- In This Issue -

An ePublication of the Los Angeles County Bar Association
Volume 6, Number 4 • April 2011• Archives of Past Issues
Real Property Home Page

Special Announcement

Before you start reading the substantial number of cases that I found this month that I think will be of interest to real estate lawyers, take a moment to at least mark your calendars for the two biggest events of your section's program year--the Installation and Awards Dinner on May 26 and the Crocker Symposium scheduled this year for October 4.

It's not too early to purchase your ticket to the dinner. You just have to click on the calendar page of the LACBA website (www.lacba.org), then click on May 26 and the event to see who is being honored, and fill-in the requested information.

Now is also the best time to become a sponsor of the Crocker Symposium and participate on the Planning Committee. The next meeting is coming up on April 13. If you respond to me, I will pass your contact information on to someone who will let you know about the sponsorship opportunities available this year.



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

Recent Cases

From March 1 to March 31

Construction Law
Construction Law
Environmental Law
Environmental Law
Home Equity Sales
Homeowners Associations
Homeowners Associations
Landlord and Tenant
Landlord and Tenant
Landlord and Tenant

Land Use
Land Use
Land Use
Land Use
Land Use CEQA
Non-Judicial Foreclosure
Real Property Litigation
Real Property Taxation
Rent Control
Sale of State Real Property
Shopping Malls

Trial court erred in implementing its remedies for the California Environmental Quality Act violations without first issuing a peremptory writ of mandate. An EIR may not be certified "in part."
Landvalue 77, LLC v. Board of Trustees of the California State University (Kashian Enterprises, L.P.)
filed February 23, 2011, publication ordered March 16, 2011, Fifth District
Cite as 2011 S.O.S. 1402
Full text click here

Construction Law
Contractor with Class A general engineering contractor's license was duly licensed for purposes of Business and Professions Code Sec. 7031, even though contractor did not possess a specialty earthwork and paving contractor's license, and prime contract required that any bidder for subcontract for temporary excavation and support work possess a specialty license.
Pacific Caisson & Shoring, Inc. v. Bernards Bros. Inc.
filed March 3, 2011, Second District, Div. Three
Cite as 2011 S.O.S. 1258
Full text click here

Construction Law
A triable issue existed as to whether defendant retained control over construction jobsite in such a manner that it affirmatively contributed to plaintiff's injuries where defendant ordered holes to be created and required plaintiff to conduct unrelated work near these holes without providing a cover or barricade, as requested by plaintiff. Safety regulation regarding open pits creates a non-delegable duty that may form the basis of direct liability for an employer who creates such hazards and is responsible for the safety of a worksite.
Tverberg v. Fillner Construction, Inc.
filed February 24, 2011, publication ordered March 25, 2011, First District, Div. Four
Cite as 2011 S.O.S. 1606
Full text click here

Environmental Law
Summary judgment on defendant's liability for discharges into two watersheds was warranted. Plaintiffs established that storm-water exceeding allowable limits passed through monitoring stations in a section of municipal separate storm sewer systems owned and operated by defendant and that pollutants were detected before the storm-water was discharged into two rivers. Precise location of where this polluted water flowed into navigable waterway was irrelevant since there was no dispute that this water eventually joined the rivers downstream from the monitoring stations.

Legislature intended that an exceedance detected through mass-emissions monitoring may give rise to liability for contributing dischargers. Clean Water Act does not distinguish between those who add pollutants to water and those who convey what is added by others. Plaintiffs did not provide evidence sufficient for district court to determine if storm-water discharged from municipal separate storm sewer systems controlled by defendant caused or contributed to pollution exceedances in two other rivers where monitoring stations that detected pollutants were located within the rivers and not the defendant's sewer system.
Natural Resources Defense Council, Inc. v. County of Los Angeles
filed March 10, 2011
Cite as 10-56017
Full text click here

Environmental Law
Holder of a revocable permit to use real property is not an "owner" of that property for purposes of imposing liability under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") for the cleanup of hazardous substances disposed on that property by others. "Owner" liability under CERCLA does not extend to "holders of mere possessory interests in land, such as permittees, easement holders, or licensees, whose possessory interests have been conveyed to them by the owners of real property, which owners continued to retain power to control the permittee's use of the real property." Permit holder that did not know or have reason to know of the pollution or contamination could not be liable for public or private nuisance.
City of Los Angeles v. San Pedro Boat Works
filed March 14, 2011
Cite as 08-56163
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Home Equity Sales
For "personal residence" exemption to the Home Equity Sales Contract Act to apply to a person who acquires title to a residence in foreclosure, the person who acquires title must be the same person who intends to use the property as a residence. Trial court erred in concluding that the alter ego doctrine rendered this exception applicable to a corporation that acquired title to property that its owner intended to use as his personal residence.
Capon v. Monopoly Game LLC
filed March 4, 2011, First District, Div. Five
Cite as 2011 S.O.S. 1318
Full text click here

Homeowners Associations
Where defendants demurred to complaint filed by their homeowners association, based on plaintiff's failure to comply with Civil Code Sec. 1369.560--requiring a certification that plaintiff attempted alternative dispute resolution--and the demurrer was sustained with leave to amend, the ensuing amendment was substantive and triggered a new 60-day period in which defendants were permitted to file an anti-SLAPP motion. Where plaintiff association sought to recover attorney fees from defendant, in addition to its prayer for "pure" declaratory relief with respect to the interpretation of bylaws, defendant had standing to bring anti-SLAPP motion. Defendant's criticism of plaintiff's policies that impacted all members of association constituted protected activity in connection with an issue of public interest. Plaintiff's claim for declaratory relief was not properly brought against individual member, so plaintiff could not prevail on merits, and the member's anti-SLAPP motion was correctly granted.
Country Side Villas Homeowners Association v. Ivie
filed February 25, 2011, publication ordered March 24, 2011, Sixth District
Cite as 2011 S.O.S. 1554
Full text click here

Homeowners Associations
Covenants, conditions, and restrictions ("CC&Rs") provision stating standards set by the homeowners association planning committee shall govern in the event of a conflict between the committee standards and CC&R standards gave committee power to adopt new design standards relating to the improvement or development of lots beyond those set forth in the CC&Rs. Where CC&Rs was silent as to attorney fees, association could not claim the right to attorney fees simply because homeowner had asked for those fees in his complaint.
Ferwerda v. Bordon
filed March 25, 2011, Third District
Cite as 2011 S.O.S. 1602
Full text click here

Landlord and Tenant
Trial court did not err in denying plaintiff attorney fees under Civil Code Sec. 1942.5 where counsel for landlord asserted its position that plaintiff's operation of a daycare center in her apartment would be a breach of lease and threatened litigation if plaintiff proceeded. Counsel's opinion, whether legally correct or not, was made in good faith and did not constitute a threat of eviction. Denial of fees under Government Code Sec. 12989.2 was not error since landlord's objection to plaintiff's operation of a daycare center was based on the terms of her lease restricting use of the apartment for residential purposes and not on the source of her income.
Morrison v. Vineyard Creek
filed March 29, 2011, First District, Div. Five
Cite as A127476
Full text click here

Landlord and Tenant
Trial court abused its discretion in determining there was no prevailing party for purposes of Civil Code Sec. 1717 where landlord in dispute with tenant for unpaid rent recovered 70% of what he claimed was owing.
De Le Cuesta v. Benham
filed March 29, 2011, Fourth District, Div. Three
Cite as G043788
Full text click here

Landlord and Tenant
Bureau of Indian Affairs'("BIA") approval of a lease and execution of the lease as a proxy for the landowners, pursuant to their express authorization, did not transmogrify agency into a lessor or make BIA party to the lease. Terms of lease, which distinguished between agency and "lessor," did not admit a construction whereby BIA could be the lessor.
Wapato Heritage, L.L.C. v. United States
filed March 22, 2011
Cite as 09-36150
Full text click here

Land Use
Policy of the State Lands Commission, prohibiting development seaward of the most landward historical position of the mean high tide line, was not promulgated in accordance with the Administrative Procedure Act, was not "the only legally tenable interpretation of a provision of law," and was thus an invalid regulation.
Bollay v. California Office of Administrative Law (California State Lands Commission)
filed March 1, 2011, Third District
Cite as 2011 S.O.S. 1199
Full text click here

Land Use
Dispute as to whether homeowners association or city was responsible for maintaining a berm that laterally supports bulkheads located on property managed by the association that act as a retaining wall for a waterway belonging to the city presented an actual controversy even though berm was not in need of maintenance or repair. Language within special use permit providing that city "shall accept interior waterways as fee lands for dedication and maintenance, including maintenance of the easement and right-of-way areas reserved by the developer" required city to maintain berm since it was located within waterway dedicated to the city, within an area reserved by the developer.
Coronado Cays Homeowners Association v. City of Coronado
filed February 28, 2001, publication ordered March 16, 2011, Fourth District, Div. One
Cite as 2011 S.O.S. 1426
Full text click here

Land Use
Applicant whose request for a permit to build an approach to a county road was summarily denied was not deprived of a constitutionally protected property interest. A person's belief of entitlement to a government benefit, no matter how sincerely or reasonably held, does not create a property right if that belief is not mutually held by the government.

District court erred in dismissing applicant's equal protection claim in light of evidence applicant was treated differently than other similarly situated property owners throughout the permit application process. Triable issues existed as to whether county officials had a rational basis for treating applicant differently and whether they intended to treat him differently from other applicants.

Applicant's "class of one" claim did not require a showing of the government officials' subjective bad feelings toward him. Applicant's constitutional right not to be intentionally treated differently than other similarly situated property owners without a rational basis was clearly established at the time his permit application was denied.
Gerhart v. Lake County Montana
filed March 18, 2011
Cite as 10-35183
Full text click here

Land Use
Requirement that a subdivision developer sell a certain percentage of a subdivision's houses at below market prices as a condition of development approval does not constitute a development fee, dedication, reservation or "other exaction" within the meaning of Government Code Sec. 66020 which allows a developer 180 days to challenge such a requirement, rather than the 90 days usually allowed for challenges to development conditions, where the affordable housing requirement was clearly not intended to defray the cost of public facilities associated with the development.
Trinity Park, L.P. City of Sunnyvale
filed March 24, 2011, Sixth District
Cite as 2011 S.O.S. 1575
Full text click here

Land Use

For purposes of the housing density bonus law, rent cap is calculated on the basis of what the tenant pays, not on the total that includes government subsidies. Affordable-housing project complied with density bonus law where that project, along with other approved projects, would increase the density of the relevant district to a number of units that was less than the general plan standard. Law does not require that the general plan standard be applied to a specific parcel. City's waiver of zoning standards as mandated by the density bonus law did not preclude the project from qualifying for categorical CEQA exemption.
Wollmer v. City of Berkeley (R.B. Tech Center LP)
filed March 11, 2011, publication ordered March 30, 2011, First District, Div. Four
Cite as A128121
Full text click here

Non-Judicial Foreclosure
Action filed to resolve competing claims for surplus proceeds from a non-judicial foreclosure sale by a plaintiff who had disclaimed any interest in these proceeds and deposited them with the state court was functionally equivalent to an action in interpleader and therefore was removable to federal court. Federal tax liens had priority over the state court judgment lien; priority of a federal tax lien does not depend on the vagaries of when the United States files a claim in state court relative to a competing claimant.
Quality Loan Service Corp. v. 24702 Pallas Way
filed March 24, 2011
Cite as 08-56181
Full text click here

Real Property Litigation
Litigation by which plaintiff sought to prevent defendants from obtaining governmental development entitlements, to which plaintiff claimed it had an exclusive right, arose from the defendants' exercise of constitutional rights of speech and petition within the meaning of the anti-SLAPP statute.
South Sutter, LLC v. LJ Sutter Partners, L.P.
filed March 16, 2011, Third District
Cite as C058206
Full text click here

Real Property Taxation
Trial court erred in granting motion for summary judgment based on partial record of proceedings before assessment appeals board in light of conflicting evidence regarding propriety of board's calculation of hotel's taxable value which did not deduct intangible assets from cash value of property.
EHP Glendale v. County of Los Angeles
filed February 7, 2011, publication ordered March 3, 2011, Second District, Div. Eight
Cite as B217036
Full text click here

Rent Control
Plaintiff's facial challenge to municipal mobile-home rent control ordinance, which was enacted in 1979, was time-barred because 2006 amendment that added a new methodology to evaluate pending applications for rent increases did not alter effect of ordinance. Plaintiff's as-applied challenge to ordinance as an unconstitutional taking was unripe because plaintiff did not pursue a Kavanau adjustment prior to filing suit in federal court. Due process claim based on application of ordinance to plaintiff's request to raise rents was subsumed by the Takings Clause. Denial of plaintiff's application for a rent increase was not arbitrary, irrational, or lacking any reasonable justification in the service of a legitimate government interest.
Colony Cove Properties, LLC v. City of Carson
filed March 28, 2011
Cite as 09-57039
Full text click here

Sale of State Real Property
Dispute over propriety of order denying a preliminary injunction barring state's sale of buildings to a buyer was rendered moot by governor's statement that the proposed sale would not proceed. Although questions regarding the legislature's power to effectuate the sale of state property through a state agency remain, these issues cannot be decided in the absence of a necessary party--the would-be buyer--to the proceedings.
Epstein v. Superior Court (Brown)
filed March 30, 2011, Sixth District
Cite as H036365
Full text click here

Shopping Malls
Article I, Sec. 2, of the California Constitution--the "liberty of speech" clause--does not permit a privately owned shopping mall to enforce rules that give preferential treatment to labor speech and thereby discriminate against other types of speech.
Best Friends Animal Society v. Macerich Westside Pavilion Property LLC
filed March 2, 2011, Second District, Div. Two
Cite as B221067
Full text click here

Los Angeles County Bar Association
2011 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
Susan J. Booth
Claire Hervey Collins
Caroline Dreyfus
Brant Dveirin
Robert T. Flick
Daniel L. Goodkin
Marcia Z. Gordon
Ryan Iwasaka

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