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Introductory Comment

Coming Events

Recent Cases

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An ePublication of the Los Angeles County Bar Association
Volume 9, Number 2 • March 2014
 Archive of Past Issues
Real Property Home Page

Introductory Comment

Back on track this month, so you don’t have to read so much at one time.  Note my new e-mail address. 

Don’t forget to answer the survey recently sent to you.  If you think that the survey didn’t include questions that you wanted to answer, feel free to express your thoughts to me and I will pass them along to the other members of the Section’s Executive Committee.


Norm Chernin, Editor, Real Property Section Newsletter
E-mail address

Coming Events

Hear No Evil, See No Evil, Speak No Evil: Disclosure of Environmental Conditions in Real Estate Transactions
(3/12/14 12:30 PM)

Sellers of property with real or potential environmental issues are often concerned about what a buyer may find out in due diligence.

The Notary's Responsibility in Cases of Identity Theft and Fraud
(3/25/14 12:30 PM)

This program will review applicable statutory and case law pertaining to a notary's duty of care and will demonstrate methods by which a notary can detect a fraudulently-created California driver's license.

A Nuts and Bolts Discussion Regarding CASp Inspections
(3/27/14 12:30 PM)

In order to comply with the recently implemented lease disclosure requirement under California Civil Code Section 1938, Landlords and Owners are deciding whether to have a CASp (Certified Access Specialist) inspection of their property done.


Recent Cases

-Affordable Housing-
Court improperly found a city liable on a declaratory relief cause of action by applying equitable principles, as the judgment nullified the public entity immunity of Government Code Section 815, which precludes a finding of liability against public entities without express statutory authorization. No statute permits a finding of liability based on equitable principles. City did not owe a "mandatory legal duty," an exception to public entity immunity, to ensure that home purchasers did not overpay for housing that had been designated as low-income-price-restricted, where the purchasers were not the intended beneficiaries of the enforcement provisions of the Affordable Housing Program.
     Tuthill v. City of San Buenaventura - filed February 10, 2014, Second District, Div. Six
     Cite as 2014 S.O.S. B239668
     Full text

-Construction Defects -
Right to Repair Act requires that notice be given to a builder before repairs are made to a home subject to the Act. Builder was entitled to summary judgment in subrogation action where plaintiff insurer’s failure to comply with the notice requirements of the Act deprived builder of its right to inspect and repair a defect.
     KB Home Greater Los Angeles, Inc. v. Superior Court (Allstate Insurance Company) - filed February 21, 2014, Second District, Div. Four
     Cite as 2014 S.O.S. B246769
     Full text

-Construction Defects-
Court improperly granted summary judgment for home builders after purchaser brought suit alleging common law claims for construction defects that caused property damage. The Right to Repair Act, Civil Code Section 895, did not provide the exclusive remedy for damages for such defects, since the statute provided a remedy for particular construction defects that did not cause property damage. Home builder failed to negate the existence of a duty of care owed to plaintiff, even without privity of contract, where purchaser was a member of a group of prospective buyers, and it was foreseeable that one of the buyers would suffer harm from construction defects.
     Burch v. Superior Court (Premier Homes, LLC) - filed February 19, 2014, Second District, Div. Three
     Cite as 2014 S.O.S. B248830
     Full text

-Construction Law-
Real estate broker who served as a construction lender is permitted to give itself a contractual right to priority but must make available to contractors the amounts the broker has already disbursed to itself on the construction loan. Broker’s contractual priority gives way to contractors’ stop notice priority, and court is permitted to reach back to funds a broker has disbursed to itself to pay contractors. A contractor's failure to serve a preliminary 20-day notice under Civil Code Section 3097 prevented it from recovering under its bonded stop notice, absent a factual excuse for not serving the notice. Contractor's failure to give real estate broker notice of its commencement of stop notice action under Section 3172 did not bar the contractors from recovering where the broker suffered no prejudice.
     Brewer Corporation v. Point Center Financial, Inc. - filed January 31, 2014, Fourth District, Div. One
     Cite as 2014 S.O.S. D061665
     Full text

-Don’t SLAPP That Tenant!-
Action by tenant--who claimed to have been harassed and wrongfully evicted after he sought to have landlord comply with state and local landlord-tenant laws--did not implicate protected activity within the meaning of the anti-SLAPP law, as the gist of the action was the landlord’s underlying conduct, not the filing of the eviction action.
     Moriarty v. Laramar Management Corporation - filed January 29, 2014, publication ordered February 26, 2014, First District, Div. Two
     Cite as 2014 S.O.S. A137608
     Full text

The inclusion of the phrase "for public road purpose" did not transform a private easement into a public easement, and the court improperly granted summary judgment on claims of trespass after misinterpreting the easement, which stated "the right of ingress and egress for public road purposes." The reservation was established as a means to reach a public road and not to create a public right-of-way over the land, where the government did not administer the use of the right-of-way, and the easement existed purely between two private parties.
     Schmidt v. Bank of America, N.A. - filed February 21, 2014, Fourth District, Div. One
     Cite as 2014 S.O.S. D062532
     Full text

-Equitable Subrogation of Liens-
Court erred in denying equitable subrogation to banks, whose liens were in first and second positions, where lender's potential cause of action against an escrow officer for alleged negligence did not preclude the doctrine’s application where knowledge of a lien prior to refinancing did not amount to a showing that the banks had actual knowledge the lien would remain on the property and rise to first position thereby establishing "culpable and inexcusable neglect" by the banks justifying the denial of subrogation.
     Branscomb v. JPMorgan Chase Bank, N.A. - filed January 31, 2014, First District, Div. One
     Cite as 2014 S.O.S. A137140
     Full text

-Escrow Liability-
Jury improperly awarded buyer contract damages where seller caused a delay in the closing of escrow since the assessed damages were not foreseeable. They included an amount resulting from the filing of bankruptcy by a company-- which buyer had placed funds with from the sale of another property--as required for deferring capital gain taxes under 26 U.S.C. Section 1031, which upon bankruptcy made buyer incapable of deferring his capital gains. Court improperly instructed the jury on the intervening and superseding cause of the company’s filing for bankruptcy without regard to the circumstances of the particular case. The company’s filing for bankruptcy and freezing buyer’s account was unexpected and unusual.
     Ash v. North American Title Company - filed February 18, 2014, Second District, Div. Five
     Cite as 2014 S.O.S. B237404
     Full text

Court properly dismissed claim under 42 U.S.C. Section 4321, challenging a high-speed rail project, as the City’s environmental impact statement satisfied the statute’s requirements by identifying the project’s objectives and discussing alternatives to the construction without considering a three-lane alternative or using another city’s rail project for cost comparison. Claim was properly dismissed under Section 4(f) of the Department of Transportation Act, 49 U.S.C. Section 303, requiring preservation of historic sites as far as practicable, where developers made a good faith effort to identify archeological sites along project route and adopted a plan for dealing with other sites discovered during construction. v. Federal Transit Administration - filed February 18, 2014
     Cite as 2014 S.O.S. 13-15277
     Full text

-Non-judicial Foreclosures-
Court improperly dismissed military member’s suit under Rule of Civil Procedure 12(b)(6), where his claim--that defendant failed to remove improper foreclosure fees related to a rescinded notice of default while he was on active duty--comes under Section 533 of the Servicemembers Civil Relief Act, which limits judicial proceedings for active duty members, because the term “foreclosure” contemplates the inclusion of specified fees as part of the foreclosure proceeding.
     Brewster v. Sun Trust Mortgage, Inc. - filed February 7, 2014
     Cite as 2014 S.O.S. 12-56560
     Full text

-Premises Liability-
Court improperly granted summary judgment for homeowners in a wrongful death negligence lawsuit, where homeowners rented a home with a pool to tenants, and then a child who did not live on the property drowned in the pool. A duty of care was owed to the child, as it was reasonably foreseeable that a child would come to the property; Health and Safety Code Section 115922--requiring drowning prevention safety features--indicated the extent of the burden on the homeowners was money and time to install the features; and homeowners insurance was available to cover the risk.
     Johnson v. Prasad - filed February 25, 2014, Third District
     Cite as 2014 S.O.S. C073052
     Full text

-Public Works Construction-
City did not exceed or abuse its discretion by waving a bidding irregularity, consisting solely of the absence of one page of bid bond from original bid, where it was beyond dispute that the irregularity was inconsequential. The city had, when it received the bid, all of the information it needed to determine that the party submitting it was the lowest responsible bidder.
     Bay Cities Paving & Grading, Inc. v. City of San Leandro (Oliver DeSilva, Inc.) - filed January 28, 2014, publication ordered February 13, 2014, First District, Div. Two
     Cite as 2014 S.O.S. A137971A
     Full text

Los Angeles Municipal Code requires no tentative tract map when a building project involves no subdivision of land.
     Tower Lane Properties v. City of Los Angeles - filed February 28, 2014, Second District, Div. One
     Cite as 2014 S.O.S. B244092
     Full text


Los Angeles County Bar Association
2014 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

Caroline Dreyfus

Crocker Chair
Eric Remensperger

Section Administrator
Fatima Jones


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
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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