Volume 4, Number 7

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  June 2009  

Castle Lyons Expert Real Estate Witness


Special Message

        
Dear Members,

Thank you to everyone who attended the 38th Annual Crocker Symposium on Real Estate Law and Business, presented by the Real Property Section of the Association and the Richard S. Ziman Center for Real Estate at UCLA on May 5, 2009, at the Los Angeles Convention Center.

The event was a huge success with excellent programming, including three plenary sessions and 12 breakout sessions, an exhibit hall with 39 exhibitors, and over 500 registrants and exhibitor representatives.

A large group remained for the post-symposium networking reception at LA Live. The symposium highlights are available at
www.crockersymposium.com.

If you were unable to attend the symposium and would like to find out how to purchase the educational tapes, please
download the Tape Order Form to purchase audio recordings from the Crocker Symposium. Registrants receive a discount for purchase of the recordings.

To learn more about the symposium, contact Tracy Kwiker, Symposium Executive Producer, at 310.478.0170 or via email at crocker2009@pivotalevents.com.


In our continuing efforts to make you aware of developments of interest to real estate practitioners, we have included in this edition a copy of a letter from the State Department of Real Estate setting forth the new licensing fees applicable to real estate brokers and salespersons.


Finally, I wanted to apprise you of 2 new programs initiated by the Section’s Executive Committee to encourage more active member involvement in the Section:

    1) On June 23 at noon at the LACBA offices, there will be a free luncheon program focusing on increasing participation by minority lawyers.
    2) On June 30 at noon at the LACBA offices, there will be a free luncheon program in the form of a Subsection and Publications Fair, where short presentations will be made by each of the subsections and by the editors of the Newsletter and the quarterly Review, followed by breakout sessions where you will be able to learn more about how you can participate in the subsections or contribute to these publications.

We encourage you to attend either or both of these sessions. You should be receiving more information on these events in the very near future. If you want to attend, or ask any questions about these programs, contact Terrina Scott at tscott@lacba.org or call LACBA’s offices (213-627-2727).

Sincerely,

Norm Chernin, co-editor, Real Property Newsletter



Real Property Section Event
CEQA
June 17, 2009

Register now.

Please save the date on your calendar for your CEQA Update The CEQA will take place on Wednesday, June 17, 2009, at the Los Angeles County Bar Association offices (1055 West 7th St., 27 floor, Los Angeles, 90017). 
The discussion will focus on recent developments under the California Environmental Quality Act.
Come hear what is new, what has changed, and what the future may likely hold.  
New legislation and new case law and potential future developments.
You don't want to miss this.

Earn 1 hour of CLE credit.

Register now.



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

June 17, 2009: CEQA Update.

Recent Cases

Cases from May 1 through May 31

-CERCLA-
-Community Property-
-Construction Law-
-Eminent Domain-
-Environmental Law-
-Environmental Law-
-Homeowners Associations-
-Land Use-
-Land Use-
-Landlord and Tenant-
-Park Dedication-
-Premises Liability-
-Purchase and Sale Agreement-
-Real Property Litigation-
-Real Property Litigation-
-Real Property Litigation-
-Real Property Taxation-

-CERCLA-
An entity may qualify as an arranger for purposes of the Comprehensive Environmental Response, Compensation, and Liability Act when it takes intentional steps to dispose of a hazardous substance. Entity’s knowledge of continuing spills and leaks was insufficient grounds for concluding that it "arranged for" disposal of those hazardous materials. District court reasonably apportioned landowner’s share of site remediation costs based on percentage of total area of facility that was owned, duration of a tenant’s agricultural chemical business divided by lease term, and court’s determination that only two polluting chemicals spilled on leased parcel required remediation and that those chemicals were responsible for roughly two-thirds of the remediable site contamination.
     Burlington Northern & Santa Fe Railway Co. v. United States - filed May 4, 2009
     Cite as 07-1601
     Full text

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-Community Property-
Husband transmuted his separate real properties into community property by way of a written agreement executed in 2002 which stated that: "[a]ll property, real and personal, of [husband and wife], whether title thereto is held in the names of one or the other of the parties or both of the parties as joint tenants or otherwise, is the community property of the parties hereto, each having a present, existing, and equal interest therein," and "[a]ll property, real and personal, held in the name of Husband having its origin in his separate property no matter how received and/or earned, is hereby converted to community property of Husband and Wife, and shall thereafter be the community property of the parties for estate planning hereto, each having a present, existing, and equal interest therein"; it was irrelevant that the agreement was executed along with a trust and will as part of a single "estate planning" strategy, and other documents did not have any bearing on whether the agreement contained an express, unequivocal declaration of transmutation. Provision in agreement providing that it was not intended to "make any transfer of property between the parties" did not create ambiguity of husband's intent to transmute his previously separate property, because such an interpretation would violate basic principles of contract interpretation by undoing the other provisions. Trial court erred in finding husband was unduly influenced, based on lack of evidence in the record, and trial court wrongly interpreted agreement to include ambiguity where husband signed a declaration stating he read and understood agreement's terms, agreement was only five pages long, and husband was represented by counsel.
     In re Marriage of Lund - filed May 21, 2009, Fourth District, Div. Three
     Cite as 2009 SOS 2858
     Full text

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-Construction Law-
A surety that issued a payment and performance bond to a contractor and subcontractor on the same construction project could not allocate the loss from the subcontractor’s failure to pay a materials supplier between the bonds. As a surety’s liability is commensurate with that of a principal, trial court erred in granting contractual award of attorney fees to obligee against principal only; surety and principal were jointly and severally liable for such an award.
     First National Insurance Company v. Cam Painting, Inc. - filed May 15, 2009, Second District, Div. Five
     Cite as 2009 SOS 2760
    
Full text

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-Eminent Domain-
A governmental entity or official may receive immunity for petitioning involved in an eminent domain proceeding. Agents of that litigation may benefit from that immunity as well. Where litigation was protected by the Noerr-Pennington doctrine--which provides that those who petition any department of the government for redress are generally immune from statutory liability for their petitioning conduct--alleged misconduct in discovery communications surrounding that litigation and the trial advocacy of that litigation was likewise protected. District court erred in holding that an exception to the Noerr-Pennington doctrine for sham litigation did not apply where plaintiff alleged that intentional misrepresentations had been made to the district court and fraud upon the district court through the suppression of evidence. District court did not err in finding California’s litigation privilege barred plaintiff’s state claims where such claims were based on misconduct reasonably related to the eminent domain proceeding.
     Kearney v. Foley & Lardner, LLP - filed May 12, 2009
     Cite as 07-55566
    
Full text

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-Environmental Law-
An entity may qualify as an arranger for purposes of the Comprehensive Environmental Response, Compensation, and Liability Act when it takes intentional steps to dispose of a hazardous substance. Entity’s knowledge of continuing spills and leaks was insufficient grounds for concluding that it "arranged for" disposal of those hazardous materials. District court reasonably apportioned landowner’s share of site remediation costs based on percentage of total area of facility that was owned, duration of a tenant’s agricultural chemical business divided by lease term, and court’s determination that only two polluting chemicals spilled on leased parcel required remediation and that those chemicals were responsible for roughly two-thirds of the remediable site contamination.
     Burlington Northern & Santa Fe Railway Co. v. United States - filed January 28, 2009, ordered published February 23, 2009, Third District
     Cite as 07-1601
    
Full text

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-Environmental Law-
California Coastal Commission did not abuse its discretion or act in excess of its jurisdiction in granting a coastal development permit based on a finding that the view over applicant’s roof was not a significant public view that must be protected. Legislature did not intend "that permits be denied for all projects which infringe in any way, no matter how minimal, on any view, no matter how limited, for anyone, from any vantage point, no matter the proximity of unlimited and expansive views."
     Farr v. California Coastal Commission (Doyle) - filed April 9, 2009, publication ordered May 19, 2009, Second District, Div. Five
     Cite as 2009 SOS 2768
     Full text

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-Homeowners Associations-
Where residential property owners entered into arrangement with family members allowing them to live at property and pay all costs, and purported to assign causes of action against developers to enforce rights in property to family members, trial court properly determined that family members lacked standing to assert causes of action because owners were real parties in interest and causes of action were incidents of ownership that were not assignable. Trial court did not err in awarding attorney's fees and costs pursuant to Civil Code Sec. 1354(c) where plaintiffs' action to enforce governing documents was unsuccessful due to lack of standing.
     Martin v. Bridgeport Community Association, Inc. - filed April 7, 2009, publication ordered May 6, 2009, Second District, Div. Seven
     Cite as 2009 SOS 2603 
    
Full text

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-Land Use-
California Coastal Commission did not abuse its discretion or act in excess of its jurisdiction in granting a coastal development permit based on a finding that the view over applicant’s roof was not a significant public view that must be protected. Legislature did not intend "that permits be denied for all projects which infringe in any way, no matter how minimal, on any view, no matter how limited, for anyone, from any vantage point, no matter the proximity of unlimited and expansive views."
     Farr v. California Coastal Commission (Doyle) - filed April 9, 2009, publication ordered May 19, 2009, Second District, Div. Five.
     Cite as 2009 SOS 2768
    
Full text

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-Land Use-
City board of supervisors exceeded its jurisdiction in adopting a resolution initiating the process of designating as a landmark a church building--which was no longer used as a place of worship and which church had agreed to sell for demolition and construction of condominiums--because state law exempts church property from local regulation of landmarks.
     The California-Nevada Annual Conference of the United Methodist Church v. City and County of San Francisco - filed May 20, 2009, First District, Div. Three
     Cite as 2009 SOS 2825
    
Full text

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-Landlord and Tenant-
Substantial evidence supported trial court’s conclusion that a liquidated damages provision in a lease was not an unenforceable penalty because such clause was presumptively enforceable, and lessor had the burden to demonstrate otherwise. Although lessor introduced evidence that may have given rise to an inference that the clause was arbitrary, that evidence was not conclusive and was countered by landlord’s evidence.
     El Centro Mall, LLC v. Payless ShoeSource, Inc. - filed April 21, 2009, publication ordered May 21, 2009, Fourth District, Div. Three
     Cite as 2009 SOS 2830
    
Full text

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-Park Dedication-
Public Resources Code permits a park district to acquire land without formally dedicating it for park or open space purposes and hold such land in a "land bank" until district decides to dedicate such property in perpetuity for park purposes. All real property is not deemed automatically dedicated for park purposes immediately upon acquisition.
     Ste. Marie v. Riverside County Regional Park and Open-Space District (Mt. San Jacinto Community College District) - filed May 14, 2009
     Cite as 2009 SOS 2701
    
Full text

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-Premises Liability-
Utility company did not willfully or maliciously fail to guard or warn of a dangerous condition posed to a teenager who climbed its transmission tower which was located in an isolated area and was equipped with anti-climbing devices, absent any evidence of prior accidents of climb attempts, where utility company installed anti-climbing devices on tower; evidence that some devices were installed incorrectly was not enough to rise to level of willful or malicious conduct.
     Manuel v. Pacific Gas & Electric Co. - filed April 20, 2009, publication ordered May 5, 2009, First District, Div. Two
     Cite as 2009 SOS 2581
    
Full text

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-Purchase and Sale Agreements-
Where trial court noted that primary issue before it was whether plaintiff was in default of agreements for sale of real property when plaintiff gave notice of termination and that secondary issue was proper disposition of the deposit, and court found that plaintiff did not act in bad faith or engage in any financial impropriety or deceptive or sharp practices and had "in every respect acted in good faith," court abused its discretion by deciding there was no prevailing party for purposes of awarding attorney's fees under Civil Code Sec. 1717(b) because record clearly revealed that one party obtained greater relief.
     Silver Creek, LLC v. Blackrock Realty Advisors, Inc. - filed May 20, 2009, Fourth District, Div. One
     Cite as 2009 SOS 2783
    
Full text

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-Real Property Litigation-
A party to a pending arbitration cannot record a notice of pendency of action without first filing a civil action in superior court.
     Manhattan Loft, LLC v. Mercury Liquors, Inc. - filed May 6, 2009, Second District, Div. Two
     Cite as 2009 SOS 2567
    
Full text

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-Real Property Litigation-
Where residential property owners entered into arrangement with family members allowing them to live at property and pay all costs, and purported to assign causes of action against developers to enforce rights in property to family members, trial court properly determined that family members lacked standing to assert causes of action because owners were real parties in interest and causes of action were incidents of ownership that were not assignable. Trial court did not err in awarding attorney's fees and costs pursuant to Civil Code Sec. 1354(c) where plaintiffs' action to enforce governing documents was unsuccessful due to lack of standing.
     Martin v. Bridgeport Community Association, Inc. - filed April 7, 2009, publication ordered May 6, 2009, Second District, Div. Seven
     Cite as 2009 SOS 2603
    
Full text

Back to Top


-Real Property Litigation-
A governmental entity or official may receive immunity for petitioning involved in an eminent domain proceeding. Agents of that litigation may benefit from that immunity as well. Where litigation was protected by the Noerr-Pennington doctrine--which provides that those who petition any department of the government for redress are generally immune from statutory liability for their petitioning conduct--alleged misconduct in discovery communications surrounding that litigation and the trial advocacy of that litigation was likewise protected. District court erred in holding that an exception to the Noerr-Pennington doctrine for sham litigation did not apply where plaintiff alleged that intentional misrepresentations had been made to the district court and fraud upon the district court through the suppression of evidence. District court did not err in finding California's litigation privilege barred plaintiff's state claims where such claims were based on misconduct reasonably related to the eminent domain proceeding.
     Kearney v. Foley & Lardner, LLP - - filed May 12, 2009
     Cite as 07-55566
    
Full text

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-Real Property Taxation-
State constitution’s 45-day notice requirement for hearing on creation of special assessment district was satisfied where hearing was held 45 days after notices were mailed; date of mailing is not included in computation, but day of hearing is. Constitutional ban on imposition of an assessment "which exceeds the reasonable cost of the proportional special benefit conferred on that parcel" is not violated by imposing assessments on some parcels--such as those owned by nonprofit entities or with commercial uses--that are less than the proportional special benefit conferred. City’s use of front footage rather than total street length as a factor in calculating the amount to be assessed for special business district operations did not cause the assessment on any parcel to exceed the reasonable cost of the proportional special benefit conferred on that parcel, where there was a reasonable relationship between each parcel’s amount of front footage and the benefits it would receive from business improvement district. Fact that assessments, in addition to conferring special benefits on property owners, will create general benefits for community--such as making the area within a business improvement district safer and cleaner--does not mean that value of those general benefits must be deducted from value of the special benefits in determining the constitutional maximum that may be assessed on property owners.
     Dahms v. Downtown Pomona Property - filed May 12, 2009, Second District, Div. One
     Cite as 2009 SOS 2677
    
Full text

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Los Angeles County Bar Association
2009 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.