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An ePublication of the Los Angeles County Bar Association
Volume 6, Number 11 • November 2011 • Archives of Past Issues
Real Property Home Page

Special Announcement

This month's collection of decisions includes the First Bank case which points out a little understood distinction in the 2 step process involved in recording a document and creating constructive knowledge of that document. It also is a good example of the new level of deviousness to which some borrowers will stoop. Enjoy your reading.

Sincerely,

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

Coming Events

Legal Opinions: The Contest between Opinion Giver and Recipient

The program will include lively debate on the points of friction between opinion giver and recipient, with special efforts by the panelists to demonstrate the utility of legal opinions in real estate secured loans, the proper limitations on opinion scope, and ways to strike a balance between the expectations of lender and borrower and their counsel.

Date: Novmeber 16, 2011
Location: LACBA Offices

Click here to register for this event

Ethics: All You Need to Know

LACBA's The Professional Responsibility and Ethics Committee will present its 8th annual ethics seminar on Saturday, December 3, 2011. This seminar gives participants both the opportunity to learn about important ethics issues that have a direct impact on the practice of law from the top practitioners in the field and acquire 4 hours of ethics MCLE at the same time.

Date: December 3rd, 2011
Location: LACBA Offices

Click here to register for this event

Everything You Always Wanted to Know about Client Trust Accounting but Were Afraid to Ask

Suzan Anderson of the State Bar will discuss rules and case law governing the fiduciary duties applicable to client trust accounts, including what must (and what cannot) go into a client trust account, the difference between advance fees and a true retainer, and record keeping and reconciliation issues.

Date: December 7th, 2011
Location: LACBA Offices

Click here to register for this event

Recent Cases

From October 1 to October 31

Coastal Commission
Coastal Commission
Construction Law
Foreclosure Sales
Landlord and Tenant
Mobile Home Parks

Public Property Access
Residential Housing
Recordation of Documents
Title Insurance
Zoning

Coastal Commission
Ross v. California Coastal Commission
filed October 11, 2011, Second District, Div. Five
Cite as B232495B225796M
Full text click here

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Coastal Commission
A county's approval of a permitted use development within a coastal zone is not appealable to the Coastal Commission, but when the development project also requires approval of a subdivision, the Coastal Commission has appellate jurisdiction.
DeCicco v. California Coastal Commission
filed October 3, 2011, Second District, Div. Six
Cite as B228009
Full text click here

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Construction Law
Contractual provisions requiring certain procedures to be followed by a party requesting an extension of time amounted to the type of specification contemplated by Civil Code Section 1511, which allows parties to allocate to the contractor the risk of delay costs--even for delays beyond the contractor's control--unless the contractor follows the required procedures for notifying the owner of its intent to claim a right to an extension. Trial court erred in awarding prejudgment interest to City where City had ability to withdraw retention funds held in escrow account when it determined that contractor was in breach.
Greg Opinski Construction, Inc. v. City of Oakdale
filed October 6, 2011, Fifth District
Cite as 2011 S.O.S. 5459
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Foreclosure Sales
Where defendant trustee, acting as beneficiary's agent in preparing property for foreclosure sale, submitted incorrect credit bid to the auctioneer, and twice confirmed the incorrect bid when the auctioneer called to inquire just prior to the sale, such error was wholly under trustee's control and arose solely from its negligence, so there was no procedural irregularity in the foreclosure sale and trustee's motion for summary judgment in purchaser's action for quiet title, specific performance, and declaratory and injunctive relief should have been denied.
Biancalana v. T.D. Service Company
filed October 31, 2011, Sixth District
Cite as H035400
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Landlord and Tenant
City ordinance requiring that residential landlords make good faith efforts to obtain tenant consent to city inspections does not create an agency relationship that would be preempted by state law. Landlords' association lacks standing to assert Fourth Amendment rights of tenants to refuse to submit to city inspections. Ordinance, by requiring landlords to seek tenant consent to inspections, absent which a warrant would be required, does not violate tenants' Fourth Amendment rights. State law limiting circumstances under which landlord may enter tenant's residence does not preempt city inspection ordinance. Ordinance does not violate substantive due process by imposing financial penalties on landlords, where such penalties may only be imposed if landlord or representative fails to attend inspection or reschedules inspection without adequate notice, so that landlord cannot be penalized solely for tenant's recalcitrance.
Rental Housing Owners Association of Southern Alameda County, Inc. v. City of Hayward
filed September 30, 2011, publication ordered October 25, 2011, First District, Div. Three
Cite as 2011 S.O.S. ge 5766
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Mobile Home Parks
Plaintiffs made a sufficient showing of an ascertainable class where class members were residents of mobile home park who could identify themselves and be identified from park owners' business records, leases, and homeowners association records. Although class description could be improved by including time periods to eliminate any confusion, description outlined an objectively identifiable group tied to the park's 96 spaces. Possibility that individual trials on damages or specification of sub-classes may be necessary did not mean that individual fact questions predominated. Trial court erroneously assumed individual testimony would be required to establish reliance on representations made to the class members and damages. A "no third party beneficiary" clause may bar claims by strangers who only incidentally benefit from a contract, but it will not bar the claims of the park residents who are the primary beneficiaries of this contract and the ones whose vote determined the agreement's enforceability.
Marler v. E. M. Johansing, LLC
filed October 19, 2011, Second District, Div. Six
Cite as 2011 S.O.S. 5668
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Public Property Access
State may condition access to state property so long as the conditions do not impose costs that compel the carrier to change rates, routes, or services. 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 State's position, State may claim the market participant doctrine. States have power to limit motor carrier access to particular land to promote safety. The Federal Aviation Administration Authorization Act did not preempt requirements contained in concession agreements--which motor carriers were required to enter into with state entity to operate drayage trucks on that entity's property--that a concessionaire demonstrate its financial capability to perform its obligations under the agreement; that the concessionaires be responsible for vehicle condition and safety; that the concessionaires post placards on their vehicles that referred members of the public to a phone number to report concerns regarding truck emissions, safety, and compliance; and that concessionaires submit for approval an off-street parking plan for permitted trucks. Provision requiring concessionaires to transition over five years to using employee drivers rather than using independent owner-operators was preempted by the FAAA Act because it was tantamount to regulation.
American Trucking Associations, Inc. v. City of Los Angeles
filed September 26, 2011, amended October 31, 2011
Cite as 10-56465
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Residential Housing
Parol evidence rule precluded admission of evidence proffered by plaintiffs to show that defendants promised them the development in which they purchased property would contain only custom homes where written agreement between the parties' specifically reserved to defendants the right to build other types of houses. The trial court erred in sustaining defendants' demurrer to the causes of action for false advertising and unfair competition because the allegations on which plaintiffs relied to demonstrate their claim that defendants engaged in a campaign of false advertising were not offered to vary, alter, or add to the terms of the parties' written agreement, and thus the parol evidence rule was inapplicable. Agreement was ambiguous as to whether defendants were acting as plaintiffs' broker or real estate agent and therefore a triable issue of fact exists as to this question.
Duncan v. The McCaffrey Group, Inc.
filed October 28, 2011, Fifth District
Cite as F060922
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Recordation of Documents
Lenders have equal priority where two deeds of trust secured by the same real property were simultaneously time-stamped for recording even though they were indexed at different times, since recording and indexing are separate and distinct functions.
First Bank v. East West Bank
filed October 17, 2011, Second District, Div. Three
Cite as B226061
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Title Insurance
Title insurance claim for losses incurred when prospective buyer withdrew from its agreement to purchase parcel from insured after learning City had recorded a notice of merger combining that parcel with surrounding parcel did not fall within coverage for losses or damage incurred due to unmarketability of the title since notice of merger did not constitute "a matter affecting title to the land," as required by the policy.
Dollinger DeAnza Associates v. Chicago Title Insurance Company
filed September 9, 2011, publication ordered October 6, 2011, Sixth District
Cite as 2011 S.O.S. 5477
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Zoning
An individual medical marijuana patient is not the proper party to challenge generally applicable zoning provisions because--whatever the contours of the right to engage in cooperative or collective medical marijuana activity--the Legislature invested this right in cooperative and collective groups and entities, not in individuals. An individual dispensary stakeholder or patron does not have standing to challenge an alleged infringement of a right belonging to the group as a whole.
Traudt v. City of Dana Point
filed September 30, 2011, Fourth District, Div. Three
Cite as G044130
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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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