Vol. 6, No. 1  Join the Real Property Section  Contact Us  Archive • January 2011

Special Message

I hope that everyone had an enjoyable Holiday Season. Once again, Ryan Squire and Tina Esrailian of the firm of Garrett & Tully have resolved to provide Newsletter readers with the first installment of their 2010 legislative review to be included in next month's edition.


Norm Chernin, Editor, Real Property Section Newsletter
E-mail address

Recent Cases
Cases from December 1 through December 30 

Construction Law
Covenants, Conditions &     Restrictions
Deeds of Trust, Title Insurance
Eminent Domain

Judgment Liens
Purchase and Sale Agreements
Real Property Litigation
Real Property Taxation
Rent Control

Trial court did not err in granting a peremptory writ of mandate compelling city to set aside its approval of a proposed roadway project and its certification of a Final Environmental Impact Report. City used projected traffic conditions in the year 2020 as a baseline to evaluate the project's traffic and related impacts, but did not consider impacts on the existing environment. City's use of an incorrect baseline, which prevented an informed assessment of the project's full impact on existing conditions, was a prejudicial abuse of discretion. 
    Sunnyvale West Neighborhood Association v. City of Sunnyvale City Council - filed December 16, 2010, Sixth     District
    Cite as H035135
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Where condominium association CC&Rs stated that "pipes" and "other utility installations" were not part of an individual unit unless found within the unit, and that garage and patio areas were "exclusive use common areas appurtenant," the most natural reading was that sewer lines were not "exclusive use common areas appurtenant" and that association, not unit owner, was responsible for repair of leaky sewer pipe two feet beneath the concrete slab underlying the unit. Association's determination of whether a portion of sewer line was exclusive use common area was a matter of contract and statutory texts, not a matter of discretion to which the courts owed deference.
    Dover Village Association v. Jennison - filed November 24, 2010, publication ordered December 21, 2010,     Fourth District, Div. Three
    Cite as G042741
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Construction Law
Unlike private contracts, public contracts requiring written change orders cannot be modified orally or through the parties' conduct, so it was error for trial court to allow jury to consider contractor's evidence pertaining to the oral authorizations of a city employee for extra work. Failure to comply with requirement of a written change order precludes contractor from recovering for the additional work, whether on express contract, implied contract, or quantum meruit theory.
    P&D Consultants, Inc. v. City of Carlsbad - filed December 16, 2010, Fourth District, Div. One
    Cite as D054810A
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Covenants, Conditions & Restrictions
Homeowner's challenge to validity of amendment to CC&Rs was time-barred where raised more than four years after amendment was recorded. Responding parties' failure to plead statute of limitations as a defense to cross-complaint did not waive the issue where homeowner did not challenge amendment's validity prior to filing brief in mid-trial. Usual rule that statute of limitations will not bar a defense did not apply where defendant affirmatively challenged amendment's validity in his cross-complaint. 
    Schuman v. Ignatin - filed December 23, 2010, Second District, Div. Four
    Cite as B215059
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Deeds of Trust
Title Insurance
Trust deed securing a promissory note issued in connection with a family law judgment may expire under provisions of the Marketable Record Title Act, despite Family Code Sec. 291, which provides that a family law judgment is enforceable until paid in full. MRTA and Sec. 291 do not conflict because a debt evidenced by a note and secured by a deed of trust is still owed even after the note expires under MRTA and the deed of trust is no longer enforceable. Application of Sec. 291 to a judgment entered prior to the section's effective date did not substantially interfere with debtor's rights where enforcement of that judgment would not have been subject to a time limitation under prior law.
    Schelb v. Stein - filed December 17, 2010, Second District, Div. Four

    Cite as B213929
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Eminent Domain
A private entity prosecuting a condemnation action under the authority granted by the Federal Electric Regulatory Commission is not the "United States" for purposes of triggering a landowner's right to costs and fees incurred in connection with a condemnation proceeding "abandoned by the United States" under the Uniform Relocation Assistance and Real Property Acquisition Policies Act.
    Transwestern Pipeline Company, LLC v. Agua Fria Investments, LLC - filed December 8, 2010
    Cite as 09-16850
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Judgment Liens
Plaintiff failed to state a claim for malpractice against her former attorneys for failure to protect plaintiff's judgment lien on debtor's home, where lien was extinguished upon debtor's death because the home was owned in joint tenancy and plaintiff could not show that execution efforts prior to debtor's death would have been successful or would have been authorized by plaintiff.
    Dang v. Smith - filed November 30, 2010, Sixth District
    Cite as 2010 S.O.S. 6734
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Purchase and Sale Agreements
Consequential damages for breach of contract under Civil Code Sec. 3306 may include lost profits if a proper showing is made. Award of lost profits as damages for breach of real estate sales contract was speculative and erroneous where there was no evidence that plaintiff had successful track record in property development or that the plans for the specific property were likely to succeed.
    Greenwich S.F., LLC v. Wong - filed December 2, 2010, First District, Div. Two
    Cite as 2010 S.O.S. 6679
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Real Property Litigation
Although a trust is not subject to the alter ego doctrine because it is not a legal entity, a trustee may be added as a judgment debtor, enabling the judgment creditor to reach the assets of the trust.
    Greenspan v. LADT, LLC - filed December 30, 2010, Second District, Div. One
    Cite as B222539
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Real Property Taxation
Plaintiff was not entitled to relief from penalty imposed for failing to make a timely real estate tax payment under Revenue and Taxation Code Sec. 4985.2 because the delinquency was caused by plaintiff's failure to send the payment to the correct address, plaintiff failed to discover its error before the payment deadline, and evidence did not demonstrate any quality-control measures taken by plaintiff to minimize errors or track payments that might establish the exercise of ordinary care.
   ZC Real Estate Tax Solutions Limited v. Ford - filed December 29, 2010, Fifth District
     Cite as F059443
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Rent Control
Where city incorporated land that had been subject to county rent control ordinance affecting mobile home parks and adopted a similar ordinance, the city ordinance did not effect an unconstitutional taking because it did not interfere with any "distinct investment-backed expectations" of park owners who purchased the park years after the county ordinance went into effect.
     Guggenheim v. City of Goleta - filed December 22, 2010
     Cite as 06-56306
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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.