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An ePublication of the Los Angeles County Bar Association
Volume 6, Number 10 • October 2011 • Archives of Past Issues
Real Property Home Page

Special Announcement

If you attended the Crocker Symposium earlier this month, I hope that you found it as interesting and informative as I did. If you didn't, then I will give you the summary provided by the economists on the first panel of the day: Turbulence ahead with a 40% chance of a double-dip recession.

Sincerely,

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

Recent Cases

From September 1 to September 30

CEQA
CEQA
CERCLA
Coastal Commission
Land Use
Mechanic's Liens

Real Property Litigation
Real Property Taxation
Rent Control
State Property
Trust Deed Foreclosure
Trust Deed Foreclosure

CEQA
Where a court-ordered "physical solution" to a water rights dispute is in place, a public agency may not order preparation of an EIR under CEQA that conflicts with the court order.
Hillside Memorial Park and Mortuary v. Golden State Water Company
filed September 27, 2011, Second District, Div. Five
Cite as B225058
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CEQA
Trial court has authority to resolve dispute between parties as to what should be included in or excluded from administrative proceeding in a CEQA action, subject to appellate review. Verification process adopted as part of mitigation measure--whereby qualified archaeologist hired by applicant would be required to analyze artifacts previously recovered in test excavations, then review existing documentation and recommend an appropriate course of action if he or she verified that the site was a historical resource--was contrary to CEQA because it implicitly empowered archeologist to overturn EIR's conclusion that the sites involved were historical resources.

CEQA Guidelines that include preservation in place among the factors that "shall be considered and discussed in an EIR" means that, when the preference for preservation in place is not followed, the EIR shall state why another type of mitigation better serves the interests protected by CEQA. Traditional cultural properties are not automatically historical resources for purposes of CEQA, but when such properties constitute a part of the environment, they are subject to the general rules regarding the discussion of environmental impacts and related mitigation measures.

EIR's traffic analysis was flawed where it could not be stated with certainty that existing conditions were used as the baseline for determining the significance of project's potential impacts on traffic.
Madera Oversight Coalition, Inc. v. County of Madera (Tesoro Viejo, Inc.)
filed September 13, 2011, Fifth District
Cite as 2011 S.O.S. 5086
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CERCLA
A company selling a product that uses and/or generates a hazardous substance as part of its operation may not be held liable as an arranger under CERCLA unless the plaintiff proves the company entered into the relevant transaction with the specific purpose of disposing of a hazardous substance.
Team Enterprises, LLC v. Western Investment Real Estate Trust
filed July 26, 2011, amended September 26, 2011
Cite as 10-16916
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Coastal Commission
Coastal Commission's resolution of conflicting city development standards concerning buffers in environmentally sensitive habitat areas was entitled to deference, particularly since the applicable standards were drafted by the Commission. Coastal Commission acted within its broad powers specified in Public Resources Code Section 21174 in complying with a certified regulatory program allowing a shorter period in which to act than the Section 21091(a) 30-day review period. Commission was exempted from preparing an environmental impact report for local coastal plan amendment where Resources Agency secretary had approved certified regulatory program.
Ross v. California Coastal Commission
filed September 9, 2011, Second District, Div. Five
Cite as 2011 S.O.S. 5060
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Land Use
City council abused its discretion in approving a proposal materially different from that addressed by the zoning administrator without making a showing as to how it traveled from evidence to action nor how the zoning administrator erred or abused her discretion.
West Chandler Boulevard Neighborhood Association v. City of Los Angeles
filed August 16, 2011, publication ordered September 6, 2011, Second
   District, Div. Four
Cite as 2011 S.O.S. 5045
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Mechanic's Liens
Term "mining claim", as used in Civil Code Section 3060, refers to a portion of a vein or lode and of the adjoining surface to which a claimant has acquired a right of possession. Quarry where party worked on crushing rocks used for, among other things, constructing roads was not a mining claim. Judicial estoppel prevented plaintiff from asserting a mechanics lien over quarry where plaintiff had previously taken a position that it had a mining lien, which resulted in its success at the demurrer stage, and plaintiff's new position was inconsistent with the prior position since liens are creatures of statute and apply in specific circumstances.
Sukut Construction, Inc. v. Rimrock CA LLC
filed September 30, 2011, Fourth District, Div. One
Cite as 2011 S.O.S. 5362
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Real Property Litigation
District court erroneously concluded that lack of Article III standing was grounds for dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim where Plaintiffs alleged concrete injuries-in-fact when they claimed that they overpaid for their homes, which they purchased in new developments, and suffered from decreased value and desirability of their homes, caused by the developers' practice of marketing neighboring homes to individuals who presented a high risk of foreclosure and abandonment of their homes, financing those high-risk buyers, concealing that information, and misrepresenting the character of the neighborhoods. Plaintiffs also sufficiently alleged that defendants, not third parties, inflated the "bubble" in their particular neighborhoods, causing plaintiffs to overpay for their homes. Plaintiffs should have been granted leave to amend their complaint to attach expert testimony on causation as to their decreased value claims.
Maya v. Centex Corporation
filed September 21, 2011
Cite as 10-55658
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Real Property Taxation
City failed to meet its burden to show that the contested assessment amounts charged against its park and open space parcel were proportional to and no greater than the benefits conferred on the assessed properties where appellate court was unable to determine from the record how the assessment amounts were calculated. City's failure to publicly disclose how the assessment amounts for the city's park and open space properties were calculated compromised the transparency and integrity of the election process by depriving other property owners of the opportunity to review and challenge the vote weighting for those properties. Notice of the amount of an assessment is not notice of the basis for an assessment. The general and special benefits conferred on real property by a service or improvement for which a special assessment is to be levied must be separated and quantified.
Golden Hill Neighborhood Association, Inc. v. City of San Diego
filed September 22, 2011, Fourth District, Div. One
Cite as D057004
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Rent Control
Allegation that an enacted amendment to the rent stabilization ordinance impacted plaintiffs' operations as landlords was insufficient to establish standing.
Carrico v. City and County of San Francisco
filed September 6, 2011
Cite as 09-17151
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State Property
When an independent state entity manages access to its facilities and imposes conditions similar to those that would be imposed by a private landlord in the state's position, the state may claim the market participant doctrine.
American Trucking Associations, Inc. v. City of Los Angeles
filed September 26, 2011
Cite as 10-56465
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Trust Deed Foreclosure
Civil Code Section 2932.5, which requires the assignee of a mortgagee to record an assignment before exercising a power to sell real property, does not apply when the power of sale is conferred in a deed of trust rather than a mortgage.
Calvo v. HSBC Bank USA, N.A.
filed September 13, 2011, Second District, Div. Eight
Cite as 2011 S.O.S. 5113
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Trust Deed Foreclosure
Civil Code Sec. 2924(a), which sets forth the requisites for the exercise of the power of sale contained in a deed of trust, does not authorize borrower to bring an action challenging standing to foreclose on the ground that the owner of the deed of trust has not been adequately identified.
Robinson v. Countrywide Home Loans, Inc.
filed September 12, 2011, Fourth District, Div. Two
Cite as 2011 S.O.S. 5075
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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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