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Introductory Comment
I think that you will find
several somewhat offbeat cases this month. I tried to highlight them with
unusual headings. I hope that all of you are able to find some time this
summer to relax and enjoy yourselves.
Sincerely,
Norm
Chernin, Editor,
Real Property Section Newsletter
E-mail address:
nchernin@firstam.com
Coming Events
SAVE THE DATE!!!
The Crocker Symposium will be held on October 26, 2012. There will be
updates in later newsletters.
Recent Cases
From June 1 to June 30
Bankruptcy -- Credit Bid
Bankruptcy court properly disallowed plan under which debtors would sell
encumbered asset at auction free and clear of lien without permitting
creditor to bid using amount of debt as offset against purchase price.
Radlax Gateway Hotel, LLC v.
Amalgamated Bank
filed May 29, 2012
Cite as 11-166
Full
text click here
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Coastal Commission
Coastal Commission acted in excess of its jurisdiction when it approved
amendments to a city's certified local coastal program at the request of
state agencies over the objections of the city, where the amendments were
not requested to undertake a public works project or energy facility
development but instead changed the city's land use policies and
development standards as they would apply to future plans for development
within the city.
City of Malibu v.
California Coastal Commission (Santa Monica Mountains Conservancy)
filed May 10, 2012, Second District, Div. Eight
Cite as 2012 S.O.S. 2246
Full
text click here
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Construction Law
Agreement between general contractor and subcontractor that attorney's
fees would be recoverable by the prevailing party in "any dispute
resolution" arising "under or relating to...the
Subcontract" was broad enough to authorize recovery of fees by subcontractor
after it successfully defended against contractor's cross-complaint in
action in which plaintiff accused contractor of causing auto collision
and contractor alleged that the subcontract required subcontractor to
defend and indemnify.
Toro Enterprises,
Inc. v. Pavement Recycling Systems, Inc.
filed April 9, 2012,
publication ordered May 1, 2012, Second District, Div. Six
Cite as B234627
Full
text click here
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Construction Law
Where plaintiff was a subcontractor on the general contractor's contract
with city for public improvements, the subcontract was for a "work
of improvement contracted for by a public entity" within the meaning
of Civil Code Section 3100, and service of preliminary lien notice in
connection with a private work, pursuant to Section 3097, did not
substantially comply with public-work notice requirement of Section 3098.
California Paving
& Grading Co., Inc. v. Lincoln General Insurance Company
filed May 21, 2012, Second District, Div. Three
Cite as B228930
Full
text click here
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Construction Law
Material-man under direct contract to owner was not required to give a
20-day preliminary lien notice to owner, original contractor, or lender
under Civil Code Section 3097(a), but was required to give a preliminary
notice to the construction lender under Section 3097(b). The two
provisions are separate and exclusive, not alternative, and
material-man's direct contract with owner did not make it a contractor,
which would make it exempt from the notice requirements.
Shady Tree Farms v.
Omni Financial
filed May 22, 2012,
Fifth District
Cite as F062924
Full
text click here
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Contract Interpretation
When a contract does not define the phrase "best efforts," the
promisor must use the diligence of a reasonable person under comparable
circumstances, not the diligence required of a
fiduciary.
California Pines
Property Owners Association v. Pedotti
filed May 24, 2012, Third District
Cite as C0663155
Full
text click here
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Eminent Domain
Property owner claiming permanent severance damages in eminent domain
case was not required to show substantial
impairment of access to his property to have his evidence admitted. Trial
court erred in excluding evidence supporting plaintiff’s claims of a
decrease in value of his property due to view changes, effects on
drainage, changes in the depth of utility lines, and increased traffic
hazards as a result of city project.
City of Livermore v.
Baca
filed May 16, 2012, Sixth District
Cite as H034835
Full
text click here
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Forged Deeds
Trial court properly applied "unclean hands" doctrine to
prohibit administrator of the estates of the co-owners of a piece of
property from challenging forged deed, where administrator attempted to
benefit personally from the forgery by filing a defective mechanic's lien
against the property--even though he was not a contractor and had not
given a preliminary lien notice--and bringing an action to quiet title in
himself, contrary to the rights of the other heirs.
Estates of
Collins and Flowers
filed May 10, 2012, Third District
Cite as 2012 S.O.S. 2251
Full
text click here
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Landlord and Tenant
Where a commercial lease allows tenant to extend for a definite period, a
special rule of construction provides that only one extension will be
allowed unless the lease unambiguously permits multiple extensions. Trial
court ruling construing lease as allowing multiple extensions of the
lease term was erroneous as a matter of law where the specific language
related to extension of the lease term was ambiguous, and the lease as a
whole did not reflect an intent to allow multiple extensions.
Ginsberg v. Gamson
filed April 30, 2012, Second District, Div. Eight
Cite as B222284
Full
text click here
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Mobile Home Park Property Taxation
County assessor’s use of "extraction method" of valuing
interests in a mobile-home park--whereby assessor arrived at the value of
the space underlying mobile-home by subtracting the purchase price of the
mobile-home from the mobile-home's value as established by an authorized
valuation manual--was contrary to Revenue and Taxation Code Section 62.1,
which as amended provides that a transfer of stock or an ownership
interest in a mobile-home park is a change of ownership of a pro rata
portion of the real property in the park, if ownership of the park had
previously been transferred to a nonprofit corporation for the benefit of
the residents and had not been converted to condominium or stock
cooperative ownership. Plain language of the statute requires that the
value of the underlying space be determined by multiplying the fractional
interest in the park represented by the underlying space by the appraised
value of the entire mobile-home park at the time of sale.
Assessor for
County of Santa Barbara v. Assessment Appeals Board No. 1 (Rancho Goleta
Lakeside Mobileers, Inc.)
filed May 16, 2012, Second District, Div. Six
Cite as B229656
Full
text click here
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Real Property Litigation
Three-year statute of limitations for injury to real property can be
invoked only by owner of the property, not by a person with an option to
buy the property. Two-year statute applied to action by option-holder
harmed by clouding of title to property.
Cyr v. McGovran
filed May 29, 2012, Second District, Div. Six
Cite as B231155A
Full
text click here
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RESPA
To establish a violation of 12 U.S.C. Section 2607(b)--part of the Real
Estate Settlement Procedures Act, providing that "[n]o person shall
give and no person shall accept any portion, split, or percentage of any
charge made or received for the rendering of a real estate settlement service...other
than for services actually performed"--a plaintiff must demonstrate
that a charge for settlement services was divided between two or more
persons. The statute cannot be understood to reach a single provider’s
retention of an unearned fee.
Freeman v. Quicken
Loans, Inc.
filed May 24, 2012
Cite as 10-1042
Full
text click here
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SLAPP-ed around by un-Civil
Procedure
When developer sued city to enforce contract requiring city to install
certain infrastructure on developer's property, and city alleged in
cross-complaint that the filing of the suit was an unlawful business
practice because the developer had bribed a council member in order to
get the city to enter into the contract, the filing of the suit
constituted protected activity under the anti-SLAPP statute, but the
bribery did not; proper disposition of such a "mixed cause of
action" is to strike the portions that fall within anti-SLAPP
protections, absent a showing that the party bringing the cause of action
is likely to prevail. "Public enforcement" exception to the
anti-SLAPP statute does not apply unless suit is brought "in the
name of the People," and the "public interest" exception
does not apply when the cause of action is brought primarily to assert a
public entity's financial interests.
City of Colton v.
Singletary
filed May 30, 2012, Fourth District, Div. Two
Cite as E052377
Full
text click here
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Subdivisions - Slander of Title
Where plaintiff homeowners sought a judicial determination of their
alleged right to maintain their community as a private, gated subdivision
and to have unrestricted use of a road inside the gate for access to
river that the community overlooked--as well as damages for alleged
slander of title and related tort causes of action--and defendant owners
of surrounding property cross-complained, claiming that the public had a
right of access to the river from the road and consequently the
subdivision map would have to be reformed or amended to specifically
provide for such access, the cross-complaint was subject to the 90-day
statute of limitations contained in the Subdivision Map Act. A slander of
title cause of action may be maintained where the only pecuniary damages
proven by plaintiffs are the attorney fees incurred to clear the
slandered title, at least where the slander of title was by means of a
recorded instrument.
Sumner Hill
Homeowners’ Association, Inc. v. Rio Mesa Holdings, LLC
filed May 2, 2012, Fifth District
Cite as F058617
Full
text click here
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Trespass to Land -- Cowabunga
Nonsuit was properly granted in action brought by motorcyclist who
incurred injuries when he collided with cow on private road on which he
was trespassing. Landowners owed no duty to prevent access to road by
erecting fence. A cow is not an inherently dangerous animal.
Thomas v. Stenberg
filed May 29, 2012, First District, Div. One
Cite as A132431
Full
text click here
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Trust Deeds
Lender may designate an entity such as Mortgage Electronic Registration
Systems as nominee beneficiary of a deed of trust. Such nominee may
assign its interest, so its assignee or a subsequent assignee may foreclose.
Where nominee beneficiary assumed all interest and rights of the lender
and its successors and assigns--and then assigned its interests to
another entity, which assigned its interests to defendant--defendant had the authority, as either a successor or
assign of the original lender or as an assignee of the nominee
beneficiary, to execute a substitution of trustee, notwithstanding
language in the deed of trust suggesting that only the original lender
could do so.
Herrera v.
Federal National Mortgage Association
filed May 17, 2012, Fourth District, Div. Two
Cite as E052943
Full
text click here
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Whack-a-Mole as Applied to the Recording Law
Property owner named lender as a defendant in quiet title action and
recorded notice of lis pendens.
Lender made an assignment of its deed of trust,
but the assignment was not recorded, and property owner was
unaware of it. Property owner subsequently dismissed lender from her
quiet title action, as lender was then in bankruptcy, and chose to pursue
lender in bankruptcy court rather than seek relief from the automatic
stay. Property owner thereafter obtained a judgment purporting to quiet
title in her in fee simple. That judgment did not invalidate the assigned
deed of trust, since assignee was not a party to the quiet title action
and thus not bound by the judgment.
Deutsche Bank
National Trust Company v. McGurk
filed May 22, 2012, Second District, Div. Three
Cite as B231591
Full
text click here
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Los
Angeles County Bar Association
2012 Real Property Section Newsletter
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REAL PROPERTY SECTION PUBLICATIONS
Daniel L. Goodkin, Editor, Real Property
Section Review
Norman A. Chernin, Editor, Real Property
Section Newsletter
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SECTION
OFFICERS
Chair
Theresa
C. Tate
First Vice
Chair
Sarah V. J. Spyksma
Second Vice
Chair
Norman A. Chernin
Treasurer
Brant Dveirin
Secretary
Susan J. Booth
Immediate Past
Chair
Gregg J. Loubier
Section
Administrator
Fatima Jones
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EXECUTIVE
COMMITTEE MEMBERS
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Eric
Altoon
Nedra E. Austin
Susan J. Booth
Claire Hervey Collins
Caroline Dreyfus
Robert T. Flick
Daniel L. Goodkin
Marcia Z. Gordon
Ryan Iwasaka
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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
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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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