Vol. II, No. 6 Join the Real Property Section   Contact Us 
April, 2007
Recent Cases
Homeowners Association
Land Use
Landlord and Tenant
Purchase and Sale Agreement

CEQA action brought more than 30 days after issuance of notice of determination adopting mitigated negative declaration was untimely in absence of a sufficient showing of grounds to require a supplemental or subsequent EIR as set forth in Public Resources Code Sec. 21166; Sec. 21151, which has been construed to require an EIR if there is a fair argument that a project will have an impact on the environment, does not apply where MND is not challenged in a timely manner. Where Sec. 21166 applies, project approval will not be disturbed by a court if there is substantial evidence to support it.
     Citizens for a Megaplex-Free Alameda v. City of Alameda (Alameda Entertainment Associates, L.P.) - filed March 29, 2007, First District, Div. Five
     Cite as 2007 SOS 1541
Full text

-Homeowners Association-
Indemnification clause in contract between plaintiff homeowners' association and defendant property management company did not bar action by association for management company's alleged breach of duty, resulting in misappropriation of association funds by one of its members, absent indicia in terms of the "commercial reality" or the "benefit of the bargain" received by the defendant that would require a court to interpret the words "indemnify" or "hold harmless" beyond the usual context of third party indemnification.
     Queen Villas Homeowners Association v. TCB Property Management - filed February 28, 2007, publication ordered March 29, 2007, Fourth District, Div. Three
     Cite as 2007 SOS 1537

Full text

-Land Use-
City’s 2002 general plan substantially complied with Housing Element Law, as it then read, where the plan provided an aggregate inventory of what the city identified as vacant sites and sites potentially available for development. Law at the time did not require that the inventory identify specific sites both suitable for residential development and available to meet housing needs. Least Cost Zoning Law does not require that city take action to actually rezone a sufficient supply of adequate sites to meet lower income share of need following revision of general plan’s housing element. Substantial evidence supported city’s contention that implementation of the plan through rezoning, along with another city program, will have a positive effect on the supply of higher density, lower income housing and will satisfy the regional housing need in all income categories, thus complying with the law.
     Fonseca v. City of Gilroy - filed March 23, 2007, Sixth District
     Cite as 2007 SOS 1406
Full text

-Land Use-
Doctrine of equitable estoppel does not bar Coastal Commission from ordering a coastal homeowner to remove a private three-hole golf course from around the house and restore the area to its native sand dune vegetation in accordance with applicable restrictions on landscaping, where commission acted promptly after being informed of permit violations--there being no duty on the part of the commission to inspect for compliance and thus no valid basis for imputing knowledge of the violation as of an earlier date--and where there was no evidence that commission led property owners to believe that it had acquiesced in the violation nor any showing that alleged unfairness to owners in enforcing restrictions of which they were unaware when they acquired property would justify nullifying otherwise valid restrictions adopted for the public benefit.
     Feduniak v. California Coastal Commission - filed March 27, 2007, Sixth District
     Cite as 2007 SOS 1474
Full text

-Landlord and Tenant-
Complaint by bank against its landlord, in which plaintiff alleged that insured landlord’s failure to maintain premises breached lease and resulted in economic damage, including need to replace its safe deposit boxes to the first floor leased premises, which resulted in fewer boxes being rented and the consequent denial of the use of that space for other purposes, and did not allege any physical injury to tangible property or loss of use of tangible property that was not physically injured, did not raise possibility of coverage for an "occurrence" under landlord’s commercial general liability policy. Insurer had no duty to defend or indemnify landlord, based on "wrongful eviction" aspect of "personal injury" coverage, where such coverage applied only to injury to "persons" and not to corporations or other organizations. "Supplementary payments" provision did not obligate insurer to pay costs and attorney fees imposed on insured in underlying action where there was no duty to defend or indemnify, as supplementary payments provision cannot be broader than the duty to defend.
     Golden Eagle Insurance Corp. v. Cen-Fed, Ltd. - filed March 21, 2007, Second District, Div. Three
     Cite as 2007 SOS 1349
Full text

-Purchase and Sale Agreement-
Court may consider extrinsic evidence to determine the sufficiency of a written memorandum of parties’ agreement under the statute of frauds, but evidence cannot contradict the terms of the writing. Alleged price term that plaintiff sought to enforce in apartment building sale agreement lacked the certainty required by the statute of frauds where the extrinsic evidence plaintiff offered to establish that the sale price was based on gross income conflicted with the written memorandum for property sale, which stated a specific price and did not indicate that the parties contemplated any change based on actual rental income.
     Sterling v. Taylor - filed March 1, 2007
     Cite as SOS 2007 1101
Full text 

Limitations provision of Subdivision Map Act, which requires that an action challenging a public entity’s decision under the act be "commenced and service of summons effected within 90 days after the date of such decision," rather than that of the Mitigation Fee Act, which requires only that the action be filed within 180 days after notice of the fee is given by the public entity, applied where public entity reduced allowed density of plaintiff's property but did not request a "monetary exaction" from plaintiff.
     Fogarty v. City of Chico - filed March 12, 2007, Third District
     Cite as 2007 SOS 1197
Full text

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

April 19, 2007
Benjamin S. Crocker Symposium on Real Estate Law and Business 2006
Featured Speakers:
Dean Adler, Lubert-Adler
Jane Blumenfeld, City of Los Angeles Department of Planning
Wayne Brandt, RBS Greenwich Capital
Anthony Downs, The Brookings Institution
William H. Jackson III, Chairman of the Board of Commissioners of the CRA/LA
Patrick A. Randolph, University of Missouri-Kansas City School of Law
Wayne Ratkovich, The Ratkovich Company
Kenneth Wong, CEO, Westfield America, Inc.
Millennium Biltmore Hotel, 506 South Grand Avenue, Los Angeles, California
Register Online

May 2, 2007
Landlord/Tenant Issues and the Bankruptcy Code  
Sponsoring Subsection General Real Property
Speaker:  William S. Brody, Buchalter Nemer Fields & Younger
LACBA Conference Center, 281 S. Figueroa Street , Los Angeles
Registration: 11:45 AM - 12:30 PM; Meal/Reception: 12:00 PM; Program: 12:30 - 1:30 PM
Register Online

May 15, 2007
Equity Purchases and Elder Abuse  
Sponsoring Subsection: Title Insurance
Omni Los Angeles Hotel, 251 South Olive Street , Los Angeles
Registration: 11:45 AM - 12:30 PM; Meal/Reception: 12:00 PM; Program: 12:30 - 1:30 PM
Register Online

May 16, 2007
Managing Interest Rate Risk  
Sponsoring Subsection: Real Estate Finance
Program Information:
This program will discuss various financial products that are commonly used to manage interest rate risk in real estate finance transactions, including lender-embedded rate lock agreements, interest rate caps, interest rate swaps and forward rate lock agreements. Panel members will also discuss underwriting considerations and the responsibilitiesof counsel representing lenders and borrowers in the selection and purchase of these financial products and in the documentation and implementation of interest rate hedging transactions.
Speakers: Jason Hoffnagle and Jonathan Sears
LACBA Conference Center, 281 S. Figueroa Street , Los Angeles
Registration: 11:45 AM - 12:30 PM; Meal/Reception: 12:00 PM; Program: 12:30 - 1:30 PM
Register Online

May 24, 2007
Environmental Indemnities Concerning Lease Transactions  
Sponsoring Subsection: Commercial Development & Leasing
Program Information: This programs will review the forms of the environmental indemnity and issues of consequences in acquisition and leasing transactions.
Speaker: Donald Nanney
LACBA Conference Center, 281 S. Figueroa Street , Los Angeles
Registration: 11:45 AM - 12:30 PM; Meal/Reception: 12:00 PM; Program: 12:30 - 1:30 PM

Register Online

Save the Date!  June 19, 2007: 
Real Property Section Ninth Annual Installation and Awards Dinner
Riviera Country Club, 1250 Capri Drive, Pacific Palisades
Presentation of the Outstanding Real Estate Lawyer Award, the Real Estate Industry Outstanding Achievement Award, and the Outstanding Young Lawyers Award.
Register Online

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Los Angeles County Bar Association
2007 Real Property Section Newsletter
Daniel L. Goodkin, Editor    *   Norman A. Chernin, Co-Editor

Norma J. Williams

First Vice-Chair
Timothy M. Truax

Second Vice-Chair
Donald C. Nanney

Michael S. Klein

Pamela L. Westhoff

Immediate Past-Chair
Paula K. Reddish Zinnemann

Cecilia Gomez
Interim Section Administrator

Nedra Austin
Norman A. Chernin
Brant Dveirin
David Fu
Daniel L. Goodkin
John E. Hatherley
Trudi J. Lesser
Rebecca H. Lessley
Gregg J. Loubier
Phillip Nichols
Thomas F. Quilling

Patricia Higuera,
Barristers Liaison  
D. Eric Remensperger
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 and Donald C. Nanney
State Bar Liaisons

Commercial Development & Leasing, Marcia Z. Gordon
Construction Law, Candace Matson
Land Use Planning & Environmental Law, Peter J. Niemiec
Real Estate Finance, Susan Booth
General Real Estate Law, Eric A. Altoon
Title Insurance, William H. Lynes (Chair) and
   William R. Larr (Co-Chair)