Vol. II, No. 9 Join the Real Property Section Contact Us
July, 2007
Recent Cases

-CEQA-
-Deed of Trust Foreclosure-
-Inverse Condemnation-
-Landlord and Tenant-
-Mortgage Lending-
-Probate Litigation Affecting Title-
-Purchase and Sale Agreement-
-Quiet Title Actions-
-Real Property Litigation-
-Real Property Taxation-
-Unlawful Detainer-
-Zoning-


-CEQA-
Airport land use commission erred in concluding that land use compatibility plan purporting to restrict residential development within particular zone near air force base was a type of governmental activity not subject to California Environmental Quality Act. Commission’s adoption of plan fell within "common sense" exemption to CEQA review requirement where provision restricting development simply incorporated existing county general plan and zoning provisions concerning the maximum number of permitted dwelling units.
     Muzzy Ranch Co. v. Solano County Airport Land Use Commission - filed June 21, 2007
     Cite as 2007 SOS 3305
     Full text
 

-Deed of Trust Foreclosure-
Late charge provision in promissory note imposing charge on "any installment" not received when due did not apply to final, balloon payment on the note where term that "the entire principal sum and accrued interest shall at once become due and payable" in the event of overdue installment payment would not apply in the case of a final payment for which all principal and interest are already due and payable. Trial court properly determined lender was not entitled to a late charge as an element of damages where late charge provision stated late fees would cover such costs as "processing and accounting charges," which expressed intent to compensate lender for administrative expenses and not for loss of use of money due; and a separate provision in note granted lender an enhanced interest rate in the event of untimely payment, which would more than compensate it for loss of use of money due. Trial court correctly concluded that lender was not entitled to recover fees for foreclosure where it had assigned the note and deed of trust to another lender and thus had no power to initiate foreclosure proceedings. Court abused its discretion in denying lender leave to amend to assert claim for interest and fees where it was undisputed that lender was entitled to interest from the date final payment was due until it was paid, there was nothing in the record to suggest any such interest was paid by borrower, and lender was also possibly entitled to other damages in the nature of administrative expenses.
     Poseidon Development, Inc. v. Woodland Lane Estates, LLC - filed June 28, 2007, Third District
     Cite as 2007 SOS 4212
     Full text

-Inverse condemnation-
Code of Civil Procedure Sec. 1260.040, which permits a party to move for a ruling in a dispute "over an evidentiary or other legal issue affecting the determination of compensation," permits a trial court to resolve by motion the legal issue of liability in an inverse condemnation action. Evidence was insufficient to support property owners’ claims against city for inverse condemnation, nuisance, and negligence stemming from cracks on their property allegedly caused by freeway construction where evidence--a letter from one civil engineer opining only that the cracks he observed "were the cause of an event that happened recently," a declaration from another civil engineer opining that "the reckless use of this heavy equipment [during freeway construction] to bang and force out large and heavy steel shoring doubtless caused the patio cracks in these homes," and a noise report prepared for the city--failed to establish causal connection between cracking on plaintiffs’ property and construction and maintenance of the freeway.
     Dina v. People ex rel. Department of Transportation - filed June 5, 2007, Second District, Div. Two
     Cite as 2007 SOS 3007
     Full text


-Landlord and Tenant-
Where lessor sued guarantors of lease alleging fraud and breach of guaranty, which are typical claims for a California court, trial court erred in sustaining defendants’ demurrer on basis that it lacked subject matter jurisdiction because lease and guaranty contained forum selection clauses requiring plaintiff to bring suit in Arizona.
     Miller-Leigh LLC v. Henson - filed June 28, 2007, Third District
     Cite as 2007 SOS 4228
     Full text


-Mortgage Lending-
Where lender denied mortgage loan to licensed operator of family day care home whose principal source of income was from her operation of the home, on the basis of its policy that it "does not lend on day care homes" if the home day care income is required to qualify, operator alleged cognizable Unruh Act claim for discrimination "based on [her] source of income, occupation, and an arbitrary characteristic, the running of a family day care"; stated viable a claim under Fair Employment and Housing Act Sec. 12955 for intentional source-of-income discrimination by mortgage lender; stated a viable FEHA claim for disparate impact discrimination affecting women and families with children; stated viable claim under Unfair Competition Law; but failed to establish that the lender's rejection letter constituted a prohibited "written instrument" under Health and Safety Code Sec. 1597.40, which voids written instruments purporting to forbid or restrict the mortgaging of real property for use or occupancy as a family day care home for children.
     Sisemore v. Master Financial, Inc. - filed June 12, 2007, Sixth District
     Cite as 2007 SOS 3131
     Full text

-Mortgage Lending-
Late charge provision in promissory note imposing charge on "any installment" not received when due did not apply to final, balloon payment on the note where term that "the entire principal sum and accrued interest shall at once become due and payable" in the event of overdue installment payment would not apply in the case of a final payment for which all principal and interest are already due and payable. Trial court properly determined lender was not entitled to a late charge as an element of damages where late charge provision stated late fees would cover such costs as "processing and accounting charges," which expressed intent to compensate lender for administrative expenses and not for loss of use of money due; and a separate provision in note granted lender an enhanced interest rate in the event of untimely payment, which would more than compensate it for loss of use of money due. Trial court correctly concluded that lender was not entitled to recover fees for foreclosure where it had assigned the note and deed of trust to another lender and thus had no power to initiate foreclosure proceedings. Court abused its discretion in denying lender leave to amend to assert claim for interest and fees where it was undisputed that lender was entitled to interest from the date final payment was due until it was paid, there was nothing in the record to suggest any such interest was paid by borrower, and lender was also possibly entitled to other damages in the nature of administrative expenses.
     Poseidon Development, Inc. v. Woodland Lane Estates, LLC - filed June 28, 2007, Third District
     Cite as 2007 SOS 4212
     Full text


-Pr
obate Litigation Affecting Title-
Petition to determine ownership of real property pursuant to Probate Code Sec. 850, brought on a resulting trust theory, is not subject to Code of Civil Procedure Sec. 366.2--which imposes a one-year limitations period on an action on the "liability of the person"--because the resulting trust doctrine does not implicate the personal liability of a decedent. Testator's death did not trigger limitations period of Sec. 366.2 where there was no dispute between testator and beneficiary with regard to the subject property, and dispute as to who owned the property and to whom it should be conveyed only arose after testator's death.
     Estate of Yool - filed May 31, 2007, First District, Div. Four
     Cite as 2007 SOS 2958
     Full text


-Purchase and Sale Agreement-
Where landowner sold undeveloped land to county pursuant to contract and later sued for rescission alleging that its obligations to perform under the contract were conditioned on county’s fulfillment of the promise that its library design would be architecturally compatible with landowner’s adjacent development, and that county’s failure to provide for such a design was a material failure of consideration entitling it to rescind the contract, landowner’s action seeking recovery of land was equitable rather than legal, and landowner was not entitled to a jury trial.
     NMSBPCSLDHB v. County of Fresno - filed June 26, 2007, Fifth District
     Cite as 2007 SOS 4090
     Full text
 

-Quiet Title Actions-
Order denying motion to vacate judgment, which was brought on grounds that defendant was never personally served with process and that order permitting service by publication was obtained by fraud, is appealable as a special order after judgment. Service in quiet title action, by publication on named defendant and on "his testate and intestate successors...and all persons claiming by, through, or under such decedent," was ineffective as to his daughter, who was co-holder of record title to the subject property, where there was no showing of any effort to effect personal service on her or any other person who might have an interest as a result of her father's death. Denial of motion to vacate judgment quieting title in plaintiff under doctrine of adverse possession was an abuse of discretion where defendant, who swore she was unsophisticated in legal matters and had no knowledge of judgment until just prior to filing motion to vacate it, was in "open and actual possession" of the property at all relevant times, as indicated by evidence that she received her mail at the property; parked her car in the property's garage and driveway; hung her curtains in the window; paid the water, gas, phone and electric utilities, and had come and gone on a daily basis without interference.
     Carr v. Kamins - filed May 31, 2007, Second District, Div. Eight
     Cite as 2007 SOS 2946

     Full text


-Real Property Litigation-
In ruling on motion to enforce settlement in disputed real estate transaction, trial court had authority to impose a new closing date for the real estate transaction where closing date had passed by the time motions were heard; to order purchaser to sign a purchase agreement that incorporated a revised counteroffer removing purchaser's obligation to perform the repairs to which he had objected, and providing that the property was being sold "as is," where nothing in settlement agreement allowed purchaser to document his construction defect claims by making unchallenged evidence of those alleged defects a part of the purchase agreement itself; and to award costs to seller where purchaser's behavior delayed transaction's closing.
     Osumi v. Sutton - filed June 12, 2007, Second District, Div. Six
     Cite as 2007 SOS 3093
     Full text


-Real Property Taxation-
Assessor did not err in fixing the taxable value of a real property interest as the purchase price where taxpayer failed to establish a different value by a preponderance of the evidence.
     California Minerals v. County of Kern - filed June 26, 2007, Fifth District
     Cite as 2007 SOS 4151
     Full text


-Real Property Taxation-
County Assessment Appeals Board did not abuse its discretion in finding that second-story addition to homeowner's residence was complete, for taxation purposes, one year after date on which building department gave its "final o.k." to addition, where homeowner testified that at time of final o.k., addition lacked functionality due to significant problems with numerous major components that required costly repair.
     Georgiev v. County of Santa Clara - filed June 13, 2007, Sixth District
     Cite as 2007 SOS 3173
     Full text


-Unlawful Detainer-
Unlawful detainer action in which plaintiffs alleged defendant was unlawfully in possession of premises after a written sublease had expired was an "action or other proceeding arising out of this Sublease" for purposes of clause entitling prevailing party in such action to recover attorney fees.
     Drybread v. Chipain Chiropractic Corporation - filed June 6, 2007, Third District
     Cite as 2007 SOS 3022
     Full text
 

-Zoning-
City zoning ordinance generally prohibiting the sale of furniture in a particular commercial district to protect or preserve the economic viability of city’s downtown business district was permissible. Limited exception in ordinance permitting large department stores located within district to sell furniture within a specifically prescribed area within the department store did not violate equal protection as to owners of a stand-alone home furnishings and mattress store located within the district who wished to sell bedroom furniture along with mattresses and home accessories where ordinance was intended not only to protect the economic health and viability of the city’s downtown furniture stores but to do so in a manner that did not threaten or detract from the city’s ability to attract and retain large department stores in the district.
     Hernandez v. City of Hanford - filed June 7, 2007
     Cite as 2007 SOS 3028
     Full text

 



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

SECTION OFFICERS
Chair
Timothy M. Truax

First Vice-Chair
Donald C. Nanney

Second Vice-Chair
Michael S. Klein

Treasurer
Pamela L. Westhoff

Secretary
Gregg J. Loubier

Immediate Past-Chair
Norma J. Williams

Paula Reddish K.
Zinnemann,
Chair Emeritus

Terrina Scott
Section Administrator

EXECUTIVE COMMITTEE MEMBERS
Eric Altoon
Nedra E. Austin
Susan J. Booth
Norman A. Chernin
Brant H. Dveirin
Daniel L. Goodkin
Marcia Z. Gordon
John E. Hatherley
William R. Larr
Trudi J. Lesser
Rebecca H. Lessley
Gregg J. Loubier
Phillip G. Nichols
Peter J. Niemiec
Thomas F. Quilling
D. Eric Remensperger
Michael G. Smooke
Linda E. Spiegel
Sarah J. Spyksma
Theresa C. Tate
Valerie Wisot
Andrew J. Yamamoto
Sharon Yarber

David D. Fu
State Bar Liaison

SUB-SECTION CHAIRS
Commercial Development & Leasing, Marcia Z. Gordon
Construction Law, Brian Ostler
Land Use Planning & Environmental Law, Peter J. Niemiec
Real Estate Finance, Susan Booth
General Real Estate Law, Eric A. Altoon
Title Insurance, William R. Larr (Chair) and David Marcus, (Co-Chair)