Volume I, Number 8  Join the Real Property Section Contact Us

June, 2006


Recent Cases

Adverse Possession
Foreclosure
Fraudulent Conveyances
Land Use
Mortgage Lenders
Property Taxation
Rent Control
Water Law
Zoning

-Adverse Possession-
To establish title to real property through adverse possession against a cotenant the occupying tenant must impart notice to the cotenant by acts of ownership of the most open, notorious and unequivocal character, that he intends to oust the latter of his interest in the common property, one tenant in common cannot by mere exclusive possession acquire the title of his cotenant.
     Preciado v. Wilde - filed May 9, 2006, Second District, Div. Six
     Cite as 2006 SOS 2328
    
Full text

-Foreclosure-
Right to foreclose on a deed of trust did not expire under the statute of limitations of the Marketable Record Title Act where lis pendens on property was timely filed in separate but related litigation.
     Slintak v. Buckeye Retirement Co., L.L.C., Ltd. - filed May 16, 2006, Second District, Div. Seven
     Cite as 2006 SOS 2388
     
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-Fraudulent Conveyances-
Creditor of estate had standing based on Probate Code Sec. 850--which, among other things, permits the "personal representative or any interested person" to petition the probate court to resolve claims to interests in real or personal property as to which the deceased had title or possession, or claims involving interests that the deceased may have had in property as to which someone else held title or possession--to bring an action to recover profits from the sale of real property based on a claim the property had previously been fraudulently conveyed by the deceased. Sec. 9653, which directs personal representative, on application of a creditor, to bring an action to set aside fraudulent conveyances by deceased, does not create an exclusive remedy and does not preclude creditor from bringing action under Sec. 850, and any requirement that creditor exhaust remedies under Sec. 9653 before bringing action under Sec. 850 was satisfied where creditor presented evidence that personal representative was "in cahoots" with grantee in accomplishing the allegedly fraudulent conveyance.
     Estate of Myers - filed May 10, 2006, Fourth District, Div. Three
     Cite as 2006 SOS 2280
     
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-Land Use-
Hotel owner claiming lack of notice of Coastal Commission hearing on appeal of his application to expand hotel was not denied due process where he was given notice of date, time and location of hearing, was given a copy of issues on appeal, had participated in the proceedings at the county level, and was well aware of what issues were in contention. Hotel owner was not entitled to rely on staff report recommendations, which commission was not obligated to follow, or telephone conversations with staff members who told him that he probably would not need to appear.
     Benson v. California Coastal Commission - filed May 9, 2006, Second District, Div. Six
     Cite as 2006 SOS 2318
     
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Posted and mailed notices of design review application that identified location and description of projects, including assessor’s parcel numbers of the lots and the proposed size of the homes as well as proposed square footage, height, and exterior surface of each project and the date by which comments had to be submitted to design review officer, did not constitute the "public notice required by law" necessary for deemed approval under Permit Streamlining Act where notices did not state that application would be deemed approved if agency did not act within 60 days.
     Mahon v. County of San Mateo - filed May 18, 2006, First District, Div. Five
     Cite as 2006 SOS 2489
     
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-Mortgage Lenders-
Former California statutes prohibiting mortgage lenders from charging interest in excess of one day prior to recording were not preempted by Alternative Mortgage Transaction Parity Act where California statutes were not expressly preempted by, did not directly conflict with, and did not impede Congress’ purposes in enacting Parity Act. Mortgage lender’s takings claim was not ripe where it failed to seek compensation through any California procedures.
     Quicken Loans, Inc. v. Wood - filed May 22, 2006
     Cite as No. 0416244
     
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-Property Taxation-
Revenue and Taxation Code Sec. 4985.2(c), which provides that tax delinquency penalties may be cancelled by auditor or tax collector where such relief "was ordered by a local, state or federal court," is not a grant of independent judicial authority to grant relief from such penalties; such judicial relief must be based on some other statutory authority.
     People ex rel. Strumpfer - filed May 23, 2006, Second District, Div. Three
     Cite as 2006 SOS 2586
     
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Where citizen occupied city property on the basis of a one-year agreement with city, citizen upon expiration of term and pursuant to a month-to-month holdover provision in agreement continued possession for years beyond, and parties clearly understood that citizen's possession was expected to continue for years in the future, calculation of citizen's possessory interest taxes based on reasonably anticipated years of possession rather than on a one-month term of possession was valid.
     Silveira v. County of Alameda - filed May 23, 2006, First District, Div. One
     Cite as 2006 SOS 2592
     
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-Rent Control-
Due process test of whether rent control ordinance "substantially advances legitimate government interest" is not a valid method of identifying regulatory takings for which Fifth Amendment requires compensation. Trial court properly struck plaintiff’s "England" reservation of federal claims where, although plaintiff originally filed in district court, by time it filed state court claim, there was no federal court with jurisdiction for plaintiff to return to.
     Los Altos El Granada Investors v. City of Capitola - filed May 17, 2006, Sixth District
     Cite as 2006 SOS 2393
     
Full text

-Water Law-
For groundwater to qualify as "subterranean streams flowing through known and definite channels" for purposes of Water Code Sec. 1200, defining the State Water Resources Control Board’s permitting jurisdiction, the following physical conditions must exist: 1) a subsurface channel must be present, 2) the channel must have a relatively impermeable bed and banks, 3) the course of the channel must be known or capable of being determined by reasonable inference, and 4) groundwater must be flowing in the channel. The critical question in deciding whether a subterranean channel exists is whether groundwater, once it enters the channel, will be confined to it. There is no requirement that the width of the channel must be narrowing rather than widening as the groundwater flows through it, that the bed and banks present a significant boundary to groundwater flow, or that flow direction be parallel to the banks of the channel at all locations along its length as long as the stream flows in the same general direction as the channel. Where the flow direction of the underground stream is perpendicular or nearly perpendicular to the banks of the asserted channel, some explanation is required for the stream’s extreme deviation from the general course of the channel.
     North Gualala Water Company v. State Water Resources Control Board - filed May 31, 2006, First District, Div. One
     Cite as 2006 SOS 2789
     
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-Zoning-
42 U.S.C. Sec. 1983 permits a plaintiff who has suffered damages as a result of an injunction premised on an unconstitutional zoning ordinance to recover damages regardless of whether a bond was posted and regardless of whether the plaintiff also prevails in an action for malicious prosecution. Recovery for lost profits under Sec. 1983 is limited to those profits that plaintiff would have earned from legal activities. Where profits lost due to injunction were calculated by measuring plaintiff’s profits during an equivalent time frame after injunction was lifted, trial court erred in instructing jury that it "may" consider fact that some of those profits came from illegal activities, but such error was harmless where jury awarded less than 55 percent of damages claimed by plaintiff.
     Manta Management Corporation v. City of San Bernardino - filed May 11, 2006, Fourth District, Div. Two
     Cite as 2006 SOS 2284
     
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Los Angeles County Bar Association
2006 Real Property Section Newsletter

REAL PROPERTY SECTION REVIEW
Daniel L. Goodkin, Editor    *   Norman A. Chernin, Co-Editor

SECTION OFFICERS
Chair 
Paula K. Reddish Zinnemann

First Vice-Chair 
Norma J. Williams

Second Vice-Chair 
Timothy M. Truax 

Treasurer
Donald C. Nanney

Secretary
Michael S. Klein

Immediate Past-Chair
Bryan C. Jackson

Hugo Vital,
Section Administrator
EXECUTIVE COMMITTEE MEMBERS

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

SUB-SECTION CHAIRS
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