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An ePublication of the Los Angeles County Bar Association
Volume 6, Number 12 • December 2011 • Archives of Past Issues
Real Property Home Page

Special Announcement

David Dain, the Webmaster at the County Bar Association who packages the Newsletter for me, and I wish each of you and your families a Happy Holiday Season and Good Wishes for a prosperous 2012! We appreciate your comments to our efforts.

Sincerely,

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

Recent Cases

From November 1 to Novmeber 30

CEQA
CEQA
Covenants, Conditions & Restrictions
Covenants, Conditions & Restrictions
Eminent Domain

Land Use
Land Use
Landlord and Trust
Lis Pendens
Trust Deed Foreclosures
Water Law

CEQA
Demurrer is an appropriate vehicle to test a CEQA petition on ground that the petitioner's corporate powers have been suspended. Suspended corporation cannot allege substantial compliance with the suspension and revivor statutes to avoid the short limitations periods in the California Environmental Quality Act and the Planning and Zoning Law.
Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (Convenience Retailers, LLC)
filed November 22, 2011, Third District
Cite as 2011 S.O.S. 6264
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CEQA
City did not abuse its discretion under CEQA by determining that proposed project to redevelop property for medical offices was consistent with the land use and transportation policies stated in the city's general plan. Fact that area was zoned low-density residential did not necessarily mean general plan envisioned that future uses would be limited to single-family residences. EIR's general discussion of general plan inconsistency satisfied CEQA. To the extent that public comment "spotlighted" the issue, draft EIR adequately responded by providing a similar level of detail as the comment and demonstrating a good faith analysis as to how the matter was addressed and analyzed.

Traffic baseline used in draft EIR was not legally incorrect, since CEQA does not mandate the use of a particular baseline, and a baseline that deviates from existing conditions is allowed under circumstances in which future conditions might vary due to anticipated growth and completion of pending construction. EIR's discussion of traffic noise impacts was adequate, despite use of a hypothetical background traffic baseline and failure to set forth project's noise impacts on the existing environment, where it utilized actual noise levels in assessing traffic noise impacts, and where there was substantial evidence supporting city's conclusion that such noise would be a less-than-significant impact.
Pfeiffer v. City of Sunnyvale City Council (Palo Alto Medical Foundation
filed October 28, 2011, publication ordered November 22, 2011, Sixth District
Cite as 2011 S.O.S. 6305
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Covenants, Conditions & Restrictions
A developer cannot compel binding arbitration of a construction defect action brought by a condominium homeowners association pursuant to an arbitration provision in the declaration of covenants, conditions, and restrictions.
Promenade at Playa Vista Homeowners Association v. Western Pacific Housing, Inc.
filed November 8, 2011, Second District, Div. One
Cite as 2011 S.O.S. 6030
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Covenants, Conditions & Restrictions
Question of homeowners association's compliance with Civil Code Section 714 was properly submitted to the jury. Substantial evidence supported jury's finding that the CC&Rs imposed reasonable restrictions on the installation of solar energy systems where the CC&Rs allowed for an alternative solar energy system of comparable costs and efficiency that did not significantly increase the cost or decrease the efficiency of the system sought. Nothing in Sec. 714 prohibits the consideration of aesthetic impacts in evaluating a proposed solar energy system. Association properly evaluated application for a solar energy system, brought suit, and received a jury trial.
Tesoro del Valle Master Homeowners Association v. Griffin
filed October 3, 2011, publication ordered November 1, 2011, Second District, Div. Two
Cite as 2011 S.O.S. 5952
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Eminent Domain
Under California's "quick-take" eminent domain procedure--whereby a public entity filing a condemnation action seeks immediate possession of the condemned property upon depositing with the court the probable compensation for the property--if a lender holding a lien on the property applies to withdraw a portion of the deposit, the property owner's failure to object does not constitute a waiver of the property owner's claims and defenses.
Los Angeles County Metropolitan Transportation Authority v. Alameda Produce Market, LLC
filed November 14, 2011
Cite as 2011 S.O.S. 6084
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Land Use
A county's finding that a project site is "not physically suitable" does not relieve the county from compliance with Government Code Section 65589.5(j) if the threshold compliance standards of that statute are met and if the county denies approval for reasons other than compliance with "applicable, objective general plan and zoning standards and criteria, including design review standards, in effect...."
Honchariw v. County of Stanislaus
filed November 14, 2011, Fifth District
Cite as 2011 S.O.S. 6110
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Land Use
Under Government Code Section 56133, the city or district that proposes to provide services outside its jurisdictional boundaries must request and receive approval from its Local Agency Formation Commission ("LAFCO"), but LAFCO's jurisdiction does not depend upon the identity of the person who filled out the application. The fact that the prospective recipient of the services filed the application does not prevent LAFCO from ruling upon the request so long as the city or district that will provide the services is a party to the agreement for which LAFCO approval is sought and joins the request by affirmatively indicating its willingness to provide the services.
Community Water Coalition v. Santa Cruz County Local Agency Formation Commission (City of Santa Cruz)
filed November 18, 2011, Sixth District
Cite as 2011 S.O.S. 6223
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Landlord and Tenant
A landlord who rents an apartment for residential use generally may not enforce against the tenant an agreement to waive liability for the landlord's negligence, but when the waiver in question relates to the landlord's operation of a tenant-only health club or exercise facility, such a waiver is enforceable.
Lewis Operating Corporation v. Superior Court (Costahaude)
filed November 10, 2011, Fourth District, Div. Two
Cite as 2011 S.O.S. 6203
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Lis Pedens
Action alleging that defendant slandered title to plaintiff's real property by wrongfully recording a lis pendens was barred by the litigation privilege, so trial court correctly granted defendant's anti-SLAPP motion. There is no exception to the absolute litigation privilege based on the lack of "evidentiary merit" of a claimant's real property claim in connection with a recorded lis pendens.
Alpha and Omega Development, LP v. Whillock Contracting, Inc.
filed November 2, 2011, Fourth District, Div. One
Cite as 2011 S.O.S. 5948
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Trust Deed Foreclosure
Mortgage loan modification agreement under the Home Affordable Mortgage Program was subject to the same rules as other types of contracts, and lender was not equitably stopped from foreclosure where agreement was temporary by its terms and neither lender nor the loan servicer led plaintiffs to believe that a permanent loan modification was forthcoming. Defendants did not violate the one-form-of-action and security-first rules of Code of Civil Procedure Section 726 by retaining two payments under temporary modification plan and applying them against the unpaid principal balance of the mortgage, where foreclosure proceedings were suspended for a period of months in accordance with parties' agreement.
Nungaray v. Litton Loan Servicing, LP
filed November 22, 2011, Second District, Div. Six
Cite as 2011 S.O.S. 6282
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Water Law
Water allocation system in which each shareholder's allocation is determined by a ratio of the number of shares to the number of acres owned is not discriminatory and does not violate Corporations Code Section 400.
De Boni Corporation v. Del Norte Water Company
filed November 14, 2011, Second District, Div. Six
Cite as 2011 S.O.S. 6089
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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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