Volume 1, Number 6  Join the Real Property Section Contact Us

April, 2006

Recent Cases

-Rent Control-
Requirement of city’s rental ordinance that where landlord is exercising statutory right to remove rent-controlled housing from rental market, notice to tenant of potential right to relocation assistance include "the amount of payment which the landlord believes to be due," is preempted by the Ellis Act because the requirement creates a substantive defense in summary eviction proceedings beyond those defenses permitted by the act.
     Johnson v. City and County of San Francisco - filed January 31, 2006; publication ordered February 28, 2006, First District, Div. Four
     Cite as 2006 SOS 1092
     Full text

-Eminent Domain-
Whether the qualifying conditions for compensation for loss of goodwill in an eminent domain proceeding have been met is a matter for trial judge, not jury, to resolve; only if judge finds these conditions exist does the remaining issue of the value of the goodwill loss, if any, go to the jury. Trial court did not err in finding the date of city’s original deposit, rather than the date on which city voluntarily increased its deposit or the date of trial, to be the date of valuation, under "quick take" statutory scheme. Exclusion of plaintiffs’ appraiser’s testimony was not an abuse of discretion where evidence supported finding that plaintiffs acted in bad faith by instructing appraiser, as a strategic tactic, to base first and second appraisals on date of valuation close to trial and that city was substantially prejudiced by third appraisal belatedly served after trial began.
     City of Santa Clarita v. NTS Technical Systems - filed February 3, 2006; publication ordered March 3, 2006, Second District, Div. Two
     Cite as 2006 SOS 1225
     Full text 

-Rent Control-
Trial court lacked jurisdiction over landlord’s action seeking declaration as to whether defendant was a protected tenant under rent control ordinance, such determination being within jurisdiction of local rent control board.
     DeLaura v. Beckett - filed February 7, 2006; publication ordered March 9, 2006, First District, Div. Three
     Cite as 2006 SOS 1330
     Full text

-Water Rights -
Litigation over water rights in which trial court, based on prior settlement agreement, enjoined defendant from tapping water line that carries water to plaintiff’s property was an action in equity in which defendant was not entitled to a jury trial. Since settlement agreement contained an attorney fees clause, plaintiff was entitled to recover fees incurred in enforcing it. Defendant’s motion for nonsuit and directed verdict based on statute of limitations was properly denied since connection to water line was a continuing trespass, not a physical entry, and taking possession of lands under circumstances that indicate the intention that trespass will be permanent, as to which the statutory period would have begun on entry, and since the settlement agreement on which the action was based was an executory contract with no expiration date.
     Baugh v. Garl - filed March 13, 2006, Second District, Div. Six
     Cite as 2006 SOS 1368
     Full text

-Unlawful Detainer-
Code of Civil Procedure Sec. 1179, which provides that a court may "relieve a tenant against a forfeiture of a lease" and restore the tenant "to his or her former estate or tenancy, in case of hardship" gives trial court authority to relieve a defendant of burdens of a judgment in an unlawful detainer action requiring the payment of per diem damages greater than the payments required under a lease and provides court with broad equitable discretion to determine the conditions upon which such relief will be granted.
     Gill Petrolium, Inc. v. Hayer - filed March 15, 2006, Third District
     Cite as 2006 SOS 1394
     Full text

Trial court erred in ruling that city ordinance requiring landlords to provide relocation assistance when removing properties from rental market violated Ellis Act, which bars public entities in most circumstances from compelling owners of residential property to offer or to continue to offer accommodations in the property for rent or lease. Court’s conclusion that relocation assistance may be required only for low-income residents was based on case law vitiated by 2003 amendment to Ellis Act that eliminated from section of act preserving right of public entities to "mitigate any adverse impact on persons displaced by reason of the withdrawal from rent or lease" of accommodations the reference to accommodations "expressly reserved, or generally used, for occupancy by lower income households," which arguably restricted that right and on which the prior case law was predicated.
     Pieri v. City and County of San Francisco - filed February 21, 2006; publication ordered March 16, 2006, First District, Div. Four
     Cite as 2006 SOS 1417
     Full text

-Real Property Taxation-
Assessment appeals board properly found tax assessor lacked jurisdiction to consider application for a reduction in the base year value of property where application was not filed within the four year period prescribed by Revenue and Taxation Code Sec. 51.5(b); claimed error involved an "exercise of an assessor's judgment" within the meaning of the statute where assessor conducted an investigation to establish value of properly but allegedly failed to take into account recorded easement, since such easements necessarily are encompassed within an assessor's exercise of judgment as to value. Statutory limitations period does not violate constitutional guarantees of due process or equal protection.
     Kuperman v. Assessment Appeals Board No. 1, San Diego County (Smith) - filed March 20, 2006, Fourth District, Div. One;
     Cite as 2006 SOS 1431
     Full text 

-Easements -
Owner of dominant tenement possessing over the servient tenement an access easement that includes the right to grant other easements for "like purposes" may convey to an owner of property adjoining the dominant tenement an enforceable easement for access over the servient tenement. When a party records a late notice to preserve easement under Civil Code Sec. 887.070, the attorney fees that can be assessed as a condition to dismissal of an action to establish the abandonment of an easement may include only those fees incurred in connection with that action for statutory abandonment, and not the fees incurred otherwise in the proceeding to contest the validity of the easement.
     Newmyer v. Parklands Ranch, LLC - filed March 23, 2006, Second District, Div. Five
     Cite as 2006 SOS 1533
     Full text

City’s failure to grant redevelopment opponents access to sheets containing data derived from field inspection of the project area by field surveyors who walked the area of the project and whose observations were one of the bases for finding of blight was not a basis for invalidating plan amendment since opponents did not seek remedy for nondisclosure under California Public Records Act, city was not legally compelled to disclose raw data, and lack of access to the sheets did not preclude plaintiffs from commenting on the physical condition of the subject area. City’s finding that project area remained blighted was supported by substantial evidence where half the buildings in the area were in need of at least moderate rehabilitation and 13 percent required extensive rehabilitation or were dilapidated, sale prices and rental values of properties in the area lagged behind those of similar properties in similar areas, and vacancy rates were higher than in other areas. Where new findings of blight were required in connection with plan amendment, property owners who challenged those findings were not liable for costs of preparation of administrative record, but tenant who also challenged those findings was liable for such costs. Community Redevelopment Law does not require creation of Project Area Committee as prerequisite to exercise of eminent domain where such power will not be used to take lawfully occupied residential properties.
     Blue v. City of Los Angeles - filed March 1, 2006; publication ordered March 24, 2006, Second District, Div. Three
     Cite as 2006 SOS 1545
     Full text 

Posting of "permission to pass" signs on road pursuant to Civil Code Sec. 1008 is ineffective to prevent the acquisition of a prescriptive easement where signs were not erected by the owner of the property, as required by the statute.
     Aaron v. Dunham - filed March 15, 2006; publication ordered March 27, 2006, First District, Div. One
     Cite as 2006 SOS 1578
     Full text 

-Land Use-
Local zoning ordinance allowing department stores with 50,000 or more square feet of floor space to sell furniture in a planned commercial zone, subject to a limitation of 2,500 square feet of display space for furniture, while denying that right to smaller retailers irrationally discriminated against smaller retailers. Ordinance was not rationally related to express purpose of protecting downtown retailers since small retailer posed same potential threat, if any, to the downtown merchants as the larger store, and presence of smaller retailers in the PC zone was not detrimental to the community.
     Hernandez v. City of Hanford - filed March 28, 2006, Fifth District
     Cite as 2006 SOS 1620
     Full text 

-Land Use-
Settlement agreement to resolve suit against city by developer over the validity of developer’s final subdivision maps, which city had disapproved, whereby city agreed to rescind the disapproval, eventually to approve one of the maps, to exempt a downsized development from certain present or prospective zoning restrictions in exchange for developer’s agreement to dedicate three-fourths of its acreage to the city, and to dismiss the pending lawsuit, was invalid because it impermissibly attempted to abrogate the city’s zoning authority and provisions. Ralph M. Brown Act’s litigation exception to open meetings requirements cannot be used to approve a settlement agreement that includes either provisions for action that would ordinarily be subject to the Brown Act’s open meeting requirements, such as rescission of the final map disapproval, or decisions intrinsically required by law to be made after public hearings, such as grant of a zoning variance.
     Trancas Property Owners Association v. City of Malibu (Trancas-PCH, LLC) - filed March 30, 2006, Second District, Div. Eight;
     Cite as 2006 SOS 1680
     Full text

Editor’s Note:
A sharp-eyed reader of our last month’s Newsletter noted that the Daily E-Brief Summary of the case entitled In re OneCast Media, Inc. did not get the gist of the opinion quite right.  In that action, the Court upheld the right of the bankruptcy trustee to recover from the landlord following rejection of the lease so much of the security deposit as exceeded the landlord’s damages caused by the breach of the lease.  Thanks to Paul Grant for his response.

Upcoming Events

No time to drive downtown?
Try attending by audio-conference
Available for all programs meeting at LACBA/LexisNexis Conference Center.

5/03/06:  Landlord Tenant Issues and the Bankruptcy Code: A Survey of Recent Decisions and An Analysis of The Impact of Bankruptcy Code Revisions. 
The program will discuss recent cases concerning bankruptcy issues relating to both a debtor as landlord (Section 365 (h) of the bankruptcy code) and the debtor as a tenant (Section 365 (a) et seq.). The program will also concern an analysis of the impact of the bankruptcy code revisions effective October 17, 2005 upon these issues.
SPEAKERS: Bernard D. Bollinger , Buchalter Nemer Fields & Younger; William S. Brody , Buchalter Nemer Fields & Younger
PLACE: LACBA/LexisNexis Conference Center, 281 S. Figueroa St., Los Angeles
REGISTRATION: 11:45 a.m.-12:30 p.m.; LUNCH: 12:00 p.m.; PROGRAM: 12:30-1:30 p.m.
Register Online

5/10/06:  Issues in Infill Development. 
This program focuses on the practical and legal issues facing infill development projects, including an examination of legal tools and other solutions available for infill development projects, and recent developments in connection with developing contaminated properties.
PLACE: LACBA/LexisNexis Conference Center, 281 S. Figueroa St., Los Angeles
REGISTRATION: 11:45 a.m.-12:30 p.m.; LUNCH: 12:00 p.m.; PROGRAM: 12:30-1:30 p.m
Register Online

5/16/06:  Non-Policy Theories of Liability - Escrow, Sub-Escrow, Closing Protection Letters and More. 
SPEAKERS:   Terry Kaplan,  Billet Kaplan & Dawley; Mark L. Share,  DeCastro, West, Chodorow, Glickfeld & Nass, Inc.
PLACE: Omni Los Angeles Hotel, 251 South Olive Street , Los Angeles
REGISTRATION: 11:45 a.m.-12:30 p.m.; LUNCH: 12:00 p.m.; PROGRAM: 12:30-1:30 p.m.
Register Online

5/17/06:  The Expanding Universe of Nonrecourse Carveouts and Other Deal Structures in a (Supposedly) Nonrecourse World.
What is behind the trend toward the ever expanding list of nonrecourse carveouts and how are these provisions negotiated - and enforced? This panel will explore the reasons (logical or otherwise) behind the expansion of nonrecourse carveouts in portfolio and CMBS lending transactions, as well as the enforceability issues presented by the particular structure of the carveouts and the presence of a guarantor. Other potential lender strategies available to maximize the potential for recourse to personal assets of a borrower or guarantor upon the failure to repay a real estate secured (or mezzanine ) loan before or following foreclosure will also be explored.
SPEAKERS: Dennis B. Arnold , Gibson Dunn & Crutcher LLP; Ira J. Waldman, Cox Castle & Nicholson LLP 
PLACE: LACBA/LexisNexis Conference Center, 281 S. Figueroa St., Los Angeles
REGISTRATION: 11:45 a.m.-12:30 p.m.; LUNCH: 12:00 p.m.; PROGRAM: 12:30-1:30 p.m.
Register Online

5/23/06:  Copyright Law in Design and Construction: The Evolution of the Doctrine of Implied License.
This program will examine recent court decisions adjudicating and balancing the rights of owners to use copyrighted architectural and engineering designs without the presence and involvement of the design professionals who created the designs. Who owns the right to the use of the design documents — the owner who paid for them or the design professional who authored them? Is the owner (or design/builder) free to use the design documents in the project for which they were prepared after the design professional has been terminated or is no longer involved in the Project?
SPEAKERS: Mehrdad Farivar , Morris Polich & Purdy LLP; Other Speakers TBA
PLACE: LACBA/LexisNexis Conference Center, 281 S. Figueroa St., Los Angeles
REGISTRATION: 11:45 a.m.-12:30 p.m.; LUNCH: 12:00 p.m.; PROGRAM: 12:30-1:30 p.m.
Register Online 

5/25/06:  Arbitration Clauses in Leases and Purchase and Sale Agreements
This program will review the variety of issues concerning arbitration clauses in leases and purchase and sale agreements and provide samples of arbitration provisions drafted for such agreements, as well as provide the audience with a litigation perspective on these topics.
SPEAKERS: Steven M. Goldberg, Russ, August & Kabat; Marcia Z. Gordon, Buchalter Nemer Fields & Younger; Arthur Mazirow, Freeman Freeman & Smiley; Michael R. Powell, American Arbitration Assoc.  
PLACE: LACBA/LexisNexis Conference Center, 281 S. Figueroa St., Los Angeles
REGISTRATION: 11:45 a.m.-12:30 p.m.; LUNCH: 12:00 p.m.; PROGRAM: 12:30-1:30 p.m.
Register Online

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Los Angeles County Bar Association
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