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An ePublication of the Los Angeles County Bar Association
Volume 7, Number 2 • February 2012 • Archive of Past Issues
Real Property Home Page

Special Announcement

It's never too early to plan ahead. The section's two big events of the year have now been scheduled: the Installation Dinner on May 30 and the Crocker Symposium on October 29. Both will take place at the Millennium Biltmore Hotel located in downtown Los Angeles. So mark your calendars and start thinking about becoming a sponsor of the Symposium. More information on both of these events will follow.

Sincerely,

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

Coming Events

An Update on The Insured's Right to Independent Counsel

The issue of choice of counsel has been a hot topic over the years. When an insurer retains counsel to defend its insured in a third party lawsuit and wants to control the defense per the terms of its insurance policy, does the insured have a right to independent counsel simply because a reservation of rights letter has been issued? California Civil Code §2860 attempts to resolve the often confusing question of when an insured has a right to demand independent counsel and to explain the rights and the obligations of parties -- insurer, insurance retained counsel, insured and independent counsel -- when independent counsel is provided.

Date: February 21, 2012
Location: Sheraton Pasadena Hotel

Click here for more information and to register for this event.

Basics of Renewable Energy Leasing and Development: Landlord, Tenant, Energy Company, and Capital Provider Perspectives

A moderated panel will address issues in renewable energy leases and other development arrangements. The speakers will analyze issues from the perspectives of the landlord, the tenant, the lender, and the utility. The panel will discuss various factors driving renewable energy leasing and development deals, and how to protect the interests and understand the motivations of the various players with respect to such issues.

Date: February 23, 2012
Location: LACBA Offices

Click here for more information and to register for this event.

Recent Cases

From January 1 to January 31

Bankruptcy
Bankruptcy
CEQA
CEQA
Construction Law
Environmental Law

Land Use Litigation
Real Property Litigation
Real Property Taxation for
   Petroleum Refineries

Water Law
Zoning

Bankruptcy
Appeal from unstayed order substantially affirming reorganization plan was not constitutionally moot because appellate court could reverse plan confirmation or require modification of the plan, thereby giving relief to appellants. Appeal was not equitably moot where appellants unsuccessfully sought a stay, much of the property that was to be transferred under the plan had not yet been transferred by the time that the appeal was argued, plan could be altered without undue harm to third parties, and bankruptcy court would be able to fashion equitable remedy on remand.
In the Matter of Thorpe Insulation Company
filed January 24, 2012
Cite as 10-56543
Full text click here

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Bankruptcy
Under 11 U.S.C. Sections 101(51B) and 362(d)(3), which provide a procedure by which a creditor may obtain relief from the automatic stay when the debtor's sole business is the management of a single piece of real estate, bankruptcy court erred in declining to apply the statutes, on ground that debtor was "part of a whole business enterprise", where it found debtor met the statutory requirements.
In the Matter of Meruelo Maddux Properties, Inc.
filed January 27, 2012
Cite as 10-56128
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CEQA
EIR need not specifically analyze impact of Surplus Land Act on a proposed sale of public land, since such land may be sold to a public entity subject to mitigation conditions or conservation easements just as in a sale to a private party. Where project consisted of sale of land containing historic structure together with adjacent land, it was an abuse of discretion under CEQA for City not to respond to comment suggesting reduction in size of parcel.

City did not abuse its discretion by determining that its continued ownership and maintenance of historic building in public park would be economically unfeasible. City was not required to analyze costs of maintenance because it could reasonably determine not to spend any public money to continue to maintain the building. City's finding that leasing rather than selling building was economically unfeasible was supported by substantial evidence where costs of preparing property to be leased were unlikely to be recouped within a reasonable length of time given market conditions.
The Flanders Foundation v. City of Carmel-by-the-Sea
filed January 4, 2012, Sixth District
Cite as 2012 S.O.S. 36
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CEQA
County's decision to approve by negative declaration an oak woodland management plan and mitigation fee program was an abuse of discretion under CEQA. County's assertion that the plan and fee program were consistent with an earlier general plan did not insulate it from having to prepare a tiered EIR, because the program EIR for the earlier project did not provide guidance in making discretionary choices that served as the basis for the plan or fee program.
Center for Sierra Nevada Conservation v. County of El Dorado
filed January 20, 2012, Third District
Cite as C064875
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Construction Law
In premises liability action brought against general contractor by independent contractor of subcontractor, evidence that defendant directed another subcontractor to dig holes into which posts were to be placed--but which plaintiff stepped into, causing injuries--and that the holes were in the area where plaintiff was expected to work but were not needed for him to complete his work--was sufficient to establish triable issue under the peculiar risk doctrine as to whether defendant's conduct constituted a negligent exercise of its retained control in a manner that could have made an affirmative contribution to plaintiff's injury. Evidence of defendant's determination that there was no need to cover or barricade the holes and that defendant failed to cover the holes after plaintiff twice asked defendant to do so might have allowed a reasonable jury to find that defendant made an affirmative contribution to plaintiff's injuries, precluding summary judgment.
Tverberg v. Fillner Construction, Inc.
filed January 26, 2012, First District, Div. Four
Cite as 2012 S.O.S. 389
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Environmental Law
Environmental Protection Agency has an affirmative duty to evaluate the adequacy of an existing State Implementation Plan ("SIP") as a whole when approving SIP revisions. If Agency approves a plan revision, it must ensure that the whole plan as revised satisfies Clean Air Act's requirements. If Agency has knowledge that a previously approved SIP likely no longer meets Act's attainment requirements, Agency also has an affirmative obligation to request a new attainment demonstration. Agency acted arbitrarily and capriciously in not requiring transportation control measures to offset growth in emissions from increased vehicle miles traveled.
Association of Irritated Residents v. U.S. Environmental Protection Agency
filed February 2, 2011, amended January 27, 2012
Cite as 09-71383
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Land Use Litigation
Plaintiff who did not challenge development permit issued in 1982 within 60 days was time barred from seeking writ of mandamus. Third party did not have standing to sue permit holder for declaratory or equitable relief absent a showing that the permit holder was violating the terms of the permit.
Sierra Club v. California Department of Parks and Recreation
filed January 9, 2012, Second District, Div. Six
Cite as 2012 S.O.S. 94
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Real Property Litigation
Where TRO barring trustee's sale of certain properties was dissolved, no stay was obtained, and properties were sold during pendency of appeal from the order dissolving the TRO, the appeal was moot.
Vegas Diamond Properties, LLC v. Federal Deposit Insurance Corporation
filed January 6, 2012
Cite as 10-56720
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Real Property Taxation for Petroleum Refineries
California Code of Regulations., Title 18, Section 474, which established new property tax valuation formulas uniquely applied to petroleum refineries, is invalid as contrary to Revenue and Taxation Code Section 51(d). The intent of Section 51(d) was to carry forward valuation formulas that were adopted prior to enactment of Propositions 13 and 8--and that contemplated valuing land and improvements as an appraisal unit, and valuing fixtures as a separate appraisal unit to allow for depreciation.
Western States Petroleum Association v. State Board of Equalization
filed January 19, 2012, Second District, Div. Eight
Cite as B225932
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Water Law
Where trial court allocated storage space in water basin, pursuant to court of appeal ruling that it had jurisdiction to do so, and one of the parties later moved to amend the judgment to allocate storage space in a different manner, trial court had jurisdiction to consider that motion under the doctrine of law of the case. Trial court's jurisdiction to allocate water rights within a particular basin included authority to consider contractual transfer of water between that basin and another, notwithstanding that court lacked jurisdiction over allocation of rights within the other basin. Trial court had jurisdiction to appoint one of the litigating water districts as watermaster.
Water Replenishment District of Southern California v. City of Cerritos
filed January18, 2012, Second District, Div. Eight
Cite as 2012 S.O.S. 231
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Zoning
Action challenging legislative body's decision to deny a zone change is subject to 90-day limitation period set forth in Government Code Section 65009(c)(1)(B).
General Development Co., L.P. v. City of Santa Maria
filed January 25, 2012, Second District, Div. Six
Cite as 2012 S.O.S. 347
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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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