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An ePublication of the Los Angeles County Bar Association
Volume 7, Number 4 • April 2012 • Archive of Past Issues
Real Property Home Page

Introductory Comment

In keeping with my goal of presenting important new information succinctly, I have nothing further to add this month.

Sincerely,

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

Coming Events

New Mechanics' Lien, Stop Notice and Payment Bond Laws

For those in the construction industry, the success of collection efforts is often dependent upon a valid Mechanics Lien, Stop Notice, or Payment Bond claim. If your clients rely on these payment remedies (or need to protect against them), then you must know about all the new Mechanics Lien Statutes which go into effect on July 1, 2012. The California legislature rewrote the statutes (new code numbers) and gave us new definitions in the construction legal world ("direct contractor,") and changed the standard forms and procedures for all claims. This presentation will summarize the changes in the laws, notice procedures, and statutory forms.

Date: April 24, 2012
Location: LACBA Offices

Click here to register for this event.

Big Box Leases - Top 10 Issues

Negotiation of a lease for a big box tenant means addressing a multitude of unique issues, whether representing the landlord or the tenant. Join us for an interesting discussion and hear the perspectives of both the landlord and tenant, as our panelists identify "top ten" issues to consider when dealing with a big box lease. This presentation will address the impact of the current economy on the negotiation of these important issues. Attendees will have an opportunity to pose questions to the panel at the end of the presentation.

Date: April 26, 2012
Location: LACBA Offices

Click here to register for this event.

Hot Topics in California Real Estate Law: Top 10 Real Estate and Title Cases of 2011-12

This year's program is a joint presentation of the General Real Estate and Title Insurance subsections and will highlight 10 of the most important real estate and title cases of the past year.

Date: May 10, 2012
Location: LACBA Offices

Click here to register for this event.

Local Public-Private Partnerships: What Developers and Their Attorneys Need to Know for Successful Economic Development

With the demise of redevelopment, local governments and developers are looking for new ways to fund local economic development efforts, including the enhanced use of public-private partnerships and other tools. Attorneys for agencies, developers, and investors who come to this seminar will learn about authority to assist projects without tax increment financing, and how to be more entrepreneurial when confronted with statutory and Constitutional limitations (including prevailing wage and competitive bidding issues). The speakers include an expert in local tax and financing mechanisms, and attorneys with experience putting together public-private partnerships for both private entities and governmental agencies.

Date: May 22, 2012
Location: LACBA Offices

Click here to register for this event.

14th Annual Real Property Section Installation and Awards Dinner

Join us for the 14th Annual LACBA Real Property Section Installation and Awards Dinner, where the section will honor Alexandra S. Glickman, recipient of the Outstanding Real Estate Industry Award, and James E. Acret, recipient of the Outstanding Real Estate Lawyer Award, and acknowledge both the incoming and outgoing Real Property Section officers.

Date: May 30, 2012
Location: Millennium Biltmore Hotel

Click here to register for this event.

SAVE THE DATE!!!

June 12, 2012: The Use of Experts in Boundary Disputes
More information to come

October 30, 2012: 41st Annual Crocker Symposium on Real Estate Law and Business – Biltmore Hotel 7:30 a.m. – 5:00 p.m.

Important Notice

The California State Bar has commenced a more aggressive approach to audit lawyer's MCLE compliance. In 2012, the goal is to audit 5%, which translates to 3,000-4,000 lawyers, and in 2013 10% or 7,000-8,000 lawyers. Letters requesting proof of compliance for 2012 will be mailed in June. Click here to read the letter detailing these audits.

LACBA has high quality, low cost CLE programming available for members in most substantive practice areas. Check our calendar for upcoming programs. Also, our 2012 CLE in-a-Box is approved for use through 2013 to meet your compliance deadline of February 1, 2013. It's available On-Demand and free shipping is available.

Recent Cases

From March 1 to March 31

Coastal Commission
CEQA
CEQA
Construction Defects Litigation
Construction Law
Construction Law
Construction Law
Construction Law

Eminent Domain
Environmental Law
Landlord and Tenant
Landlord and Tenant
Real Property Taxation
Rent Control
Title Insurance
Trust Deed Foreclosure
Zoning

Coastal Commission
Property owner's failure to appeal Coastal Commission's denial of his vested rights claim precluded judicial review of his claims of vested rights, whether under the Coastal Act or under a stipulated judgment that preceded the Commission proceedings.
Jamieson v. City Council of the City of Carpinteria
filed February 28, 2012, publication ordered March 28, 2012, Second
   District, Div. Six
Cite as B232348
Full text click here

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CEQA
Where California Department of Resources Recycling and Recovery certified a local government agency as the Integrated Waste Management Act enforcement agency in its community, agency's certification of an EIR for issuance of a solid waste facility permit was not appealable to county board of supervisors.
No Wetlands Landfill Expansion v. County of Marin (Redwood Landfill, Inc.)
filed March 20, 2012, First District, Div. Four
Cite as A131651
Full text click here

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CEQA
Because the language of Public Resources Code Section 21167.6 governing the contents of the record of proceedings in CEQA review is not a matter committed to the discretion of the trial court, the trial court's findings of fact made in determining whether documents are part of the record of proceedings are reviewed on appeal using the substantial evidence standard. Substantial evidence that documents sought to be included in record were submitted during administrative proceedings was sufficient to support order for augmentation. If an irrigation district is "beneficially interested" with respect to proposed development, it is authorized to pursue CEQA litigation to protect that "beneficial interest" under the authority granted in Water Code Section 22650. District's operation of recharge basins as part of a groundwater recharge program provided a sufficient interest in groundwater for district to have a beneficial interest that might be affected by project, so district had standing to seek a petition for writ of mandate to enforce CEQA.
Consolidated Irrigation District v. City of Selma (Raven)
filed February 8, 2012, publication ordered March 9, 2012, Fifth District
Cite as 2012 S.O.S. 1195
Full text click here

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Construction Defects Litigation
Where plaintiff homebuyer sued defendant developer for negligent design and construction of the home, which occurred before prior owners purchased the property, and also sued prior owners for their alleged failure to make required material disclosures in connection with the resale of the home three years later, those causes of action arose out of a series of related transactions within the meaning of Code of Civil Procedure Section 1281.2(c), so trial court did not abuse its discretion in finding that there was a possibility of inconsistent adjudications and denying motion to compel arbitration on that basis. Claims by prior owners' advisers were outside scope of arbitration provision, which covered only disputes between seller and buyer.
Lindemann v. Hume
filed February 21, 2012, publication ordered March 20, 2012, Second
   District, Div. Seven
Cite as B226106
Full text click here

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Construction Law
Insurance broker, after procuring a policy of insurance for a developer on a construction project, does not owe a duty to apprise a subcontractor that was later added as an insured under that policy of the insurance company's subsequent insolvency, unless such duty is assumed by contract.
Pacific Rim Mechanical Contractors, Inc. v. AON Risk Insurance Services West,
   Inc.

filed February 28, 2012, Fourth District, Div. One
Cite as D058321
Full text click here

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Construction Law
Civil Code Section 3186, which states that a public entity upon receipt of a stop notice must withhold an amount "sufficient to answer the claim stated in the stop notice and to provide for the public entity's reasonable cost of any litigation thereunder," does not authorize an award of attorney fees.
Tri-State, Inc. v. Long Beach Community College District
filed March 12, 2012, Second District, Div. Three
Cite as 2012 S.O.S. 1209
Full text click here

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Construction Law
In contractor's suit for payment for repair work performed at a building owned by defendants, trial court erred in granting summary judgment under Business and Professions Code Section 7031 on the ground that the business entity that contracted with defendants was a general partnership that did not have a contractor's license, because there was evidence in the record to support a finding that the work was performed by a licensed entity.
Montgomery Sansome LP v. Rezai
filed March 28, 2012, First District, Div. Two
Cite as A130272
Full text click here

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Construction Law
Where change orders with respect to public works contract were put in writing and ultimately were approved by public entity's governing board after the work was completed, plaintiff contractor was entitled to be paid for said extra work. Contractor was entitled to payment for extra work necessitated by incorrect plans and specifications issued by defendant public entity, even though there were no written change orders. Trial court properly applied Public Contracts Code Section 7107, which authorizes attorney fees to the prevailing party in an action for collection of funds "wrongfully" withheld, in awarding fees to contractor and its surety for successful defense of public entity's cross-complaint for enforcement of performance bonds posted as required by contract.
G. Voskanian Construction, Inc. v. Alhambra Unified School District
filed March 29, 2012, Second District, Div. Three
Cite as 2012 S.O.S. 1498
Full text click here

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Eminent Domain
Trial court erred in awarding litigation expenses under Code of Civil Procedure Section 1250.410 where government agreed to settlement before trial.
People ex rel. Department of Transportation v. Superior Court (Menigoz)
filed March 1, 2012, Third District
Cite as 2012 S.O.S. 1100
Full text click here

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Environmental Law
Property owner who is the subject of an EPA compliance order under the Clean Water Act may bring a civil action under the Administrative Procedure Act ("APA") to challenge the issuance of the order. Since such an order determines rights or obligations, subjects property owners to penalties for subsequent failure to comply, and concludes the decision-making process, and because property owners lack any other adequate remedy, the order is "final" within the meaning of the APA. Clean Water Act is not a statute "that preclude[s] judicial review" under the APA, 5 U.S.C. Section 701(a)(1).
Sackett v. Environmental Protection Agency
filed March 21, 2012
Cite as 10-1062
Full text click here

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Landlord and Tenant
One of several lessees signed and delivered to the lessor, with lessor's approval, a writing exercising an option to extend a lease after the expiration of the period to exercise that option. The other co-lessees were not bound by that purported exercise of the option. Increased rental provision for holding over did not apply when one of several lessees did so with the consent of the lessor.
Jeffrey Kavin, Inc. v. Frye
filed March 5, 2012, Second District, Div. Five
Cite as B230076
Full text click here

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Landlord and Tenant
Lease was not "terminated or canceled" within the meaning of a guaranty agreement where tenant breached by ceasing to pay rent and abandoning the premises. Where lease specified that lease "shall not be terminable for any reason by Lessee" and that such provision took precedence over "[a]ny present or future law to the contrary," tenant's breaches did not "terminate" the lease as would otherwise be the case according to Civil Code Section 1951.2.
GECCMC 2005-C1 Plummer Street Office Limited Partnership v. NRFC NNN
   Holdings, LLC

filed March 29, 2012, Second District, Div. One
Cite as 2012 S.O.S. 1503
Full text click here

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Real Property Taxation
In determining whether a property transaction constituted a "change in ownership" for purposes of Proposition 13, the court does not conduct a trial de novo on the facts but rather reviews the findings of the assessment appeals board for substantial evidence. Taxpayer's claim that no change of ownership occurred because the purchaser of the property was acting as agent for a public entity was forfeited where not presented to assessment appeals board.
Duea v. County of San Diego
filed February 29, 2012, publication ordered March 27, 2012, Fourth District,
   Div. One
Cite as D058333
Full text click here

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Rent Control
Rent control does not, by limiting landlord to a "fair return" that is less than market rent, violate substantive due process under state constitution, nor does it constitute a taking of private property without just compensation.
Besaro Mobile Home Park, LLC v. City of Fremont
filed March 1, 2012, publication ordered March 14, 2012, First District, Div. Five
Cite as 2012 S.O.S. 1241
Full text click here

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Title Insurance
Trial court may not consider losing party's financial status as an equitable factor in assessing contractual attorney fees.
Walker v. Ticor Title Company of California
filed March 15, 2012, First District, Div. One
Cite as 2012 S.O.S. 1252
Full text click here

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Trust Deed Foreclosure
Assignment of a deed of trust need not be accompanied by the actual transfer of the corresponding promissory note to support non-judicial foreclosure by the assignee. Plaintiff contended that the notice of default in this case was defective for inadequately identifying Deutsche Bank as the beneficiary and prematurely naming the trustee. Notice of default was not defective for failure to identify beneficiary, where an attached page identified the beneficiary by name--although not by address or telephone number--and identified the servicer--by name, address and telephone number--as the beneficiary's "attorney-in-fact." An asserted defect in a notice of default will not support relief from foreclosure in the absence of prejudice.
Debrunner v. Deutsche Bank National Trust Company
filed March 16, 2012, Sixth District
Cite as 2012 S.O.S. 1296
Full text click here

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Zoning
City may not use its zoning powers to absolutely ban a medical marijuana collective, operating at a cultivation site pursuant to the Medical Marijuana Program Act.
City of Lake Forest v. Evergreen Holistic Collective
filed February 29, 2012, Fourth District, Div. Three
Cite as G043909
Full text click here

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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, Vicki Perkowitz

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