It's almost here! If you haven't done so yet, sign up for the Crocker Symposium now. You won't want to miss it. Until then, you will find some interesting cases in this month's edition to keep your intellectual juices or outrage, as the case may be, flowing.
Real Property Section Newsletter
-“Dual Tracking” Residential Foreclosures-
Plaintiffs-—who alleged that defendant lender defrauded them by claiming it would not foreclose on their home while considering their request for modification-—failed to sufficiently allege fraud where their claims were based on a single telephone conversation with an individual identifying himself or herself as an employee of defendant, and plaintiffs did not allege the name of the person who spoke or his or her authority to speak for defendant. "Dual tracking," the practice of simultaneously negotiating a possible loan modification while pursuing foreclosure, is not an unfair, illegal, or deceptive business practice for purposes of the Unfair Competition Law, where it occurs before January 1, 2018, the operative date of legislation banning the practice. Conventional lender does not owe borrowers a duty of due care that would preclude it from foreclosing on their property while borrowers are attempting to meet lender’s demand with regard to terms of proposed modification.
Aspiras v. Wells Fargo Bank, N.A. - filed August 21, 2013, publication ordered September 17, 2013, Fourth District, Div. One
Cite as D061449
Full text http://www.metnews.com/sos.cgi?0913//D061449
Bankruptcy court had jurisdiction to reopen a bankruptcy proceeding to consider the tax consequences of the reorganization, pursuant to a Chapter 11 plan, of a general partnership that owned two commercial buildings into a limited liability company with a 1% ownership interest in the property. Post-confirmation subject matter jurisdiction existed because the reorganization was "related to" the underlying proceedings.
In re Wilshire Courtyard - filed September 10, 2013
Cite as 11-60065
Full text http://www.metnews.com/sos.cgi?0913//11-60065
-Commercial Property Insurance Lost Rent Coverage-
Summary judgment in favor of insurer, on claim for lost rent by owner of commercial property that was vandalized while vacant, was error where-—under the terms of the policy-—recovery for lost rent did not require the owner to have an existing tenant, and there were triable issues of fact as to whether the property would have been rented but for the vandalism damage.
Ventura Kester, LLC v. Folksamerica Reinsurance Company - filed September 11, 2013, Second District, Div. Five
Cite as B241889
Full text http://www.metnews.com/sos.cgi?0913//B241889
-Group Home Land Use Restrictions-
District court--which granted summary judgment in favor of city on claims that its ordinance violated the Fair Housing Act, the Americans with Disabilities Act, the California Fair Employment and Housing Act, and the Equal Protection Clause by having the practical effect of prohibiting new group homes for recovering alcoholics and drug users from opening in most residential zones--erred in disregarding evidence that the city’s sole objective was to discriminate against persons deemed to be disabled under state and federal laws.
Plaintiffs, operators and residents of sober living homes, were not required to identify similarly situated individuals who were treated better than themselves to survive summary judgment. Where there is direct or circumstantial evidence that the defendant has acted with a discriminatory purpose and has caused harm to members of a protected class, such evidence is sufficient to permit the protected individuals to proceed to trial under a disparate treatment theory.
District court erred in concluding that the plaintiffs failed to create a triable issue of fact as to whether the losses that their businesses suffered were caused by the enactment and enforcement of the ordinance when the plaintiffs presented evidence that they experienced a significant decline in business after the ordinance’s enactment, that the publicity surrounding the ordinance greatly reduced referrals, and that current and prospective residents expressed concern about whether the homes would close.
Pacific Shores Properties, LLC v. City of Newport Beach - filed September 20, 2013
Cite as 2013 S.O.S. 11-55460
Full text http://www.metnews.com/sos.cgi?0913//11-55460
State law barring discrimination in any "program or activity that…is funded directly by the state, or receives any financial assistance from the state" did not apply to the siting of a waste disposal facility in a predominantly Latino neighborhood. The siting decision was made by the city’s Department of Public Works which received no state funds. The role of state-funded "lead enforcement agency" in carrying out waste-management policy was too attenuated from the siting decision to support a conclusion that the decision was part of an integrated state-funded program. Trial court abused its discretion by denying relief from dismissal of petitioner’s California Environmental Quality Act claim, which was based on failure to request a hearing within 90 days of filing the petition. It was established that request was made a week late due to a calendaring error by petitioner’s attorney-—compounded by the fact that attorney was out of town due to a family illness at the time of the deadline-—and the case had otherwise been diligently litigated.
Comunidad en Accion v. Los Angeles City Council (Waste Management Recycling and Disposal Services of California) - filed September 20, 2013, Second District, Div. Eight
Cite as 2013 S.O.S. B240554.pdf
Full text http://www.metnews.com/sos.cgi?0913//B240554
-Lot Line Displacements-
Cullen Earthquake Act, which allows courts to equitably revise boundaries where property has shifted as a result of earthquake or other natural disaster, does not apply to lot line displacements resulting from ongoing and gradual earth movements.
Joannou v. City of Rancho Palos Verdes - filed September 12, 2013, Second District, Div. Eight
Cite as B241035
Full text http://www.metnews.com/sos.cgi?0913//B241035
Quiet Title Act is the exclusive means by which the holder of a mining claim may bring suit against the United States to establish title to the claim. Opinion of Solicitor of the Department of the Interior--interpreting the Wilderness Act as precluding Bureau of Land Management from following a practice of conveying fee-simple patents to all valid claims located before the area in question was designated as wilderness--was entitled to judicial deference, so claim holder did not have a "valid existing right" to a fee-simple patent in such an area when he filed his patent application.
Quiet Title Act claim to certain improvements failed where claim holder failed to plead with particularity the circumstances under which title to improvements was acquired--such as whether and how plaintiff’s predecessor obtained title and whether he retained title until he sold the claim to plaintiff. Such facts must be pled to show that title to structures did not pass to the government, as would be the case when a claim is abandoned or deemed invalid.
McMaster v. United States - filed September 24, 2013
Cite as 2013 S.O.S. 11-17489
Full text http://www.metnews.com/sos.cgi?0913//11-17489
Plaintiffs--who sued defendants to prevent them from selling the plaintiffs’ home at a non-judicial foreclosure sale after the plaintiffs defaulted on two loans secured by deeds of trust--failed to adequately allege the existence of an enforceable agreement to modify their loans or that defendants failed to comply with the statutory requirements for conducting a non-judicial foreclosure. Lender complied with its obligations under Civil Code Sections 2923.5 and 2924 by sending letters to plaintiffs, advising them of their options for avoiding foreclosure, more than 30 days before notice of default was recorded, and by recording a proper notice of default through an authorized agent.
Rossberg v. Bank of America, N.A. - filed August 27, 2013, publication ordered September 26, 2013, Fourth District, Div. Three
Cite as 2013 S.O.S. G047028
Full text http://www.metnews.com/sos.cgi?0913//G047028
-Property Tax Reassessment Following Hotel Sale-
Substantial evidence supported Assessment Appeals Board decision to value recently sold hotel property at its purchase price. Assessment did not impermissibly capture the value of nontaxable intangible assets where the assets in question-—the hotel’s management and franchise agreements and its "service centers," such as food and beverage, room telephone and telecommunications services, business center, vending machines, health club, guest laundry and parking facilities-—were reasonably viewed by the Assessor and the Board as part of the valuation of a full-service hotel operating at its beneficial and productive use.
EHP Glendale, LLC v. County of Los Angeles - filed September 18, 2013, Second District, Div. Eight
Cite as B244494
Full text http://www.metnews.com/sos.cgi?0913//B244494
-Reassessment Following Severance of Family Joint Tenancy-
Where one of two brothers severed a joint tenancy by deeding the property to himself and his brother as tenants in common, a "change of ownership" occurred, triggering reassessment under Proposition 13, even though the brothers continued to own the property equally.[Ed. Note—Uh-Oh!]
Benson v. Marin County Assessment Appeals Board (Mikkelsen) - filed September 26, 2013, First District, Div. One
Cite as 2013 S.O.S. A134340
Full text http://www.metnews.com/sos.cgi?0913//A134340
-Residential Landlord and Tenant-
Los Angeles Rent Escrow Account Program (“REAP”), which authorizes the Los Angeles Housing Department to place property into REAP when a landlord fails to repair habitability violations, did not violate the substantive due process rights of plaintiff landlords. As applied to those plaintiffs, the program was rationally related to the legitimate governmental interests of repairing and preventing substandard housing, and none of plaintiffs’ allegations--including claims the city failed to give reasonable notice of inspections--plausibly suggested that REAP was arbitrarily and unreasonably applied or that the placement of plaintiffs’ properties into REAP rose to a level that shocked the conscience.
Sylvia Landfield Trust v. City of Los Angeles - filed September 9, 2013
Cite as 11-55904
Full text http://www.metnews.com/sos.cgi?0913//11-55904
Mobile home owner’s complaint stated a cause of action for retaliatory eviction under Civil Code Section 1942.5 where it alleged that defendant served a notice to vacate and an unlawful detainer complaint in retaliation for plaintiff’s oral and written complaints to city and to courts about defendants’ alleged unlawful acts and omissions. Complaint failed to state a common law cause of action for wrongful eviction in absence of allegation that plaintiff actually vacated his space. Plaintiff’s statutory cause of action was not barred by the litigation privilege of Civil Code Section 47(b). By creating a cause of action based on the filing of a lawsuit, the legislature created an exception to the privilege.
Banuelos v. LA Investment, LLC - filed September 3, 2013, Second District, Div. One
Cite as B239123
Full text http://www.metnews.com/sos.cgi?0913//B239123
-Stand Your Ground (when it’s your patio)-
Peace officers who shot armed homeowner on his patio were not entitled to qualified immunity at the summary judgment stage where the specific circumstances did not indicate that the decedent posed an immediate threat to the safety of the officers or to others. If, as evidence viewed in light most favorable to plaintiff showed, defendants shot 64-year-old decedent without objective provocation while he used his walker with his gun trained on the ground, then a reasonable jury could determine that they violated the Fourth Amendment.
George v. Morris - filed July 30, 2013, amended September 16, 2013
Cite as 11-55956
Full text http://www.metnews.com/sos.cgi?0913//11-55956
-Unlawful Detainer and Quiet Title Litigation-
Trial court abused its discretion in refusing tenant’s request to consolidate unlawful detainer and tenant’s quiet title actions for trial--where the quiet title action was properly based on allegations that landlord’s title to the property was actually held in trust for tenant’s benefit. Error was prejudicial where tenant was forced to litigate the complex issue of title to the property under the summary procedures that govern actions for unlawful detainer.
Martin-Bragg v. Moore - filed August 1, 2013, publication ordered September 3, 2013, Second District, Div. One
Cite as B238772
Full text http://www.metnews.com/sos.cgi?0913//B238772
-Wrongful Foreclosure Litigation-
Homeowner alleging that defendant lender mailed plaintiff a loan modification agreement under the federal Home Affordable Mortgage Program and that plaintiff signed, returned, and performed under the agreement--but that defendant never mailed plaintiff a signed copy of the agreement--sufficiently alleged equitable estoppel to preclude the lender's reliance on a statute of frauds defense. Plaintiff sufficiently alleged a cause of action for wrongful foreclosure and was not required to allege tender, where plaintiff alleged foreclosure sale was void because defendants lacked a contractual basis to exercise the power of sale as plaintiff’s original loan had been modified under the modification agreement, and plaintiff fully performed under that agreement until defendants breached the agreement by refusing payment--and where plaintiff also alleged that notice of the foreclosure sale was defective.
Chavez v. Indymac Mortgage Services - filed September 19, 2013, Fourth District, Div. One
Cite as 2013 S.O.S. D061997
Full text http://www.metnews.com/sos.cgi?0913//D061997
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
First Vice Chair
Norman A. Chernin
Susan J. Booth
Nedra E. Austin
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, 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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