Vol. 5, No. 12  Join the Real Property Section  Contact Us  Archive • November 2010


Special Message

Do you know an outstanding young lawyer? Nominations for the Outstanding Young Lawyer 2011 are now being accepted. If you would like to nominate an attorney whom you've worked with (or against) who impressed you and who meets the following criteria, please click on the link to complete and submit the nomination form by December 31, 2010.

The recipients of the Los Angeles County Bar Association, Real Property Section, Outstanding Young Lawyer Award are outstanding in the real estate industry and in the community in the following areas:
1. Achieving recognition within the legal profession for their lawyering skills while in practice ten years or fewer;
2. Public speaking or general publication of written work on legal issues;
3. Successful involvement with high profile, complex transactions;
4. Presenting unique approaches to resolving transactional or litigation obstacles;
5. Giving of time and talent to the community at large; and
6. Representative of women or minorities in the Los Angeles Community.

Sincerely,

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

Real Property Scheduled Events 
 View All Real Property Events

December 2, 2010: Environmental Compliance: What Every Real Estate Lawyer Needs to Know Now (12:00 PM)
December 8, 2010: CEQA Update: Perspectives from Project Opponents and Project Proponents (12:00 PM) 

Recent Cases
Cases from October 1 through October 30 

Bankruptcy Sale Order
CEQA
Community Property
Easements
Eminent Domain

Homeowners Associations
Real Estate Brokers
Trust Deed Foreclosure
Usury
Water Law (Land Use)

Bankruptcy Sale Order
Bankruptcy court lacked jurisdiction over a collateral attack--based on a state breach of contract theory--on its previous sale order--having already approved a Chapter 11 Plan including the sale of real property, closed the case, overseen payment of creditors, and discharged the debtor. The breach of contract claim arose from a bankruptcy proceeding where it did not depend on an administrative matter unique to the bankruptcy process that had no independent existence outside of the bankruptcy court and could not be brought in another forum. The claim did not "relate to" a bankruptcy proceeding where it could have existed entirely apart from the bankruptcy proceeding and did not necessarily depend upon resolution of a substantial question of bankruptcy law. Court lacked ancillary jurisdiction to hear claim predicated on evidence that came to light after the case had been closed, the creditors paid, and the debtor discharged because such jurisdiction would have gone beyond what was necessary for the court to "effectuate its decrees." 
     In re Ray - filed October 25, 2010
     Cite as 09-60005
     
Full text    
                                                                                                                           Back to Top


CEQA
County abused its discretion in finding proposed subdivision development project met the criteria for the categorical in-fill development exemption to the California Environmental Quality Act because the project site was located in an unincorporated area; plain meaning of the phrase "within city limits," as used in CEQA's in-fill development exemption, requires that a project occur within the boundaries of a municipality. Public Resources Code Sec. 21177's exhaustion requirement was inapplicable to plaintiff's claim. 
     Tomlinson v. County of Alameda (Wong) - filed October 6, 2010, First District, Div. Five
     Cite as 2010 S.O.S. 5763
     
Full text                                                                                                                                Back to Top


Community Property
Where wife quitclaimed her interest in a house purchased in husband's name based on husband's promise to put her on the title after the purchase was completed, husband's failure to later act on that promise was constructive fraud under Family Code Sec. 721. When trial court found that wife did not act freely and voluntarily, it necessarily determined that she quitclaimed her interest in the house as the result of undue influence. Trial court did not err in ordering husband be reimbursed for his separate property contribution to the down payment on the house absent any showing of harm to husband or error in calculating that amount.
     Starr v. Starr - filed September 30, 2010, publication ordered October 15, 2010, Second District, Div. Eight
     Cite as 2010 S.O.S. 5922
     Full text  
    
                                                                                                                        Back to Top


Easements
Superior Court has jurisdiction to determine whether a utility has a power line easement over a particular property but lacks jurisdiction to adjudicate claims that a power utility has engaged in excessive trimming or unreasonable vegetation management when the utility has acted under guidelines or rules set forth by the California Public Utilities Commission. Challenges to utility's tree trimming as unreasonable, unnecessary, or excessive lie within the exclusive jurisdiction of the Commission to decide. Grant of a right-of-way in favor of utility company attached by plaintiffs to their first amended complaint conclusively refuted their denial of an easement burdening their land. 
     Sarale v. Pacific Gas & Electric Company - filed October 15, 2010, Third District
     Cite as 2010 S.O.S. 5887
     Full text  
    
                                                                                                                       Back to Top


Eminent Domain
Defendants in an eminent domain action were entitled to recover their litigation expenses under Code of Civil Procedure Sec. 1250.410 where defendants' pretrial settlement offer--which was approximately midway between plaintiff's expert appraisal and defendants' expert appraisal, and came within one percent of duplicating the eventual jury award--was reasonable, and plaintiff made no effort to show reasonableness or good faith by tendering an offer that gave serious consideration to the adverse appraisal that was several times larger than that of its expert.
     Tracy Joint Unified School District v. Pombo - filed October 29, 2010, Third District
     Cite as C061239
     
Full text       
                                                                                                                        Back to Top


Homeowners Associations
Where plaintiff homeowners purchased leasehold interest in their individual homes in a condominium project, each being assigned a long-term single-unit ground lease, with a rent adjustment clause calling for reassessing the ground rent based on a percentage of the appraised value of the "leased land"--a term that was unambiguously defined in the ground lease as including only the individual units and a small portion of the common area--it was error for trial court to admit extrinsic evidence to expand that definition to include common-area land that was used for recreational purposes and was the subject of a separate ground lease.
     Abers v. Rounsavell - filed October 18, 2010, Fourth District, Div. Three

     Cite as G040486
     
Full text    
                                                                                                                           Back to Top


Real Estate Brokers
When a real estate agent or broker is aware that the amount of existing monetary liens and encumbrances on a residential property being sold exceeds the sales price so as to require either the cooperation of the lender in a short sale or the ability of the seller to put a substantial amount of cash into the escrow in order to obtain the release of the monetary liens and encumbrances affecting title, that agent or broker has a duty to disclose this state of affairs to the buyer, so that the buyer can inquire further and evaluate whether to risk entering into a transaction with a substantial risk of failure. Trial judge's suggestion that plaintiffs pursue seller since the brokers had no duty to plaintiffs was not a ruling that the brokers' demurrer was sustained for failure to join an indispensable party.
     Holmes v. Summer - filed October 6, 2010, Fourth District, Div. Three
     Cite as 2010 S.O.S. 5802
     
Full text    
                                                                                                                           Back to Top


Trust Deed Foreclosure
Unlawful Detainer
Plaintiffs' claim for relief against an impending eviction on the basis that defendant failed to comply with Civil Code Secs. 2923.52 and 2923.53--which, respectively, impose a 90-day delay in the normal foreclosure process, and allow for an exemption to that delay if lenders have loan modification programs that meet certain criteria--failed because noncompliance with the sections is entirely a regulatory matter and cannot be remedied in a private action. 
     Vuki v. Superior Court (HSBC Bank USA) - filed October 29, 2010, Fourth District, Div. Three

     Cite as G043544
     Full text  
                                                                                                                            Back to Top


Usury
Pursuant to Article 15, Sec. 1 of the California Constitution, a licensed financial lender is a member of a "class of persons authorized by statute" as exempt from the usury law. That section exempts loans to as well as loans by such persons.
    Moore v. Hill - filed September 30, 2010, First District, Div. Three
     Cite as A117526
     
Full text
                                                                                                                                Back to Top


Water Law
Land Use
Trial court may not weigh conflicting evidence in evaluating the sufficiency of a plan under the Urban Water Management Planning Act ("UWMPA"), but must defer to agency's conclusions if supported by substantial evidence. Mere possibility that a water source may not be available in the future does not, under UWMPA, require agency to develop a backup plan. A plan is sufficiently specific and certain if the assumptions on which the agency's evaluations and conclusions are predicated are explicitly recognized and articulated and supported by substantial evidence. In carrying out its duty under UWMPA to "coordinate" with other agencies in preparation of a plan, an agency has considerable discretion to determine which agencies are "appropriate" or "relevant" and whether coordination with a particular agency is "practicable." 
     Sonoma County Water Coalition v. Sonoma County Water Agency - filed October 8, 2010, First District,
Div. Five

     Cite as 2010 S.O.S. 5815
     
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 PUBLICATIONS
Daniel L. Goodkin, Editor, Real Property Section Review
Norman A. Chernin, Editor, Real Property Section Newsletter

SECTION OFFICERS
Chair
Pamela L. Westhoff

First Vice Chair
Gregg J. Loubier

Second Vice Chair
Theresa C. Tate

Treasurer/Crocker Chair
Sarah V. J. Spyksma

Secretary
Norman A. Chernin

Immediate Past Chair
Michael S. Klein

Section Administrator
Terrina Scott

EXECUTIVE COMMITTEE MEMBERS

Eric Altoon
Nedra E. Austin
Babak B. Baradaran
Susan J. Booth
Claire Hervey Collins
Caroline Dreyfus
Brant Dveirin
Robert T. Flick
Daniel L. Goodkin
Marcia Z. Gordon

Linda S. Koffman
Trudi J. Lesser
Peter J. Niemiec
Robert C. Pearman
Leslie D. Reed
D. Eric Remensperger
Michael G. Smooke
Linda E. Spiegel
Andrew J. Yamamoto


SUBSECTION CHAIRS
Commercial Development and Leasing, Nadav Ravid
Construction Law, Richard Mah
Land Use Planning and Environmental Law, Laurence L. Hummer
Real Estate Finance, Owen P. Gross
General Real Estate Law, Brian R. Hochleutner
Title Insurance, Vanessa A. Widener

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