- In This Issue -



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

Special Announcement

The substantive law subsections of the section are currently forming their Steering Committees to meet and schedule programs for the next bar year. Now is a great time to join and participate in this effort. Whatever your area of interest or practice, there is a subsection that covers it. If you need direction, visit the section's page on the LACBA website or let me know. Have a great summer!

Sincerely,

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

Recent Cases

From May 1 to May 31

CEQA
Commercial Finance
Land Use
Land Use
Land Use
Landlord and Tenant

Landlord and Tenant
Landlord and Tenant
Power Plant Taxation
Real Estate Brokers
Tax Sales
Usury

CEQA
CEQA Guidelines do not require a public agency to adopt thresholds of significance and do not forbid an agency from relying on standards developed for a particular project. Act does not provide a basis for premise that seismic impacts are significant, as a matter of law, unless buildings could be repaired and ready for occupancy after a major earthquake. Sufficient evidence supported city's findings that mitigation measures, based on relevant codes and ordinances, reduced the effects of ground shaking, liquefaction, and settlement to a less than significant level. City could defer issue of how mitigation will be achieved since evidence indicated mitigation is feasible and a range of potential measures was considered.
Oakland Heritage Alliance v. City of Oakland (Oakland Harbor Partners)
filed May 19, 2011, First District, Div. Four
Cite as A126558
Full text click here


Commercial Finance
Commercial lending institution, which also invested its own money in borrower's venture, did not violate the Unruh Civil Rights Act by declining to make a mezzanine loan to a limited liability company because one of its members was a felon. Being a felon is not a personal characteristic similar to those enumerated in the Act, the lending institution had legitimate business reasons justifying its decision--the repayment of the loan and making a return on its investment--and the potential consequences of allowing such a claim would improperly involve the courts in determining loan and investment criteria.
Semler v. General Electric Capital Corporation
filed May 6, 2011, Second District, Div. One
Cite as 2011 S.O.S. 2360
Full text click here


Land Use
Plaintiffs' claims, alleging violation of state laws pertaining to affordable housing and land use, filed over a year after their claims accrued, were untimely, even assuming Government Code Section 65009(d)'s limitations period applied. Legislature structured Section 65009(d)(2) to provide that the accrual is triggered by public entity's final action but no later than 60 days from the date notice is given.
Haro v. City of Solana Beach
filed May 12, 2011, Fourth District, Div. One
Cite as 2011 S.O.S. 2509
Full text click here


Land Use
Developer established prima facie claims of breach of fiduciary duty, professional negligence, and breach of contract against its former attorney and his firm--sufficient to defeat anti-SLAPP motion--by presenting evidence that plaintiff engaged defendants to seek approval of project; that it did so, in part, because of attorney's influence and involvement in local politics; that attorney became actively engaged in a referendum campaign seeking rejection of project after representation was terminated; that attorney used confidential information in arguing against approval; and that attorney's involvement in opposition campaign caused plaintiff additional expense.
Oasis West Realty, LLC v. Goldman
filed May 16, 2011
Cite as S181781
Full text click here


Land Use
Local ordinance governing parking and storing of recreational vehicles was a constitutionally permissible exercise of the city's police power to control blight.
Disney v. City of Concord
filed April 5, 2011, publication ordered May 2, 2011, First District, Div. One
Cite as 2011 S.O.S. 2272
Full text click here


Landlord and Tenant
Tenant's continuing tender of rent checks, after her right to occupy premises had expired pursuant to parties' agreement settling prior eviction suit, did not create a new tenancy where landlord did not cash the checks--other than one that was cashed inadvertently--and did not indicate in any way that she had altered her position that tenant was required to vacate on the agreed-upon date. Landlord was not obligated to return the checks as a means of indicating an objection to tenant holding over. Allowing tenant to remain in apartment for an additional seven years at below-market rent, rather than risk the outcome of an unlawful detainer trial, was adequate consideration for settlement agreement. Alleged "windfall" resulting from plaintiff's ability to re-let the premises at market rates did not render settlement agreement unreasonable, since reasonableness must be determined on the basis of circumstances existing when agreement was made. Ordinance purporting to void any waiver by a tenant of rights under the ordinance in the context of an eviction or an owner move-in does not apply to the settlement of a legal claim that was made for valuable consideration in return for termination of litigation. Agreement, negotiated with aid of counsel, by which tenant waived right to contest eviction in exchange for being allowed to remain in unit for seven years at controlled rental rates was not contrary to public policy.
Kaufman v. Goldman
filed April 22, 2011, publication ordered May 18, 2011, First District, Div. One
Cite as 2011 S.O.S. 2580
Full text click here


Landlord and Tenant
Tenant was entitled to seek compensation for losses allegedly incurred following enforcement of erroneous judgment in favor of landlord in unlawful detainer action. Tenant could have suffered economic loss as a result of her eviction even if the eviction was not "wrongful" as a matter of tort law, and although she could have sought restitution in the underlying detainer action, she was not barred from seeking contract damages in a separate action instead.
Munoz v. MacMillan
filed May 13, 2011, Fourth District, Div. Three
Cite as 2011 S.O.S. 2536
Full text click here


Landlord and Tenant
Trial court abused its discretion in declining to admit into evidence a declaration by registered process server indicating that tenants had been served with three-day notice to quit. Where service is carried out by a registered process server, Evidence Code Section 647 applies to eliminate the necessity of calling process server as a witness.
Palm Property Investments, LLC v. Yadegar
filed May 3, 2011, Second District, Div. Two
Cite as 2011 S.O.S. 2276
Full text click here


Power Plant Taxation
Tax board properly took into consideration the value added to power plant property by emission reduction credits as contributing to the value and earnings of the property as a whole since the plant could not make energy and money without the presence of these credits.
Elk Hills Power, LLC v. Board of Equalization
filed May 10, 2011, Fourth District, Div. One
Cite as 2011 S.O.S. 2435
Full text click here


Real Estate Brokers
Real estate commissioner cannot constitutionally discipline a real estate licensee based on a judgment procured by proof by a preponderance of the evidence rather than on clear and convincing evidence.
The Grubb Company, Inc. v. Department of Real Estate
filed May 4, 2011, First District, Div. Four
Cite as 2011 S.O.S. 2336
Full text click here


Tax Sales
A purchaser of tax-defaulted property from a public entity at a tax sale is limited to the remedies provided by Revenue and Taxation Code Section 3725.
Ribeiro v. County of El Dorado
filed May 10, 2011, Third District
Cite as 2011 S.O.S. 2444
Full text click here


Usury
Substantial evidence supported trial court's conclusion: The parties' intent was that individual defendants were acting on behalf of corporation in arranging loans to finance two real property development projects and believed that corporation was a licensed broker. Since corporation was not licensed, the loans were not exempt from usury laws. Plaintiffs' success on usury cause of action entitled them to return of interest paid on the loans. Absent evidence to suggest plaintiffs would have foregone borrowing had they known the corporation was not a licensed broker, plaintiffs could not prevail on their fraud and negligent misrepresentation causes of action. Investors to whom corporation had assigned fractional interests in promissory notes securing the loans were not holders in due course since there was no evidence that corporation negotiated the promissory notes by endorsement and delivery. Investors were liable to pay back interest since interest terms were null and void.
Creative Ventures, LLC v. Jim Ward & Associates
filed May 31, 2011, Sixth District
Cite as 2011 S.O.S. 2831
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
Gregg J. Loubier

First Vice Chair
Theresa C. Tate

Second Vice Chair
Sarah V. J. Spyksma

Treasurer/Crocker Chair
Norman A. Chernin

Secretary
Brant Dveirin

Immediate Past Chair
Pamela L. Westhoff

Section Administrator
Fatima Jones

EXECUTIVE COMMITTEE MEMBERS

Eric Altoon
Nedra E. Austin
Susan J. Booth
Claire Hervey Collins
Caroline Dreyfus
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