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Introductory Comment

Coming Events

Recent Cases


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An ePublication of the Los Angeles County Bar Association
Volume 8, Number 2 • February 2013 • Archive of Past Issues
Real Property Home Page


Introductory Comment

Although not voluminous, this month’s selection of cases encouraged me to exercise some literary license.  I hope that no one is offended.

Sincerely,

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

Coming Events

Recent Cases

Construction Law
Claims under Business and Professions Code Section 7031 fall within the public policy exception to the general prohibition of judicial review of arbitration awards. Sec. 7031 constitutes a clear-cut and explicit legislative expression of public policy mandating the disgorgement of compensation received by an unlicensed contractor.
Ahdout v. Hekmatjah - filed January 25, 2013, Second District, Div. Four
Cite as B236764
Full text http://www.metnews.com/sos.cgi?0113//B236764

Deed of Trust Subordination Agreement
Agreement under which plaintiff's trust deed was subordinated to a new trust deed securing a note in the amount of $4,006,600 was not breached when defendant's new trust deed secured that note plus two other notes for a total of $21 million, since plaintiff's trust deed was subordinate only to the $4,006,600 loan. Agreement to cross-default loans was between defendants and their borrower, so plaintiff could have protected its interest by tendering the amount necessary to cure the default under the $4,006,600 note alone. 
R.E. Loans, LLC v. Investors Warranty of America, Inc. - filed January 23, 2013, Second District, Div. Six
Cite as B234384
Full text http://www.metnews.com/sos.cgi?0113//B234384

Family Law Attorney’s Lien
A family law attorney's real property lien (“FLARPL") recorded pursuant to Family Code Sections 2033 and 2034 is not automatically extinguished upon the trial court’s division of marital property, even if the entire property to which the lien attaches is awarded to the non-encumbering spouse. Trial court may expunge FLARPLs when a dispute arises as to their propriety after the FLARPLs have been recorded. Trial court need not join attorneys as parties to the case before expunging their FLARPLs. [Ed. Note—WOW!]
In re Marriage of Turkanis and Price  filed January 30, 2013, Second District, Div. Eight
Cite as B229482
Full text http://www.metnews.com/sos.cgi?0213//B229482

Homeowners Associations
Homeowners association’s governing documents permitted property owners to build a cabana and fireplace in their backyard without obtaining the association’s consent. Trial court was within its discretion to award the owners statutory attorney fees for pre-litigation ADR and to allocate only 10 hours to time spent on unsuccessful claims.
Grossman v. Park Fort Washington Association  filed December 19, 2012, publication ordered January 15, 2013, Fifth District
Cite as F063125
Full text http://www.metnews.com/sos.cgi?0113//F063125

Homeowners Insurance
Homeowners’ insurer had no duty to indemnify where insureds attempted a remodel of their newly purchased house, but building inspectors discovered prior to completion that the project did not conform to local floodplain regulations and ordered the property demolished. Coverage was clearly excluded under a provision in their policy saying there was no coverage for loss caused by the enforcement of any law or ordinance.
Reichert v. State Farm General Insurance Company  filed December 28, 2012, publication ordered January 24, 2013, Fourth District, Div. Three
Cite as G046582
Full text http://www.metnews.com/sos.cgi?0113//G046582

Legal Analysis of The Adventures of Huckleberry Finn
A floating home is not a vessel within the meaning of 1 U.S.C. Section 3 because a reasonable observer, looking to the home’s physical characteristics and activities, would not consider it to be designed to any practical degree for carrying people or things on water.
Lozman v. Riviera Beach  filed January 15, 2013
Cite as 11-626_p8k0
Full text http://www.metnews.com/sos.cgi?0113//11-626_p8k0

"Like a Good Neighbor…”
In an action alleging neighbors had not complied with a prior judgment to remove contaminated debris from plaintiffs’ property, trial court did not abuse its discretion in allowing plaintiffs to add claims for civil conspiracy against the neighbors’ attorneys, because the complaint stated causes of action based on the attorneys’ duty not to engage in affirmative misconduct and duty to disburse the funds from their trust account in a fair manner. Such claims did not violate the attorney-client privilege because they were not based on any privileged communications but on communications with third parties. [Ed. Note—The takeaway from this story is that Goodfriend may not initially have had a good lawyer.]
Rickley v. Goodfriend  filed January 16, 2013, Second District, Div. One
Cite as B236180
Full text http://www.metnews.com/sos.cgi?0113//B236180

NEPA
It was not arbitrary, capricious, an abuse of discretion, or contrary to law for the Surface Transportation Board to grant the Alaska Railroad Corporation an exemption under 49 USC Sec. 10502 of the Interstate Commerce Commission Termination Act of 1995 to construct a new rail line, because the purpose and need statement was adequate; the agency considered all viable, reasonable alternatives; and the environmental impact statement contained a detailed, thorough, and thoughtful discussion of the wetlands impacts and mitigation measures.
Alaska Survival v. Surface Transportation Board  filed January 23, 2013
Cite as 12-70218
Full text http://www.metnews.com/sos.cgi?0113//12-70218

Prescriptive Easements
Plaintiff was not entitled to a prescriptive easement over two access roads when by its conduct it established that its use of the access roads was permissive and not adverse to defendants. Attorney's fee clause providing for a fee award to the prevailing party under a contract applies not only when the plaintiff's allegations in the complaint seek to enforce or interpret the contract but also when the defendant seeks to do so by asserting an affirmative defense raised in its answer.
Windsor Pacific LLC v. Samwood Co., Inc  filed January 30, 2013, Second District, Div. Three
Cite as B233514
Full text http://www.metnews.com/sos.cgi?0113//B233514

Real Property Litigation
Trial court, in action regarding a long-term commercial lease, exceeded its authority by retaining jurisdiction over the parties’ future relationship beyond that necessary to enforce its order of specific performance.
Stump's Market, Inc. v. Plaza de Santa Fe Limited, LLC - filed January 11, 2013, Fourth District, Div. One
Cite as D058769
Full text http://www.metnews.com/sos.cgi?0113//D058769

Redevelopment Law
The legislature acted within its constitutional authority in directing redevelopment agencies to deposit portions of their property tax funding into supplemental educational revenue augmentation funds, and Assembly Bill 4X 26 is a valid exercise of the legislature's inherent budgetary powers. Initial litigation in the case did not impose a burden on the California Redevelopment Association and its members out of proportion to their individual stakes in the matter, and hence, the association is not entitled to an award of attorney fees.
California Redevelopment Association v. Matosantos  filed January 24, 2013, Third District
Cite as C064907
Full text http://www.metnews.com/sos.cgi?0113//C064907

Title Insurance
A tripartite attorney-client relationship [Ed. Note—is this similar to a ménage a trois?] arises when a title insurer retains counsel to prosecute an action on behalf of the insured pursuant to the title policy.
Bank of America, N.A. v. Superior Court (Pacific City Bank)  filed January 15, 2013, Fourth District, Div. Three
Cite as G046829
Full text http://www.metnews.com/sos.cgi?0113//G046829


Los Angeles County Bar Association
2013 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
Laurence L. Hummer
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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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.

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