inc. - filed December 5, 2008, First District, Div. Four 
     Cite as 2008 SOS 6557
     
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-Covenants, Conditions & Restrictions-
Where conditions, covenants, and restrictions provided that all trees had to be trimmed so as not to obstruct neighboring landowner’s views, homeowners association board’s decision exempting all palm trees from trimming requirements was inconsistent with plain meaning of CC&Rs and thus not entitled to judicial deference even if board had acted in good faith and in best interest of community as a whole in rendering its decision. Board could not enact new rules exempting palm trees from trimming requirements because CC&Rs did not grant association discretion to exclude view-blocking trees but only to determine whether a particular tree should be exempt, and association could not fashion a definition that rendered trimming requirements meaningless. Judgment compelling board to exercise its discretion in good faith to determine which trees obstructed plaintiffs’ views and undertake procedures outlined in the CC&Rs to enforce CC&Rs as to those trees was not impermissibly vague.
     Ekstrom v. Marquesa at Monarch Beach Homeowners Association - filed November 3, 2008,
     publication ordered December 1, 2008, Fourth District, Div. Three
     Cite as 2008 SOS 6511
     
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-Easements-
Boundary settlement--in which State Lands Commission, other entities of the state, a city, and affected homeowners specifically described a long chain link fence as an essential component of an agreed-upon boundary separating a sandy beach easement for public use from adjacent privately owned land--was statutorily exempt from the purview of the Coastal Commission, which had no jurisdiction to require a permit for the fence.
     Burke v. California Coastal Commission - filed December 1, 2008, Second District, Div. Two
     Cite as 2008 SOS 6507
    
Full text


-Eminent Domain-
Landowners who had sought to develop housing on property but had neither obtained building permit, begun construction, nor pre-sold or pre-leased units when government took undeveloped parcel by eminent domain were not entitled to compensation for loss of business goodwill under Code of Civil Procedure Sec. 1263.510 because they were not engaged in an ongoing business.
     City and County of San Francisco v. Coyne - filed December 5, 2008, First District, Div. Five
     publication ordered November 24, 2008, Fourth District, Div. Two
     Cite as 2008 SOS 6591
     
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-Eminent Domain-
Substantive right to condemn real property under Sec. 717f(h) of Natural Gas Act ripens only on issuance of an order of condemnation, at which point district court may use equitable powers to grant possession to holder of valid Federal Energy Regulatory Commission certificate if gas company is able to meet standard for issuing a preliminary injunction.
     Transwestern Pipeline Company, LLC v. 17.19 Acres of Property Located in Maricopa County - filed December 11, 2008
     Cite as 08-15991
    
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-Environmental Law-
Boundary settlement--in which State Lands Commission, other entities of the state, a city, and affected homeowners specifically described a long chain link fence as an essential component of an agreed-upon boundary separating a sandy beach easement for public use from adjacent privately owned land--was statutorily exempt from the purview of the Coastal Commission, which had no jurisdiction to require a permit for the fence.
     Burke v. California Coastal Commission - filed December 1, 2008, Second District, Div. Two
     Cite as 2008 SOS 6507
    
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-Environmental Law-
Coastal Commission's determination that litigants failed to raise requisite "substantial issue" presenting a "significant question" as to conformity with certified local coastal program was not an abuse of discretion where plaintiffs were challenging whether administrative construction of a governing statute was reasonable and in keeping with purposes of certified local coastal program.
     Alberstone v. California Coastal Commission (Stibel) - filed December 29, 2008 - Second District, Div. Eight
     Cite as 2009 SOS 5
     
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-Family Law-
Where property was acquired by wife in wife’s name only, property was presumptively wife’s separate property as a matter of law, but husband could rebut presumption by clear and convincing evidence of an agreement or understanding between spouses that property was to be held as community property or husband’s separate property. Fact that parties were married when wife acquired property had no bearing on whether spouses had an agreement or understanding regarding property. Presumption could not be overcome by tracing source of funds used to purchase property nor husband’s unilateral belief he owned property. Having a reason for allowing title to be taken solely in wife’s name did not diminish inference that parties intended property to be wife’s separate property.
     In re Marriage of Brooks and Robinson - filed December 16, 2008, Fourth District, Div. Two
     Cite as 2008 SOS 6705
     
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-Homeowners' Associations-
Where conditions, covenants, and restrictions provided that all trees had to be trimmed so as not to obstruct neighboring landowner’s views, homeowners association board’s decision exempting all palm trees from trimming requirements was inconsistent with plain meaning of CC&Rs and thus not entitled to judicial deference even if board had acted in good faith and in best interest of community as a whole in rendering its decision. Board could not enact new rules exempting palm trees from trimming requirements because CC&Rs did not grant association discretion to exclude view-blocking trees but only to determine whether a particular tree should be exempt, and association could not fashion a definition that rendered trimming requirements meaningless. Judgment compelling board to exercise its discretion in good faith to determine which trees obstructed plaintiffs’ views and undertake procedures outlined in the CC&Rs to enforce CC&Rs as to those trees was not impermissibly vague.
     Ekstrom v. Marquesa at Monarch Beach Homeowners Association - filed November 3, 2008,
     publication ordered December 1, 2008, Fourth District, Div. Three
     Cite as 2008 SOS 6511
     
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-Inverse Condemnation-
Where landowner's storm drain pipe was too small to satisfy city's storm drain requirements, city requested that landowners install larger pipe in exchange for city's approval of landowner's permit application and waiver of certain fees, and landowners subsequently installed larger pipe, landowners voluntarily contracted with city to install larger pipe and installation of larger pipe was not a "taking" by city.
     Tapps Brewing, Inc. v. City of Sumner - filed September 25, 2008, amended December 1, 2008
     Cite as 07-35231
     
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-Inverse Condemnation-
Where chapter 11 debtor who farmed land under lease from Indian tribe filed $2 million inverse condemnation action against Bureau of Indian Affairs for removing bridge providing only access to portion of property, district court erred in holding that debtor's failure to apply for formal bridge permit did not render claim unripe because debtor took reasonable and necessary steps to allow BIA to exercise full discretion in considering development plans. District and bankruptcy courts lacked jurisdiction to entertain claim under Tucker Act because its waiver of sovereign immunity is limited to suits filed in U.S. Court of Federal Claims, the appropriate venue for takings claims exceeding $10,000, but district and bankruptcy courts retain in rem jurisdiction over Tucker Act claims, and courts' approval is required to confer standing to pursue claim before Court of Federal Claims; given uncontested district court jurisdiction over bankruptcy case, coupled with authority from Federal Circuit Court of Appeals indicating district court had jurisdiction over debtor's claim, interest of justice supported transfer, rather than dismissal.
     McGuire v. United States - filed December 29, 2008
     Cite as 06-15812
     
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-Landlord and Tenant-
Where landlord and tenant entered into a lease agreement that provided subrogation was waived as to all risks covered by "any insurance policies carried by the parties," such waiver barred insurer’s claim in subrogation to recover amounts paid to indemnify landlord from tenant.
     Fireman’s Fund Insurance Company v. Sizzler USA Real Property, Inc. - filed December 18, 2008, Second District, Div. Eight
     Cite as 2008 SOS 6839
     
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-Land Use-
Enactment of measure amending city’s general plan and extending by 10 years a growth control ordinance that had been set to expire triggered new 90-day limitations period under Government Code Sec. 65009 in which to challenge measure. Action by owner of property subject to existing density restriction that was extended by measure asserting that the extension violated equal protection and takings clauses was timely where brought within 90 days of enactment.
     Arcadia Development Company v. City of Morgan Hill - filed December 16, 2008, Sixth District
     Cite as 2008 SOS 6700
     
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-Land Use-
Where chapter 11 debtor who farmed land under lease from Indian tribe filed $2 million inverse condemnation action against Bureau of Indian Affairs for removing bridge providing only access to portion of property, district court erred in holding that debtor's failure to apply for formal bridge permit did not render claim unripe because debtor took reasonable and necessary steps to allow BIA to exercise full discretion in considering development plans. District and bankruptcy courts lacked jurisdiction to entertain claim under Tucker Act because its waiver of sovereign immunity is limited to suits filed in U.S. Court of Federal Claims, the appropriate venue for takings claims exceeding $10,000, but district and bankruptcy courts retain in rem jurisdiction over Tucker Act claims, and courts' approval is required to confer standing to pursue claim before Court of Federal Claims; given uncontested district court jurisdiction over bankruptcy case, coupled with authority from Federal Circuit Court of Appeals indicating district court had jurisdiction over debtor's claim, interest of justice supported transfer, rather than dismissal.
     McGuire v. United States - filed December 29, 2008
     Cite as 06-15812
     
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-Purchase and Sale Agreements-
Where contract for sale of real property did not specify a time or manner of payment, contract was not too uncertain to enforce because a reasonable time was permitted. Manner of payment may also be supplied by implication. Parties’ unsuccessful attempts to complete transaction did not establish that contract did not represent a meeting of the minds; although parties’ conduct subsequent to contract formation may be relevant in determining which terms parties considered essential, such conduct was irrelevant to show whether an agreement was reached. Where parties entered into an option contract which did not provide a specific escrow period, parties’ conduct objectively indicated mutual assent and contract was sufficiently certain that trial court was within its power in ordering specific performance.
     Patel v. Liebermensch - filed December 22, 2008
     Cite as 2008 SOS 6846
     
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-Railroad Rights of Way-
Question of when a railroad has ceased using and occupying a right of way for railroad purposes involves a factual inquiry. While petitioning Interstate Commerce Commission for permission to abandon a right of way is indicative of a railroad’s intent to abandon, action by I.C.C. is only a determination that cessation of service would not hinder I.C.C.’s purposes, not a determination of abandonment. Where public use of a road over former railroad right of way did not commence within one year of physical abandonment, non-vested private reversionary interests in the right of way were not extinguished by public highway use after abandonment. A court may not apply a declaration of abandonment retroactive to date of cessation of use and occupancy of right of way under Abandoned Railway Right of Way Act; a declaration of abandonment becomes effective upon entry of judgment. Private inchoate interests in right of way became vested on entry of judgment as well but were divested as to portion of right of way already embraced by public highway.
     Avista Corporation, Inc. v. Wolfe - filed December 11, 2008
     Cite as 07-35321
     
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-Real Property Litigation-
California lis pendens statutes do not authorize recording notice of litigation pending in courts of another state.
     The Formula Inc. v. Superior Court (iStar Financial Inc.) - The Formula Inc. v. Superior Court (iStar Financial Inc.)
     Cite as 2008 SOS 6599
     
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-Residential Sales-
False Claims Act (“FCA”) contemplates liability not only for fraudulently causing government to pay a claim but also for causing government to approve a claim. Where defendants sold foreclosed homes to buyers with mortgage-secured government-issued loans who lacked sufficient assets for a down payment and provided such buyers with funds for a down payment but defendants then submitted statements to government denying they had provided any of buyers’ down payments, defendants’ false statements bore directly upon likelihood that buyers would be unable to make mortgage payments, and thus had a causal connection to buyers’ subsequent defaults sufficient to support FCA liability. Correctly calculated award of treble damages did not violate Eighth Amendment’s prohibition on excessive fines.
     United States v. Eghbal - filed December 5, 2008
     Cite as 2008 SOS 0755372
     
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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.