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An ePublication of the Los Angeles County Bar Association
Volume 6, Number 7 • July 2011 • Archives of Past Issues
Real Property Home Page

Special Announcement

Stay tuned for more information on the upcoming Crocker Symposium to be held on October 4. It is shaping up to be another stellar event and you won't want to miss it.

Sincerely,

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



Recent Cases

From June 1 to June 30

Bankruptcy
CEQA
CEQA
Coastal Commission
Construction Law
Deeds of Trust
Easements
Eminent Domain
Environmental Law

Enviornmental Law
Homeowners Associations
Homeowners Association
    Assessment Liens

Purchase and Sale
    Agreements

Real Property Litigation
Real Property Taxation
Sale of State Real Property

Bankruptcy
Residential Foreclosures

Under doctrines of equitable and judicial estoppel, a debtor's failure to disclose a lender liability claim in chapter 11 bankruptcy proceedings precluded the debtor from later litigating the claim, without regard to whether the failure to disclose was in bad faith. Plaintiff debtors failed to state cause of action for breach of forbearance agreement--in which defendant creditor agreed not to foreclose or seek other relief if plaintiffs paid a specified sum within a specified period of time--where plaintiffs did not allege that they paid the specified sum within that time or were excused from paying it. Sole remedy for violation of the Perata Mortgage Relief Act, which requires lenders to contact borrowers to negotiate terms to avoid foreclosure on a residence, is a postponement of the foreclosure sale. Once plaintiffs' home was sold, there was no further remedy available to them under the Act.
Hamilton v. Greenwich Investors XXVI, LLC
filed June 1, 2011, Second District, Div. Eight
Cite as B224896
Full text click here


CEQA
Methods of considering and mitigating impacts "on school facilities" caused by a development project set forth in Government Code Section 65996 obviate the need for an EIR to contain a description and analysis of the environmental consequences for existing school facilities that will be forced to accommodate hundreds of students beyond current overcrowded conditions. Prepositional phrase "on school facilities" limits the type of impacts that are excused from discussion or mitigation to the adverse physical changes to the school grounds, school buildings, and any school-related consideration relating to a school district's ability to accommodate enrollment; a project's indirect impacts on parts of the physical environment that are not school facilities are not excused from being considered and mitigated. An impact on traffic, even if that traffic is near a school facility and related to getting students to and from the facility, is not an impact "on school facilities" for purposes of Sec. 65996(a).
Chawanakee Unified School District v. County of Madera (Rio Mesa Holdings, LLC)
filed June 21, 2011, Fifth District
Cite as 2011 S.O.S. 3334
Full text click here


CEQA
Water Law

Resolution certifying addendum to EIR need not separately state that a water supply assessment ("WSA") was approved where the addendum discusses and incorporates the WSA. Water Code contains no requirement for early approval of a WSA when the water supplier and lead agency are the same entity and are themselves governed by the same entity. Claim that drought conditions required that city prepare an SEIR before approving project was not exhausted where evidence of such conditions was not fairly before City Council when it approved the project. In approving project, City was not required to consider generalized concerns about greenhouse gas emissions where there was no evidence of project-specific climate change concerns before the Council.
Citizens for Responsible Equitable Environmental Development v. City of San Diego (Pardee Homes)
filed May 19, 2011, publication ordered June 10, 2011, Fourth District, Div. One
Cite as D057524
Full text click here


Coastal Commission
Public Resources Code Section 30005(b)--which states no provision of the California Coastal Act of 1976 "is a limitation...[o]n the power of any city...to declare, prohibit, and abate nuisances"--authorizes developments that are confined to nuisance abatement to proceed without a coastal development permit("CDP"). Where a development in the coastal zone includes but is not limited to nuisance abatement, a CDP is required, and the Coastal Commission has jurisdiction to determine an appeal from the issuance of a CDP.
Citizens for a Better Eureka v. California Coastal Commission
filed June 29, 2011, First District, Div. One
Cite as A129873
Full text click here


Construction Law
Contractor who did business under a name different from that under which he was licensed was not barred from recovering for work he performed. While use of the fictitious name may have violated disciplinary rules, it did not render the work "illegal" or "unlicensed."
Ball v. Steadfast-BLK
filed June 14, 2011, Third District
Cite as 2011 S.O.S. 3222
Full text click here


Deeds of Trust
Trial court erred in taking judicial notice of disputed hearsay facts contained within recorded assignment of deed of trust to establish identity of entity holding a beneficial interest under deed of trust.
Herrera v. Deutsche Bank National Trust Company
filed May 31, 2011, publication ordered June 28, 2011, Third District
Cite as 2011 S.O.S. 3463
Full text click here


Easements
Trial court did not abuse its discretion in granting an equitable easement to owners of a landlocked parcel along a driveway that was already in use by neighboring landowners. Complaint directed toward goal of "obtaining a right of passage over the defendants' properties to allow for ingress and egress" to plaintiffs' property adequately raised a justiciable issue as to whether plaintiffs were entitled to an equitable easement. Procedural posture of the case did not prevent trial court from granting equitable easement where defendants undisputedly communicated to plaintiffs that they considered any use of driveway across their property to be trespassing and plaintiffs sought to have the matter resolved before proceeding with plans to develop their property. Longstanding prior use is not a condition for granting an easement in equity.
Tashakori v. Lakis
filed June 21, 2011, Second District, Div. Four
Cite as 2011 S.O.S. 3339
Full text click here


Eminent Domain
Landlord and Tenant

Lessor of a business located on condemned property was not entitled to compensation for lost goodwill, because it did not own the business. Clause in lease agreement purporting to "waive" lessee's right to any condemnation award was not intended to benefit condemnor and thus did not preclude a subsequent assignment of condemnation award from lessee to lessor.
Galardi Group Franchise & Leasing, LLC v. City of El Cajon
filed June 7, 2011, Fourth District, Div. One
Cite as 2011 S.O.S. 3051
Full text click here


Environmental Law
Owners of land contaminated by pollutant which had been spilled at a nearby site and migrated onto the property through an underground drain the landowners had installed, were not liable for the contamination of the property under the law of nuisance or under California's Polanco Redevelopment Act.
Redevelopment Agency of the City of Stockton v. BNSF Railway Company
filed June 28, 2011
Cite as 09-16585
Full text click here


Environmental Law
Both the Clean Air Act and the Environmental Protection Agency action that the act authorizes displace any federal common-law right (e.g. nuisance) that states or private parties might have to seek abatement of carbon dioxide emissions from fossil-fuel fired power plants.
American Electric Power Co., Inc. v. Connecticut
filed June 20, 2011
Cite as 10-174
Full text click here


Homeowners Associations
Homeowners' association amendment of CC&Rs to prohibit the open, long-term parking of disabled vehicles did not "discriminate" against plaintiff--allegedly the only owner of a disabled vehicle parked at the complex at the time the amendment was made--in violation of the CC&Rs and association bylaws. Association did not act inappropriately in enforcing a parking rule in the manner authorized by law.
Sui v. Price
filed May 23, 2011, publication ordered June 20, 2011, Fourth District, Div. Three
Cite as G044185
Full text click here


Homeowners Associations Assessment Liens
Homeowner association's recorded assessment liens merged into judgment foreclosing on those liens, causing the liens to be extinguished. Where lender recorded a deed of trust after the assessment liens were recorded but before association recorded an abstract of the foreclosure judgment, lender had lien priority. Attorney fee provisions of CC&Rs did not entitle lender to attorney fees under Civil Code Section 1717 because it was not a party to any cause of action involving the CC&Rs.
Diamond Heights Village Association, Inc. v. Financial Freedom Senior Funding Corp.
filed June 7, 2011, First District, Div. Four
Cite as A126145
Full text click here


Purchase and Sale Agreements
Nature of a contract for the sale of real property does not necessitate that a "time is of the essence" clause be implied where escrow instructions did not provide for one. Probate court did not err in finding buyers' failure to tender performance on escrow by the scheduled closing date to be breach of the purchase contract and properly authorized seller to retain buyers' bid deposits.
Conservatorship of Buchenau
filed May 31, 2011, publication ordered June 21, 2011, Second District, Div. Seven
Cite as 2011 S.O.S. 3344
Full text click here


Real Property Litigation
Foreclosure Sales

Quiet title action based on a claim of wrongful foreclosure requires plaintiff to plead tender before seeking to set aside the foreclosure sale.
Ferguson v. Avelo Mortgage, LLC
filed June 1, 2011, Second District, Div. Four
Cite as B223447
Full text click here


Real Property Taxation
Clerical error that caused taxpayer's agent to make a late payment of real estate taxes did not constitute "circumstances beyond the taxpayer's control" within the meaning of Revenue and Taxation Code Section 4985.2(a), which provides for cancellation of a penalty for late payment of taxes under such circumstances. Where lateness was caused by an error in the formatting of a spreadsheet, and payment would have been made on time had the spreadsheet been formatted correctly or if a more rigorous process had been used to confirm the timeliness of payment, such circumstances were not beyond the taxpayer's control as a matter of law.
First American Commercial Real Estate Services, Inc. v. County of San Diego
filed June 6, 2011, Fourth District, Div. One
Cite as 2011 S.O.S. 3054
Full text click here


Sale of State Real Property
Proposed sale of Orange County Fairgrounds violated applicable statutes because Department of General Services apparently accepted high bid as establishing fair market value ("FMV") of the property, rather than independently determining FMV as contemplated by the Legislature, and because it failed to establish a bid protest procedure. Department's interpretation of statutes as giving it absolute discretion to sell the Fairgrounds was clearly erroneous and not entitled to deference.
Advanced Real Estate Services, Inc. v. Superior Court (California Department of General Services)
filed June 7, 2011, Fourth District, Div. Three
Cite as G044596
Full text click here


Los Angeles County Bar Association
2012 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//Crocker Chair
Sarah V. J. Spyksma

Treasurer
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, Sharon Bangs
Land Use Planning and Environmental Law, Laurence L. Hummer
Real Estate Finance, Owen P. Gross
General Real Estate Law, Brian R. Hochleutner
Title Insurance, Vickie Perkowitz

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