Volume 5, Number 5

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April 2010 

Special Message

If you missed the opportunity to network with business professionals and lawyers, who attended the superb presentations at this year’s outstanding real estate event—The Crocker Symposium, here is a summary of the  program. 

LACBA's Real Property Section proudly co-sponsored with the Ziman Center at UCLA to present the 39th Annual Benjamin S. Crocker Symposium on Real Estate Law & Business, the premier event in Southern California for its subject.

Held on March 23, 2010, at the Los Angeles Convention Center, the day-long symposium
featured prominent keynote speakers, panelists, and breakout sessions. It attracted nearly 600 real estate professionals from every sector of the industry. Once again it proved to be a unique forum, where real estate professionals gather to discuss opportunities, address barriers, and navigate the maze of the economic downturn facing today's real estate community.

Find full coverage of the Symposium, including summaries of John Cushman's and Karen Bass's keynote presentations.



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.

Sincerely,

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

Real Property Scheduled Events 
View All Real Property Events

April 22, 2010: at 12:30 p.m. : Drafting Non-Disturbance and Subordination Agreements

April 27, 2010: LEED Certification

Recent Cases
Cases from March 1 through March 31

CEQA
CEQA
CEQA
Documentation Practices
Homeowners Associations
Land Use
Land Use

Land Use
Public Construction Contracts
Real Property Assessments
Real Property Option Agreements
Real Property Taxation
Rent Control
RESPA

CEQA

California Environmental Quality Act does not preclude city from charging resident a fee to appeal planning commission decision to city council.
     Friends of Glendora v. City of Glendora - filed March 1, 2010, Second District, Div. One
     Cite as 2010 SOS 1077
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CEQA
Existence of valid permits to operate industrial equipment used in project at particular levels did not establish an exception to general rule that existing physical conditions serve as baseline for measuring a project’s environmental effects. Agency abused its discretion in selecting maximum permitted operation of industrial equipment as its baseline in determining that refinery project would have no significant environmental effects. Using equipment’s actual pre-project emissions as a baseline for analyzing project’s effects would not impinge on any vested rights operator holds to operate those boilers at permitted levels. Because substantial evidence supported a finding that project would increase emissions significantly, agency was required to set aside its negative declaration and project approval, and prepare an environmental impact report. Fact that refinery operations fluctuate over time did not excuse agency from estimating increase in emissions, if any, project would create.
     Communities for a Better Environment v. South Coast Air Quality Management District (ConocoPhillips Company) - filed March 15, 2010
     Cite as S161190
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CEQA
City did not violate the California Environmental Quality Act when it approved a commercial retail shopping center project without preparing a subsequent or supplemental environmental impact report after the site plan for the project’s 795,000 square feet of retail space was changed so that the largest retail space grew from 138,000 square feet to 198,484 square feet because the inclusion of a so-called "supercenter" does not necessarily trigger a requirement that an environmental impact report include an examination of possible urban decay effects.
     Melom v. City of Madera (Zelman Retail Partners, Inc.) - filed March 24, 2010, Fifth District
     Cite as 2010 SOS 1592
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Documentation Practices
Where signature block on a contract bore attorney’s signature under the legend "approved as to form and content," it indicated only that attorney had advised or was advising client of the attorney’s approval of the document’s form and content, and did not, by itself, operate as a representation to opposing party’s attorney that could provide a basis for tort liability.
     Freedman v. Brutzkus - filed March 11, 2010, Second District, Div. Four
     Cite as B213489
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Homeowners Associations

Where homeowner sued her homeowner’s association, association cross-complained, and homeowner tendered defense of the cross-complaint to her insurer, which settled claims covered by its policy, homeowner’s subsequent action against attorney retained by insurer for allegedly colluding with association and others to deprive plaintiff of her rights under the policy was a SLAPP.    
Seltzer v. Barnes - filed February 11, 2010, publication ordered March 9, 2010, First District, Div. Five
     Cite as 2010 SOS 1246
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Land Use
Where defendants represented plaintiff in connection with plaintiff’s efforts to redevelop certain real estate, and after that representation ended, took some action in opposition to that project, plaintiffs causes of action for breach of fiduciary duty, professional negligence, and breach of contract arose from acts in furtherance of protected activity and were properly subjected to a special motion to strike absent any evidence that defendants revealed any confidential information or created circumstances that would encourage others to think defendants were basing their opposition on that information. Attorney cannot violate Rule 3-310(E) of the Rules of Professional Conduct absent a second attorney-client relationship or second employment of any kind. By representing a client, a lawyer does not forever after forfeit the constitutional right to speak on matters of public interest.
     Oasis West Realty, LLC v. Goldman - filed March 3, 2010, Second District, Div. Five
     Cite as 2010 SOS 1097
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Land Use
State court judge’s decision striking as unconstitutional a portion of municipal code allowing for signs showing only time and temperature to be visible from a freeway and portions of planning code allowing for conditional use permits and for a design review process did not invalidate city’s entire sign-regulation scheme. Judge’s finding that the offending sections of the planning code were not severable did not affect the municipal code since judge found that unconstitutional portions were severable.
     Desert Outdoor Advertising, Inc. v. City of Oakland - filed March 18, 2010
     Cite as 09-15530
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Land Use 
Although Civil Code Sec. 714(e)(1) prohibits a public entity from willfully delaying the approval of an application to install or use a solar energy system, Sec. 714(f) immunizes a public entity from a private right of action for damages. Plaintiff who brought action against county over its delay in issuing a certificate for his farm’s solar energy system could not be the prevailing party under Sec. 714(g) for purposes of an attorney fees award.
     Arterberry v. County of San Diego - filed March 23, 2010, Fourth District, Div. One
     Cite as 2010 SOS 1505
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Public Construction Contracts

Where contract provided that contractor was to commence work and negotiate a price at a later date or else contractor would be paid documented actual cost of work performed, but contract did not obligate contractor to document its actual costs--and custom and practice in public works industry was for negotiated lump sum change orders--contractor was entitled to a trial on contract interpretation. Public Contracts Code Sec. 7105 does not expressly abrogate common law or impact the permissible method of proof for contract damages. A contractor can recover on a modified total cost theory in California.
     Dillingham-Ray Wilson v. City of Los Angeles (CBI Serivces, Inc.) - filed March 18, 2010, Second District, Div. Two
     Cite as 2010 SOS 1469
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Real Property Assessments
Streets and Highways Code Sec. 10405, setting time periods in which a tax sale is to take place, is not a statute of limitations but is merely directory. Where defendant utility district obtained a foreclosure judgment that was ultimately reversed on appeal and never realized the benefit of that judgment before it was set aside, defendant was not foreclosed from pursuing remedy of a tax sale; doctrine of election of remedies was inapplicable in this situation. Defendant did not abuse its discretion in declining to grant plaintiff's proposed reassessment request since plaintiff failed to allege a basis for a clear and present duty on the part of defendant to do so. Plaintiff's proffered new evidence purporting to show that defendant failed to comply with law governing special assessments was insufficient to transform her cause of action into a due process claim. Plaintiff could not show a viable cause of action under Proposition 218 where effective date of assessment was before proposition was passed.
     Galbiso v. Orosi Public Utility District - filed March 3, 2010, Fifth District
     Cite as F056506
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Rent Property Option Agreements
Contract obliging seller to hold open an offer to sell parcel at a fixed price for three years and granting buyer "absolute and sole discretion" to terminate transaction for any reason during period was an option agreement. Sufficient consideration existed to render option irrevocable where buyer undertook substantial steps toward obtaining split of parcel and incurred significant expenses doing so, which was a plainly bargained-for benefit for seller that had induced him to grant the option.
     Steiner v. Thexton - filed March 18, 2010
     Cite as S164928
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Real Property Taxation
Revenue and Taxation Code provisions--allowing property owner who is more than 55 years of age or disabled to sell principal residence, purchase a new residence within same county at the same or a lesser price, and transfer base tax value of the former residence to the new one--do not apply where the owner of record of the new residence is a corporation, even if the corporation is the alter ego of a person who would qualify for the transfer if that person was the owner of record.
     Grotenhuis v. County of Santa Barbara - filed March 15, 2010, Second District, Div. Six
     Cite as B212264
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Rent Control
Owner and operator of mobile home park did not establish any error by trial court in ruling that it did not suffer any legally remediable injury from retroactive application of rent control ordinance to date of enactment of prior ordinance where trial court considered and rejected testimony regarding alleged injury.
     MHC Financing Limited Partnership Two v. City of Santee - filed March 15, 2010, Fourth District, Div. One
     Cite as D053345
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RESPA
Clear and unambiguous language of Real Estate Settlement Procedures Act’s prohibition against unearned fees does not reach the practice of overcharging. Provision cannot be read to prohibit charging fees, excessive or otherwise, when those fees are for services that were actually performed. National Bank Act pre-empted plaintiff’s claim that bank violated California’s Unfair Competition Law; bank did not engage in unlawful conduct by failing to disclose the costs it incurs for services.
     Martinez v. Wells Fargo Home Mortgage, Inc. - filed March 9, 2010
     Cite as 07-17277
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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.