Vol. II, No. 11 Join the Real Property Section Contact Us
September, 2007
Recent Cases

-CEQA-
-Condemnation-
-Construction Law-
-Inverse Condemnation-
- Judgment Liens-
-Landlord and Tenant-
-Land Use-
-Option to Purchase-
-Resulting Trust-
-Shared Appreciation Mortgage-
-Usury-
-Water Law-


-CEQA-
Petitioners’ repeated objections to project addendum voiced at various public meetings were sufficient to satisfy CEQA exhaustion requirement where agency did not provide for a public comment period or provide the public with notice that it was preparing an addendum. City’s decision to approve modified project with addendum rather than to require a supplemental EIR was unsupported by substantial evidence with respect to impact on police services where the addition of over 800 residential units and features designed to encourage pedestrian use of the area established that changes in the modified project would increase the original project’s impact, but SEIR was not required to address other issues where there was substantial evidence that modified project’s impacts would be no more severe than original project’s as to those aspects.
     Mani Brothers Real Estate Group v. City of Los Angeles (IDS Equities, LLC) - filed August 3, 2007, Second District, Div. Two
     Cite as 2007 SOS 4921

     Full text 

-Condemnation-
Where agency deposited probable compensation in eminent domain case, trial court erroneously set date of valuation as the date of trial rather than the earlier date of deposit. Trial court abused its discretion in permitting expert testimony that relied upon a goodwill valuation methodology that did not value condemnee’s actual business but instead valued a hypothetical business operating at condemnee’s facility. Trial court's ruling allowing jury to assess precondemnation damages based on agency’s issuance of a Polanco Act environmental cleanup notice was erroneous. Regulatory activity is not the type of conduct that will support the limited remedy of precondemnation damages. Defendant’s consent to withdrawal of deposited funds by his lender to pay off indebtedness secured by the condemned property constituted forfeiture of any right to object to the taking.
     Redevelopment Agency of the City of San Diego v. Mesdaq - filed August 31, 2007, Fourth District, Div. One
     Cite as 2007 SOS 5536

     
Full text

-Construction Law-
Where building contract was entered into on behalf of corporation that was not a licensed contractor, Business and Professions Code Sec. 7031, which precludes recovery under contract or payment bond by unlicensed contractor, applied, even though corporation's president was a licensed contractor. Unlicensed corporation did not substantially comply with Sec. 7031 by obtaining license after it completed performance of the contract.
     Opp v. St. Paul Fire & Marine Insurance Company - filed August 2, 2007, publication ordered August 14, 2007, Fifth District
     Cite as 2007 SOS 5079
    
 Full text 
 

-Inverse Condemnation-
Right-of-way dedication requirement applicable to properties lying along the route of a planned highway did not violate Fifth Amendment takings clause or any other provision of state or federal law.
     State Route 4 Bypass Authority v. Superior Court (Morimoto) - filed August 8, 2007, First District, Div. One
     Cite as 2007 SOS 4975
     Full text 

-Inverse Condemnation-
District court had jurisdiction over state law inverse condemnation claims where claims pertained to property listed as part of an estate subject to federal bankruptcy proceedings. State judge’s statement that court would dismiss case if and when the statute of limitations ran was not equivalent of an actual order dismissing action. Where there was no state court judgment from which plaintiffs sought relief, Rooker-Feldman doctrine did not apply to bar federal jurisdiction over their claims. Where landowners claimed that a county ordinance imposing height restrictions on structures surrounding airport runway effected a taking of airspace under the Nevada Constitution as applied to their property, federal court was bound by Nevada Supreme Court’s decision in McCarran International Airport v. Sisolak, 137 P.3d 1110, holding that the owner of property near an airport had a valid property interest in the airspace above the land up to 500 feet and that the height restriction constituted a regulatory taking under both the Nevada and U.S. Constitutions. Under Sisolak, ordinance amounted to taking as applied to landowners’ property, and landowners did not waive taking claim by granting county an avigation easement. Landowners failed to show that another county ordinance designating 1.25 acres of their property as a "runway protection zone," which could be used only as a parking lot, a water area, or landscaping, amounted to regulatory taking where landowners failed to allege that the designation constituted either a permanent physical invasion or a complete deprivation of all economically beneficial use of that property, and where the property falling within the designated zone accounted for only 5 percent of landowners’ entire property.
     Vacation Village, Inc. v. Clark County, Nevada - filed July 23, 2007, amended August 10, 2007
     Cite as No. 05-16173
     Full text 

-Judgment Liens-
Ten-year statute of limitations begins to run on an action to renew a stipulated judgment when the trial court enters the judgment unless the parties agreed to the judgment for the purpose of facilitating an appeal.
     The Cadle Company II, Inc. v. Sundance Financial, Inc. - filed August 24, 2007, Fourth District, Div. One
     Cite as 2007 SOS 5263
     Full text   

-Landlord and Tenant-
Local ordinance provision purporting to bar landlord from bringing "any action to recover possession of a rental housing unit based upon facts which the landlord has no reasonable cause to believe to be true or upon a legal theory which is untenable under the facts known to the landlord" is preempted by the litigation privilege in state law. Ordinance provision barring landlord from serving "any notice to quit or other eviction notice...based upon facts which the landlord has no reasonable cause to believe to be true or upon a legal theory which is untenable under the facts known to the landlord" is preempted by state law only to the extent that it prohibits, criminalizes, and establishes civil penalties for eviction notices where litigation is contemplated in good faith and under serious consideration.
     Action Apartment Association, Inc. v. City of Santa Monica - filed August 2, 2007
     Cite as 2007 SOS 4852
     Full text


-Landlord and Tenant-
Where tenants brought action seeking declaration of their rights with regard to possession of rental housing that landlord sought to remove from rental market under Ellis Act, and trial judge ordered that action be stricken under anti-SLAPP statute, landlord’s subsequent eviction action did not render tenants’ appeal of the order striking their declaratory action moot since the court in which the eviction proceeding was filed was not the exclusive forum for the resolution of the issues in dispute. Evidence that plaintiffs did not file declaratory action until after defendant served Ellis Act notices did not establish that plaintiffs’ suit was a response to the notices, so trial court erred in ruling that suit implicated defendant’s free speech or petition rights for purposes of the anti-SLAPP statute. Anti-SLAPP motion could not be premised on plaintiffs’ prayer for injunctive relief to prevent "defendants from evicting plaintiffs from their residence," which defendants claimed was aimed directly at their right to petition the government for redress through a "judicial proceeding," since anti-SLAPP motion must be directed at a cause of action, not a prayer for relief.
     Marlin v. AIMCO Venezia, LLC - filed July 23, 2007, publication ordered August 16, 2007, Second District, Div. Seven
     Cite as 2007 SOS 5109
     
Full text 

-Land Use-
Settlement agreement between religious congregation and city, in which city granted what amounted to a conditional use permit to resolve claim that its zoning restrictions violated the Religious Land Use and Institutionalized Persons Act, was void where hearing and notice were not given to the affected community.
     The League of Residential Neighborhood Advocates v. City of Los Angeles - filed August 21, 2007
     Cite as No. 06-56211

      Full text 

-Land Use-
City did not abuse its discretion in approving commercial/residential development project--which neighbors alleged violated city's general plan based on its potential traffic impact--where plan allowed increased traffic if accompanied by reasonable mitigation measures and city reasonably concluded that requiring payment of traffic impact fees was a sufficient such measure. State Density Bonus Law does not prohibit city from awarding developer a density bonus in excess of that mandated by the statute. City did not violate state or local law by awarding developer a density bonus of 40.5 percent where developer made the required commitment to senior or low-cost housing.
     Friends of Lagoon Valley v. City of Vacaville - filed August 28, 2007, First District, Div. Three
     Cite as 2007 SOS 5415

      Full text 

-Op
tion to Purchase-
An enforceable option contract specifies all essential terms of purchase and sale, such that upon the exercise of the option, a binding and enforceable contract of sale is created, so it was error for trial court to order specific performance where purported agreement failed to specify such essential terms as length of escrow and evidence did not support a conclusion that parties would have agreed to additional terms added by trial court as reasonable.
     Patel v. Liebermensch - filed August 21, 2007, Fourth District, Div. One
     Cite as 2007 SOS 5197
      Full text 


-Resulting Trust-
Husband and wife whose home was in their daughter’s name because of their poor credit were entitled to a resulting trust because when a transfer of real property is made to one person, and the consideration is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made.
     Hernandez v. Ruelas - filed August 20, 2007, Second District, Div. Eight
     Cite as 2007 SOS 5185

  Full text 

-Shared Appreciation Mortgage-
Loan did not meet the statutory requirements for a shared appreciation loan, and trial court erred in concluding the loan was exempt from the usury law on that basis where the terms guaranteed lender a usurious rate of interest. Rule against the enforcement of unlawful transactions precludes guarantor from waiving usury defense.
     WRI Opportunity Loans II LLC v. Cooper - filed August 23, 2007, Second District, Div. Four
     Cite as 2007 SOS 5239

     
Full text 

-Usury-
Where licensed real estate broker was qualifying officer for license of corporate lender, and broker negotiated loan between partnership that included the corporation and borrower, was partnership’s primary contact with borrower, and received only incidental financial benefit from the loan, usury exemption for transactions involving licensed real estate brokers applied as a matter of law.
     Stoneridge Parkway Partners v. MW Housing Partners III - filed August 3, 2007, Third District
     Cite as 2007 SOS 4878
     
Full text 

-Usury-
Loan did not meet the statutory requirements for a shared appreciation loan, and trial court erred in concluding the loan was exempt from the usury law on that basis where the terms guaranteed lender a usurious rate of interest. Rule against the enforcement of unlawful transactions precludes guarantor from waiving usury defense.
     WRI Opportunity Loans II LLC v. Cooper - filed August 23, 2007, Second District, Div. Four
     Cite as 2007 SOS 5239
     
Full text 

-Wa
ter Law-
Man-made pond separated from navigable river by man-made levee is subject to Clean Water Act as wetlands where pond is not only surrounded by extensive wetlands, which connect to the river, but also pond’s shoreline has receded so substantially that much of the area that was originally part of the pond has turned into wetland. District court’s findings that water from pond seeps into adjacent river through both surface wetlands and underground aquifer support conclusion that pond has a significant effect on "the chemical, physical, and biological integrity" of the river and thus has a sufficient nexus to the river to constitute "navigable waters" for purposes of the CWA.
     Northern California River Watch v. City of Healdsburg - filed August 10, 2006, amended August 6, 2007
     Cite as No. 04-15442

     
Full text 


Upcoming Events

9/18/07
Title Companies: How They Work
Sponsoring Subsection: Title Insurance
Speakers: Doug Minor, United Title Company; Anne Nelson Lanphar, First American Title Insurance Company
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.
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9/25/07
Current Trends in Public Works Project Delivery Methods
Sponsoring Subsection: Construction Law
Speakers: Richard Mah, Hunt, Ortmann, Blasco, Palffy & Rossell Inc.; Omel A. Nieves
LACBA Conference Center, 281 S. Figueroa Street , Los Angeles
Registration: 11:45 a.m.-12:30 p.m.; LUNCH: 12:00 p.m.; PROGRAM: 12:30-1:30 p.m.
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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)