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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 8 • August 2013 • Archive of Past Issues
Real Property Home Page


Introductory Comment

During the summer doldrums, you can look forward to the Crocker Symposium, which will take place this year on October 29. Before then, the Section will be sending out a Survey to solicit your thoughts on how we can better meet your professional needs for education, social networking, and other benefits of membership in our Section. Notice in this month's Newsletter, no less than 3 cases dealing with anti-deficiency. Count on a recession to renew interest in this area of the law. Dennis Arnold—we still need you to explain these developments to us!

Sincerely,

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

Coming Events

Recent Cases

Anti-deficiency--
One-Form-of-Action Rule--
TARP
Urgency legislation, effective July 15, 2011, amended Code of Civil Procedure Section 580e to expand anti-deficiency protection in the event of a short sale--which had previously extended only to the borrower under a first trust deed--to any deed of trust, including junior lienholders, if the holder of said deed of trust consented to the short sale and received the proceeds of the sale as agreed. It does not apply retroactively to a sale that occurred before the law’s effective date. Section 726, the one-form-of-action rule, did not apply to an agreed short sale in which lender consented to release its lien only, and borrower agreed to remain personally liable on the loan. Troubled Asset Relief Program (“TARP”) does not create a private right of action in favor of a borrower who claims to be a third-party beneficiary of the lender’s TARP contract with the federal government.
     Bank of America, N.A. v. Roberts - filed July 17, 2013, Fifth District
     Cite as 2013 S.O.S. 3666
     Full text http://www.metnews.com/sos.cgi?0713//F064109


Anti-deficiency
Anti-deficiency provisions of Code of Civil Procedure Section 580b applied to a borrower who, with the approval of her lender, sold her residence to a third party for a price that was less than the outstanding balance owed the lender on the borrower's purchase-money mortgage loan.
     Coker v. JP Morgan Chase Bank, N.A. - filed July 23, 2013, Fourth District, Div. One
     Cite as D061720
     Full text http://www.metnews.com/sos.cgi?0713//D061720


Anti-deficiency
When sellers of real estate accept a deed of trust from the purchasers to secure the purchase price, Code of Civil Procedure Section 580b prohibits the sellers from obtaining a deficiency judgment in the event the purchasers default, regardless of whether the trust deed is given to sellers before or after the close of escrow.
     Enloe v. Kelso - filed July 3, 2013, Second District, Div. Six
     Cite as B241201
     Full text http://www.metnews.com/sos.cgi?0713//B241201


Bankruptcy
Federal Rules of Bankruptcy Procedure do not afford the bankruptcy court the discretion to extend retroactively the deadline for filing non-dischargeability complaints when an attorney’s computer difficulties cause him to miss the electronic filing deadline.  [Ed. Note—Looks like the most recent version of “my dog ate my homework”]
     Anwar v. Johnson - filed July 2, 2013
     Cite as 11-16612
     Full text http://www.metnews.com/sos.cgi?0713//11-16612


CEQA
By granting further approvals by resolution with respect to a residential development, a city council factually invoked Government Code Section 65457's CEQA exemption for a "residential development project...that is undertaken to implement and is consistent with a specific plan for which an environmental impact report has been certified after January 1, 1980," so an action challenging those approvals was subject to Section 65457’s special 30-day statute of limitations.
     May v. City of Milpitas (SCS Development Co.) - filed July 16, 2013, Sixth District
     Cite as H038338
     Full text http://www.metnews.com/sos.cgi?0713//H038338


CEQA
CEQA’s provisions defining the administrative record do not abrogate the attorney-client privilege and the attorney work-product doctrine. Common-interest doctrine does not protect otherwise privileged communications disclosed by a developer to the CEQA lead agency or by the agency to the developer prior to approval of the project, a period in which the interests of the lead agency and the project applicant are fundamentally divergent.
     Citizens for Ceres v. Superior Court (City of Ceres) - filed July 8, 2013, Fifth District
     Cite as F065690
     Full text http://www.metnews.com/sos.cgi?0713//F065690


Conservation Easements
Agricultural conservation easements (“ACE”) may appropriately mitigate for the direct loss of farmland when a project converts agricultural land to a nonagricultural use, even though an ACE does not replace the onsite resources.
     Masonite Corporation v. County of Mendocino (Granite Construction Company) - filed July 25, 2013, First District, Div. Three
     Cite as A134896
     Full text http://www.metnews.com/sos.cgi?0713//A134896


Environmental Law
33 U.S.C. Section 1365(b)(1)(B)--a provision of the Clean Water Act barring citizen suits to redress a violation of the Act that is being "diligently" prosecuted by a state or local authority--did not bar an action alleging that defendants violated a National Pollutant Discharge Elimination System permit governing industrial storm water discharges at their scrap metal recycling facilities, where the prior criminal and civil actions against the defendants did not include an action "to require compliance" with the storm water permit. Section 1319(g)(6)(A)(ii, which bars a citizen suit regarding "any violation...with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection" did not bar plaintiff’s claims because criminal and civil actions by the State were not comparable to administrative penalty actions under the Clean Water Act.
     California Sportfishing Protection Alliance v. Chico Scrap Metal, Inc. - filed July 22, 2013
     Cite as 11-16959
     Full text http://www.metnews.com/sos.cgi?0713//11-16959


Environmental Law—Those Dang Dry Cleaners…
Commerce Clause does not preclude application of CERCLA to environmental contamination that occurs entirely within a state. Dry cleaner was liable for cleanup costs under CERCLA. It did not dispute that it used a hazardous substance in its operations and that it regularly spilled that substance on its concrete floor, and once spilled roughly 100 gallons of the substance during a filter change. Cleaner’s argument that spilling hazardous substance onto the floor, rather than directly onto the land or water, does not count as a "disposal" was contrary to the language of the statute.
     Voggenthaler v. Maryland Square LLC - filed July 26, 2013
     Cite as 10-17520
     Full text http://www.metnews.com/sos.cgi?0713//10-17520


Evictions and their aftermath
Plaintiff landlords presented sufficient evidence that they had been defamed by former tenant in an online review to survive anti-SLAPP motion. While the review contained statements of opinion that are not actionable, plaintiffs showed that it contained several statements of fact that could be found libelous, including provably false allegations that specified tenants were subjected to evictions or eviction attempts, and that certain tenants had died as a result of conditions at the building.
     Bently Reserve L.P. v. Papaliolios - filed July 30, 2013, First District, Div. One
     Cite as A136191
     Full text http://www.metnews.com/sos.cgi?0813//A136191


Foreclosure and its Aftermath
Plaintiffs sued multiple defendants, including financial institutions and their lawyers, and all of the causes of action centered on the primary assertion that defendants either fraudulently or negligently foreclosed on a property owned by plaintiffs. All of the claims against the lawyers-—who plaintiffs acknowledged "did not directly participate in" the non-judicial foreclosure proceedings--being based on their representation of the lenders in subsequent eviction proceedings-—arose from protected activity within the meaning of the anti-SLAPP statute. Plaintiffs failed to present a prima facie case as to any of their claims against attorneys, since all of the allegedly injurious conduct occurred during litigation and was thus privileged under Civil Code Sec. 47.
     Trapp v. Naiman - filed June 28, 2013, publication ordered July 24, 2013, Fourth District, Div. Two
     Cite as E054908
     Full text http://www.metnews.com/sos.cgi?0713//E054908


Homeowners Association Assessment Lien Foreclosure
Notice requirements set forth in the Davis-Stirling Common Interest Development Act (Civil Code Sections 1367.1 and 1367.4) for judicial foreclosure on an assessment lien must be strictly construed pursuant to the plain language of the statutes and their legislative history. Association’s failure to send homeowner a copy of the recorded notice of delinquent assessment by certified mail within 10 days of the recording--to give her the required pre-lien notice of her right to demand alternative dispute resolution, to include the board’s executive session vote to initiate foreclosure on her property in the minutes of the next meeting of the board open to all members, and to personally serve homeowner with the notice of the board’s vote to foreclose prior to commencement of the foreclosure action--rendered the assessment lien that the association recorded on her property invalid and unenforceable in a judicial foreclosure action.
     Diamond v. Superior Court (Casa Del Valle Homeowners Association) - filed June 18, 2013, publication ordered July 12, 2013, Sixth District
     Cite as H038734
     Full text http://www.metnews.com/sos.cgi?0713//H038734


Land Use
City Council’s finding that proposed residential development would be consistent with general plan was not arbitrary or capricious where references to the property were contradictory, and prior Council Resolutions had created uncertainty as to what the Council’s intent was with regard to development of the subject property.  [Ed Note—If this summary causes you to scratch your head in bewilderment, you should look at the E-Brief from which I edited it, and then read the 44 page case.  I think that the appellate court finally threw up its hands and extricated itself from trying to second-guess the confusion surrounding this development approval.]
     Orange Citizens for Parks and Recreation v. Superior Court (Milan REI IV LLC) - filed July 10, 2013, Fourth District, Div. Three
     Cite as G047013
     Full text http://www.metnews.com/sos.cgi?0713//G047013


Land Use
County’s density bonus ordinance conflicted with the state Density Bonus Law because-—by excluding from the target units necessary to qualify for the density bonus those units necessary to satisfy the county’s inclusionary requirement-—the ordinance impermissibly required a developer to include a higher percentage of affordable units than the state law requires.
     Latinos Unidos Del Valle de Napa y Solano v. County of Napa - filed July 11, 2013, First District, Div. Three
     Cite as A135094
     Full text http://www.metnews.com/sos.cgi?0713//A135094


Landlord and Tenant
Landlord did not breach lease as a matter of law by failing to give proper notice of its intent to inspect leased property. Lessee's direction to give notice to the lessee's counsel, rather than to lessee directly, was an effective modification of the lease term.
     Eucasia Schools Worldwide, Inc. v. DW August Co. - filed July 24, 2013, Second District, Div. Six
     Cite as B238399
     Full text http://www.metnews.com/sos.cgi?0713//B238399


Leases
Provision in a lease allowing service of certain notices by overnight mail did not permit service of a petition to vacate an arbitration award in that manner pursuant to Code of Civil Procedure Section 1290.4, which provides that the petition shall be served in the same manner as a summons unless the parties have agreed otherwise, because the petition was not a notice "respecting this Lease”. 
     Abers v. Rohrs - filed June 13, 2013, publication ordered July 15, 2013, Fourth District, Div. Three
     Cite as G047034
     Full text http://www.metnews.com/sos.cgi?0713//G047034


Public Records
Although geographic information system (“GIS”) mapping software is exempt from disclosure under the California Public Records Act as "[c]omputer software," a GIS-formatted database of information about land parcels is not. Such databases are public records that, unless otherwise exempt, must be produced upon request at the actual cost of duplication.
     Sierra Club v. Superior Court (County of Orange) - filed July 8, 2013
     Cite as S194708
     Full text http://www.metnews.com/sos.cgi?0713//S194708


Rent Control
Landlord’s notice to tenant that tenant’s failure to maintain insurance would henceforth be deemed a material breach, such that it would result in a forfeiture of the lease agreement, was a unilateral change of terms and was invalid under the provisions of the Los Angeles Rent Stabilization Ordinance. Trial court’s finding that failure to maintain insurance was not a material breach as a matter of fact was supported by substantial evidence where there was no evidence that defendant had anything worth insuring, and the trial court found that landlord likely raised the issue solely to try to get rid of a "problem tenant."
     Nivo 1 LLC v. Antunez - filed July 5, 2013
     Cite as JAD13-05
     Full text http://www.metnews.com/sos.cgi?0713//JAD13-05


School Impact Fees
Under the statutory scheme applicable to school impact fees, the fees should not be imposed for square footage already in existence at the time of a new development project, absent a study that reasonably supports that reconstruction of preexisting square footage increases student population. Absent such a showing in District's school impact fee study, developer was entitled to a refund of the portion of the fees derived from the preexisting square footage in its project.
     Cresta Bella, LP v. Poway Unified School District - filed July 31, 2013, Fourth District, Div. One
     Cite as D060789
     Full text http://www.metnews.com/sos.cgi?0813//D060789


Subdivisions
Property owner lacked standing, as a purported third party beneficiary, to enforce agreements between owner of neighboring properties and public entities for completion of improvements that would have benefited plaintiff, who held deeds of trust on the contracting owner’s properties, in addition to owning neighboring properties. Law governing subdivision improvement bonds gives public entity discretion to determine the scope of improvements to be performed and bonded, so County did not act unlawfully when--following property owner’s default--it exercised its discretion and entered into a contractual agreement with surety, modifying the scope of improvements to be performed under the underlying agreements to the alleged detriment of plaintiff.
     H.N. and Frances C. Berger Foundation v. Perez - filed June 27, 2013, publication ordered July 23, 2013, Fourth District, Div. Two
     Cite as E054948
     Full text http://www.metnews.com/sos.cgi?0713//E054948


Tenants’ Rights Following Foreclosure
Protecting Tenants at Foreclosure Act of 2009--which generally requires the purchaser of a foreclosed property to give tenants at least 90 days’ notice of termination--does not, either explicitly or by implication, evince a congressional intent to create a private right of action.
     Logan v. U.S. Bank National Association - filed July 16, 2013
     Cite as 10-55671
     Full text http://www.metnews.com/sos.cgi?0713//10-55671

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

Sarah V.J. Spyksma

First Vice Chair

Norman A. Chernin

Second Vice Chair
Brant Dveirin

Treasurer
Susan J. Booth


Secretary
Caroline Dreyfus

Crocker Chair
Eric Remensperger

Section Administrator
Fatima Jones

EXECUTIVE COMMITTEE MEMBERS

Eric Altoon
Nedra E. Austin
Claire Hervey Collins
Robert T. Flick
Daniel L. Goodkin
Marcia Z. Gordon
Marybeth Heydt
Laurence L. Hummer
Ryan Iwasaka

Marcia Kamine
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, 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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