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Introductory Comment

Coming Events

Recent Cases


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


Introductory Comment

This month’s summaries include more cases on CEQA, but also 2 cases dealing with the impact of anti-deficiency legislation applicable to foreclosure of deeds of trust.  Happy reading!

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 30, 2012. There will be updates in later newsletters.

Recent Cases

Access to Real Property
Where defendant filed an anti-SLAPP motion with respect to plaintiff's claim for injunctive relief, which arose in part from defendant's participation in a city administrative process--in which defendant opposed use of a disputed parcel as a public access road--and in part from defendant's alleged overuse of an easement or alleged encroachments and other physical interference with plaintiff's property rights with respect to the parcel, protected activity was not merely incidental to the claim, and burden shifted to plaintiff to show a probability of success on the merits. Plaintiff's allegations that defendants "blocked plaintiff from the free use of its property" by installing a fence and a gate, and that plaintiff had no adequate remedy at law because it would be forced to "institute a multiplicity of suits to obtain adequate compensation for its injuries" were sufficient to establish that the claim for injunctive relief had at least minimal merit.
M.F. Farming, Co. v. Couch Distributing Company
filed June 25, 2012, Sixth District
Cite as 2012 S.O.S. 3096
Full text click here

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Anti-Deficiency Statute
When a single lender contemporaneously makes two non-purchase money loans secured by two deeds of trust referencing a single parcel of real property and soon thereafter assigns the junior loan to a different entity, the assignee of the junior loan, if subsequently "sold out" by the senior lienholder's non-judicial foreclosure sale, may pursue the borrower for a money judgment in the amount of the debt owed without violating the anti-deficiency statutes.
Cadlerock Joint Venture, L.P. v. Lobel
filed June 20, 2012, Fourth District, Div. Three
Cite as G045936

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Anti-Deficiency Statute
Where previous property owner demolished building with the intent of developing property, but defaulted before it could do so, anti-deficiency statutes did not bar action by foreclosing lender against that previous owner and others for waste and impairment of security based on their demolition of building, seeking as damages the loss of value in the property that resulted from the destruction of the building.
Fait v. New Faze Development, Inc.
filed June 27, 2012, Third District
Cite as C067630
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CEQA
Trial court did not abuse discretion in awarding fees under the private attorney general statute to a lawyer who was a plaintiff in the action, where the lawyer represented many other persons who were plaintiffs or members of a plaintiff organization, the litigation secured benefits for a large number of persons by enforcing rights under CEQA, the attorney assisted other lawyers on a contingency basis, and there was no allegation of self-dealing by the attorney.
Healdsburg Citizens for Sustainable Solutions v. City of Healdsburg
filed June 4, 2012, First District, Div. Four
Cite as A130374

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CEQA
College district approved plan to lease a building that it owned to a nonprofit group for non-college purposes and to purchase nearby property. Subsequent actions in furtherance of that plan--including approval of a lease with city for use of a portion of the building for city purposes, amendments to the purchase agreement for the nearby property adding indemnification provisions related to previously filed CEQA and other litigation, and an amendment to a contract with an architectural firm for additional architectural services to meet the needs of new tenants--did not trigger the running of a new CEQA limitations period under Public Resources Code Section 21167(d).
Van de Kamps Coalition v. Board of Trustees of Los Angeles Community College District (City of Los Angeles)
filed May 8, 2012, publication ordered June 5, 2012, Second District, Div. Two
Cite as B234955

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CEQA
Need for additional fire protection services is not an environmental impact that CEQA requires a project proponent to mitigate. In analyzing traffic impacts from expansion of faculty housing, college trustees did not abuse discretion by evaluating potential cumulative impacts at the proposed location and deferring site-specific analysis to a time when the housing project will be under development.
City of Hayward v. Board of Trustees of the California State University
filed May 30, 2012, publication ordered June 28, 2012, First District, Div. Three
Cite as A131412

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Condemnation
United States can extinguish state's public trust rights when exercising its federal power of eminent domain.
United States v. California State Lands Commission
filed June 14, 2012
Cite as 10-56568

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Construction Law
Trial court properly granted summary judgment to general contractor in action brought by subcontractor's employee, who slipped on wet scaffolding and injured his back. Defendant's alleged negligence in scheduling masonry work before framers were finished, in leaving scaffolding in place under rainy conditions, and in failing to declare a "rain day" did not constitute a sufficient retention of control over safety to create an exception to Privette-Toland rule that the hirer of an independent contractor is not liable for injury to contractor's employee.
Brannan v. Lathrop Construction Associates, Inc.
filed May 21, 2012, publication ordered June 12, 2012, First District, Div. One Cite as A129695
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Environmental Law
Public Resources Code Section 21177(a), stating that a public agency's approval of a proposed project can be challenged in court only on grounds that were "presented to the public agency orally or in writing by any person during the public comment period...or prior to the close of the public hearing on the project before the issuance of the notice of determination," applies to a public agency's decision that a project is categorically exempt from environmental law requirements.
Tomlinson v. County of Alameda (Wong)
filed June 14, 2012
Cite as S188161
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Homeowners Associations
Homeowners association is not, at least in the context of a dispute over an election of directors, a "business" within the meaning of the Unfair Competition Law. Civil Code Section 1363.09(b), dealing with costs and attorney fees in actions regarding homeowners association elections, does not authorize an award of fees to a prevailing association, even if the action is frivolous.
That v. Alders Maintenance Association
filed June 15, 2012, Fourth District, Div. Three
Cite as G044799
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Land Use
Where city imposed an assessment on property owners for sewer project abutting their land, giving them the option of paying in lump sum or installments, but later changed the financing method in a way that benefitted only those who chose the installment option, owners who paid in lump sum did not suffer an equal protection violation. City's interests--in reducing administrative costs, providing financial hardship relief to homeowners, transitioning from one method of financing to another in accordance with state law, and preserving its limited resources--constituted a rational basis for the distinction.
Armour v. Indianapolis
filed June 4, 2012
Cite as 11-161
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Land Use
Landowners' federal constitutional rights were not violated, and they could not claim damages under 42 U.S.C. Section 1983, where local ordinances imposing moratorium on new projects--although in substantive violation of state constitution--were procedurally valid, non-arbitrary, and manifestly related to city's legitimate municipal interests.
 Samson v. City of Bainbridge Island
filed June 15, 2012
Cite as 10-35352
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Land Use
Congress, by enacting the Quiet Title Act, and thereby asserting sovereign immunity from quiet title suits concerning Indian trust lands, did not preclude actions by plaintiffs challenging the legality of federal acquisition of such lands when the plaintiff does not assert an interest in the property. Plaintiff, who challenged the decision of the Secretary of the Interior to acquire trust lands neighboring plaintiff's property so that Indian tribe could build and operate a casino, had prudential standing when he alleged that casino operations would injure his economic, environmental, and aesthetic interests.
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak
filed June 18, 2012
Cite as 11-246
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Landlord and Tenant
Where tenant sued current owners and property manager of apartment complex, as alleged successors-in-interest to prior owner and manager. who filed an unlawful detainer against plaintiff--for malicious prosecution, action implicated defendants' free speech and petition rights for purposes of anti-SLAPP statute. Plaintiff failed to establish likelihood of prevailing on malicious prosecution claim where his evidence fell short of showing any applicable exception to the general rule that the purchaser of an entity's assets does not assume the entity's liabilities.
Daniell v. Riverside Partners I, L.P.
filed June 14, 2012, Fourth District, Div. Two
Cite as E052072
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Landlord and Tenant
Substantial evidence supported finding that insured landlord was not covered under liability policy in connection with injuries sustained by tenants where landlord knew of dangerous conditions at apartment complex and thus could not claim that resulting injuries were "accidents." Substantial evidence supported finding that defendant and other insureds--who were co-defendants in the action but whose appeals were dismissed--had a joint and several obligation to reimburse insurers for the full amount of settlement payment. Defendant had a sufficient benefit from the settlement, which was for far less than her potential liability, such that not to allocate to her joint and several liability to the insurer of the full amount paid would amount to unjust enrichment.
Axis Surplus Insurance Co. v. Reinoso
filed June 26, 2012, Second District, Div. Five
Cite as B228332
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Mechanic's Liens
The right to file a motion under Lambert v. Superior Court, 228 Cal. App. 3d. 383 (1991)--which held, as a matter of due process, that where a claimant has filed suit to enforce a mechanics lien or stop notice, the trial court may, on the property owner's motion, release the lien or notice in whole or in part, unless the claimant can establish the "probable validity" of the claim--is limited to property owners and does not extend to lenders.
Cal Sierra Construction, Inc. v. Comerica Bank
filed May 31, 2012, Third District
Cite as C060707

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Quiet Title Actions
Trial court committed reversible error in not allowing defaulting defendants to put on evidence at a prejudgment evidentiary hearing in a quiet title action. Such actions fall under Code of Civil Procedure Section 764.010, a statutory exception to the rule that defaulting defendants cannot participate in trial court proceedings.
Nickell v. Matlock
filed June 4, 2012, Second District, Div. One
Cite as B230321
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Real Estate Brokers
Failure by a designated officer of a corporate real estate broker to supervise an employee as required by Business and Professions Code Section 10159 cannot, without more, subject the officer to direct personal liability to third parties for harm caused by his or her failure to supervise, as the duty to supervise codified in the statute is owed to the corporation, not to third parties. Corporate officer cannot, based on mere inaction, be held vicariously liable under traditional agency principles for the tortious conduct of the corporate employees he or she is responsible for supervising.
Sandler v. Sanchez
filed June 18, 2012, Second District, Div. Seven
Cite as B232571
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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
Theresa C. Tate

First Vice Chair
Sarah V. J. Spyksma

Second Vice Chair
Norman A. Chernin

Treasurer
Brant Dveirin

Secretary/Crocker Chair
Susan J. Booth

Immediate Past Chair
Gregg J. Loubier

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
Finance, Benjamin Howell
General Real Estate Law, Marybeth Heydt
Land Use Planning and Environmental Law, Glenn Block
Title Insurance, Jesse Hernandez

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Readers are advised that changes in the law may affect the accuracy of this publication or the functionality of links after
the publication date.

The foregoing practice tips were prepared for information purposes only. Such practice tips do not constitute tax, legal or other advice and no responsibility is assumed for any reliance upon them or with respect to assessing or advising the reader as to tax, legal, or other consequences arising from a particular situation. The accuracy of the information
provided should be independently verified by the reader and should not be treated as authoritative.