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An ePublication of the Los Angeles County Bar Association
Volume 6, Number 8 • August 2011 • Archives of Past Issues
Real Property Home Page

Special Announcement

As you will see, this month's edition features a number of CEQA cases. Hardly a new law, but there seems to be an ever-changing landscape of new circumstances in which to analyze its application. With all the dramatic developments in many areas of law practice in the time period (40+ years) since the Act was passed, it is somehow reassuring that some areas of the law still develop by accretion rather than avulsion. Of course, even this statute got a kick-start when the Friends of Mammoth case held that it was applicable to private projects, not just public ones.

Sincerely,

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

Recent Cases

From July 1 to July 31

Bankruptcy
CEQA
CEQA
CEQA
CEQA
CEQA
CEQA - Land Use
CEQA - Land Use
Commercial Loans

Construction Law
Construction Law
Easements
Fiduciary Obligations of
     Parnters

Land Use
Landlord and Tenant
Real Property Taxation
Real Property Taxation
Residential Sale Disclosures

Bankruptcy
Successors-in-interest to entity that was a partner in development with debtor did not come within the provisions of 11 U.S.C. Section 509(a), which provides for subrogation. Loan from creditor, discharged by means of foreclosure on property which secured that loan, was "paid" for purposes of Section 509(a). Word "pay" as used in the statute does not refer to cash payments alone.
In re Flamingo 55, Inc.
filed July 25, 2011
Cite as 10-15755
Full text click here


CEQA
Although CEQA requires petitioners to raise their concerns with a lead agency before filing a lawsuit, less specificity is required to preserve an issue for appeal in an administrative proceeding than in a judicial proceeding. City was not required to explore every possible mitigation measure set forth in letter from Attorney General containing more than 50 general suggestions.
Santa Clarita Organization for Planning the Environment v. City of Santa Clarita (Henry Mayo Newhall Memorial Hospital)
filed June 30, 2011, publication ordered July 26, 2011, Second District, Div. Two
Cite as B224242
Full text click here


CEQA
Corporate entity had standing to challenge a determination on the preparation of an environmental impact report. Corporations are not subject to heightened scrutiny when they file citizen suits. Corporate plaintiff representing businesses directly affected by local ordinance had standing in its own right to challenge the ordinance.
Save the Plastic Bag Coalition v. City of Manhattan Beach
filed July 14, 2011
Cite as 2011 S.O.S. 3883
Full text click here


CEQA
Plaintiff presented a fair argument that hazards and hazardous materials from proposed project may have a significant adverse environmental impact where project would require disturbing contaminated soils. City was not required to conduct a health-risk assessment or screening since air quality assessment concluded project would not significantly impact traffic, and determined that emissions associated with construction and operation of the project did not exceed any air quality significance thresholds. Although the project will contribute additional air pollutants to an existing nonattainment area, these increases are below the significance criteria and are thus considered to have no significant impact on ambient air quality based on the standard articulated in the air quality assessment. City did not err in failing to include waste as a source of greenhouse gas emissions where project to increase retail store was not anticipated to increase waste or gas emissions, and would eliminate two existing facilities that generate waste.
Citizens for Responsible Equitable Environmental Development v. City of Chula Vista (Target Corporation)
filed June 10, 2011, publication ordered July 8, 2011, Fourth District, Div. One
Cite as D057779
Full text click here


CEQA
Plaintiffs did not have a right to challenge compliance with prior writ order compelling developers and county to circulate an SEIR since compliance with the earlier writ and the adequacy of the SEIR had been determined in the prior proceeding. County was not required to circulate a revised SEIR after observation of an arroyo toad near the project site where the EIR had recognized toads being found in the vicinity of the project and found the project site itself was not a suitable habitat for the toad. Developers' claim for attorney fees based on the terms of an agreement with plaintiff should not have been resolved by way of a motion for attorney fees in the CEQA proceeding.
Silverado Modjeska Recreation and Parks District v. County of Orange (CCRC Farms, LLC)
filed July 8, 2011, Fourth District, Div. One
Cite as D055150
Full text click here


CEQA
Where project impacted possible Native American burial sites, but City was prohibited from disclosing certain information about the sites because of statutes designed to discourage vandalism and artifact theft, City complied with CEQA by adopting EIR providing sufficient information to generally assess the existence of confidential archaeological resources on the site, the potential adverse impacts that the project would impose on those resources, and the effectiveness of the specified mitigation measures in avoiding or reducing those impacts to a level of insignificance. EIR complied with CEQA as to issue of lost trees, resulting from project's required road construction, by identifying the number of trees to be lost and acknowledging that mitigation measures undertaken under City's existing ordinances would be inadequate to avoid major impacts. EIR complied with CEQA as to protection of endangered species, where it determined there would be no permanent impacts due to the project's design of protecting wetlands and where it proposed mitigation measures to minimize the project's possible temporary impacts. Where project impacts views of residents of adjoining community, CEQA is satisfied if the impacts are disclosed, analyzed, and feasibly mitigated.
Clover Valley Foundation v. City of Rocklin (Rocklin 650 Venture)
filed July 8, 2011, Third District
Cite as 2011 S.O.S. 3732
Full text click here


CEQA - Land Use
City was not required to prepare environmental impact report for project to develop property next door to sewage treatment plant, where alleged environmental impacts--odors emanating from plant, likely to disturb project residents--would be caused by plant operations, not by the project. Project-specific land use amendment made by mitigated negative declaration need not be consistent with general plan.
South Orange County Wastewater Authority v. City of Dana Point (Makar Properties, LLC)
filed June 30, 2011, Fourth District, Div. Three
Cite as 2011 S.O.S. 3602
Full text click here


CEQA - Land Use
By preparing EIR in reliance upon CEQA, City did not waive its right to argue in court that project was categorically exempt from CEQA because it involved grade separation between rail and vehicles. Alleging that it would suffer undefined impacts as a result of grade separation project, property owner was premature in contending that City or transit agency would depart from mitigation measures City had adopted, so its non-CEQA challenge to the project was not ripe.
Del Cerro Mobile Estates v. City of Placentia
filed June 7, 2011, publication ordered July 7, 2011, Fourth District, Div. Three
Cite as 2011 S.O.S. 3727
Full text click here


Commercial Loans
A commercial lending institution, which was also an equity investor in a borrower's venture, did not violate the Unruh Civil Rights Act by declining to make a loan to a limited liability company because its managing member included a felon who had conspired to falsify customs documents and sell munitions to Syria. Being a felon is not a personal characteristic similar to those enumerated in the Act, and lending institution had legitimate business reasons justifying its decision.
Semler v. General Electric Capital Corporation
filed June 29, 2011, Second District, Div. One
Cite as 2011 S.O.S. 3615
Full text click here


Construction Law
Where arbitration agreement between Indian tribe and contractor explicitly excluded American Arbitration Association Rule 48(c)--the rule granting a federal or state court consent to enter judgment upon the arbitration award--tribe did not waive sovereign immunity, and trial court correctly denied contractor's motion to compel arbitration.
California Parking Services, Inc. v. Soboba Band of Luiseno Indians
filed July 20, 2011, Fourth District, Div. Two
Cite as E050306
Full text click here


Construction Law
Comprehensive general liability policy issued to housing developer that excluded coverage for work on condominium and townhome projects precluded any possibility of coverage, as a matter of law, for claims involving framing work by insured on a development recorded to legally qualify as a condominium project involving freestanding residential units similar to single family homes.
California Traditions, Inc. v. Claremont Liability Insurance Company
filed June 21, 2011, publication ordered July 11, 2011, Fourth District, Div. One
Cite as D057154
Full text click here


Easements
Substantial evidence supported trial court's determination that an implied easement for use of well water by defendants existed. It was unlikely that testator who had divided her property and transferred a parcel to defendants intended to not grant them any access to water, and an easement was reasonably necessary for the use and benefit of defendant's parcel. Plaintiffs are entitled to use the well in any manner not inconsistent with the easement.
Thorstrom v. Thorstrom
filed June 29, 2011, First District, Div. One
Cite as 2011 S.O.S. 3634
Full text click here


Fiduciary Obligations of Partners
Where commercial lease required written notice of any default, followed by five days in which to cure the default, failure to give written notice was fatal to landlord's claim of default, notwithstanding landlord's claim that tenant's actions constituted default that could not be cured. Defendants' alleged concealment of material financial information about tenant was not a breach of fiduciary duty to its partners in real estate venture, where substantial evidence supported finding that defendants diligently investigated tenant and reasonably concluded it was solvent.
Mission West Properties, L.P. v. Republic Properties Corporation
filed July 18, 2011, Sixth District
Cite as 2011 S.O.S. 33965
Full text click here


Land Use
City may be held liable for monetary damages under the Religious Land Use and Institutionalized Persons Act if plaintiffs prove a violation and damages. An express exclusion of religious organizations from uses permitted as of right by other membership organizations in municipal ordinance established a prima facie case for unequal treatment. City may be able to justify some distinctions drawn with respect to churches if it can demonstrate that the less-than-equal-terms are on account of a legitimate regulatory purpose, not the fact that the institution is religious in nature. Burden is on City to show that the treatment received by the church should not be deemed unequal, where it appears to be unequal on the face of the ordinance.
Centro Familiar Cristiano Buenas Nuevas v. City of Yuma
filed July 12, 2011
Cite as 09-15422
Full text click here


Landlord and Tenant
Where commercial lease required written notice of any default, followed by five days in which to cure the default, failure to give written notice was fatal to landlord's claim of default, notwithstanding landlord's claim that tenant's actions constituted default that could not be cured. Defendants' alleged concealment of material financial information about tenant was not a breach of fiduciary duty to its partners in real estate venture, where substantial evidence supported finding that defendants diligently investigated tenant and reasonably concluded it was solvent.
Mission West Properties, L.P. v. Republic Properties Corporation
filed July 18, 2011, Sixth District
Cite as 2011 S.O.S. 33965
Full text click here


Real Property Taxation
Taxpayer was not entitled to cancellation of a tax penalty for a delinquent payment caused by a mistake by taxpayer's employee.
AvalonBay Communities, Inc. v. County of Los Angeles
filed June 22, 2011, publication ordered July 21, 2011, Second District, Div. Seven
Cite as 2011 S.O.S. 4037
Full text click here


Real Property Taxation
Special assessment enacted to increase budget for fire protection service did not confer "particular and distinct" benefits on identifiable parcels over and above the benefits conferred on all parcels or on the public at large, as required by Proposition 218.
Concerned Citizens for Responsible Government v. West Point Fire Protection District
filed June 29, 2011, Third District
Cite as 2011 S.O.S. 3640
Full text click here


Residential Sale Disclosures
Defendant's statement to a prospective buyer of plaintiff's property, that a registered sex offender lived across the street, involved an issue of public interest for purposes of anti-SLAPP protection.
Cross v. Cooper
filed July 11, 2011, Sixth District
Cite as H033164
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, Shaaron 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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