Volume 5, Number 3

Join the Real Property Section

Contact Us

Archive

February 2010 

Special Message

Calling All Recruits—The State Bar Real Property Law Section’s Third Annual Real Property Lawyer Boot Camp. The Real Property Lawyer Boot Camp has been scheduled for February 26 to 28, 2010, at the lovely Seascape Beach Resort on Monterey Bay, in Aptos, California, just 10 miles south of Santa Cruz. Boot Camp is an intensive 48+ hour training on the real estate transactional practice, arranged by the State Bar Real Property Law Section. It includes a primer on the business and the terminology used in the real estate profession. This boot camp considers important topics for lawyers: buying, financing, developing, leasing, and selling real estate, negotiating deals and drafting agreements.

The boot camp also covers career and business development, as well as dealing with the real estate downturn. Boot Camp gives less experienced real estate practitioners the inside track to building the knowledge and skills base for successful careers. This is the ideal venue for business lawyers, environmental lawyers, litigators and solo practitioners, who want to quickly develop a real estate “tool kit” covering the real estate industry and real estate law. You will find this an efficient and useful program.

CEB (the Platinum Program Sponsor) will provide each participant with free access to its online OnLAW Real Property Law Library for an entire year—a tremendous benefit that would ordinarily cost almost as much as the entire Boot Camp registration fee. For more information, see the Printable Brochure (which includes mail/fax registration form). You can now Register Online for this program.

 

Great Learning, Terrific Networking, and a Whole Lot of Fun: The State Bar Real Property Law Section’s Annual Retreat 2010: “The Road to Recovery.” This is your place to benefit from real property CLE with camaraderie and friends. The 29th Annual Real Property Retreat takes place from April 30 to May 2, 2010, at the Silverado Resort in the Napa Valley. You will receive up to 12.25 hours of MCLE credit and be able to choose from 21 substantive, in-depth and timely programs on a wide variety of subjects that will greatly expand your practice skills.

You will hear two separate keynote speakers on the state of the real estate industry: Luis A. Belmonte of Seven Hills Properties, and Brian Pretti of Mechanics’ Bank. Professor Roger Bernhardt will lead a panel of law professors who discuss the year’s most important law developments.

You can attend terrific social and networking events, including a dinner with legal humorist Sean Carter. You will enjoy the Friday Barbecue Dinner and Leadership Party (both free to 3-day registrants) and the Saturday After-hours Party (free to all attendees).

You will delight in this event. There’s still plenty of time to sign up. For more information, and for registration, or contact Theresa Raglen at Theresa.Raglen@calbar.ca.gov or 415-538-2393.

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. There’s still plenty of time to sign up. 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.

Register now for March 23, 2010, and 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


February 16, 2010 at 12:30 p.m.: Title 101.

February 17, 2010 at 12:30 p.m.: 2009 Real Estate Finance Update.

February 25, 2010 at 12:30 p.m.: Psychology of Dispute Resolution–Practical Tools for Achieving Compromise.


March 3, 2010 at 12:30 p.m.: The Top 10 Real Estate Cases and Laws of 2009 

March 10, 2010 at 12:30 p.m.: Splitting Your Baby – When the Government Only Wants a Portion of Your Property

March 17, 2010 at 12:30 p.m.: Everything a Construction Lender Needs to Know about Stop Notices

March 23, 2010 at 7:30 a.m. : The 39th Annual Crocker Symposium on Real Estate Law and Business

Recent Cases
Cases from January 1 through January 31

Bankruptcy
Bankruptcy
Boundary Law
CEQA
Construction Law
Construction Law


Land Use
Nonjudicial Foreclosures
Real Property Taxation
Title Insurance
Usury

Bankruptcy

District court, acting in its appellate capacity, did not err in affirming bankruptcy court’s grant of summary judgment to creditor title company seeking to prevent discharge, under 11 U.S.C. Sec. 523(a)(4), of state court judgment finding debtor converted and misappropriated creditor’s proprietary records because debtor’s conduct constituted "larceny" within the federal meaning of the term where the totality of circumstances made clear he acted with fraudulent intent. District court similarly did not err in affirming bankruptcy court’s grant of summary judgment on creditor’s non-dischargeability claim under Sec. 523(a)(6) because state court’s findings showed debtor’s conduct was both "willful" and "malicious."
     In the Matter of Ormsby - filed January 8, 2010
     Cite as 08-15572
     
Full text                                                                                                                                Back to Top


Bankruptcy
Where voluntary chapter 7 debtor listed a lien related to an unrecorded deed of trust in her schedules, but not in her petition, trustee did not have constructive notice of the lien "as of the commencement of the case" and could exercise 11 U.S.C. Sec. 544(a)(3)'s "strong-arm power" as a bona fide purchaser for value to avoid the lien. Equitable subrogation did not apply because the creditor whose debt the lien holder paid off itself had no lien, having discharged it by a recorded deed of reconveyance; enforcement of the right to subrogation would injure a party holding legal title and an equal equity--the trustee; and California courts give priority to a bona fide purchaser over one claiming equitable subrogation.
     In re Deuel - filed January 28, 2010
     Cite as 07-55266
     Full text                                                                                                                               Back to Top

Boundary Law
Term "ancient shore line" refers not to what the shoreline looked like at the earliest possible date but rather what the general course of the shoreline is. Absent any evidence that the general course of the shoreline was not accurately depicted by subdivision map used to determine littoral boundary, there was no material factual dispute on the point. An equitable determination of littoral boundaries is required only when "deep indentations or sharp projections" distort the shoreline. Defendants were precluded from raising claims of adverse possession and prescriptive rights when they did not raise these issues in their answer or cross-complaint. Defendants waived appeal of claims regarding determination of original shoreline and proper dividing line of parties' areas of littoral rights by failing to raise them at trial before littoral rights issue had been adjudicated.
     Kendall v. Walker - filed December 30, 2009, publication ordered January 27, 2010, First District, Div. Two
     Cite as 2010 SOS 524
     Full text                                                                                                                              Back to Top

CEQA
Where a public agency has adopted a mitigation measure under California Environmental Quality Act for a project, it may not authorize destruction or cancellation of the mitigation (whether or not the approval is ministerial) without reviewing the continuing need for the mitigation, stating a reason for its actions and supporting it with substantial evidence.
     Katzeff v. California Department of Forestry (Kuljian) - filed January 28, 2010, First District, Div. Four
     Cite as A122642
    
Full text                                                                                                                               Back to Top

Construction Law
Trial court did not err in requiring engineering and environmental planning services provider, which had denied housing complex developer’s tender of defense, to reimburse developer for the costs of its defense in a third entity's lawsuit where the contract between the developer and the provider called for a defense when any claim against the developer implicated provider’s performance of its role in the project, and homeowners association suing developer alleged harm resulting from deficient work within the scope of services for which developer had retained provider; even if developer lacked a contractor’s license, Business and Professions Code Sec. 7031(a)’s bar on actions to recover compensation for work performed by an unlicensed contractor did not apply because developer was not seeking compensation for services, but indemnity for the damages it had to pay the homeowners association due to alleged defects in engineering work for which it believed provider was responsible. Trial court did not abuse its discretion where it granted provider’s motion for verification whether developer complied with Code of Civil Procedure Sec. 411.3 (which requires counsel in an indemnity action against a professional engineer to file and serve a certificate declaring that counsel received an opinion from another engineer indicating whether the first engineer was negligent) but denied provider’s request for costs and attorney fees in the cross-action because statute permits but does not mandate verification, and provider did not establish that it had incurred expenses attributable to developer’s failure to file the certificate.
     UDC-Universal Development, L.P. v. CH2M Hill - filed January 15, 2010, Sixth District
     Cite as H033610
     Full text
                                                                                                                              Back to Top
Construction Law
Building a structure that encroaches onto another’s property is not an accident even if done so in the good-faith but mistaken belief that one is legally entitled to build there, and insurer had no duty to defend homeowners in action by owner of adjoining property where homeowners’ policy did not provide coverage for non-accidental occurrences.
     Fire Insurance Exchange v. Superior Court (Bourguignon) - filed January 26, 2010, Fourth District, Div. Second
     Cite as 2010 SOS 422
     Full text                                                                                                                               Back to Top

Land Use
Neither Planning and Zoning Law nor Community Redevelopment Law requires a redevelopment agency to provide notice and conduct public hearings when it is performing the non-legislative function of implementing a redevelopment plan. Design guidelines are not a zoning ordinance under the Planning and Zoning Law. Evidence that provisions of the design guidelines and general plan with respect to specific land uses differed was insufficient to demonstrate that those guidelines were not compatible with objectives, policies, general land uses, and programs specified in city's general plan. Because the Los Angeles Municipal Code allows a redevelopment plan to adopt a base density that is lower than the "maximum allowable residential density" under an applicable zoning ordinance, developer was not entitled to maximum allowable residential density under the zoning code, and trial court's finding that design guidelines would not deprive a developer of a density bonus under the Planning and Zoning Law was supported by substantial evidence. Agency was authorized by Community Redevelopment Law and general plan to develop and adopt disputed design guidelines. Developer's claim that design guidelines violated California Environmental Quality Act was time-barred where brought more than 30 days after notice of determination was posted; contention that notice failed to adequately describe the guidelines was forfeited where raised for first time in reply brief.
          PR/JSM Rivara LLC v. Community Redevelopment Agency of the City of Los Angeles - filed December 17, 2009, publication ordered January 13, 2010, Second District, Div. Four
     Cite as 2010 SOS 149
    
Full text                                                                                                                             Back to Top
Nonjudicial Foreclosures

Statutory scheme regarding non-judicial foreclosures does not require a trustee to search for and find all possible judgment creditors. A judgment lien holder is not entitled to automatically receive notice of borrower’s default or non-judicial foreclosures sale. Trustee had no duty to determine lien holder’s priority among other junior liens or distribute funds to it where that lien holder did not request special notice, did not receive notice, and did not make a claim.
     Banc of America Leasing & Capital, LLC v. 3 Arch Trustee Services, Inc. - filed December 11, 2009, publication ordered January 4, 2010, Fourth District, Div. Three
     Cite as G041480
    
Full text                                                                                                                                Back to Top


Real Property Taxation
Supplemental assessment imposed by special assessment district for the purpose of covering additional costs of placing overhead utility lines underground within the district violated proportionality requirement imposed by Art. XIII D of the California Constitution, which mandates that no assessment shall exceed the reasonable cost of the proportional special benefit conferred on a parcel, where the apportionment method was largely based on cost considerations rather than proportional special benefits, and where properties within the district were required to pay for special benefits conferred upon parcels that were excluded from the district.
     Town of Tiburon v. Bonander - filed December 31, 2009, First District, Div. Three
     Cite as A119918
     Full text                                                                                                                              Back to Top

Title Insurance
District court, acting in its appellate capacity, did not err in affirming bankruptcy court’s grant of summary judgment to creditor title company seeking to prevent discharge, under 11 U.S.C. Sec. 523(a)(4), of state court judgment finding debtor converted and misappropriated creditor’s proprietary records because debtor’s conduct constituted "larceny" within the federal meaning of the term where the totality of circumstances made clear he acted with fraudulent intent. District court similarly did not err in affirming bankruptcy court’s grant of summary judgment on creditor’s non-dischargeability claim under Sec. 523(a)(6) because state court’s findings showed debtor’s conduct was both "willful" and "malicious." 
      In the Matter of Ormsby - filed January 8, 2010
     Cite as 08-15572
     Full text                                                                                                                               Back to Top

Usury
Assuming the de novo review was appropriate, trial court did not err in finding joint venture exception to usury rules applied where plaintiff and holder of allegedly usurious promissory note and deed of trust both testified that they considered themselves business partners; both were on the property’s title; and both were jointly obligated on first loan, purchased property from third parties, and assumed risk of loss.
     Junkin v. Golden West Foreclosure Service, Inc. - filed January 5, 2010, First District, Div. Five
     Cite as A124374
     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.


 

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.