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An ePublication of the Los Angeles County Bar Association
Volume 7, Number 5 • May 2012 • Archive of Past Issues
Real Property Home Page

Introductory Comment

Don't forget to get your ticket for the section's annual Installation and Awards Dinner to be held on May 30 at the Millennium Biltmore Hotel in downtown Los Angeles. You can either call the Bar Association at (213) 627-2727 or go on the Bar's website at http://www.lacba.org.

Sincerely,

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

Coming Events

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.

Recent Cases

PLEASE NOTE!! Due to technical issues with the Metropolitan News' website, some of the cases below might not be available at the websites listed under them. In those instances, please find the full opinion of your case at one of the following websites:

California Court of Appeal and California Supreme Court
http://www.courts.ca.gov/opinions-slip.htm

Ninth U.S. Circuit Court of Appeals
http://www.ca9.uscourts.gov/opinions/

U.S. Supreme Court
http://www.supremecourt.gov/opinions/slipopinions.aspx

From April 1 to April 30

Bankruptcy
CEQA
CEQA
CEQA
CEQA
CEQA
Community Property
Homeowners Association
Landlord and Tenant

Limited Partnerships
Lot Line Adjustments
Options to Purchase
Prescriptive Easements
Real Estate Brokers
Rent Control
Shopping Centers
Trust Deed Foreclosure
Trust Deed Foreclosure

Bankruptcy
Where debtor's home was sold at a sheriff's sale to satisfy judgment, and debtor failed to reinvest the exempt portion of the proceeds within six months, the proceeds lost their exempt character under California law as it existed at the time of the bankruptcy filing. Trustee failed to establish by preponderance of the evidence that the estate was entitled to turnover of certain property owned by debtor's spouse, where spouse was the sole owner of record, the property was acquired with proceeds of his inheritance, and was subsequently sold by him in his own name with his spouse's confirmation that it was his separate property. Trustee lacked standing to claim that the inheritance belonged to a prior bankruptcy estate. Determination in prior bankruptcy that debtor ran her husband's affairs--as a result of which he was not implicated in wife's fraud and was discharged--did not estop him from claiming that his property was not part of her bankruptcy estate, since that issue was not litigated in the prior proceeding.
In re Jacobson
filed April 23, 2012
Cite as 10-60040
Full text click here

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CEQA
Agency overseeing rail construction project did not abuse its discretion under CEQA in finding that the population and traffic levels that were current along the rail corridor in 2009 did not provide a reasonable baseline for determining the significance of traffic and air quality impacts of the project and, instead, using future 2030 baseline conditions to make that determination. While an agency may not base its analysis on "hypothetical" or "illusory" conditions, it may, in a proper case, consider projected conditions supported by substantial evidence.
Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (Los Angeles County Metropolitan Transportation Authority)
filed April 17, 2012, Second District, Div. Eight
Cite as B232655
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CEQA
A public agency and a party disputing the adequacy of an environmental impact report ("EIR") prepared in connection with the adoption of a general plan amendment may effectively agree to toll the limitations period for filing a petition challenging the adequacy of the EIR.
Salmon Protection and Watershed Network v. County of Marin
filed April 20, 2012, First District, Div. Three
Cite as A133109
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CEQA
E-mails, which were either attorney-client communication or attorney work product, and which were shared by City with lawyers for developers and were aimed at sharing information to produce an EIR that would withstand a legal challenge for noncompliance with CEQA, were privileged. City's decision not to update economic baseline in a two-year-old draft EIR was not an abuse of discretion where there was evidence that updating the baseline was problematic because of rapidly changing economic conditions, and that rapidly changing economic conditions did not affect the relevant findings regarding urban decay. City was not required to consider measures to mitigate loss of agricultural acreage where it specifically found mitigation measures infeasible and therefore adopted a statement of overriding considerations.
Citizens for Open Government v. City of Lodi (Browman Development, Inc.)
filed March 28, 2012, partial publication ordered April 24, 2012, Third District
Cite as C065463
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CEQA
CEQA Guidelines Section 15162, which limits subsequent environmental review following an agency's adoption of a negative declaration, is a valid regulation that implements the principles contained in Public Resources Code Sec. 21166. Substantial evidence supported agency's determination that it was not required to prepare an EIR prior to adopting "equitable distribution plan" regulations governing distribution of water in the event of shortfall, where the regulations did not in fact increase the priority preference that industrial users would receive over agricultural users in case of a water shortage as those users contended.
Abatti v. Imperial Irrigation District
filed April 26, 2012, Fourth District, Div. One
Cite as D058329
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CEQA
Tape recordings of public agency hearings qualify as "other written materials" for purposes of Public Resources Code Section 21167.6(e)(10) and must be included in the record of proceedings under CEQA. The term "submitted" as used in the statutory phrase "written evidence...submitted" in Section 21167.6(e)(7)) means made readily available, so documents named in a comment letter along with a specific Web page address containing that document and documents previously delivered to the public agency were "submitted." Documents that were simply named in a comment letter or named along with a reference to a general Web site were not submitted.

Trial court did not err when it determined that the "public agency's files on the project" under Section 21167.6(e)(10)) did not include files maintained by sub-consultants. Letter to City from County concerning project should have been included in the record of proceedings pursuant to Section 21167.6(e)(7).
Consolidated Irrigation District v. Superior Court (City of Selma)
filed April 26, 2012, Fifth District
Cite as F063534
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Community Property
Trial court erred in granting husband's judgment creditor a charging lien against non-debtor spouse's interest in certain partnerships and limited liability companies that were divided pursuant to a marital settlement agreement ("MSA"). Upon entering into an enforceable MSA, the parties accomplished a division of their community estate such that the community property awarded to wife became her separate property prior to attachment of the charging liens, even though judgment dividing the property was not entered until after the liens attached.
Litke O'Farrell, LLC v. Tipton
filed April 10, 2012, First District, Div. Four
Cite as A132327
Full text click here

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Homeowners Associations
Homeowner lacked standing to raise due process claims on the purported behalf of other homeowners in connection with a Civil Code Section 1356 proceeding to reduce supermajority requirement for approval of amendments to governing Covenants, Conditions & Restrictions. Grant of Section 1356 petition was not an abuse of discretion where requirements for granting petition were detailed in Association's moving papers, and trial court's final order also referenced Section 1356 and deemed all necessary requirements met, so that record adequately showed trial court was aware of requirements of exercising its discretion under Section 1356. Nothing in the statute required court to recite the evidence pertaining to each sub-finding.
Quail Lakes Owners Association v. Kozina
filed March 8, 2012, publication ordered April 9, 2012, Third District
Cite as C066835
Full text click here

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Landlord and Tenant
Management company operating a senior apartment complex developed with assistance from a local redevelopment agency and subject to agency oversight must identify good cause when it evicts a tenant participating in the agency's housing assistance program upon expiration of the tenant's lease. Eviction without good cause of elderly and disabled tenant from government-subsidized and regulated low income housing constituted state action that deprived her of a protected property interest.
Anchor Pacifica Management Company v. Green
filed April 23, 2012, Second District, Div. Seven
Cite as B237629
Full text click here

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Limited Partnerships
Where plaintiff was fraudulently induced to become a limited partner, and jury found that only one of the defendant general partners actively participated in the fraud, defendant general partner who did not actively participate was nonetheless liable. Since the fraud occurred before plaintiff became a limited partner, plaintiff was an innocent third party--rather than an innocent limited partner--so joint and several liability applied. Attorney's fee clause of limited partnership agreement--"If any dispute arises between the Partners, whether or not resulting in litigation, the prevailing party shall be entitled to recover from the other party all reasonable costs, including, without limitation, reasonable attorneys' fees"--was broad enough to cover partner's claim that it was fraudulently induced to invest in the partnership.
Miske v. Bisno
filed April 12, 2012, First District, Div. Four
Cite as A127596
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Lot Line Adjustments
County ordinance including sequential lot line adjustments within the definition of "lot line adjustment" was consistent with the Subdivision Map Act's exclusion of lot line adjustments from the requirements of the Act. Because ordinance spelled out a ministerial lot line adjustment approval process, the ordinance is exempt from CEQA purview.
Sierra Club v. Napa County Board of Supervisors
filed April 20, 2012, First District, Div. Four
Cite as A130980
Full text click here

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Options to Purchase
Where plaintiffs had options to purchase several parcels of real property but did not exercise the options--and instead sued the property owners and their agents for interference with plaintiffs' option rights--action was subject to the two-year statute of limitations for professional negligence rather than the three-year statute for injury to real property. Where gravamen of complaint was that defendants negligently breached their duty to assure that an option given to a lender was not inconsistent with plaintiffs' options, the two-year limitations period began to run no later than the date that plaintiffs suffered "appreciable harm," which was the date the lender filed a complaint for specific performance of its option and recorded a lis pendens.
Cyr v. McGovran
filed April 17, 2012, Second District, Div. Six
Cite as B231155
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Prescriptive Easements
Doctrine of laches is inapplicable in an action involving a claim for prescriptive title to an easement.
Connolly v. Trabue
filed April 10, 2012, First District, Div. Two
Cite as A131984
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Real Estate Brokers
Civil Code Section 2079.4, which imposes certain duties on a real estate seller's broker towards a buyer, does not apply to claims for breach of fiduciary duties based on defendant's duties as the buyers' broker, even if defendant has assumed duties to both buyer and seller. Limitations period in a buyer-broker agreement may be extended by the discovery rule. Limitations period in buyer-broker agreement did not apply to buyers' common law breach-of-fiduciary-duty claims based on fraud, negligent failure to inspect and disclose, and negligent misrepresentation, nor did it apply to sellers' cross-complaint for indemnity against broker or to sellers' common law claims for breach of duties that defendant assumed as sellers' broker.
William L. Lyon & Associates, Inc. v. Superior Court (Henley)
filed April 12, 2012, Third District
Cite as C068878
Full text click here

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Rent Control
Landlord's notice to tenant of intent to terminate tenancy for "business and economic reasons" was ineffective where the underlying reason--landlord's desire to terminate its relationship with federal government under a Section 8 Housing Assistance Payments contract--did not constitute good cause under Los Angeles Rent Stabilization Ordinance.
Crisales v. Estrada
filed April 12, 2012
Cite as JAD12-02
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Shopping Centers
First Amendment did not provide a defense in trespass action by property owner against church whose members were soliciting donations on plaintiff's premises. In re Lane, 71 Cal. 2d 872 (1969), recognizing free speech right at a commercial location open to the general public, has either been superseded by later case law or is limited to circumstances in which the speaker has a specific grievance with property owner or with respect to the particular location. Church failed to show a triable issue with respect to any defense under state constitution where it presented virtually no evidence concerning the attributes of the particular store or the sidewalk/apron on which its members regularly stood, and no argument that any part of the store premises should be deemed a public forum within the meaning of Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899 (1979).
Ralphs Grocery Company v. Missionary Church of the Disciples of Jesus Christ
filed April 25, 2012, Second District, Div. Four
Cite as B231005
Full text click here

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Trust Deed Foreclosures
Where lender held first and second trust deeds on same property, exercised its power of sale following default on the first, and assigned the second to plaintiff after the trustee sale, plaintiff was not a "sold-out junior lienor" and was barred by Code of Civil Procedure Section 580d from seeking deficiency judgment.
Bank of America, N.A. v. Mitchell
filed April 10, 2012, Second District, Div. Four
Cite as B233924
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Trust Deed Foreclosures
Civil Code Section 2932.5's provisions requiring the assignee of a mortgagee to record the assignment prior to exercising a power to sell real property does not apply to deeds of trust.
Haynes v. EMC Mortgage Corporation
filed April 9, 2012, publication ordered April 24, 2012, First District, Div. Four
Cite as A131023
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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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