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An ePublication of the Los Angeles County Bar Association
Volume 9, Number 3 • April 2014
 Archive of Past Issues
Real Property Home Page

Introductory Comment

If you have not yet done so, before you read this month's interesting array of new cases, please answer and return the Survey recently sent to you.



Norm Chernin, Editor, Real Property Section Newsletter
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Coming Events

April 29:
Construction Defect Litigation and the Economy: Past, Present, & Future (12:30 PM)

Please join us at the Construction Law Subsection’s April program "Construction Defect Litigation and the Economy: Past, Present, & Future." This program will focus on how the economy has changed construction defect litigation over the last ten years.
May 7:
Avoiding Pitfalls in Common Real Estate Transactions (12:30 PM)

Is Saturday a "business day" for purpose of calculating critical time periods in an agreement? Many cases involve issues relating to boilerplate provisions that have simply been transferred from contract to contract without much, if any, thought as to their ramifications in case of litigation. However, in litigation, these provisions tend to become major issues. For example, many documents tend to provide for business days to be used when calculating time for notices or other key time deadlines. However, many lawyers do not realize that in California, Saturday is a business day. As a result, where time is of the essence, rights are lost because of the use of business days rather than calendar days.
May 29:
16th Annual Real Property Section Installation and Awards Dinner (6:00 PM)

Join us for the 16th Annual LACBA Real Property Section Installation and Awards Dinner, where the section will honor Peter S. Lowy, recipient of the Outstanding Real Estate Industry Award, Ira J. Waldman, recipient of the Outstanding Real Estate Lawyer Award, and we will acknowledge both the incoming and outgoing Real Property Section officers.

Recent Cases

-Bankruptcy Homestead Exemption-
Bankruptcy court exceeded the limits of its authority when it ordered that amounts protected by debtor’s homestead exemption be made available to pay trustee’s attorney’s fees for successful challenge to debtor’s claim that the property was encumbered to secure a loan--which the court found to be a fiction created by debtor to preserve his equity in debtor’s house.
     Law v. Siegel - filed March 4, 2014
     Cite as 2014 S.O.S. 12-5196_8mjp
     Full text

-This Odd Appeal is Oddly Appealing-
Judicial officer hearing post-judgment support matters was not required to disqualify herself after agreeing to officiate at the wedding of one of the attorneys. When a judge has no personal or social relationship with the attorney, and the judge's only role at the wedding is that of an officiant, disclosure is required, but disqualification is not mandated absent additional facts.
     Wechsler v. Superior Court (Wechsler) - filed March 4, 2014, Fourth District, Div. One
     Cite as 2014 S.O.S. D064919
     Full text

-Railroad Easements-
Railroad right of way through former public lands, created under the General Railroad Right-of-Way Act of 1875, was a mere easement that was extinguished when the railroad abandoned it, so landowner who purchased his property from the federal government years later enjoys full title to the land without the burden of the easement.
     Marvin M. Brandt Revocable Trust v. United States - filed March 10, 2014
     Cite as 2014 S.O.S. 12-1173_nlio
     Full text

-Real Estate Broker Disclosure-
Statement by broker for seller of commercial real estate to multiple listing service--asserting that parcel offered for sale was "in an earthquake study zone but has had a Fault Hazard Investigation completed and has been declared buildable by the investigating licensed geologist"--and that the investigator’s report was "available for serious buyers" without acknowledging that the report was 24 years old--was not false or inaccurate as a matter of law. The statement accurately summarized the report’s conclusions, and the date appeared prominently on the cover of the report. Broker’s duties to third parties are limited to those imposed by statute, and broker’s statement complied with those duties under Civil Code Section 1088.
     Saffie v. Schmeling - filed March 7, 2014, Fourth District, Div. Two
     Cite as 2014 S.O.S. E055716

-Construction Law-
Insurance broker’s duty is no greater than to use reasonable care and diligence in procuring insurance. Broker who obtained coverage for plaintiff insureds through a self-insurance program that failed did not, as a matter of law, breach any such duty--whether characterized as a fiduciary duty or not--where the self-insurance program was certified and regulated by the state and had the required surety bond in place, and plaintiffs made the decision to join the program based on information provided by broker, which plaintiffs did not claim to have been falsified by the broker. While a broker may be liable for misrepresenting the nature, scope, or extent of coverage, it has no duty to ascertain the financial soundness of the insurer or to advise an insured of adverse changes in the insurer’s financial capability.
     Mark Tanner Construction, Inc. v. Hub International Insurance Services, Inc. - filed March 10, 2014, Third District
     Cite as 2014 S.O.S. C071176
     Full text

-Homeowner Associations-
In the context of homeowner association litigation seeking recovery for construction defects in common areas, attorney-client privileges extend to communications--for which confidentiality was intended or preserved--between the association's counsel and individual homeowners--who were not clients of the attorneys--at association update meetings about the common area litigation, which were held for the individual homeowners.
     Seahaus La Jolla Owners Association v. Superior Court (La Jolla View Ltd., LLC) - filed March 12, 2014, Fourth District, Div. One
     Cite as 2014 S.O.S. D064567
     Full text

-Mobile Home Parks-
Substantial failure to maintain a mobile home park as described in Civil Code Section 798.87(a), and substantial violation of park rules as described in Section 798.87(b), constitute public nuisances that can be proven without the need to show the additional elements of a common law public nuisance. Trial court’s erroneous instructions on that issue were harmless where none of the plaintiffs pursuing appeal presented proof of such violations. Park rule stating that "[o]nly mobile homes approved by the Management/Park owner shall be admitted into the Park" cannot reasonably be interpreted to permit rental of lots to persons intending to live in recreational vehicles, absent parol evidence as to the intent of the rule. Defendants, who did not have the opportunity to present such evidence, may do so on remand.
     Adams v. MHC Colony Park Limited Partnership - filed March 10, 2014, Fifth District
     Cite as 2014 S.O.S. F062160A
     Full text

-Sign Ordinances -
City enacted sign ordinance, the application of which was limited by state law "grandfathering" noncompliant, pre-ordinance onsite advertising where "special topographic circumstances would result in a material impairment of visibility of the display or the owner’s or user’s ability to adequately and effectively continue to communicate with the public through the use of the display." Trial court properly used the substantial evidence test, rather than the independent judgment test, to review an administrative decision concerning these two material impairments. Substantial evidence supported locality’s findings that reducing the height of a pole sign from 35 feet to the conforming height of 12 feet would not materially impair the sign’s visibility or communicative effectiveness, where almost all other businesses in the vicinity had conforming signs, the business was also advertised on trucks parked on the business property, and the location had, over time, become part of the city’s pedestrian-oriented business district.
     Amerco Real Estate Company v. City of West Sacramento - filed March 12, 2014, Third District
     Cite as 2014 S.O.S. C072403
     Full text

-Land Use-
City’s municipal code does not preclude the City from approving a variance that expands the degree of nonconformity of a nonconforming structure.
     Eskeland v. City of Del Mar - filed February 19, 2014, publication ordered March 14, 2014, Fourth District, Div. One
     Cite as 2014 S.O.S. D061370
     Full text

-Eminent Domain-
State’s plan to enter private properties and conduct "geological studies" with borings and drillings in the ground that would leave permanent columns of cement in the bored holes up to depths of 200 feet--to determine the suitability of such properties for a tunnel project intended to deliver water from the north of the state to the south--constituted a taking. These activities could be authorized only in a direct condemnation action, not by the statutory pre-condemnation procedure.

Trial court erred in granting State’s petition to enter the affected properties to conduct "environmental studies," which effectively granted the state a blanket temporary easement for one year--during which time the State would be allowed to enter the properties and conduct its studies for up to 66 days during the year with up to eight personnel during each entry. Such activities constitute a taking and cannot be accomplished through pre-condemnation procedure.
     Property Reserve, Inc. v. Superior Court (Department of Water Resources) - filed March 13, 2014, Third District
     Cite as 2014 S.O.S. C067758
     Full text

-Land Use-
Settlement of suit charging City with violating rights of disabled persons by failing to install ramps or cutouts on streets was fair and adequate where it was the product of extensive research, evidence showed that the
City had reduced the number of non-compliant streets by requiring private property owners to construct or repair curb cuts when performing construction and had itself constructed thousands of curb cuts, and the settlement agreement called for a comprehensive survey of city streets to determine where curb cuts were needed.     
Carter v. City of Los Angeles - filed February 26, 2014, publication ordered March 13, 2014, Second District, Div. One
     Cite as 2014 S.O.S. B241060
     Full text

-Liquidated Damage Clause-
Liquidated-damage clause is unenforceable as a penalty where it is unreasonable under the circumstances.  The public policy expressed in Civil Code Sections 1670 and 1671 may not be circumvented by words used in a contract.
     Purcell v. Schweitzer - filed February 24, 2014, publication ordered March 17, 2014, Fourth District, Div. One
     Cite as 2014 S.O.S. D063435
     Full text

-Coastal Commission-
Where permit is granted subject to a condition and the permittee does not appeal the condition, that condition may not be collaterally attacked after the time for an appeal has lapsed.
     Bowman v. California Coastal Commission - filed March 18, 2014, Second District, Div. Six
     Cite as 2014 S.O.S. B243015
     Full text

-Watch That Calendar!-
Plaintiffs who failed to appear for trial because of mis-calendaring by their attorney are not entitled to mandatory relief under Code of Civil Procedure Section 473(b) based on attorney’s affidavit of fault.
     Noceti v. Whorton - filed March 18, 2014, Third District
     Cite as 2014 S.O.S. C071317
     Full text

EIR provided sufficient protection for stickleback, a small endangered fish.
     Center for Biological Diversity v. Department of Fish and Wildlife (The Newhall Land and Farming Company) - filed March 20, 2014, Second District, Div. Five
     Cite as 2014 S.O.S. B245131
     Full text

-Transfer Disclosure Statements-
Transfer Disclosure Statement is required in any transfer of real property "improved with or consisting of not less than one nor more than four dwelling units," even if the property also has commercial uses.
     Richman v. Hartley - filed March 20, 2014, Second District, Div. Six
     Cite as 2014 S.O.S. B245052
     Full text

-Improper Eviction Action Following Improper Foreclosure-
Service of process in unlawful detainer proceeding was ineffective where process server posted notice and made no mention in declaration of first having attempted personal service. Defect need not be alleged as an affirmative defense, inasmuch as it does not constitute new matter, and general denial suffices. Trustee’s deed following foreclosure sale is insufficient proof that holder of the deed owns the property and has the power of eviction where the sale is conducted other than by the trustee identified in the deed of trust, and no evidence is put forth showing authority to conduct the sale.
     Bank of New York Mellon v. Preciado - filed August 19, 2013, publication ordered March 19, 2014
     Cite as 2014 S.O.S. JAD14-06
     Full text

-Home Construction Defects-
Provisions in home purchase contracts requiring homeowners--as a prerequisite to suing--to provide the builder with notice of the claimed defect, to afford an opportunity to remove the defect, and if still not satisfied, to engage in nonbinding mediation, are enforceable.
     The McCaffrey Group, Inc. v. Superior Court (Cital) - filed March 24, 2014, Fifth District
     Cite as 2014 S.O.S. F066080
     Full text

-Roads in National Forests-
Decision by U.S. Department of Agriculture to allow roads through a forest it previously decreed would remain roadless was valid, being supported by an adequate statement of reasons and not being arbitrary or capricious.
     Organized Village of Kake v. U.S. Department of Agriculture - filed March 26, 2014
     Cite as 2014 S.O.S. 11-35517
     Full text

-Letters of Credit-
Where a bank drew on a $841,280 letter of credit, the entire debt of $9.3 million was not extinguished, and the trial court incorrectly granted a motion of nonsuit. Language in the bank’s draft on the letter of credit that the amount "represents and covers the unpaid indebtedness" did not, in light of all circumstances, clearly show an intent to extinguish the entire debt, including any pre-existing balances.
     Legendary Investors Group No. 1, LLC v. Niemann - filed March 25, 2014, Second District, Div. Four
     Cite as 2014 S.O.S. B245620
     Full text

-Jurisdiction Over National Banks-
Under 28 U.S.C. Section 1348, a national bank is a citizen only of the state in which its main office is located. Wells Fargo Bank, N.A., being a citizen of South Dakota, and plaintiffs being citizens of California, diversity jurisdiction existed, and court erred in remanding the case to state court.
     Rouse v. Wachovia Mortgage, FSB - filed March 27, 2014
     Cite as 12-55278
     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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