Vol. 5, No. 13  Join the Real Property Section  Contact Us  Archive • December 2010

Special Message

I wish you all a happy holiday season and a healthy and prosperous New Year!


Norm Chernin, Editor, Real Property Section Newsletter
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Recent Cases
Cases from November 1 through November 30 

Community and Separate Property in Probate

Construction Law
Homeowners Associations
Land Use

EIR for residential construction project in traditionally agricultural area adequately addressed impacts on area water supplies and agricultural land uses, where report demonstrated reasonable likelihood that sufficient supplies of water would be available from an identified source over 20 years and substantial evidence supported determination that agricultural land uses were no longer economically feasible. EIR did not require detailed discussion of agricultural-impact mitigation measures where there was substantial evidence that such measures were economically infeasible. 
    Cherry Valley Pass Acres and Neighbors v. City of Beaumont - filed November 22, 2010, Fourth District, Div.     Two
    Cite as 2010 S.O.S. 6565
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Where local historic preservation ordinance provided for architectural review, potentially delaying, but not preventing, issuance of demolition permit, issuance of permit was a ministerial act not subject to CEQA.
    Friends of the Juana Briones House v. City of Palo Alto (Nulman) - filed October 27, 2010, publication ordered     November 22, 2010, Sixth District
    Cite as 2010 S.O.S. 6579
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Community and Separate Property in Probate
Where husband executed a modified marital settlement agreement with his ex-wife that provided for continuing support payments to the ex-wife after his death, and husband subsequently remarried, the trial court did not err in holding that real property the husband's widow held with him in joint tenancy could be considered under Probate Code Sec. 13551 in determining the extent of the widow's personal liability to the ex-wife. The scope of a surviving spouse's personal liability encompasses all property which, at the time of a decedent's death, is characterized as community property or the decedent's separate property, regardless of the manner in which title to the property is held.
    Kircher v. Kircher - filed November 4, 2010, First District, Div. Three
    Cite as 2010 S.O.S. 6241
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Construction Law
Trial court properly applied reciprocity provision of Civil Code Sec. 1717 in awarding attorney fees to general contractor as prevailing party in action where general contractor sued owner for breach of contract, and owner countersued general contractor and its surety. Contract between general contractor and owner did not contain an attorney's fee clause but required general contractor to obtain a surety bond. Contract between general contractor and surety contained an attorney's fee clause that would have entitled surety and/or general contractor to fees for their defense of owner's claim under the bond. Owner would have been entitled to attorney fees for prosecuting its bond claim against surety and/or general contractor had it prevailed on that claim. 
    Mepco Services, Inc. v. Saddleback Valley Unified School District - filed November 2, 2010, Fourth District,     Div. One
    Cite as 2010 S.O.S. 6213
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Homeowners Associations
Rule of Lamden v. La Jolla Shores Clubdominium Homeowners Assn., 21 Cal. 4th 249 (1999) that courts must defer to the ordinary maintenance decisions of homeowners associations, was erroneously applied to a defendant that was the managing agent of a homeowners association. Trial court erred in applying Lamden to a claim that defendant association ignored a serious plumbing problem, absent showing that association conducted a reasonable investigation and made a conscious, good faith decision not to address the problem because there was no cost-effective solution available. Association's unsuccessful efforts to correct problem did not preclude plaintiffs' claim that its previous neglect caused damage to plaintiff's unit.
    Affan v. Portofino Cove Homeowners Association - filed October 29, 2010, Fourth District, Div. Three

    Cite as 2010 S.O.S. 6207
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Land Use
Real property did not qualify for statutory exemption from historic preservation under Government Code Sec. 37361(c), which creates an exemption for noncommercial property owned by a religious organization, where it had always been a commercial enterprise, both when corporate owner purchased it and at the time owner sought the exemption.
    Or Khaim Hashalom v. City of Santa Monica - filed November 22, 2010, Second District, Div. Three
    Cite as 2010 S.O.S. 6594
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Los Angeles County Bar Association
2010 Real Property Section Newsletter
Daniel L. Goodkin, Editor, Real Property Section Review
Norman A. Chernin, Editor, Real Property Section Newsletter

Pamela L. Westhoff

First Vice Chair
Gregg J. Loubier

Second Vice Chair
Theresa C. Tate

Treasurer/Crocker Chair
Sarah V. J. Spyksma

Norman A. Chernin

Immediate Past Chair
Michael S. Klein

Section Administrator
Terrina Scott


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

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.