Last chance to RSVP for the Section's Installation and Awards on Thursday May 23. Don't miss the opportunity to meet me in person.
Real Property Section Newsletter
5/23/2013 15th Annual Real Property Section Installation and Awards Dinner
Join us for the 15th Annual LACBA Real Property Section Installation and Awards Dinner, where the section will honor Robert J. Lowe, recipient of the Outstanding Real Estate Industry Award, and John W. Whitaker, recipient of the Outstanding Real Estate Lawyer Award. Susan Fowler McNally will be honored posthumously as the recipient of the Ira E. Yellin Lifetime Achievement Award, and we will acknowledge both the incoming and outgoing Real Property Section officers.
Additional Upcoming Events
-"Friday Night Lights"--CEQA version-
Generalized desire of community members "to come home to peace and calm, not bright lights and noise" did not constitute substantial evidence showing that installation of lights at high school football stadium would have a significant effect on the environment within the meaning of CEQA. Agency did not abuse its discretion by finding that addition of lighting and other improvements to football stadium would not have a significant impact on historic resources where the stadium and school were not historic resources themselves, the surrounding neighborhood was not designated as a historic district and there was no substantial evidence that it was eligible for such designation, and no historic resource would have been materially altered or demolished as a result of the project. Finding that EIR was not required based on traffic and parking impacts was an abuse of discretion in absence of adequate data to support such a conclusion.
Taxpayers for Accountable School Bond Spending v. San Diego Unified School District - filed March 26, 2013, publication ordered April 25, 2013, Fourth District, Div. One
Cite as D060999
Full text http://www.metnews.com/sos.cgi?0413//D060999
-"I get a little high with my friends..." no more, bummer-
Government Code Section 65853, which sets forth specific notice and other requirements for enactments or amendments of zoning ordinances, does not apply to an ordinance banning medical marijuana dispensaries. Neither Proposition 215 (also known as the Compassionate Use Act), nor the Medical Marijuana Program Act, preempt local bans on medical marijuana dispensaries. Dispensary that claimed to have lawfully operated prior to the enactment of local ban did not acquire a vested property right in continued operation, where land-use ordinance in effect prior to ban did not expressly permit dispensary operation, city did not otherwise approve operation of a dispensary, and no state law gave dispensary a right to operate.
Conejo Wellness Center, Inc. v. City of Agoura Hills - filed March 29, 2013, Second District, Div. Eight
Cite as B237718
Full text http://www.metnews.com/sos.cgi?0413//B237718
-"See you in [our] court", Paleface-
Domestic corporation claiming that Indian tribal corporation breached a contract concerning joint development on tribal lands was required to exhaust tribal remedies before suing in federal courts. Bad-faith and futility exceptions to tribal exhaustion requirement did not apply absent evidence of interference by tribal council members in the tribal judicial process or of partiality on the part of tribal judge assigned to the case. Tribal court was not wholly without jurisdiction to try the parties' dispute--which would be an exception to the exhaustion requirement--where the relationship between the parties was consensual and affected the economic well-being of the tribe.
Grand Canyon Skywalk Development, LLC v. 'Sa' Nyu Wa Incorporated - filed April 26, 2013
Cite as 12-15634
Full text http://www.metnews.com/sos.cgi?0413//12-15634
-Adverse Possession--on the economy plan-
Nonprofit religious organization's status as a "public benefit corporation" does not make it a "public entity" immune from adverse possession under Civil Code Section 1007. Nonprofit religious organization's "welfare exemption" from property taxes under Revenue and Taxation Code Section 214 means that no such taxes were "levied and assessed" on the property during the years it qualified for the exemption, so the adverse possessor, under the plain language of Code of Civil Procedure Section 325, is excused from the usual requirement that he pay taxes on the disputed land for five years.
Hagman v. Meher Mount Corporation - filed April 3, 2013, Second District, Div. Six
Cite as B239014
Full text http://www.metnews.com/sos.cgi?0413//B239014
-Another Bummer, Dude-
Neither Proposition 215, nor Medical Marijuana Program Act, preempts local zoning regulations limiting medical marijuana collectives to certain zones and limiting the number of plants that a collective may possess at one time. Imposition of restrictions on medical marijuana collectives that are not imposed on individual users does not violate equal protection clauses.
County of Tulare v. Nunes - filed April 29, 2013, Fifth District
Cite as F063555
Full text http://www.metnews.com/sos.cgi?0513//F063555
-Another variation on "Who Do You Trust"-
With respect to insurer's denial of claims by its insured--an investor in a condominium project that failed before any sales were closed--for losses resulting from theft and vandalism, investor's suit against insurer for breach of contract failed to raise a triable issue of fact because the policy plainly excluded coverage for losses occurring when the property was vacant. Investor's claim against insurance broker, alleging defendant was negligent in failing to obtain appropriate coverage, failed to raise a triable issue of fact because the broker owed no duty to the investor to provide any particular type of coverage. If developer breached its duty to maintain builder's risk insurance, the remedy of the investor, if any, would be against the developer.
Travelers Property Casualty Company of America v. Superior Court (Braum) - filed April 17, 2013, Second District, Div. Three
Cite as B243650
Full text http://www.metnews.com/sos.cgi?0413//B243650
-As Johnny Carson used to say: "Who Can You Trust?" -
Taxpayer failed to show "reasonable cause" under 26 U.S.C. Section 6651(a)(1) to excuse penalty for late filing of estate tax return, when taxpayer's accountant allegedly advised him erroneously as to deadline for filing return following extension. It was taxpayer's duty to ascertain the correct extended filing deadline, and he failed to exercise ordinary business care and prudence by relying on his accountant's advice about this non-substantive matter.
Knappe v. United States - filed April 4, 2013
Cite as 10-56904
Full text http://www.metnews.com/sos.cgi?0413//10-56904
Use of property within city as a marijuana dispensary was an impermissible use under the municipal code and thus a public nuisance per se--even prior to city's adoption of a specific moratorium on marijuana dispensaries--where the property was located in a commercial zone, and dispensing of medical marijuana was not one of the 50 types of businesses permitted in such zones. Because defendants acquired no vested right to operate their illegal dispensary, trial court properly found that their continued post-moratorium operation of a dispensary was a public nuisance per se.
City of Monterey v. Carrnshimba - filed March 27, 2013, publication ordered April 25, 2013, Sixth District
Cite as H036475
Full text http://www.metnews.com/sos.cgi?0413//H036475
Neither Code of Civil Procedure Section 473, nor the California Environmental Quality Act, permits a trial court to extend the time for bringing a CEQA action, regardless of good cause.
Alliance for the Protection of the Auburn Community Environment v. County of Placer (Bohemia Properties, LLC) - filed February 28, 2013, publication ordered April 2, 2013, Third District
Cite as C067961
Full text http://www.metnews.com/sos.cgi?0413//C067961
Where agency erroneously concluded that project--which required agency's exercise of eminent domain powers--was exempt from CEQA in its entirety, trial court properly ordered preparation of an EIR but did not err in ruling that agency could proceed with aspects of project that did not violate CEQA, and did not have to repeal the resolution of necessity for the taking of the property.
Golden Gate Land Holdings LLC v. East Bay Regional Park District - filed April 12, 2013, First District, Div. Five
Cite as A135593
Full text http://www.metnews.com/sos.cgi?0413//A135593
Doctrine of merger of title, under which an easement is generally extinguished "by the vesting of the right of the servitude and the right to the servient tenement in the same person," is subject to an exception if the parties have agreed otherwise. By agreeing (1) to burden an existing easement with a security interest in favor of defendant, evidenced by a deed of trust and (2) that any transfer to one of the plaintiffs would be subject to the deed of trust, and would not affect the priority of that security interest, plaintiffs in effect stipulated that there would be no merger of title so long as the deed of trust remained in effect.
Hamilton Court, LLC v. East Olympic, L.P - filed April 16, 2013, Second District, Div. Five
Cite as B240052
-Late Payment Charges on Home Mortgages-
Limitation on late payment charges in Business and Professions Code Section 10242.5(b) applies to home mortgage loans negotiated by mortgage loan brokers, regardless of the exempt status under Section 10133.1 of entities that funded and serviced the loans. Federally regulated entities that serviced home mortgage loans may not be sued for breach of contract--on the theory that the payment application requirement in Section 10242.5(b) was implicitly incorporated into each loan by operation of law, and the servicers misapplied payments and charged late fees in violation of that implied term--because such claims are preempted by the National Bank Act and the Home Owners Loan Act.
Akopyan v. Wells Fargo Home Mortgage, Inc. - filed April 4, 2013, Second District, Div. Four
Cite as B236455
Full text http://www.metnews.com/sos.cgi?0413//B236455
Lender's assignee, which sued borrower for fraud based on alleged false statements in loan application, failed to state a cause of action where it alleged an assignment of the loan but did not specifically allege an assignment of the tort cause of action. Denial of leave to amend to allege an assignment of tort cause of action was not an abuse of discretion where motion was based on declaration of officer of plaintiff, broadly asserting that plaintiff had acquired all of lender's rights when it acquired the loan "as part of a larger pool of loans" two years earlier. Declaration shed no light on parties' intent at time of assignment, particularly since the assignment agreement itself made no mention of any tort claims.
Heritage Pacific Financial, LLC v. Monroy - filed March 29, 2013, publication ordered April 25, 2013, First District, Div. Two
Cite as A135274
Full text http://www.metnews.com/sos.cgi?0413//A135274
-Real Estate Salespersons-
Plaintiff, a real estate agent who was injured while showing prospective buyers a house for sale, established triable issues of fact as to whether the property owner and listing agents had actual or constructive knowledge of a concealed dangerous condition and satisfied their duty to notify plaintiff of it. Plaintiff was injured using a pull-down ladder to access an attic, and plaintiff's evidence included an inspection report that was delivered to the listing agents and that--under the heading "Health and Safety Required Repairs"--identified the stairway ladder and recommended that it be replaced.
Hall v. Aurora Loan Services LLC - filed April 26, 2013, First District, Div. Four
Cite as A133045
Full text http://www.metnews.com/sos.cgi?0413//A133045
-Real Property Litigation-
Doctrine of "prior exclusive jurisdiction" did not preclude removal of state action challenging efforts of mortgage lender and related parties to continue with foreclosure proceedings. The doctrine only precludes a federal court from exercising jurisdiction over property if a state court has actually exercised jurisdiction over the same property and the state proceeding is ongoing. Colorado River abstention doctrine did not preclude federal court from exercising jurisdiction over plaintiffs' property where no state proceeding relating to that property was pending concurrently with federal proceedings.
Sexton v. NDEX West, LLC - filed April 12, 2013
Cite as 11-17432
Full text http://www.metnews.com/sos.cgi?0413//11-17432
-Recreational Trails Tort Immunity-
Pathway that was designated by city as a recreational trail, and that was designed and had been used for horseback riding, hiking, and access to other recreational areas, was a recreational trail as a matter of law. City was statutorily immune from liability for injuries sustained by pedestrian who fell over a protruding tree trunk while walking along the pathway, even though plaintiff and others used the pathway for non-recreational purposes.
Montenegro v. City of Bradbury - filed April 25, 2013, Second District, Div. Four
Cite as B242953
Full text http://www.metnews.com/sos.cgi?0413//B242953
Takings claim under 42 USC Section 1983 was timely when brought within one year of the enactment of allegedly unconstitutional rent regulation ordinance, regardless of whether some of the provisions of that ordinance were also part of a prior ordinance, when validity of claim could not be determined without reviewing the later ordinance. Judgment upholding prior ordinance did not preclude challenge to new ordinance because res judicata did not apply when action challenged provisions that amended prior ordinance. Ordinance did not create a regulatory taking or deprive plaintiff of substantive due process when the economic impact, investment-backed expectations, and character of the ordinance were such that plaintiff earned a rate of return that would have been considered reasonable based on the law in effect at the time it acquired the property.
MHC Financing Limited Partnership v. City of San Rafael - filed April 17, 2013
Cite as 07-15982
Full text http://www.metnews.com/sos.cgi?0413//07-15982
-Title Insurance to the rescue-
Where private lenders sued a private mortgage broker for negligence and breach of fiduciary duty after it was discovered that a loan they had financed had been obtained through fraud and forgery, it was an abuse of discretion for trial court to exclude evidence of title insurance procured by the private mortgage broker as part of the lending transaction to protect the lenders from fraud and forgery as barred by the collateral source rule, since this evidence was relevant to liability. Trial court properly declined to instruct the jury on superseding cause where the alleged superseding event--the submission of forged loan documents--was highly foreseeable, even if the specific details--including forgery of signatures by a notary--were not reasonably foreseeable.
Chanda v. Federal Home Loans Corporation - filed April 19, 2013, Fourth District, Div. One
Cite as D059976
Full text http://www.metnews.com/sos.cgi?0413//D059976
Angeles County Bar Association
2013 Real Property Section Newsletter
REAL PROPERTY SECTION PUBLICATIONS
Daniel L. Goodkin, Editor, Real Property
Norman A. Chernin, Editor, Real Property
Sarah V. J. Spyksma
Norman A. Chernin
Susan J. Booth
Gregg J. Loubier
Nedra E. Austin
Susan J. Booth
Claire Hervey Collins
Robert T. Flick
Daniel L. Goodkin
Marcia Z. Gordon
Laurence L. Hummer
Trudi J. Lesser
Peter J. Niemiec
Robert C. Pearman
Leslie D. Reed
D. Eric Remensperger
Michael G. Smooke
Linda E. Spiegel
Andrew J. Yamamoto
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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