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- In This Issue -

Introductory Comment

Coming Events

Recent Cases


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An ePublication of the Los Angeles County Bar Association
Volume 8, Number 9 • September 2013 • Archive of Past Issues
Real Property Home Page


Introductory Comment

An interesting array of new decisions to re-engage your legal thinking after the summer doldrums.  Don’t forget to mark your calendar for the Crocker Symposium on October 29.

Sincerely,

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

Coming Events

Recent Cases

-Affordable Housing-
Where local agency fails to make requisite findings in denying application for housing development permit, attorney fees may be awarded under Government Code Section 65589.5(k) only if housing comes under definition of "affordable."
     Honchariw v. County of Stanislaus - filed August 8, 2013, Fifth District
     Cite as F065494
     Full text http://www.metnews.com/sos.cgi?0813//F065494


-Bankruptcy-
Lawyer’s knowledge of a bankruptcy is not imputed to his client, a creditor of the bankrupt, where the lawyer did not share the knowledge and gained it in connection with representation of another client, and was not representing the creditor in connection with the debt.
     In re: Perle - filed August 2, 2013
     Cite as 11-60000 web REVISED
     Full text http://www.metnews.com/sos.cgi?0813//11-60000 web REVISED


-CEQA-
County did not abuse its discretion in adopting statement of overriding considerations as part of final EIR under CEQA for zoning ordinance amendment designed to promote boutique wineries in unincorporated area of county. Petitioners, who unsuccessfully sought writ of mandate to set aside final EIR, were properly charged for preparation of administrative record, with exception of cost of preparing transcripts of hearings by Planning Commission that were never considered by the Board of Supervisors in adopting the final EIR.
     San Diego Citizenry Group v. County of San Diego - filed July 30, 2013, publication ordered August 26, 2013, Fourth District, Div. One
     Cite as D059962
     Full text http://www.metnews.com/sos.cgi?0813//D059962


-CEQA-
EIR inadequately analyzed impact of greenhouse gas emissions anticipated to occur as a result of retailer’s relocation and expansion of a "supercenter" to replace an existing store of traditional dimension and offerings. City misapplied the AB 32 threshold-of-significance standard by applying a meaningless, relative number to determine insignificant impact, and by failing to ascertain the existing facility’s emissions and the impact on emissions from mitigation measures.
     Friends of Oroville v. City of Oroville (Wal-Mart Stores, Inc.) - filed August 19, 2013, Third District
     Cite as C070448
     Full text http://www.metnews.com/sos.cgi?0813//C070448


-CEQA-
Promulgation of "thresholds of significance," to be used by a public agency to assist in determining whether a project’s effect will be deemed significant under California Environmental Quality Act is not itself a "project" subject to CEQA review.
     California Building Industry Association v. Bay Area Air Quality Management District - filed August 13, 2013, First District, Div. Five
     Cite as A135335
     Full text http://www.metnews.com/sos.cgi?0813//A135335


-CERCLA-
Insurer breached its duty to defend when it refused to provide a defense after the insured received letters from the Environmental Protection Agency notifying the insured of its potential liability under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) for environmental contamination of a Superfund site. Such letters were "suits" under state law within the meaning of the policies’ duty to defend, and alleged facts sufficient to alert the insured to its potential liability for environmental contamination under CERCLA.
     Anderson Brothers, Inc. v. St. Paul Fire and Marine Insurance Company - filed August 30, 2013
     Cite as 12-35346
     Full text http://www.metnews.com/sos.cgi?0913//12-35346


-Commercial Leases-
Tenant’s claims for misrepresentation and fraud, based on discrepancy between landlord’s estimates--communicated during lease negotiations--with respect to tenant’s obligations to pay a proportional share of property taxes, insurance, and common area maintenance, and the actual amounts of such expenses, were not barred by the parol evidence rule. Extrinsic evidence was admissible to establish fraud or negligent misrepresentation in the face of the lease’s integration clause. Plaintiff should have been allowed to allege fraud and misrepresentation based on gross inaccuracy in the estimates and on landlord’s actual or constructive knowledge that the information was inaccurate--as it was significantly inconsistent with estimates furnished to other tenants. Tenant adequately pleaded facts to show its reliance on landlord’s estimates was reasonable given the parties’ previous dealings and because landlord had superior knowledge and information. Tenant’s claim for reformation and rescission based on mutual mistake, including allegations that landlord’s representations were false when made, even if believed by landlord at the time, was adequately pled. Tenant adequately pled breach of contract and bad faith by alleging that landlord improperly exercised its discretion in allocating costs between retail and nonretail space.
     Thrifty Payless, Inc. v. Americana at Brand, LLC - filed July 19, 2013, publication ordered August 14, 2013, Second District, Div. One
     Cite as B242573
     Full text http://www.metnews.com/sos.cgi?0813//B242573


-Construction Law-*
Right to Repair Act-—enacted to provide remedies where construction defects have negatively affected the economic value of a home, although no actual property damage or personal injuries have occurred as a result of the defects--does not eliminate a property owner’s common law rights and remedies, otherwise recognized by law, where actual damage has occurred. Because homeowner had a right to recover actual damages, including relocation expenses, his insurer’s complaint in subrogation stated causes of action.
     Liberty Mutual Insurance Company v. Brookfield Crystal Cove LLC - filed August 28, 2013, Fourth District, Div. Three
     Cite as G046731
     Full text http://www.metnews.com/sos.cgi?0813//G046731
*EDITOR'S NOTE: Thank you to Allen Matkins for providing the Construction Sub-Section their link to their discussion of this matter.


-Conversion of Architectural Plans-
A cause of action lies for conversion of architectural plans. Copyright law is not preemptive. The action is one not for a copyright violation but for conversion of a particular object containing a copyrightable work.
     Civic Partners Stockton, LLC v. Youssefi - filed August 8, 2013, Third District
     Cite as C067304
     Full text http://www.metnews.com/sos.cgi?0813//C067304


-Criminal Law Alternative to Slander of Title-
Substantial evidence supported convictions of man who quitclaimed to himself properties to which he had no ownership claim, filed homestead declarations, and thus clouded titles, causing true homeowners economic harm. Enhancement can be based on loss to victims without gain to defendant. Filing bogus quitclaim deeds constitutes filing false documents, in violation of Penal Code Section 115.
     People v. Denman - filed July 12, 2013, publication ordered August 5, 2013, Fourth District, Div. Two
     Cite as E053798
     Full text http://www.metnews.com/sos.cgi?0813//E053798


-Eminent Domain-
City, which initiated eminent domain action, appraised property as undevelopable agricultural land on the theory that it would not approve of any development plan for the property unless the owners gave, or dedicated, the property to the city. Owners argued that the dedication requirement should not be considered in determining the fair market value of the property because it was not reasonably probable the city would impose the dedication requirement and, if imposed, it would be unconstitutional. Those issues were questions of fact to be decided by a jury.
     City of Perris v. Stamper - filed August 9, 2013, Fourth District, Div. Two
     Cite as E053395
     Full text http://www.metnews.com/sos.cgi?0813//E053395


-Eminent Domain-
To obtain pre-condemnation damages, a property owner must show that the property’s value was damaged as a result of the government’s actions, as opposed to a general market decline. Expert testimony failed to establish a basis for such damages where the witness opined that government action prevented owner from selling when property values were higher, but acknowledged that the government was not responsible for the decline in market values between the high point and the date of condemnation.
     The People ex rel. Department of Transportation v. McNamara - filed August 14, 2013, Sixth District
     Cite as H036228
     Full text http://www.metnews.com/sos.cgi?0813//H036228


-Land Use re Mobile Home Park-
City properly denied approval for conversion of mobile home park from rental complex to one in which individuals would own their own spaces where the record supported determination that, because the mobile home park was in a flood zone within the coastal zone, conversion would be inconsistent with adopted local coastal plan.
     Dunex, Inc. v. City of Oceanside - filed August 13, 2013, Fourth District, Div. One
     Cite as D061579
     Full text http://www.metnews.com/sos.cgi?0813//D061579


-Landlord and Tenant-
Declaratory judgment permitting property owner, who desired to sell property during period in which it was rented, to hold open houses under certain conditions on weekend days between 1:00 p.m. and 4:30 p.m. did not violate Civil Code Section 1954(b), which permits a landlord to enter a dwelling unit to exhibit the premises to prospective or actual purchasers during "normal business hours." Given the nature of the real estate business, weekend afternoons are an objectively reasonable time to show property, and the court’s order limiting the hours and the number of days on which open houses could be held fairly balanced the rights of owner and tenant.
     Dromy v. Lukovsky - filed August 30, 2013, Second District, Div. Three
     Cite as B242952
     Full text http://www.metnews.com/sos.cgi?0913//B242952


-Landlord and Tenant-
FDIC’s transfer of assets and liabilities of a failed bank to another bank did not permit a landlord to seize a pledged asset--a bank deposit serving as collateral for a letter of credit, which in turn secured the performance of a lease that the FDIC had disaffirmed--on the ground that the FDIC no longer held it. To permit a landlord to effectively seize the collateral underlying a letter of credit in these circumstances would be to hamstring the FDIC in its efforts to wind up the affairs of a failed bank and promote stability in the banking system.
     California Bank & Trust v. Piedmont Operating Partnership - filed August 16, 2013, Fourth District, Div. Three
     Cite as G047122
     Full text http://www.metnews.com/sos.cgi?0813//G047122


-Landlord and Tenant-
Trial court did not abuse its discretion in denying class certification in tenants’ action for alleged failure to repair and maintain property in a safe and habitable condition, unlawful demand for increased rents, and retaliation. The alleged failures to repair and maintain, and the demands for increased rents-—allegedly illegal under local ordinance as a result of the failure to repair and maintain-—were not common to all units, and the class of persons alleged to have been retaliated against was not numerous.
     Hendleman v. Los Altos Apartments, L.P. - filed July 22, 2013, publication ordered August 20, 2013, Second District, Div. Three
     Cite as B235404
     Full text http://www.metnews.com/sos.cgi?0813//B235404


-Limited Partnerships-
For purpose of surviving anti-SLAPP motion, plaintiffs presented prima facie evidence as to the "favorable termination" element of malicious prosecution, by showing that defendant admitted during the underlying litigation that defendants, who were limited partners in an entity that held property under a disputed lease, had "absolutely no involvement with the general partner as to decisions regarding the management of the subject lease." Undisputed evidence that limited partners were not parties to lease and did not transact business with the property owners, who were plaintiffs in the underlying action, was sufficient to establish "lack of probable cause" element of malicious prosecution, because the Uniform Limited Partnership Act says limited partners are immune from limited partnership liabilities unless they participate in the operations of the partnership. Evidence of underlying plaintiffs’ decision to sue and to continue litigation against limited partners, despite knowing they were not involved in the transaction that was subject of the suit, was properly treated by the trial court as strong evidence of malice.
     Jay v. Mahaffey - filed July 31, 2013, publication ordered August 23, 2013, Fourth District, Div. Three
     Cite as G047325
     Full text http://www.metnews.com/sos.cgi?0813//G047325


-Mortgage Modifications-
Under the Home Affordable Modification Program, a bank is contractually obligated to offer borrowers a permanent mortgage modification after they comply with requirements of a "trial period plan."
     Corvello v. Wells Fargo Bank, NA - filed August 8, 2013
     Cite as 11-16234
     Full text http://www.metnews.com/sos.cgi?0813//11-16234


-Non-Judicial Foreclosure (MERS)-
Homeowner may not maintain a preemptive suit seeking to bar non-judicial foreclosure on the home based on an asserted lack of authority by the foreclosing "beneficiary" or beneficiary’s "agent." Plaintiffs failed to state a cause of action based on allegations the lender lacked authority to transfer its rights to a beneficiary or beneficiary’s agent, where plaintiffs recognized that authority by entering into the deed of trust.
     Siliga v. Mortgage Electronic Registration Systems, Inc. - filed August 27, 2013, Second District, Div. Three
     Cite as B240531
     Full text http://www.metnews.com/sos.cgi?0813//B240531


-Non-Judicial Foreclosure-
Mortgagor may challenge the validity of a non-judicial foreclosure on the ground that a "securitized" (mortgage-backed) trust that foreclosed on real property was not the true owner because the purported transfer to the securitized trust occurred after the trust’s closing date.
     Glaski v. Bank of America, National Association - filed July 31, 2013, publication ordered August 8, 2013, Fifth District
     Cite as F064556
     Full text http://www.metnews.com/sos.cgi?0813//F064556


-Prescriptive Easements-
Plaintiffs’ predecessors had poured a concrete driveway partly encroaching on the neighboring property, and continued to own their property for many years before plaintiffs purchased it. Plaintiffs used the driveway for several years before defendants-—longtime owners of the neighboring property-—erected a fence blocking plaintiffs’ access to the encroachment. Plaintiffs presented a triable claim of a prescriptive easement. Evidence that defendants had only occupied the premises for brief periods and had rented out the property to a number of tenants did not establish an affirmative defense based on lack of five years’ possession, since defendants had actual possession for part of the time of plaintiffs’ ownership and constructive possession at the expiration of each of the various leases. California law does not require that defendants’ possession have been continuous.
     King v. Wu - filed August 14, 2013, Second District, Div. Seven
     Cite as B239801
     Full text http://www.metnews.com/sos.cgi?0813//B239801


-Sales of Condominium Units Are Not Securities-
Sales of condominium units were not securities transactions under California or federal law where plaintiffs did not adequately allege facts showing that they were offered real-estate and rental-management contracts as a package, and did not allege facts showing that they were induced to buy the units by the rental-management agreement. Common-law fraud theory failed where fraud finding was dependent on a finding that defendants sold a security, which plaintiffs failed to adequately plead, and where plaintiffs failed to identify when defendants made the representations that plaintiffs purported to be false.
     Salameh v. Tarsadia Hotel - filed August 13, 2013
     Cite as 11-55479
     Full text http://www.metnews.com/sos.cgi?0813//11-55479


-Subordination Agreements-
Where seller of real property to a developer agreed to subordinate its security interest to that of a bank making a construction loan, the agreement was unenforceable where the developer and bank entered into a secret side agreement that substantially impaired the seller’s security.
     Citizens Business Bank v. Gevorgian - filed August 1, 2013, Second District, Div. Four
     Cite as B239747
     Full text http://www.metnews.com/sos.cgi?0813//B239747


-Unlawful Detainer-
Defendant in unlawful detainer action, a recipient of public benefits, was entitled to a waiver of all fees, including jury fees. Clerk’s approval of fee waiver covered jury fees; defendant was not required to submit a separate application.
     Kim v. De Maria - filed August 7, 2013
     Cite as JAD13-06
     Full text http://www.metnews.com/sos.cgi?0813//JAD13-06

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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