Volume 5, Number 2

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January 2010 


Special Message

Look for the annual summary of new laws affecting real property prepared by the law firm of Garrett & Tully in this newsletter next month.

The State Bar Real Property Law Section’s Annual Retreat 2010: “The Road to Recovery.”
The 29th Annual Real Property Retreat takes place from April 30 to May 2, 2010, at the Silverado Resort and Country Club in Napa Valley. Silverado recently completed a five-year, $15 million, property-wide upgrade, including the golf courses, the spa, a new restaurant, accommodations, meeting rooms, and all public spaces. Check out what’s new at the resort. For more information, contact Theresa Raglen at  Theresa.Raglen@calbar.ca.gov or 415-538-2393. Details will also become available in due course on the State Bar Web site. Mark your calendar! You'll love this event. 


The Crocker Symposium 2010, Negotiating the Real Estate Maze: Challenges and Opportunities, will bring together Southern California’s top leaders in real estate, including developers, investors, bankers, attorneys, accountants, brokers, academics, government representatives, and property owners. Participants will enjoy an extraordinary day of networking, thought leadership, discussion, and analysis. You will gain the essential tools required to turn obstacles into opportunities in today’s real estate maze.

The real estate industry enjoyed unprecedented growth over the past decade until the market plummeted in value in the fall of 2008. While this market downturn was initially thought to be temporary, it is now entirely unclear when the market will turn and what will precipitate that turn. Those developers, investors, and advisors who come to the Crocker Symposium will be armed with the knowledge and professional network to negotiate the industry’s convoluted maze of complex market conditions—efficiently and cost effectively. They will inevitably surpass those who choose to take on the maze unarmed.

The section's Executive Committee members are actively working on the educational programming for the symposium. This is the opportunity for your firm to get in at the beginning and help plan the programs by becoming a sponsor. Contact Brant Dveirin at bdveirin@bbklaw.com for more information.

Mark your calendars for March 23, 2010, and plan to attend the Benjamin S. Crocker Symposium on Real Estate Law and Business 2010, at the Los Angeles Convention Center.


Sincerely,

Norm Chernin, co-editor, Real Property Newsletter
E-mail address: nchernin@firstam.com

Real Property Scheduled Events 
View All Real Property Events

January 26, 2010: Basics in Blue Print Reading and How it Can Affect Construction Disputes (12:30 PM).

January 28, 2010: Single Purpose Entities: How Remote Is Bankruptcy Remote? (12:30 PM).

February 3, 2010: Top 10 Changes when Negotiating AIA Forms of Construction Contracts and Architect Agreements (12:30 PM).

February 10, 2010: Acret Award & Annual Construction Law Update (12:30 PM).

February 16, 2010: Title 101 (12:30 PM).

February 17, 2010: 2009 Real Estate Finance Update (12:30 PM).

February 25, 2010: Psychology of Dispute Resolution – Practical Tools for Achieving Compromise (12:30 PM).

Recent Cases
Cases from December 1 through December 31

CEQA
CEQA
CEQA
CEQA
CEQA
Coastal Commission
Construction Law
Easements
Eminent Domain


Environmental Law
Execution Sale
Homeowners Associations
Inverse Condemnation
Land Use
Lis Pendens
Real Property Taxation

CEQA
A trial court is not authorized to issue a writ of administrative mandamus to compel a city council to certify a proposed environmental impact report where council had decided that the pending draft EIR required recirculation to address new issues. Government Code Sec. 65589.5 cannot be used to halt a decision-making process specified by California Environmental Quality Act that is still ongoing. City’s failure to certify a final EIR within the one-year period provided for in CEQA is not a mandatory, non-waivable, jurisdictional deadline within which city must act on penalty of lack of power to act beyond that period. Developer’s active participation in EIR process for more than three years after date developer claimed city lost its discretionary jurisdiction amounts to laches, an accepted ground for relaxing CEQA’s deadline.
     Schellinger Brothers v. City of Sebastopol - filed December 2, 2009, First District, Div. Two
     Cite as 2009 SOS 6880
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CEQA
Issuance of negative declaration for general plan amendment, redefining "net acreage" in such a manner as to permit subdivision of certain properties over objections of neighboring landowners, violated CEQA where there was substantial evidence supporting a fair argument that increased density would have a significant impact on water resources.
     Inyo Citizens for Better Planning v. Inyo County Board of Supervisors - filed November 20, 2009, publication ordered December 14, 2009, Fourth District, Div. Two
     Cite as 2009 SOS 7019
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CEQA
For purposes of demurrer, petition for writ of mandate challenging certification of EIR was not precluded by doctrine of res judicata where petitioners were not in privity with prior petitioner--a citizens group that dismissed its petition due to having inadequate funds to litigate. Department of Water Resources was not required to conduct CEQA review of water transfer agreement between local agencies where the transfer agreement was not part of earlier DWR project. Trial court’s determination that transferee agency, rather than DWR, was appropriate lead agency to conduct review was correct where transferee agency alone had the responsibility to determine the water needs of its service area and to obtain the necessary water for those needs, and that agency negotiated and entered into the transfer contract, and performed the contract by obtaining private investors who paid for the water and by taking delivery of the water. Fact that DWR facilitated the transfer as required by statute did not make it the lead agency. Trial court erred in sustaining challenge to EIR based on deficiency not asserted during agency review.
     Planning and Conservation League v. Castaic Lake Water Agency (Kern County Water Agency) - filed December 17, 2009, Second District, Div. Four
     Cite as 2009 SOS 7160
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CEQA
County's decision not to renew a conditional use permit for continued airport operations at a privately owned airport was not a project under the California Environmental Quality Act; by declining to authorize an activity that required issuance of a permit, county did not directly undertake action to close airport.
     Sunset Sky Ranch Pilots Association v. County of Sacramento (Taylor) - filed December 28, 2009
     Cite as S165861
    
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CEQA
A hearing in an action alleging noncompliance with the California Environmental Quality Act must be made in a writing filed with the court to avoid dismissal under Public Resources Code Sec. 21167.4(a) for failure to "request a hearing" within 90 days of the filing of the petition.
     County of Sacramento v. Superior Court (Forster-Gill, Inc.) - filed December 29, 2009, Third District
     Cite as C062025
     
Full text                                                                                                                              Back to Top
Coastal Commission
Coastal Commission did not abuse its discretion in denying coastal development permit where project was admittedly inconsistent with existing zoning and commission reasonably concluded from evidence in the record that project was larger in scale and different in architectural style from what was typical of the surrounding area. Commission was not required to approve project merely because developer revised its plans in order to meet commission staff's objections. Claim that denial of permit constituted a taking of developer's property was not ripe for adjudication, where denial did not constitute a final determination as to how the property might be developed.
     Reddell v. California Coastal Commission - filed December 1, 2009, modification published December 29, 2009, Second District, Div. Six
     Cite as B206428
     Full text                                                                                                                               Back to Top

Construction Law
Public Contract Code Sec. 7107(e)--which allows a general contractor who has received retention proceeds from a public entity owner to withhold all or a portion of such retentions from a subcontractor "if a bona fide dispute exists" between them--applies to any good faith dispute between a general contractor and subcontractor. Plain meaning of Business and Professions Code Sec. 7108.5 authorizes contractual variation from that statute’s payment requirements.
     Martin Brothers Construction, Inc. v. Thompson Pacific Construction, Inc. - filed December 4, 2009, Third District
     Cite as 2009 SOS 6952
    
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Easements

A lis pendens can be recorded against a dominant tenement in an easement dispute. Attorneys' filing of a lis pendens arose from protected activity and was not illegal as a matter of law, thus trial court erred in denying special motion to strike complaint claiming that lis pendens was wrongfully recorded. Recordation of lis pendens could not be the basis for intentional interference with prospective economic advantage or slander of title causes of action, even if such action was filed with malice.
     Park 100 Investment Group II v. Ryan - filed December 23, 2009, Second District, Div. Three
     Cite as 2009 SOS 7293
     
Full text                                                                                                                               Back to Top


Eminent Domain
A governmental entity or official may receive immunity for petitioning involved in an eminent domain proceeding; agents of that entity 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 intentional misrepresentations had been made to the court and fraud upon the 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, amended September 18, 2009, amended December 9, 2009
     Cite as 07-55566
    Full text                                                                                                                              Back to Top

Environmental Law
Where plaintiffs, owners of downhill property contaminated by leaking oil, sued owner of property from which oil leaked for nuisance and trespass, special verdict--finding that it was unknown whether the condition of plaintiff’s property could "have been repaired or abated by reasonable means and at a reasonable cost"--established that nuisance was permanent rather than continuing, so claims filed more than three years after plaintiffs became aware of damage to their property were barred by statute of limitations. Where there was no evidence that contamination of downhill property was abatable at reasonable cost, and it was undisputed that three-year statute barred plaintiffs’ claims unless nuisance was a continuing one, defendants were entitled to judgment notwithstanding verdict.
     McCoy v. Gustafson - filed December 15, 2009, Sixth District
     Cite as 2009 SOS 7032
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Execution Sales
Purchaser of an already damaged property at an execution sale was not entitled to any insurance proceeds that were owing due to a "lender's loss payable" provision in judgment debtor's insurance policy or any surplus funds arising out of double payment of a debt secured by the property sold.
     Washington Mutual Bank v. Jacoby - filed November 24, 2009, publication ordered December 22, 2009, Second District, Div. Eight
     Cite as 2009 SOS 7289
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Homeowners Associations
Plaintiffs' causes of action for breach of contract, declaratory relief, nuisance, bad faith, breach of fiduciary duty, and violation of certain statutory provisions--arising out of a homeowners association’s activities in connection with CC&R compliance and enforcement issues--were not based on any action association took in furtherance of its free speech or petition rights. Mere fact that association’s demands were put in writing did not convert association’s acts in connection with CC&R enforcement into acts in furtherance of the right of free speech. Trial court erred in granting special motion to strike because Code of Civil Procedure Sec. 425.16(e)(4) will not be implicated unless cause of action was based on speech or petitioning activity, irrespective of whether the subject of the dispute may otherwise be a matter of public interest.
     Turner v. Vista Pointe Ridge Homeowners Association - filed December 22, 2009, Fourth District, Div. Three
     Cite as 2009 SOS 7226
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Inverse Condemnation
Coastal Commission did not abuse its discretion in denying coastal development permit where project was admittedly inconsistent with existing zoning and commission reasonably concluded from evidence in the record that project was larger in scale and different in architectural style from what was typical of the surrounding area. Commission was not required to approve project merely because developer revised its plans in order to meet commission staff's objections. Claim that denial of permit constituted a taking of developer's property was not ripe for adjudication, where denial did not constitute a final determination as to how the property might be developed.
     Reddell v. California Coastal Commission - filed December 1, 2009, modification published December 29, 2009, Second District, Div. Six
     Cite as B206428
     Full text                                                                                                                             Back to Top

Land Use
A minimum charge imposed on land parcels with connections to a water district’s utility systems for the basic cost of providing water or sewer service, regardless of actual use, is a fee for an immediately available property-related water or sewer service, not an assessment, and does not require ballot approval by affected owners pursuant to Proposition 218.
     Paland v. Brooktrails Township Community Services District Board of Directors - filed December 3, 2009, First District, Div. Five
     Cite as 2009 SOS 6923
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Lis Pendens
A lis pendens can be recorded against a dominant tenement in an easement dispute. Attorneys' filing of a lis pendens arose from protected activity and was not illegal as a matter of law, thus trial court erred in denying special motion to strike complaint claiming that lis pendens was wrongfully recorded. Recordation of lis pendens could not be the basis for intentional interference with prospective economic advantage or slander of title causes of action, even if such action was filed with malice.
     Park 100 Investment Group II v. Ryan - filed December 23, 2009, Second District, Div. Three
     Cite as 2009 SOS 7293
     Full text                                                                                                                               Back to Top

Real Property Taxation
Plain language of decision by Assessment Appeals Board indicated that board did not deny property owner’s application to reduce tax assessment based only on total value of land and improvements. Petition for a writ of mandate was not proper method to challenge board’s determination, as property owner’s exclusive remedy was a complaint seeking a refund of taxes. Property owner’s complaint against county was untimely since it was filed after expiration of six-month statute of limitations.
     Schoenberg v. County of Los Angeles Assessment Appeals Board - filed November 9, 2009, publication ordered December 3, 2009, Second District, Div. Two
     Cite as 2009 SOS 6928
     Full text                                                                                                                               Back to Top

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Los Angeles County Bar Association
2010 Real Property Section Newsletter
REAL PROPERTY SECTION REVIEW
Daniel L. Goodkin, Editor    *   Norman A. Chernin, Co-Editor

SECTION OFFICERS
Chair
Michael S. Klein

First Vice-Chair
Pamela L. Westhoff

Second Vice-Chair
Gregg J. Loubier

Treasurer
Theresa C. Tate

Secretary
Sarah V. J. Spyksma

Immediate Past-Chair
Donald C. Nanney


Section Administrator
Terrina Scott

EXECUTIVE COMMITTEE MEMBERS

Eric Altoon
Nedra E. Austin
Babak B. Baradaran
Susan J. Booth
James L. Brat
Norman A. Chernin
Brant Dveirin
Robert T. Flick
Daniel L. Goodkin
Brian Richard Hochleutner
Linda S. Koffman
Rebecca H. Lessley

Peter J. Niemiec
Robert C. Pearman
Leslie D. Reed
D. Eric Remensperger
David C. Sampson
Michael G. Smooke
Linda E. Spiegel
Andrew J. Yamamoto


SUB-SECTION CHAIRS
Commercial Development & Leasing, Marcia Z. Gordon
Construction Law, Richard Mah
Land Use Planning & Environmental Law, Claire Hervey Collins
Real Estate Finance, Caroline Dreyfus
General Real Estate Law, Nadav Ravid
Title Insurance, Gytis L. Nefas

 

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