Vol. III, No. 1 Join the Real Property Section Contact Us
November 2007


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Recent Cases

New Legislation


-Bankruptcy-
-CEQA-
-Commercial Development-
-Construction Defects-
-Domestic Partners-
-Homeowners Association-
-Landlord and Tenant-
-Partnerships-
-Purchase and Sale Agreements-
-Real Property Taxation-
-Zoning-

-Bankruptcy-
Lessor’s claims for waste, nuisance, and trespass after lessee-debtor allegedly left pile of dirt and equipment on property did not result from termination of lease of real property and were not limited by Bankruptcy Code Sec. 502’s cap on damages.
     In re El Toro Materials Company, Inc. - filed October 1, 2007
     Cite as No. 05-56164
     
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-CEQA-
Construction of retail facility and realignment of adjacent road constituted single project for purposes of CEQA review, and city violated CEQA by finding it was unnecessary to consider the realignment of the road in the mitigated negative declaration prepared for the retail project where commencement of retail center’s business operations at the site was conditioned upon the completion of the realignment, and the realignment was to be undertaken by the proponents of the retail project.
     Tuolumne County Citizens for Responsible Growth, Inc. v. City of Sonora (California Gold Development Corp.) - filed October 2, 2007, Fifth District
     Cite as 2007 SOS 6069
     
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-Commercial Development-
California Constitution’s "liberty of speech" clause does not protect expressive activities in the area immediately surrounding the entrance of an individual retail store that does not itself possess the characteristics of a public forum, even when that store is part of a larger shopping center.
     Van v. Home Depot, U.S.A., Inc. - filed September 11, 2007, publication ordered October 5, 2007, Second District, Div. Two
     Cite as 2007 SOS 6140
     
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-Construction Defects-
Documents constituting agreement to toll statute of limitations were sufficiently authenticated when counsel declared that they were true and correct copies of documents sent by and received from his client’s prior counsel. Tolling agreement between homeowner’s association and builder in construction defects suit was, pursuant to former Civil Code Sec. 1375(b)(3)(A), binding on all other parties to the action. Homeowner’s association’s cause of action for breach of a third party beneficiary contract was substantively without merit where association was not in existence when builder-developer entered into contract with allegedly negligent contractor and thus could not be a third party beneficiary of that contract.
     Landale-Cameron Court, Inc. v. Ahonen - filed September 10, 2007, publication ordered October 10, 2007, Second District, Div. Two
     Cite as 2007 SOS 6164
     
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-Domestic Partners-
State Board of Equalization Rule 462.240(k) excluding certain real property transfers between registered domestic partners from definition of phrase "change in ownership," which triggers assessment of ad valorem tax, is not unconstitutional. Legislature possesses power to define phrase under Proposition 13 and ratified rule by similarly amending Family Code and Revenue and Taxation Code. Proposition 58 does not require a constitutional amendment to expand definition of phrase to include transfers between parties other than married spouses; it merely prevents legislature from including transfers between married spouses within definition of the phrase absent a constitutional amendment.
     Strong v. State Board of Equalization - filed October 2, 2007, Third District
     Cite as 2007 SOS 6087
     
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-Homeowners Association-
Documents constituting agreement to toll statute of limitations were sufficiently authenticated when counsel declared that they were true and correct copies of documents sent by and received from his client’s prior counsel. Tolling agreement between homeowner’s association and builder in construction defects suit was, pursuant to former Civil Code Sec. 1375(b)(3)(A), binding on all other parties to the action. Homeowner’s association’s cause of action for breach of a third party beneficiary contract was substantively without merit where association was not in existence when builder-developer entered into contract with allegedly negligent contractor and thus could not be a third party beneficiary of that contract.
     Landale-Cameron Court, Inc. v. Ahonen - filed September 10, 2007, publication ordered October 10, 2007, Second District, Div. Two
     Cite as 2007 SOS 6164
     
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-Landlord and Tenant-
Lessor’s claims for waste, nuisance, and trespass after lessee-debtor allegedly left pile of dirt and equipment on property did not result from termination of lease of real property and were not limited by Bankruptcy Code Sec. 502’s cap on damages.
     In re El Toro Materials Company, Inc. - filed October 1, 2007
     Cite as No. 05-56164
     
Full text 

-Landlord and Tenant-
Recessed drain was not, as a matter of law, an open and obvious condition or a trivial defect negating any duty of care on the part of landlord to tenant who sustained severe injuries from a fall after she tripped. Expert declarations opining that drain design and configuration did not meet industry standards and building code requirements; that drain’s size and dimensions in view of the surrounding circumstances rendered it hazardous; and that landlord breached its duty of safety in managing and maintaining common area by failing to comply with its own inspection protocol were sufficient to show a triable issue as to whether drain constituted a hazardous condition.
     Kasparian v. Avalonbay Communities - filed October 15, 2007, Second District, Div. Seven
     Cite as 2007 SOS 6235
     
Full text 

-Landlord and Tenant-
Service of and refusal to rescind a notice to terminate a residential tenancy constitutes protected activity for purposes of the anti-SLAPP statute.
     Birkner v. Lam - filed September 20, 2007, publication ordered October 22, 2007, First District, Div. Three
     Cite as 2007 SOS 6312
     
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-Partnerships-
Attorneys who owed fiduciary duty of care to partnership were presumed to have knowledge of client’s organic documents whether or not attorneys actually examined documents, and attorneys’ belief that individuals were general rather than limited partners based upon conduct was unreasonable where limited partnership status was set forth in documents. Individuals remained liable to attorneys under quantum meruit theory to extent they were unjustly enriched by attorneys’ services. Where trial court’s decision concerning amounts owed by individuals to attorneys was based upon substantial evidence, it did not improperly deny defendants’ motion for new trial.
     Shimko v. Guenther - filed October 12, 2007
     Cite as No. 05-16847
     
Full text 

-Partnerships-
Where brother involved in clothing business partnership with absent brothers signed purchase agreement to sell real property held by all brothers as tenants in common, sale of property was outside ordinary course of partnership’s business, and brother needed written authority for sale from absent brothers. Purchase agreement was not enforceable against non-signatory brothers because it did not comport with statute of frauds. Third party did not misadvise brother where party advised him to prepare counteroffer after he had already received signed and binding counteroffer from purchaser; brother had already accepted counteroffer.
     Elias Real Estate, LLC v. Tseng - filed October 25, 2007, Second District, Div. Five
     Cite as 2007 SOS 6363
     
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-Purchase and Sale Agreements-
Where brother involved in clothing business partnership with absent brothers signed purchase agreement to sell real property held by all brothers as tenants in common, sale of property was outside ordinary course of partnership’s business, and brother needed written authority for sale from absent brothers. Purchase agreement was not enforceable against non-signatory brothers because it did not comport with statute of frauds. Third party did not misadvise brother where party advised him to prepare counteroffer after he had already received signed and binding counteroffer from purchaser; brother had already accepted counteroffer.
     Elias Real Estate, LLC v. Tseng - filed October 25, 2007, Second District, Div. Five
     Cite as 2007 SOS 6363
     
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-Real Property Taxation-
County’s determination that an assessable change in ownership occurred for purposes of Proposition 13 created a pure question of law as to which taxpayer was not required to exhaust administrative remedies. Revenue and Taxation Code Sec. 4807, which prohibits actions to prevent or enjoin the collection of taxes, does not bar declaratory action by taxpayer seeking a determination that taxpayer is entitled to a refund of taxes paid. Conveyance of a life estate is not a transfer "substantially equal to the value of the fee interest" and thus does not cause a change in ownership for purposes of Proposition 13. State Board of Equalization’s contrary rule is clearly inconsistent with statute and not entitled to deference.
     Steinhart v. County of Los Angeles - filed September 28, 2007, Second District, Div. Three
     Cite as 2007 SOS 6047
     
Full text 

-Real Property Taxation-
State Board of Equalization Rule 462.240(k) excluding certain real property transfers between registered domestic partners from definition of phrase "change in ownership," which triggers assessment of ad valorem tax, is not unconstitutional. Legislature possesses power to define phrase under Proposition 13 and ratified rule by similarly amending Family Code and Revenue and Taxation Code. Proposition 58 does not require a constitutional amendment to expand definition of phrase to include transfers between parties other than married spouses; it merely prevents legislature from including transfers between married spouses within definition of the phrase absent a constitutional amendment.
     Strong v. State Board of Equalization - filed October 2, 2007, Third District
     Cite as 2007 SOS 6087
     
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-Zoning-
Adult entertainment businesses challenging comprehensive county zoning ordinance that mandated such businesses disperse to industrial areas failed to show that ordinance imposed significant or material inconvenience on consumers where city demonstrated connection between adult establishments and negative secondary effects, and further demonstrated that patrons would not be measurably discouraged by inconvenience of having to travel to industrial zone. County’s list of proposed relocation sites within industrial zone was reasonable, despite sites’ unavailability for other commercial purposes, where proposed alternate sites provided sufficient opportunity for relocation given plaintiffs’ failure to show ratio of potential sites to adult population and where ordinance only applied to unincorporated portions of county. County did not have fair notice of businesses’ claim that ordinance violated state law requiring ordinances to be consistent with general plan of county where businesses failed to raise claim in complaint. Severance of unreasonably long time frame for review from ordinance’s permitting scheme was improper where remaining text was rendered unconstitutional by containing no time limits at all. Proper course was to sever entire permit requirement.
     Tollis Inc. v. County of San Diego - filed October 10, 2007
     Cite as No. 05-56300
     
Full text 

-Zoning-
City ordinance generally prohibiting advertising signs designed to be seen from freeway did not impose any content-based restrictions on noncommercial speech and did not impermissibly favor commercial over noncommercial speech or regulate noncommercial speech based upon content where it could be fairly read to regulate only commercial speech and could function effectively if so limited. Trial court’s severance of ordinance’s exception for time and temperature displays as an unconstitutional, content-based restriction on noncommercial speech that favored one form of noncommercial speech over other forms did not cause ordinance to restrict more speech. As noncommercial speech was not covered under ordinance at all, eliminating exception had no actual impact on legality of time and temperature displays under ordinance. Plaintiff’s "as applied" challenge to ordinance failed where plaintiff did not argue that city’s refusal to let it maintain freeway visible commercial advertising resulted from discriminatory enforcement, and plaintiff could not show that city’s particular application of the law evidenced any degree of subjectivity or undue discretion. Where city amended section of planning code that more generally limited advertising signs to eliminate, as precondition for granting a variance, an abstract requirement that signs not adversely affect character, livability, or welfare, amended section contained appropriate standards limiting city’s discretion in exercising permitting authority and was constitutional. Challenge to pre-amendment version of section was moot where no indication was present that city intended to readopt deleted provision. Where city determined that plaintiff’s application for variance failed on three constitutionally permissible conditions, plaintiff had no viable claim that it was injured by denial of its application.
     Desert Outdoor Advertising, Inc. v. City of Oakland - filed October 30, 2007
     Cite as No. 05-15501
     
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-New Legislation-
As of January 1, 2008, the form of notarial acknowledgements in California will be changed and recorded documents made available to the public may no longer contain full social security numbers.

See AB 886 and AB 1168 for the text of these new laws passed by the California Legislature and signed by the Governor.                                                                                                                        Back to Top


Upcoming Events

11/21/07
Financing Trends for 2007

Presented by: Real Estate Finance Subsection
This program will cover the latest financing trends in view of the new finance market, sub prime fallout, and the effects thereof on lenders and borrowers.
Information/Online Registration

11/27/07
Construction Defect: Finding the Deep Pockets
Presented by: Construction Law Subsection
Robert Chapman and Bob Mann, both experienced construction defect lawyers, will explore how to find the deep pocket in construction defect litigation. If you handle any construction defect litigation, this program is a must.
SPEAKERS:  Robert S. Chapman, Greenberg, Glusker, Fields, Claman, Machtinger & Kinsella LLP; Robert S. Mann, Silver & Freedman APC 
Information/Online Registration

12/05/2007
Recent Cases in 2007 on Arbitration and Mediation Affecting Real Estate

Presented by: Real Property Section
Subsection/Committee: General Real Property
This program shall address recent cases dealing with arbitration and the effect thereof on real estate law/practice.
Speakers: Arthur Mazirow
Information/Online Registration

12/13/2007
Out of Mind but No Longer Out of Sight-Bankruptcy Issues Real Estate Professionals Will Soon Face  
Presented by: Real Property Section
Subsection/Committee: Commercial Development and Leasing
This program will include a quick refresher course on bankruptcy basics and an analysis of a few developments over the past several years ( including the 2005 Bankruptcy Code revisions) that most directly impact real estate practitioners, this program will address certain transactions that the real estate professional has been involved with for the past ten years and the impact of a bankruptcy filing on these transactions.
Speaker:  Bernard D. Bollinger, Buchalter Nemer
Information/Online Registration

4/3/2008
Benjamin S. Crocker Symposium on Real Estate Law and Business 2008
For more information please visit
www.crocker2008.com

For more information visit the  LACBA Calendar

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


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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)