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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 9 •September 2012 • Archive of Past Issues
Real Property Home Page


Introductory Comment

Lots of interesting cases this month. Take time out to appreciate the neighbor relations case that led to an appellate written opinion over a tree.

Don't forget to sign up for the Crocker Symposium on October 30.

Sincerely,

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

Coming Events

Recent Cases

CEQA
City properly concluded that cellular provider's plan to place equipment on about 40 telephone poles scattered throughout city fell within the categorical CEQA exemption for "small facilities or structures." In determining whether the "cumulative impact" exception to a categorical exemption applies, agency properly focuses on impacts upon the area within sight or hearing of a project rather than upon the jurisdiction as a whole.
Robinson v. City and County of San Francisco (T-Mobile West Corporation)
filed July 20, 2012, publication ordered August 21, 2012, First District, Div. Four
Cite as A132385
Full text

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CEQA, Land Use
Organizational plaintiff--a nonprofit public benefit corporation formed for the stated purpose of promoting "equitable environmental development"--had standing to enforce a city's duty to comply with the California Environmental Quality Act and the Government Code in considering and approving a development project. Notice of public hearings on project's environmental impact report was defective because the notice did not indicate what the city's planning commission recommendations regarding the project were. Absent any showing as to why this defect was prejudicial, however, the trial court erred in invalidating the city council's actions in approving the project. Trial court further erred in invalidating city's adoption of an ordinance approving the development agreement without finding prejudice resulting from the city's failure to find that the development agreement was consistent with the general plan and specific plan governing the project site.
Rialto Citizens for Responsible Growth v. City of Rialto (Wal-Mart Real Estate Business Trust)
filed July 31, 2012, Fourth District, Div. Two
Cite as E052253
Full text

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Eminent Domain
Evidence Code Section 822(a)--which provides that, in an eminent domain proceeding, six specified categories of evidence are "inadmissible...and shall not be taken into account as a basis for an opinion as to the value of property"--is not subject to a "cross-examination exception" that would allow a party to impeach an expert with a prior inconsistent valuation by another expert.
City of Corona v. Liston Brick Company of Corona
filed August 14, 2012, Fourth District, Div. Two
Cite as E053738
Full text

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Environmental Law
Where federal government ordered state to clean up a waste site it maintained from 1956-72, and property was continually and progressively deteriorating, the all sums approach to insurance indemnity allocation applies to the state's successive property or long-tail first party property loss. Policies may be "stacked"--each insurer is liable up to the amount of the policy limit.
State of California v. Continental Insurance Company
filed August 9, 2012
Cite as S170560
Full text

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Homeowners Associations
Agreement contained in declaration of covenants, conditions, and restrictions between homeowners' association and individual owners to resolve any construction dispute with the developer through binding arbitration in accordance with the Federal Arbitration Act was binding on the association, even though it did not exist as an entity independent of the developer when the declaration was drafted and recorded.
Pinnacle Museum Tower Association v. Pinnacle Market Development (US), LLC
filed August 16, 2012
Cite as S186149
Full text

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Inverse Condemnation
A privately owned public utility may be liable for inverse condemnation as a public entity. Strict liability standard applies to defendant utility's inverse condemnation liability for damages to plaintiff utility's property as a result of a bird entering defendant's facility; "reasonableness" standard for inverse condemnation liability is limited to flood control cases.
Pacific Bell Telephone Company v. Southern California Edison Company
filed August 30, 2012, Second District, Div. One
Cite as B230470
Full text

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Land Use
Discretion was not abused in denying application for site development review to expand a legal nonconforming use.
Ideal Boat & Camper Storage v. County of Alameda
filed August 9, 2012, First District, Div. Four
Cite as A132714A
Full text

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Landlord and Tenant
Substantial evidence supported trial court's determination that the owner and manager of certain rental properties was not covered by liability insurance in connection with claims brought against her by tenants of one of her buildings. Trial court properly applied a subjective standard in finding that defendant knew of the substandard condition of units within the building.
Axis Surplus Insurance Company v. Reinoso
filed August 3, 2012, Second District, Div. Five
Cite as B228332A
Full text

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Lender Liability
When plaintiff borrower alleged defendant lender breached modification agreement by foreclosing on property, despite plaintiff's compliance with modification terms, and documents attached to the complaint established that plaintiff's signature was not notarized--a condition precedent to the revised modification agreement but not to the original agreement--plaintiff pleaded a claim for breach of the original agreement but not for breach of the revised agreement.
Barroso v. Ocwen Loan Servicing, LLC
filed August 21, 2012, Second District, Div. Four
Cite as B229112
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Lender Liability
Loan servicer's failure to respond to plaintiff's correspondence regarding ownership of his home loan, sent in an effort to avoid foreclosure, did not amount to a violation of the Truth in Lending Act or of Nevada's covenant of good faith and fair dealing, because the loan servicer was not legally required to respond. Amendments to 15 U.S.C. Sections 1640 and 1641, made by the Helping Families Save Their Homes Act of 2009, do not apply to causes of action accruing before the amendments were enacted, nor do the duties imposed by those amendments on assignees extend to the original creditor.
Gale v. First Franklin Loan Services
filed August 31, 2012 Cite as 09-16498
Full text

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Manufactured Homes
Where seller and installer of manufactured homes intended to attach homes to two lots, as evidenced by its recording of mechanic's liens after the owners failed to pay for delivery and installation of homes, but another party foreclosed on the properties and applied to the city for issuance of notices of installation for the homes, the homes were fixtures at the time of foreclosure and the seller could not claim that the issuance of the notices deprived it of property rights, because it had no property interest at the time the notices were issued.
Vieira Enterprises v. East Palo Alto
filed August 15, 2012, First District, Div. Two
Cite as A132754
Full text

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Real Estate Brokers
Substantial evidence supported trial court's determination that two real estate transactions involved a breach of fiduciary duty based on intentionally fraudulent misrepresentations by a broker and therefore must be paid from the Department of Real Estate Recovery Account pursuant to Business and Professions Code Section 10471. Trial court was right to look behind the legal terminology in the arbitration award resolving plaintiffs' claims against broker and consider the arbitrator's factual findings regarding broker's intent to defraud plaintiffs.
Worthington v. Davi
filed August 7, 2012, Fourth District, Div. Three
Cite as G045537
Full text

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Real Property Taxation
Property assessment appeals procedure, in which one attorney from county counsel's office advised the assessment appeals board, while another represented the county assessor as adverse party to the taxpayer, did not violate due process when there was no evidence that first lawyer's advice to the board was improperly influenced by professional respect for the lawyer representing assessor, nor any evidence that the board was biased.
William Jefferson & Co. v. Board of Assessment and Appeals
filed August 29, 2012
Cite as 11-55223
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Real Property Taxation of Mobile Home Parks
When assessor computed reassessment of mobile home parks owned by nonprofit corporations by subtracting the value of the mobile home from the total purchase price of the mobile home and membership in the nonprofit corporations, deeming the remaining amount to be the fair market value of the purchaser's "pro rata portion of the real property of the park," such method violated Revenue and Taxation Code Section 62.1(c)(2) because it failed to apply the statutory definition of "pro rata portion of the real property" as a multiplication of the park's total real property by a fraction consisting of the number of membership shares being sold divided by the total number of shares in the nonprofit corporation.
Assessor for County of Santa Barbara v. Assessment Appeals Board No. 1 (Rancho Goleta Lakeside Mobileers, Inc.)
filed August 30, 2012, Second District, Div. Six
Cite as B229656A
Full text

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A Tree Grows in...
In calculating damages following bench trial in which defendants were found liable for cutting down a tree growing on the property they shared with plaintiffs, trial court was not required to reduce damages to account for the fact that only a portion of the tree's trunk was located on the plaintiffs' side of the property line; trial court could and did appropriately consider the tree's unique characteristics and the great personal value it had to plaintiffs. In applying Civil Code Section 3346 (a)--which provides for double damages in cases of injury to trees--trial court properly doubled the entire amount of plaintiffs' damages, including the amount for planting and aftercare.
Kallis v. Sones
filed August 6, 2012, publication ordered August 29, 2012, Second District, Div. Two
Cite as B228912
Full text

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Trust Deed Foreclosure
After a buyer and seller entered into an agreement that restated and altered the obligations already owed by the parties under a seller-financed note secured by a deed of trust, the seller's remedy after the buyers stopped making payment was limited to foreclosure of the promissory note's security.
Weinstein v. Rocha
filed August 1, 2012, Second District, Div. Three
Cite as B235931
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Trust Deed Foreclosure
Code of Civil Procedure Section 725a--authorizing certain persons to initiate foreclosure--does not prohibit a loan servicer from filing a judicial foreclosure action in its name, so long as the right to foreclose has been assigned to the loan servicer.
Arabia v. BAC Home Loans Servicing, L.P.
filed August 13, 2012, Fourth District, Div. One
Cite as D060923
Full text

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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.