- In This Issue -



An ePublication of the Los Angeles County Bar Association
Volume 6, Number 5 • May 2011 • Archives of Past Issues
Real Property Home Page

Special Announcement

If you haven't already reserved a seat for this year's annual Real Property Section Installation Dinner at the Marriott Hotel at L.A. Live on May 26, what are you waiting for? Go to the Section's website for more information and instructions on how to get your seat.

If you have not yet responded to the recent solicitation to become a sponsor of the next Crocker Symposium, now would be a good time to call or e-mail the member of the Section who contacted you. If you didn't receive such a message, feel free to let me know and we will get the sponsorship package to you.

Thanks.

Sincerely,

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

Recent Cases

From April 1 to April 30

CEQA
Construction Law
Environmental Law - CEQA
Foreclosure of Condominium by
    Homeowners Association

Inverse Condemnation
Land Use

Nuisance
Premises Liability
Prescriptive Elements
Property Management
Real Property Litigation
Senior Housing
Title Insurance

CEQA
Detailed agreement that expressly bound parties to continue negotiating proposed development of a stadium in good faith but did not commit parties to a definite course of action with respect to development of a stadium or effectively rule out any alternative--including that of not proceeding with the project--did not constitute an "approval" within the meaning of CEQA.
Cedar Fair, L.P. v. City of Santa Clara
filed April 6, 2011, publication ordered April 28, 2011, Sixth District
Cite as H035619
Full text click here

Construction Law
A finding under Business and Professions Code Section 7108.5(c) that there was a good faith dispute between the parties as to money owed must be determined under an objective standard. Where extrinsically observable evidence indicated that a good faith dispute existed between parties as to what the subcontracts required and whether subcontractor had fully performed its obligations, contractor was justified in withholding of progress payments from subcontractor. Trial court properly declined to impose prompt payment penalties.;
Fei Enterprises, Inc. v. Yoon
filed April 25, 2011, Second District, Div. Three
Cite as 2011 S.O.S. 2045
Full text click here

Environmental Law - CEQA
Final environmental impact report ("EIR") established that project--whose elements included storm-water treatment and detention--would not create new groundwater impacts but would reduce groundwater impact resulting from percolation of treated wastewater from an adjoining--and previously approved--project by using that water for controlled irrigation 10 months of the year. No cumulative analysis of groundwater impacts was required. Objectors could not use challenge to EIR as a device to belatedly challenge approval of adjoining project. City did not abuse discretion in concluding that project was a significant improvement over existing conditions, even though it did not meet all water quality goals for the area.
Santa Monica Baykeeper v. City of Malibu
filed April 5, 2011, Second District, Div. Four1
Cite as 2011 S.O.S. 1748
Full text click here

Foreclosure of Condominium by Homeowners Association
Redemption procedure created by Code of Civil Procedure Section 729.070 does not violate due process. Defendant's rehabilitation of unit to make it habitable--with intent to resell it--did not alter unit's intended use. Trial court did not err by awarding defendant entire amount expended to repair and maintain unit after acquiring it at foreclosure sale.
Barry v. OC Residential Properties, LLC
filed April 26, 2011, Fourth District, Div. Three
Cite as G043073
Full text click here

Inverse Condemnation
Property owners failed to establish entitlement to summary adjudication on reverse inverse condemnation claim when property owners did not show the city intended to acquire their property for a public purpose through condemnation at some future point and did not establish that the city engaged in unreasonable actions geared toward devaluing their property so that the city could acquire it at a discounted price.
City of Los Angeles v. Superior Court (Plotkin)
filed April 12, 2011, Second District, Div. Four
Cite as B225082
Full text click here

Land Use
District court erred in ruling that city did not impose a substantial burden on church's exercise of religion within the meaning of the Religious Land Use and Institutionalized Persons Act through its facially neutral and generally applicable zoning regulations as a matter of law. A triable issue was raised as to whether city's zoning regulations imposed a substantial burden on religious exercise when church presented evidence that none of the parcels zoned for assembly use within city were suitable for the needs of a large religious congregation. Assuming city had a compelling interest in preserving certain land for industrial use, a triable issue was raised as to whether city used the least restrictive means to achieve its interest.
International Church of the Foursquare Gospel v. City of San Leandro (Faith
   Fellowship Foursquare Church)

filed February 15, 2011, amended April 22, 2011
Cite as 09-15163
Full text click here

Nuisance
A row of trees may be a "structure in the nature of a fence" for purposes of the "spite fence" statute (Civil Code Section 841.4), which provides that any such structure "unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance"--and that "[a]ny owner or occupant of adjoining property injured either in his comfort or the enjoyment of his estate by such nuisance may enforce the remedies against its continuance prescribed in [the private nuisance statute]." Special verdict--by which jury found that defendants' trees constituted a structure in the nature of fence but did not determine whether the plaintiffs were injured in the comfort and enjoyment of their estate--was defective and did not support either an award of damages for lost property value or an injunction requiring removal of the trees. Injunction could not stand as an exercise of court's equitable powers where trial judge clearly based it on defective jury verdict and not on independent review of the evidence.
Vanderpol v. Starr
filed April 15, 2011, Fourth District, Div. One
Cite as D056599
Full text click here

Modification
Vanderpol v. Starr
filed April 21, 2011, Fourth District, Div. One
Cite as D056599M
Full text click here

Premises Liability
Neither sponsor of off-road vehicle event nor owner of property on which event was conducted had duty to warn nonpaying participant of potential danger resulting from having vehicle become stuck in railroad tracks, nor did either of those defendants assume liability under "rescuer" doctrine to plaintiff who attempted to free the vehicle after it became stuck. Causal connection between injuries that plaintiff suffered after train hit the vehicle and propelled it into him and the alleged negligence of defendants was too remote to establish existence of a duty.
Tucker v. CBS Radio Stations, Inc.
filed April 29, 2011, Fourth District, Div. One1
Cite as D055920
Full text click here

Prescriptive Elements
Plaintiff could obtain a prescriptive easement over alleyway over which there was also a separately assessed railway easement without making payment of assessed taxes on this railway easement because railway easement was not coextensive in use with the claimed prescriptive easement for deliveries, turning vehicles around, and parking.
The Main Street Plaza v. Cartwright & Main, LLC
filed April 27, 2011, Fourth District, Div. Three
Cite as G043569
Full text click here

Property Management
Property management agent was exempt from the definition of a "debt collector" under the Fair Debt Collection Practices Act because it obtained the right to collect plaintiff's rent before the debt was contractually overdue and before it triggered applicable contractual conditions or state law governing default. District court did not abuse its discretion in sanctioning plaintiff's counsel for filing nine separate but identical actions for alleged violations of the act instead of a single action naming all nine tenants as plaintiffs.
De Dios v. International Realty & Investments
filed April 11, 2011
Cite as 08-56288
Full text click here

Real Property Litigation
A claim based on a decedent's promise to leave her cohabitant a life estate in real property is governed by the one-year statute of limitations of Code of Civil Procedure Section 366.3.
McMackin v Ehrheart
filed April 8, 2011, Second District, Div. One
Cite as 2011 S.O.S. 1818
Full text click here

Senior Housing
Residential community that has continuously operated as a retirement community for persons age 55 or older can qualify for the housing-for-older-persons exemption from the Fair Housing Act's prohibition on familial status discrimination by establishing that it currently satisfies the exemption's statutory and regulatory criteria at the time of the alleged violation, even if the community's enforcement of age restrictions predated its compliance with federal rules requiring verification that at least 80% of the units are occupied by at least one person over the age of 55.
Balvage v. Ryderwood Improvement and Service Association, Inc.
filed April 27, 2011
Cite as 10-35714
Full text click here

Title Insurance
A waiver of disqualification of counsel may be implied when the delay in moving to disqualify is unreasonable and the prejudice that would result to the attorney's client is extreme. Two-year delay in moving to disqualify was unreasonable where moving party's claim that it only recently learned of the facts justifying disqualification was unsupported by evidence, and motion was made after extensive discovery and after the first phase of trial in a complex case. Prejudice to attorney's client as a result of disqualification would have been extreme where case was complex and attorney had represented client for many years and had litigated the case from the beginning. Attorney becoming witness did not mandate disqualification where opposing party consented to the arrangement and there was no finding that such testimony was an affront to the integrity of the legal process.
Liberty National Enterprises, L.P. v. Chicago Title Insurance Company
filed April 6, 2011, publication ordered April 26, 2011, Second District, Div.
    Eight
Cite as B222455
Full text click here


Los Angeles County Bar Association
2011 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
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


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