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Introductory Comment

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Recent Cases

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An ePublication of the Los Angeles County Bar Association
Volume 8, Number 6 • June 2013 • Archive of Past Issues
Real Property Home Page

Introductory Comment

Enjoy this one during your leisure-time vacation reading.  Have a good summer!


Norm Chernin, Editor, Real Property Section Newsletter
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Coming Events

No events scheduled at this time.

Recent Cases

Another “Who Can You Trust” Case
Where evidence showed as a matter of law that insurance broker who prepared property owner’s application for insurance--which erroneously stated that there was a sprinkler system on insured’s premises--was not an actual or ostensible agent of the insurer, and evidence showed that insured did not maintain a sprinkler system as required under the policy, insured failed to meet its burden of showing that triable issues of material fact existed with respect to its claims against insurer for declaratory relief and negligence based on insurer’s denial of coverage.
     American Way Cellular, Inc. v. Travelers Property Casualty Company of America - filed May 30, 2013, Second District, Div. One
     Cite as B234188
     Full text

Environmental impact report (“EIR”) for seawater desalination plant adequately addressed objections based on aesthetics by including a detailed discussion of such impacts-—including the size and shape of the tank, satellite image analysis of impacts from four directions, visual simulation, and impacts on vistas from homes, hiking trails, and the highway-—that constituted substantial evidence supporting conclusion the impact was less than significant. Opponents failed to exhaust administrative remedies with respect to claim of general plan inconsistency where their objections did not mention or even allude to the general plan at all or failed to apprise agency of any specific inconsistencies with policies or programs in the plan. EIR’s finding of less-than-significant impact may be supported by substantial evidence in the administrative record, even if that evidence is not mentioned in the EIR itself. Where EIR concluded project’s energy impacts would be insignificant-—a conclusion the trial court found to be supported by substantial evidence-—the EIR did not need to discuss further green energy credits as an alternative mitigation measure for the energy impacts.
     North Coast Rivers Alliance v. Marin Municipal Water District Board of Directors - filed May 21, 2013, First District, Div. Four
     Cite as A133821
     Full text

Environmental Law
Trial court had inherent authority to enforce its order to remediate contamination regardless of whether the litigants before it had standing to compel its enforcement. Filing of a timely creditor’s claim was not a prerequisite to seeking enforcement of remediation order against estates of deceased landfill owners. Even if enforcement of the order were tantamount to collection of a debt, the executors would be estopped to object given that the decedents had repeatedly acknowledged their obligation to comply with the order.
     Estate of Bonzi - filed May 30, 2013, Fifth District
     Cite as F065067
     Full text

Inverse Condemnation for Temporary Regulatory Taking
County’s determination that plaintiff’s development project was unlawful under voter-passed measure, despite clear language in the measure exempting projects such as plaintiff’s for which all discretionary approvals had been obtained prior to the measure’s passage, constituted a temporary regulatory taking for which plaintiff was entitled to compensation. Trial court’s determination--that plaintiff’s successful Fifth Amendment taking claim and its unsuccessful substantive due process claim were so strongly interrelated that plaintiffs’ attorneys were entitled to a fee award for all work done on the case--was not an abuse of discretion.
     Lockaway Storage v. County of Alameda - filed May 9, 2013, First District, Div. Three
     Cite as A130874
     Full text

Landlord and Tenant
Civil action by principal of corporation that was sub-lessee of real property, brought against sub-lessor and others after sub-lessor had served sub-lessee with three-day notice and before sub-lessor filed unlawful detainer action against sub-lessee, did not arise from protected activity under the anti-SLAPP law where-—while the three-day notice might have triggered the complaint-—the evidence in the record demonstrated the complaint was based on an underlying dispute over sub-lessee’s repair and maintenance obligations under the sublease and other unprotected activities.
     Copenbarger v. Morris Cerullo World Evangelism - filed April 3, 2013, publication ordered April 30, 2013, Fourth District, Div. Three
     Cite as G046273
     Full text

Medical Marijuana Land Use
California’s medical marijuana statutes do not preempt cities from enacting land use laws that ban facilities that distribute medical marijuana.
     City of Riverside V. Inland Empire Patients Health and Wellness Center, Inc. - filed May 6, 2013
     Cite as S198638
     Full text

Non-judicial Foreclosure
There is no legal authority for a declaratory relief action to determine whether party seeking non-judicial foreclosure has standing to do so. Even if such authority existed, trial court lacked jurisdiction where there was no actual controversy because no sale date was pending. Civil Code Section 2932.5, which explains how a "mortgagee, or other encumbrancer" acquires the power to sell property, is inapplicable to deeds of trust. Plaintiff lacked standing to sue under the Unfair Competition Law where she failed to plead a causal link between her economic injury, the impending non-judicial foreclosure of her home, and the unfair or unlawful acts allegedly committed by defendants, which occurred after she defaulted on the loan. Plaintiff’s allegations that defendants violated various statutes failed to state a cause of action for breach of the covenant of good faith and fair dealing where compliance with those statutes was not an obligation imposed by the parties’ contract.
     Jenkins v. JPMorgan Chase Bank, N.A. - filed May 17, 2013, Fourth District, Div. Three
     Cite as G046121
     Full text

Real Estate “Swindle”
Real estate investors alleged they were swindled by seller of tenant-in-common (“TIC”) interests that failed to disclose its sole owner was a convicted felon and concealed the existence of a loan. Plaintiffs also alleged that defendants--investment bankers who structured joint ventures between the alleged swindler and various lenders but had no involvement in sales of TIC interests to plaintiffs--knew of the swindler’s felony conviction and of the concealed loan. Plaintiffs failed to state a cause of action for materially assisting in a securities law violation under Corporations Code Section 25504.1 but did state a cause of action for common law fraud based upon a conspiracy.
     AREI II Cases - filed May 29, 2013, First District, Div. Three
     Cite as A130447
     Full text

Real Property Taxation on Possessory Leaseholds
Government Code Section 7510(b)(1)-—which prescribes the method for determining the assessed value of a private lessee's leasehold interest in real property owned by a state public retirement system, when the lessee has leased only a portion of the property-—is facially unconstitutional insofar as it bases a lessee's assessment on the lessee's allocable share of the full cash value of the property, computed on the lessee's percentage of the total leasable square feet of the property. Because the exempt remainder or reversionary interest, belonging to the public retirement system owner, is included in the assessment of the lessee's possessory interest, the statute violates the prohibition against assessing property taxes on publicly owned real property, as well as the prohibition on assessing property in excess of its fair market value.
     California State Teachers' Retirement System v. County of Los Angeles - filed May 7, 2013, Second District, Div. Three
     Cite as B225245
     Full text

Redemption Following Foreclosure Sale for Delinquent Homeowners Association Assessments
In action to set aside foreclosure sale based on failure to pay homeowner’s association assessment fees, burden was on the association to produce evidence of compliance with Code of Civil Procedure Section 729.050--requiring trustee to give notice of right of redemption after the sale--and it was error to grant summary judgment to association where it failed to produce such evidence in support of the motion. Prima facie showing that defendants properly notified plaintiffs of the originally scheduled date of foreclosure sale and that the sale would be subject to a 90-day right of redemption would not excuse defendants from being required to show compliance with Section 729.050, which specifically relieves debtor of any burden to calculate the applicable redemption period by requiring the trustee to provide notice of that period promptly after the sale. Debtors need not tender the amount in default to obtain relief from foreclosure where trustee has not complied with Section 729.050.
     Multani v. Witkin & Neal - filed May 1, 2013, Second District, Div. Seven
     Cite as B237295
     Full text

Subdivision Map Act
Option agreement that amended a prior agreement was enforceable notwithstanding the prior agreement’s lack of compliance with Government Code Section 66499.30(e)--which conditions the legality of a sale or lease of a portion of a parcel of land for which a map has not been recorded under the Subdivision Map Act on the transaction being "conditioned expressly on the future approval and recordation of a final map or parcel map prior to the close of any escrow." The last agreement complied with the statute, and the terms were significantly different so that it was a "new and independent" option contract that stood on its own feet independently of the prior illegality.
     Corrie v. Soloway - filed May 16, 2013, First District, Div. One
     Cite as A135963
     Full text

Trustee’s Sale Procedures
Trustee had discretionary authority to declare void a non-judicial foreclosure sale of real property when, before the trustee delivered a deed to the highest bidder, the trustee discovered it had mistakenly communicated to the auctioneer an incorrect opening bid by the lender that was less than 10% of the actual amount of the bid.
     Biancalana v. T.D. Service Company - filed May 16, 2013
     Cite as S198562
     Full text

Unlawful Detainer
Trial court did not err in granting landlord’s request to serve unlawful detainer summons and complaint by posting and mailing at defendant’s residence address, where there was no indication that any adult other than defendant might be found at the premises, defendant apparently was not represented by counsel at the time, plaintiff did not know defendant’s business address, and defendant’s enrollment at university (which was her landlord and which had provided a substantial discount in rent that was contingent on maintaining student status)had been terminated nearly a year earlier. Denial of motion to vacate default and default judgment was not an abuse of discretion where defendant was located outside the state during unlawful detainer proceedings; plaintiff had, in the months following entry of judgment, repeatedly attempted to contact defendant in writing and had received mail from her, but she provided no address other than that of the apartment of which plaintiff had already taken possession; and the post office had not processed defendant’s request to forward her mail, so any attempt to serve her by mail would have been ineffectual.
     The Board of Trustees of the Leland Stanford Junior University v. Ham - filed May 15, 2013, Sixth District
     Cite as H038784
     Full text

Usury Exemption for Broker-Arranged Loans
For purposes of Civil Code Section 1916.1--which states that "a arranged by a person licensed as a real estate broker [and thus exempt from the state constitutional ban on usury] when the broker...acts for compensation or in expectation of compensation for soliciting, negotiating, or arranging the loan for another"--a real estate broker can be deemed to have arranged a loan "for another" when the lender is a corporation that is wholly owned by the broker. Broker may be found to have arranged a loan "in expectation of compensation" under Section 1916.1 even if the only compensation the broker will receive is the profit his wholly-owned corporation reaps from the interest on the loan.
     Bock v. California Capital Loans, Inc. - filed May 14, 2013, Third District
     Cite as C069863
     Full text

Los Angeles County Bar Association
2013 Real Property Section Newsletter


Daniel L. Goodkin, Editor, Real Property Section Review
Norman A. Chernin, Editor, Real Property Section Newsletter



Sarah V.J. Spyksma

First Vice Chair

Norman A. Chernin

Second Vice Chair
Brant Dveirin

Susan J. Booth

Secretary/Crocker Chair
Caroline Dreyfus

Section Administrator
Fatima Jones


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

Commercial Development and Leasing, Nadav Ravid
Construction Law, James Earle
Finance, Owen Gross
General Real Estate Law, Beth Peterson
Land Use Planning and Environmental Law, Glenn Block
Title Insurance, Susan Vignale

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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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