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An ePublication of the Los Angeles County Bar Association
Volume 6, Number 9 • September 2011 • Archive of Past Issues
Real Property Home Page

Special Announcement

Before you begin to read this edition of the Newsletter, stop and take a look around. Do you feel the excitement in the air? Do you sense the anticipation of something important on the way? No, it's not the circus coming to town; it's the imminent arrival of the biggest and best real estate program of the year--The Benjamin S. Crocker Symposium co-presented by the Real Property Section of the Los Angeles County Bar Association and the Ziman Center for Real Estate at UCLA to be held on October 4, 2011 at the JW Marriott Hotel at L.A. Live. Go to the website at www.Crocker2011.com to check out the impressive list of presenters and their topics, and to register to attend. And don't forget to remind your colleagues and associates to do likewise. This is the best opportunity before the year-end closing season begins to listen to the most knowledgeable speakers talk about the most timely topics of interest to real estate lawyers and professionals, and to network with these speakers and attendees. Not to mention picking up multiple MCLE and DRE credits all in the same place. Much time and effort by many people have gone into producing a stellar event which should not be missed!

Sincerely,

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

Recent Cases

From August 1 to August 31

Adverse Possession
Anti-Deficiency Legislation
Bankruptcy
CEQA
Construction Law
Construction Law
Construction Law
Easements
Foreclosures

Home Mortgages
Home Mortgages
Inverse Condemnation
Land Use
Land Use
Partnerships
Partnerships
Partnerships
Real Property Litigation
Zoning

Adverse Possession
In action to quiet title, evidence that plaintiffs "disced" their property two or three times a year, posted a "for sale" sign near the property, and introduced themselves as owners of the property at a meeting failed to establish a triable issue of material fact with respect to their claim that they acquired a 100% interest in the property by adverse possession under a claim of right where it was undisputed that the property was unimproved and that plaintiffs never told the defendant cotenants to stay off the property, never put up a fence or barrier prohibiting entry on the property, and never excluded the cotenants from the property.
Hacienda Ranch Homes, Inc. v. Superior Court (Elissagaray)
filed August 30, 2011, Third District
Cite as 2011 S.O.S. 4889
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Anti-Deficiency Legislation
New York anti-deficiency statute was inapplicable to judicial foreclosure proceedings involving out-of-state property, notwithstanding choice of law provision in the loan and guaranty agreements, where the contract was executed in California, the debt was created and guaranteed in California, the default occurred in California and the real property was located in California.
Gramercy Investment Trust v. Lakemont Homes Nevada, Inc.
filed August 24, 2011, Fourth District, Div. Two
Cite as 2011 S.O.S. 4790
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Bankruptcy
An automatic stay imposed by 11 U.S.C. Sec. 362(a) bars actions that would diminish the estate of a debtor in bankruptcy; therefore, if another debtor wants to equitably subordinate the creditor claims of the first debtor, it must seek relief from stay from the first debtor's home bankruptcy court.
In re Palmdale Hills Property, LLC
filed August 3, 2011
Cite as 10-60004
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CEQA
County's failure to provide notice to state agency of administrative proceedings before adopting negative declaration for proposed project was not prejudicial because the lack of notice did not result in the omission of relevant information on project's air quality impacts from the review and decision-making process.
Schenck v. County of Sonoma (Liquid Investments, Inc.)
filed August 26, 2011, First District, Div. One
Cite as 2011 S.O.S. 4785
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Construction Law
Employees of independent contractors who are injured in the workplace cannot sue the party that hired the contractor to do the work, even when this party failed to comply with workplace safety requirements concerning the precise subject matter of the contract and the injury is alleged to have occurred as a consequence of that failure.
Seabright Insurance Company v. US Airways, Inc.
filed August 22, 2011
Cite as S182508
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Construction Law
Subcontractor that did not maintain a Class C-12 specialty license but held a Class A general engineering contractor's license when it commenced performance of the subcontract for temporary excavation and support works was duly licensed for purposes of Business and Professions Code Sec. 7031. Insofar as a subcontractor is engaged in digging as well as excavating, backfilling, grading, and providing support in connection with fixed works that require specialized engineering knowledge and skill, a Class A license will suffice.
Pacific Caisson & Shoring, Inc. v. Bernards Bros. Inc.
filed August 19, 2011, Second District, Div. Three
Cite as 2011 S.O.S. 4560
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Construction Law
Contractors' State License Law does not automatically void all contracts entered by unlicensed contractors. Trial court erred in vacating arbitration award based on finding that the entire contract entered into by an unlicensed contractor was illegal and so the arbitration provision was void.
Templo Calvario Spanish Assembly of God v. Gardner Construction Corporation
filed August 16, 2011, Fifth District
Cite as F060838
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Easements
Action to enforce an easement that allowed plaintiffs to operate a billboard on defendants' land was not barred by illegality where use of the property for advertising purposes was not illegal per se, even if the billboard was being operated in violation of permit requirements. Easement's provisions allowing the plaintiffs "to do all things necessary and incidental to the operation of the business of a billboard" precluded defendants from developing their land in such a manner as to render the billboard invisible to passing motorists. Compliance order, issued after trial, directing plaintiffs to remove billboard as an illegal structure constituted newly discovered material evidence on the issue of damages, and it was error for trial court to deny defendants' motion for new trial on that ground.
Hill v. San Jose Family Housing Partners, LLC
filed August 23, 2011, Sixth District
Cite as H034931
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Foreclosures
Trial court did not abuse its discretion in taking judicial notice of the legal effects of recorded documents that clarified and, to a degree, contradicted plaintiff's allegations regarding defendant's role in the foreclosure of plaintiff's home. Because a promissory note is a negotiable instrument, a borrower must anticipate it can and might be transferred to another creditor. Plaintiff was not prejudiced by defendant's purported transfer of her note since such an assignment merely substituted one creditor for another without changing her obligations under the note. Promissory estoppel did not apply where defendant's promise not to foreclose was given for proper consideration in the form of plaintiff's agreement to resume making payments on the promissory note.
Fontenot v. Wells Fargo Bank, N.A.
filed August 11, 2011, First District, Div. One
Cite as 2011 S.O.S. 44482
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Home Mortgages
Plaintiffs adequately alleged fraud and violations of Business and Professions Code Sec. 17200 to withstand demurrer based on defendant's allegedly misleading, incomplete, and/or inaccurate disclosures regarding plaintiffs' adjustable rate mortgages. Strict compliance with the Truth in Lending Act did not provide a safe harbor from plaintiff's claims.
Boschma v. Home Loan Center, Inc.
filed August 10, 2011, Fourth District, Div. Three
Cite as 2011 S.O.S. 4411
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Home Mortgages
Borrowers failed to state a cause of action against large-scale mortgage lender for fraudulent concealment of an alleged scheme to bilk investors by selling them pooled mortgages at inflated values, the demise of which scheme allegedly led to devastated home values across California; due to generalized decline in home values affecting all homeowners--whether they borrowed from defendant, borrowed from someone else, or bought for cash. There was no nexus between defendant's alleged fraudulent concealment of its scheme to bilk investors and the diminution in value of plaintiffs' properties.
Bank of America v. Superior Court (Ronald)
filed August 24, 2011, Second District, Div. Three
Cite as B231520
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Inverse Condemnation
Unimproved raw land that has not been deliberately acted upon by county, even if county owned it in fee and accepted it into its road system, was not a public improvement for purposes of inverse condemnation.
Gutierrez v. County of San Bernardino
filed August 24, 2011, Fourth District, Div. Two
Cite as E050452
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Land Use
Water district failed to satisfy its burden to establish that new water rate structure complied with Proposition 218 (as set forth in Article XIII D of the California Constitution), including the proportionality requirement that specifies no fee or charge imposed upon any person or parcel as an incident of property ownership shall exceed the proportional cost of the service attributable to the parcel, where structure included tiers based on type of user, and district failed to present evidence justifying inequality between tiers.
City of Palmdale v. Palmdale Water District
filed August 9, 2011, publication ordered August 25, 2011, Second District,
    Div. Seven
Cite as 2011 S.O.S. 4773
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Land Use
Trial court judgment denying petition for writ of mandate was moot where petition challenged defendant's approval of a project which had been abandoned because of litigation between defendant and real party in interest..
Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa
   (Target Stores, Inc.)

filed August 25, 2011, Fourth District, Div. Two
Cite as 2011 S.O.S. 4782
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Partnerships
IRS properly sent deficiency notice to taxpayer who claimed an interest in a partnership the IRS found to be a sham because the deficiency required a partner-level determination. A determination as to a partnership's validity falls within the definition of a partnership item.
Napoliello v. Commissioner of Internal Revenue
filed August 23, 2011
Cite as 09-72389
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Partnerships
The "liquidation value" of a partnership for purposes of Corporations Code Section 16701(b), setting forth requirements for the buyout of a dissociating partner's share when there is no agreement among the partners, is the amount a willing and informed buyer would pay a willing and informed seller. Partners are not individually liable to a dissociating partner under Sec. 16701.
Rappaport v. Gelfand
filed July 28, 2011, Second District, Div. Three
Cite as 2011 S.O.S. 4192
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Partnerships
Pursuant to the Revised Uniform Partnership Act, a one-person partnership cannot exist. If a partnership consists of only two persons, the partnership dissolves by operation of law when one of them departs.
Corrales v. Corrales
filed August 10, 2011, Fourth District, Div. Three
Cite as G043598
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Real Property Litigation
Wife was an indispensible party to husband's motion for an order vacating a family law attorney's real property lien, and thus joinder was required before her rights under the lien could be adjudicated.
In re Marriage of Ramirez
filed July 19, 2011, publication ordered August 11, 2011, Fourth District, Div.
    One
Cite as 2011 S.O.S. 4422
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Zoning
Municipal "density restriction" that limits lot sizes to 20 acres was a valid exercise of city's police powers and did not violate equal protection. Trial court properly considered the nature of all of the land surrounding plaintiff's property in concluding that there was no spot zoning. Given the size of the property and its location on the southern edge of city adjacent to large swaths of unincorporated agricultural land, restricting development on the property bore a substantial and reasonable relationship to the public welfare goals of limiting the burden on city services and resources, discouraging noncontiguous development and urban sprawl, and maintaining City's unique rural character.
Arcadia Development Co. v. City of Morgan Hill
filed August 5, 2011, Sixth District
Cite as 2011 S.O.S. 4325
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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, Marybeth Heydt
Title Insurance, Vickie Perkowitz

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