Volume I, Number 3 Join the Real Property Section Contact Us

January 2006

Recent Cases
-Land Use-
Brief filed within 15 days of notice that appeal would be dismissed unless brief was filed within that time was timely; no request for extension or motion for relief from default was required. Trial court hearing petition for writ of administrative mandate challenging approval of construction project did not abuse discretion in imposing expedited briefing schedule based on construction deadline. Where petitioner requested that agency prepare administrative record but failed to pay the costs of preparation as ordered by trial court or to seek modification of the court's order to permit a waiver of costs or delayed payment, court could reasonably conclude petitioner had no good faith intention to obtain the record, file an opening brief, or pursue the litigation, and did not abuse its discretion in dismissing action based on petitioner’s failure to prosecute. Appeal from dismissal for failure to prosecute was not frivolous--even if underlying petition was without merit--where procedures followed, including expediting of dismissal motion, were unusual, and petitioner raised legal issues as to its propriety that were not completely meritless.
     Black Historical Society v. City of San Diego (Wakeland Housing and Development) - filed November 4, 2005; publication ordered December 1, 2005, Fourth District, Div. One
     Cite as 2005 SOS 5276
Click here for full text of case 

-Land Use-
CEQA did not require agency to prepare a project-specific environmental impact report where potential significant impacts of project were analyzed in project area EIRs prepared during previous decade and substantial evidence supported agency’s conclusion that such analysis was adequate.
     Citizens for Responsible Equitable Environmental Development v. City of San Diego Redevelopment Agency (Horton Land LLC) - filed November 30, 2005, Fourth District, Div. One
     Cite as 2005 SOS 5257
Click here for full text of case

-Real Estate Brokers and Salespersons-
Department of Real Estate lacks power under pertinent statutes and regulations to revoke a real estate license based on the licensee’s conviction of unlawful intercourse with a minor over the age of 16 years where the evidence fails to establish that the minor participated unwillingly in the conduct underlying the conviction.
     Donaldson v. Department of Real Estate - filed December 9, 2005, Sixth District
     Cite as 2005 SOS 5416
Click here for full text of case

-Construction Law-
Where complaint alleged that plaintiff contractor "was in good faith and substantial compliance with all applicable licensing statutes" and included claim for foreclosure of mechanic's lien, trial court did not abuse its discretion by denying leave to amend where proposed amendment alleged that portions of project did not require licensure and thus contradicted prior allegations.
     Banis Restaurant Design, Inc. v. Serrano - filed November 18, 2005; publication ordered December 12, 2005, Third District
     Cite as 2005 SOS 5435
Click here for full text of case 

In action for alleged breach of tenant’s rights by commercial landlord, award for negligent infliction of emotional distress was error where there was no evidence of physical injury to plaintiffs or of any breach of duty in tort. Damages for negligent infliction of emotional distress cannot be predicated solely on economic loss.
     Butler-Rupp v. Lourdeaux - filed December 14, 2005, First District, Div. One
     Cite as 2005 SOS 5546
Click here for full text of case

-Premises Liability -
Landowner that hires an independent contractor may be liable to the contractor's employee if landowner knew, or should have known, of a latent or concealed preexisting hazardous condition on its property, contractor did not know and could not have reasonably discovered this hazardous condition, and landowner failed to warn the contractor about this condition.  Where contractor's employee sued landowners for exposure to asbestos resulting from removal of insulation by other independent contractors, and landowners were alleged to be the only persons who knew of presence of asbestos, failure of jury instructions to make clear that landowners were liable only if the hazardous condition was "hidden" was error, and such error was prejudicial where it was not clear from the evidence whether the condition was hidden.
     Kinsman v. Unocal Corporation - filed December 19, 2005
     Cite as 2005 SOS 5579
Click here for full text of case

-Eminent Domain-
In "quick take" eminent domain proceeding--in which plaintiff deposits probable compensation in advance and may seek prejudgment possession of the property--trial court did not abuse discretion in valuing property as of date of deposit of probable compensation where original deposit amount was supported by appraisal and was made in accordance with the statutory procedures; plaintiff timely deposited stipulated additional sum within 30 days of defendants' service of trial court’s order on the stipulation; there was no showing that the initial deposit, while based on appraisal that was more than a year old, was not a reasonable estimate of the fair market value of the properties on the date of deposit; and defendants did not move for an additional deposit for more than a year. Setting of date of deposit of probable compensation, rather than trial date, as valuation date did not deprive defendants of their constitutional right to just compensation where defendants had at their disposal plaintiff's initial deposit of 90 percent of the amount the parties later stipulated to be probable compensation and balance of the probable compensation was available for their withdrawal shortly after they pursued a motion to increase the deposit and served plaintiff with a signed, file-stamped copy of the order on the parties’ stipulation to increase the deposit.
     Cathedral City Redevelopment Agency v. Stickles - filed December 19, 2005, Fourth District, Div. Two
     Cite as 2005 SOS 5650
Click here for full text of case

-Land Use-
Excess" regulatory fees, such as building permit and plan review fees, are not fees imposed on a development project within the meaning of Mitigation Fee Act, so act’s refund remedy does not apply. Proposition 62 provision penalizing local governments that impose unauthorized "special taxes" does not apply to allegedly excessive building permit and plan review fees. Remedies for violation of Proposition 4 spending limits do not apply to allegedly unlawful fees levied on an annual basis. Resolution that changed duration of building permit and plan review fees was an ordinance or resolution "adopting a new fee or service charge, or modifying or amending an existing fee or service charge" within the meaning of Mitigation Fee Act, even though amount of fee was not changed, and was thus subject to an action for prospective remedy, as provided by the act. Writ of mandate is not an available remedy to enforce a local agency’s duty to conduct a review and apply any surplus building permit and plan review fees to reduce prospective fees, in compliance with Mitigation Fee Act, where permittee has or had an adequate legal remedy, such as a validation action, available.
     Barratt American, Incorporated v. City of Rancho Cucamonga - filed December 22, 2005
     Cite as 2005 SOS 5704
Click here for full text of case 

Upcoming Events

Water Availability for New Projects: How to Make or Break a Project  
Presented by: Real Property Section
Subsection/Committee: Land Use Planning and Environmental Law
Program Information:  Water availability for projects of all types is increasingly becoming a concern. Paper water in the form of a "will serve" letter may not be sufficient to establish actual or real water availability for a project. Does the CEQA process require a water supply impact analysis? What about the NEPA process? When is an analysis of water availability required? Is it always recommended? Water Code Section 10910 and Public Resources Code Section 21151.9 and their implementation will be addressed.
Speakers:  Eric Garner, Best, Best & Krieger, LLP
Location:  LACBA/LexisNexis Conference Center, 281 South Figueroa Street , Los Angeles
Parking:  Figueroa Courtyard Parking Garage: $9.00 w/ LACBA validation.
Registration: 11:45 AM - 12:30 PM
Meal/Reception: 12:00 PM
Program: 12:30 - 1:30 PM
Click Here to Register Online 

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2006 Real Property Section Review

Daniel L. Goodkin, Editor    *   Norman A. Chernin, Co-Editor

Paula K. Reddish Zinnemann

First Vice-Chair 
Norma J. Williams

Second Vice-Chair 
Timothy M. Truax 

Donald C. Nanney

Michael S. Klein

Immediate Past-Chair
Bryan C. Jackson

Hugo Vital,
Section Administrator

Norman A. Chernin
Daniel L. Goodkin
John E. Hatherley
Trudi J. Lesser
Rebecca H. Lessley
Gregg J. Loubier
Thomas F. Quilling
D. Eric Remensperger
Alexander Shipman

Alice Chen,
Barristers Liaison     

Michael G. Smooke
Linda E. Spiegel
Sarah J. Spyksma
Theresa C. Tate
Pamela L. Westhoff
John W. Whitaker
Valerie Wisot
Andrew J. Yamamoto
Sharon Yarber

David Fu,
State Bar Liaison

Commercial Development & Leasing, Marcia Z. Gordon
Construction Law, Candace Matson
Land Use Planning & Environmental Law, Peter J. Niemiec
Real Estate Finance, Bruce Fischer & Diane Hvolka
General Real Estate Law, Eric A. Altoon
Title Insurance, Michael S. Robinson