Volume 5, Number 7

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June 2010 

Special Message

I hope that those of you who were able to attend the Installation Dinner on June 9 enjoyed it as much as I did.

As a reminder, past issues of the Newsletter are archived and can be accessed from the Section’s Web page.


Sincerely,

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

Real Property Scheduled Events 
View All Real Property Events

June 30, 2010: June 30, 2010: Real Property Subsection and Publications Fair (12:00 PM)

Recent Cases
Cases from May 1 through May 31

CEQA
Construction Law
Construction Law
Construction Law
Covenants, Conditions, & Restrictions
Homesteads
Inverse Condemnation
Inverse Condemnation
Land Use

Real Estate Brokers
Real Property Taxation
Real Property Taxation
Redevelopment Law






CEQA
Project proponent was an aggrieved party, and thus had standing to appeal order imposing attorney fees on county in CEQA proceeding, where proponent had entered into a written indemnity agreement under which it is required to reimburse county for any attorney fees it incurred in legal action arising from proposed project. Final EIR's finding that an enclosed composting facility was an economically and technically infeasible alternative to proposed open-air facility was unsupported by substantial evidence in the administrative record where FEIR based its comparative economic analysis on a single enclosed facility, where proponent's expert's opinion that financing for an enclosed facility would not be available was factually unsupported, and where technological analysis was limited to the observation that there was no electricity at the proposed site of the enclosed facility and no electric lines within one mile, with no suggestion that electricity could not be supplied to the site. Proposed composting facility was a "processing plant" within meaning of Water Code Sec. 10912(a)(5), so trial court correctly ruled that FEIR's lack of water supply analysis was fatal to certification.
     Center for Biological Diversity v. County of San Bernardino (Nursery Products, LLC) - filed May 25, 2010, Fourth District, Div. One
     Cite as D056652
     
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Construction Law
A licensed contractor’s testimony that he had a policy of workers’ compensation covering his employees during the period of construction was sufficient to meet his burden of proof to show his license was not suspended for failing to obtain workers’ compensation insurance coverage pursuant to Business and Professions Code Sec. 7125.2. Use of unlicensed subcontractors and minors lacking work permits on project did not subject contractor to an automatic suspension of his license.
     Loranger v. Jones - filed April 23, 2010, publication ordered May 13, 2010, Third District
     Cite as C061517
     
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Construction Law
Use of the term "retention" in construction contracts does not contemplate that the final payment constitutes a retention; a retention has to be an amount that by contract has been retained from an amount owing. A sum not to be paid until completion of the work, whether in an installment contract when no sums have been withheld from the installments or in a contract with no installments, would not be a retention; such a sum is not comparable to amounts held by the owner as security until the end of a lien or warranty period that might be viewed as a retention. Remedy for the failure to pay a last installment payment upon completion of the services is simply damages for a breach of contract. Civil Code Sec. 3260.1 does not authorize an award of attorney fees.
     Yassin v. Solis - filed May 6, 2010, Second District, Div. Five
     Cite as 2010 S.O.S. 2419
     
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Construction Law
Although an unlicensed real estate broker may not maintain an action to recover compensation for the performance of acts for which a license is required, he may still seek compensation for acts for which no real estate license was required. Similarly, plaintiff’s lack of a contractor’s license would preclude recovery of compensation for acts that require licensure but not for those actions for which such a license was not required. Trial court erred in finding that a property management agreement that called on plaintiff to perform multiple services, some of which required a broker’s license and some of which did not, could not be severed as a matter of law. Even if entire contract was illegal and unenforceable, plaintiff could still recover the reasonable value of services rendered provided that those particular services were not legally prohibited.
     MKB Management, Inc. v. Melikian - filed May 13, 2010, Second District, Div. Three
     Cite as B213479A
     
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Covenants, Conditions, & Restrictions
A developer may not obtain any contractual rights, including the right to arbitration, by recording a declaration of covenants, conditions, and restrictions.
     Villa Vicenza Homeowners Association v. Nobel Court Development, LLC - filed May 27, 2010, Fourth District, Div. One
     Cite as 2010 S.O.S. 2972
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Homesteads
Where defendant--to obtain mortgage financing--conveyed her principal residence while encumbered by judgment lien, but continued to reside on the property and reacquired it prior to levy of execution, defendant did not lose her right to homestead exemption. Defendant’s having remained a resident of her property without making mortgage, tax, or insurance payments did not, on principles of unjust enrichment, undermine her claim of homestead exemption. Defendant’s declaration under penalty of perjury, stating that she was over 55 years of age, unmarried, and earned less than $15,000 a year, was sufficient, in absence of contrary evidence, to entitle her to the maximum (pre-2009) homestead exemption of $150,000 per year.
     Tarlesson v. Broadway Foreclosure Investments, LLC - filed May 17, 2010, First District, Div. Three
     Cites as 2010 S.O.S. 2588
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Inverse Condemnation
Where plaintiffs sued county claiming it inversely condemned their property when it allegedly refused to process plans for a metal barn because its location was in the footprint of a potential road, and trial court granted county's motion for judgment on the pleadings on the basis that plaintiffs failed to exhaust their administrative remedies, court erred in then declining to grant plaintiffs leave to amend--which they sought on the basis that they exhausted their remedies by unsuccessfully seeking to remap the proposed road--because an issue of fact existed as to whether the county's decision was "final" and whether any further attempt by plaintiffs to exhaust their administrative remedies would be futile. To the extent that what plaintiffs sought to accomplish regarding development of their property could only be remedied through amendment of county's general plan, they adequately exhausted their administrative remedies because a general plan amendment is a legislative, not administrative, process.
     Howard v. County of San Diego - filed April 29, 2010, publication ordered May 26, 2010, Fourth District, Div. One
     Cite as D055419
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Inverse Condemnation
Plaintiff could not seek compensation for any taking that occurred prior to its purchase of real property, but had standing to recover for costs of additional maintenance and repairs caused by repeated pumping of water over paved surfaces to control odors. Plaintiff could not prevail on a claim for inverse condemnation because it knew it was purchasing a property that was damaged by erosion and subject to periodic flooding and paid a lower price due to the occurrence of the conditions, and could not show that it suffered uncompensated damages due to the ongoing conditions. A party who knowingly purchases a property subject to conditions that cause damage resulting in condemnation cannot claim to be the victim of a governmental taking.
     Ridgewater Associates, LLC v. Dublin San Ramon Services District - filed May 11, 2010, First District, Div. Three
     Cite as A124661
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Land Use
The Public Streets, Highways, and Service Easements Vacation Law (“PSHSEVL”) does not provide exclusive method by which a public entity may vacate public rights-of-way or easements. Public entities may also effectuate such vacations pursuant to the Subdivision Map Act. Municipal code did not require city to comply with the PSHSEVL's notice requirements where code provisions that implemented the PSHSEVL expressly acknowledged that rights-of-way and easements "also" could be vacated pursuant to the Subdivision Map Act and code provisions implementing the Act. City was not required to publish a separate notice of its intent to amend a land-use plan in addition to the published notice it provided of its intent to vacate a public right-of-way and various easements.
     Citizens for Responsible Equitable Environmental Development v. City of San Diego (Westfield, LLC) - filed May 20, 2010, Fourth District, Div. One
     Cite as 2010 S.O.S. 2663
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Real Estate Brokers 
Although an unlicensed real estate broker may not maintain an action to recover compensation for the performance of acts for which a license is required, he may still seek compensation for acts for which no real estate license was required. Similarly, plaintiff’s lack of a contractor’s license would preclude recovery of compensation for acts that require licensure but not for those actions for which such a license was not required. Trial court erred in finding that a property management agreement that called on plaintiff to perform multiple services, some of which required a broker’s license and some of which did not, could not be severed as a matter of law. Even if entire contract was illegal and unenforceable, plaintiff could still recover the reasonable value of services rendered provided that those particular services were not legally prohibited.
     MKB Management, Inc. v. Melikian - filed May 13, 2010, Second District, Div. Three
     Cite as B213479A
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Real Property Taxation
Failure to index notice of assessment under property owner's name in the county recorder's office did not render lien invalid. Owner had constructive notice of lien because a notice of assessment had been properly recorded at the county recorder's office that listed the parcel number for the property. Streets and Highways Code Sec. 6615 does not permit a trial court to impose personal liability for the amounts not satisfied by a sale of the property.    
     612 South LLC v. Laconic Limited Partnership - filed May 25, 2010, Fourth District, Div. One
     Cite as 2010 S.O.S. 2792
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Real Property Taxation
Where county formed a special assessment district consisting of all residential properties in a community in order to pay the annual ongoing costs of refurbishing and maintaining landscaping in four public parks in that community, county properly based the assessment on master plan to acquire and develop the parks and park facilities, rather than on the landscape portion of the plan, but assessment violated Proposition 218, the Right to Vote on Taxes Act, where county failed to establish that the assessment was proportional to, and did not exceed, the value of the special benefits that the use and enjoyment of the parks would confer on assessed parcels, as distinct from the benefit to the general public.
     Beutz v. County of Riverside - filed May 26, 2010, Fourth District, Div. Two
     Cite as E046318
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Redevelopment Law
Nothing in Health and Safety Code Sec. 33675 prohibits a redevelopment agency from correcting errors in a Statement of Indebtedness by filing a revised document, or a county from accepting a revised statement. On receipt of a revised statement, a county is required to distribute all the tax increment to which a redevelopment agency is legally entitled.
     Glendale Redevelopment Agency v. County of Los Angeles - filed May 25, 2010, Second District, Div. Five
     Cite as B212718
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Reader Reactions
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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.