Vol. III, No. 3 Join the Real Property Section Contact Us
January 2008

An E-Publication of the Los Angeles County Bar Association


DON’T FORGET TO REVIEW UPCOMING SEMINARS LISTED BELOW—CLICK HERE


Recent Cases
-Brokers-
-CEQA-
-Condemnation-
-Construction Law-
-Covenants, Conditions & Restrictions-
-Deed of Trust Foreclosure-
-Easements-
-Environmental Law-
-Home Equity Sales Contracts-
-Homeowners' Association-
-Inverse Condemnation-
-Landlord & Tenant-
-Land Use-
-Purchase & Sale Agreements-
-Real Estate Litigation-
-Receivers-
-Rent Control-
-Right of First Refusal-
-Subdivisions-
-Tenant Relocation Assistance-
-Unlawful Detainer-
-Water Law-



-Land Use-
Where regulatory agreement between city and property owner required closure of business located on property upon expiration of conditional use permit, subsequent zoning change that eliminated the permit's expiration date also eliminated the requirement that the business be closed.
     Richeson v. Helal - filed November 29, 2007, publication ordered December 21, 2007, Second District, Div. Eight
     Cite as 2007 SOS 7554
     
Full text 

-Land Use-
The Fifth Amendment does not invariably preempt a claim that land use action lacks any substantial relation to the public health, safety, or general welfare.
     Crown Point Development, Inc. v. City of Sun Valley - filed November 1, 2007
     Cite as No. 06-35189
     
Full text 

-Land Use-
Government Code Sec. 905’s requirement that "all claims for money or damages against local public entities" be presented to responsible public entity before a lawsuit is filed applied to developer’s breach of contract claims against city. Where developer contended that it yielded assets to city in exchange for a promise of compensation, attempt to enforce contractual agreement was a claim for damages that was not based on a governmental obligation to return specific property and was subject to claim requirements. City was not estopped from asserting limitations of claims statute where developer alleged no conduct that might have deterred it from presenting a claim after city failed to keep its promises, and city did not waive claims where nothing in correspondence with developer indicated that litigation might ensue if city did not comply with terms under discussion. City did not waive right to rely on claim requirements by filing a cross-complaint. City did not waive claims defense by not notifying developer of claim requirements in demurrer proceedings, because developer was required to present claim before suit was filed. Developer was entitled to amend its complaint to meet city’s Government Claims Act defense, despite not advancing a successful argument against defense, where developer’s amended complaint did not foreclose any reasonable possibility of amendment on its face.
     City of Stockton v. Superior Court (Civic Partners Stockton, LLC) - filed December 3, 2007
     Cite as 2007 SOS. 7005
     
Full text 

Back to Top 

-Land Use-
County violated uniformity requirement of Government Code Sec. 65852 by approving application to devote a parcel of real property to a use disallowed by the applicable ordinance without rezoning the property to a district allowing the use, amending the text of the zoning ordinance to allow the use in the existing district, issuing a conditional use permit consistent with the zoning ordinance, or granting a variance. Development agreement law did not permit county to grant a parcel an ad hoc exception allowing a commercial use in an agricultural zoning district where such exception was unavailable to other parcels in the same district, even if such exception was contained in a development agreement that otherwise complied with the law.
     Neighbors in Support of Appropriate Land Use v. County of Tuolumne - filed December 7, 2007, Fifth District
     Cite as 2007 SOS 7189
     
Full text 

-Purchase and Sale Agreements-
For purposes of the anti-SLAPP statute, a cause of action for breach of a contract that requires a party to appear at a public hearing arises from protected activity. Evidence that defendants sought and obtained preliminary approval for a high density tract map, when they were contractually bound to make best efforts to obtain approval of a low density tract map, was sufficient to make prima facie showing that plaintiffs were likely to prevail, so trial court correctly denied anti-SLAPP motion as to breach of contract causes of action. Fraud cause of action, in which plaintiffs alleged that their agreement to purchase property was induced by false representation by defendant sellers, was not "based" on free speech or petitioning activity, and was thus outside the ambit of the anti-SLAPP statute.
     Midland Pacific Corporation v. King - filed November 28, 2007, Second District, Div. Six
     Cite as 2007 SOS 6957
     
Full text 

-Purchase and Sale Agreements-
Where receiver sued insurer for failure to indemnify and defend receiver under policy covering pollution damage to real property, district court did not err in not considering evidence of cross-assignments of claims by plaintiff to vendee of real property on motion for summary judgment because evidence in opposition to motion indicated that no definitive agreement on cross assignments had actually been reached. District court did not err in not considering evidence of cross-assignments of claims on motion for reconsideration of summary judgment where new evidence showed precise terms of cross-assignment could have been brought to court’s attention at time of summary judgment. Insurer had no duty to indemnify receiver for difference between sale price received for polluted properties and fair market value of land had it been cleaned up prior to sale where contract did not require buyer to actually remediate pollution as a condition of sale. Diminution in value does not constitute a "physical injury," and receiver did not actually expend any money in cleanup. State Department of Ecology’s allegations of contamination created a duty by insurer to defend, despite receiver’s failure to timely tender a defense request, because claims for environmental remediation were potentially covered under policy and insurer failed to demonstrate that case was so "extreme" that prejudice determination should not be decided by a jury.
     Goodstein v. Continental Casualty Company - filed December 3, 2007
     Cite as No. 05-35805
     
Full text 

Back to Top 

-Real Estate Litigation-
For purposes of the anti-SLAPP statute, a cause of action for breach of a contract that requires a party to appear at a public hearing arises from protected activity. Evidence that defendants sought and obtained preliminary approval for a high density tract map, when they were contractually bound to make best efforts to obtain approval of a low density tract map, was sufficient to make prima facie showing that plaintiffs were likely to prevail, so trial court correctly denied anti-SLAPP motion as to breach of contract causes of action. Fraud cause of action, in which plaintiffs alleged that their agreement to purchase property was induced by false representation by defendant sellers, was not "based" on free speech or petitioning activity, and was thus outside the ambit of the anti-SLAPP statute.
     Midland Pacific Corporation v. King - filed November 28, 2007, Second District, Div. Six
     Cite as 2007 SOS 6957
     
Full text 

-Real Estate Litigation-
Government Code Sec. 905’s requirement that "all claims for money or damages against local public entities" be presented to responsible public entity before a lawsuit is filed applied to developer’s breach of contract claims against city. Where developer contended that it yielded assets to city in exchange for a promise of compensation, attempt to enforce contractual agreement was a claim for damages that was not based on a governmental obligation to return specific property and was subject to claim requirements. City was not estopped from asserting limitations of claims statute where developer alleged no conduct that might have deterred it from presenting a claim after city failed to keep its promises, and city did not waive claims where nothing in correspondence with developer indicated that litigation might ensue if city did not comply with terms under discussion. City did not waive right to rely on claim requirements by filing a cross-complaint. City did not waive claims defense by not notifying developer of claim requirements in demurrer proceedings, because developer was required to present claim before suit was filed. Developer was entitled to amend its complaint to meet city’s Government Claims Act defense, despite not advancing a successful argument against defense, where developer’s amended complaint did not foreclose any reasonable possibility of amendment on its face.
     City of Stockton v. Superior Court (Civic Partners Stockton, LLC) - filed December 3, 2007
     Cite as 2007 SOS. 7005
     
Full text 

Back to Top 


-Real Estate Litigation-
Default judgment invalidating trustee’s sale was subject to collateral attack by defaulting defendant, the buyer, where the seller and the trustee, indispensable parties to the original action, were not joined.
     Washington Mutual Bank v. Blechman - filed December 4, 2007, Second District, Div. Two
     Cite as 2007 SOS 7022
     
Full text 

-Real Estate Litigation-
Where buyers of real estate sued sellers, listing brokers, and buyers’ own brokers, and arbitration clause was contained in real estate sales agreement to which buyer and seller were parties but brokers were not, brokers for the buyers, as agents, could compel their principal to arbitrate but could not compel arbitration against listing brokers, who did not sign the agreement and had no preexisting confidential or contractual relationship with buyers’ brokers.
     Nguyen v. Tran - filed December 7, 2007, Fourth District, Div. Three
     Cite as 2007 SOS 7179
     
Full text 

-Real Estate Litigation-
Landlord, which prevailed in an action brought against it by tenant alleging lack of habitability, presented sufficient evidence to withstand dismissal under the anti-SLAPP statute of its subsequent malicious prosecution action against tenant and her attorneys where landlord showed that tenant dismissed her action because it had become clear that she would not prevail, not because of her ill health as contended by counsel, and that the complaint included numerous causes of action that were pled by attorneys even though tenant provided them no information to support the claims. Landlord presented sufficient evidence to withstand anti-SLAPP motion brought by tenant’s co-counsel, who substituted in late in the litigation, because by associating in, co-counsel became the proponents of all tenant’s claims, including a large number of claims that were untenable on their face, and thus either knew or should have known of the significant deficiencies in tenant’s claims at the time they associated into the case, and did not take immediate steps to dismiss the meritless claims. Assertion by co-counsel that their role was to be "limited to the mold exposure aspect of the litigation," and that they "did not have any input in the decision to file" the underlying litigation "and [were] not involved in deciding which plaintiffs to include in the lawsuit or what allegations were made," and they "[a]t all times...believed that the lawsuit...was supported by probable cause and certainly was not being prosecuted with malice or ill will by anyone" was insufficient to withstand landlord’s prima facie showing that co-counsel lacked probable cause to pursue tenant’s claims.
     Sycamore Ridge Apartments LLC v. Naumann - filed December 17, 2007, Fourth District, Div. One
     Cite as 2007 SOS 7331
     
Full text 

Back to Top 

-Receivers-
Where receiver sued insurer for failure to indemnify and defend receiver under policy covering pollution damage to real property, district court did not err in not considering evidence of cross-assignments of claims by plaintiff to vendee of real property on motion for summary judgment because evidence in opposition to motion indicated that no definitive agreement on cross assignments had actually been reached. District court did not err in not considering evidence of cross-assignments of claims on motion for reconsideration of summary judgment where new evidence showed precise terms of cross-assignment could have been brought to court’s attention at time of summary judgment. Insurer had no duty to indemnify receiver for difference between sale price received for polluted properties and fair market value of land had it been cleaned up prior to sale where contract did not require buyer to actually remediate pollution as a condition of sale. Diminution in value does not constitute a "physical injury," and receiver did not actually expend any money in cleanup. State Department of Ecology’s allegations of contamination created a duty by insurer to defend, despite receiver’s failure to timely tender a defense request, because claims for environmental remediation were potentially covered under policy and insurer failed to demonstrate that case was so "extreme" that prejudice determination should not be decided by a jury.
     Goodstein v. Continental Casualty Company - filed December 3, 2007
     Cite as No. 05-35805
     
Full text 

-Rent Control-
Landlords’ claims that city rent control ordinance was unconstitutional under "public use" component of Fifth Amendment’s Takings Clause were not viable where there was a valid public purpose for law and subsequent amendments. Fifth Amendment does not impose a blanket obstacle to all substantive due process challenges to land use regulations, and did not preempt landlords’ substantive due process claim that land use action lacked any substantial relation to public health, safety, or general welfare. Landlords’ claims that ordinance was unconstitutional under substantive component of Fourteenth Amendment’s Due Process Clause were time-barred where they challenged provisions in place for 25 years, and unripe where they challenged recent amendments that government had not actually enforced in favor of tenants.
     Action Apartment Association, Inc. v. Santa Monica Rent Control Board - filed December 3, 2007
     Cite as No. 05-56533
     
Full text 

-Right of First Refusal-
Tenant's preemptive purchase rights under a commercial lease are not triggered by the conveyance of an interest in the property between copartners in a family limited partnership that owns the property and is the landlord.
     Bill Signs Trucking, LLC v. Signs Family Limited Partnership - filed December 18, 2007, Fourth District, Div. One
     Cite as 2007 SOS 7374
     
Full text 

Back to Top 

-Subdivisions-
Vague concerns about effect of housing project on aesthetics expressed by a few members of the public during public hearings did not constitute substantial evidence supporting a fair argument that project would have significant adverse environmental impacts, so city acted within its authority by issuing a mitigated negative declaration for the project rather than preparing an EIR. Adverse impact on property values as a result of construction of homes on smaller lots is an economic, not environmental, concern and is not considerable under CEQA. Concern that project would bring a large number of schoolchildren into the area and increase traffic was insufficient to require preparation of EIR where there was no evidence in the record that would correlate such density concerns to any specific adverse environmental impact. Contentions that city’s failure to comply with state CEQA guidelines resulted in a prima facie CEQA violation, that project was inconsistent with city’s general plan, and that general plan itself was inadequate were not subject to judicial review where not presented to city prior to adoption of mitigated negative declaration. Petitioner forfeited Subdivision Map Act claim by failing to object to tentative statement of decision or to otherwise alert trial court of its failure to expressly rule on the issue.
     Porterville Citizens for Responsible Hillside Development v. City of Porterville - filed November 9, 2007, publication ordered December 6, 2007, Fifth District
     Cite as 2007 SOS 7156
     
Full text 

-Tenant Relocation Assistance-
Letters sent to redevelopment agency by representatives of subtenant of owner of condemned property did not substantially comply with requirements for claiming benefits under California Relocation Assistance Act where such correspondence contained no general description of the indebtedness, obligation, injury, damage, or loss incurred; or, to the extent it provided some description of what claimant sought to recover, lacked enough information for agency to thoroughly investigate the claim, negotiate a settlement, or prepare a defense. Commercial tenant "moves," thus triggering 18-month limitations period for claiming benefits under CRAA, when it "moves from" the condemned location, so claim made more than 18 months after moving from that location but within 18 months of moving into new location was untimely. Agency did not abuse its discretion in denying waiver of limitations period where claimant presented no evidence to explain why it took it so long to file the claim; never requested an extension to the time limit; and clearly knew of its right to relocation benefits, yet waited eight years to substantially comply with the claims presentation requirement.
     Bi-Rite Meat & Provisions Co. v. Redevelopment Agency of the City of Hawaiian Gardens - filed October 24, 2007, publication ordered November 19, 2007, Second District, Div. Seven
     Cite as 2007 SOS 6792
     
Full text 

Back to Top 

-Unlawful Detainer-
Where unlawful detainer action was based on alleged breach of lease, and plaintiff voluntarily dismissed the action in response to defendant's motion for summary judgment, Civil Code Sec. 1717(b)(2), which provides that a contractual attorney fee award is not available where the action has been voluntarily dismissed, applied.
     Mitchell Land and Improvement Co. v. Ristorante Ferrantelli, Inc. - filed November 26, 2007, publication ordered December 24, 2007, Fourth District, Div. Three
     Cite as 2007 SOS 7559
     
Full text 

-Water Law-
Challenges to restrictions on water diversion imposed by State Water Resources Control Board were untimely where brought for first time after board sought determination of administrative civil liability. Thirty-day limitations period was triggered by prior actions of the board, including inclusion of restrictions in permits issued in 1985 and in licenses issued to plaintiffs between 1995 and 1998, service of notice of curtailment of water diversion in June 2000, and service of additional notices of curtailment of water diversion in July 2001, and was not triggered anew by service of administrative complaint. Thirty-day limitations period set out in Water Code Sec. 1126 governs without regard to whether challenge is characterized as "facial" or "as applied." Curtailment notices, which were unequivocal in directing plaintiffs to immediately stop diverting water, were not mere warnings of potential action but constituted final action triggering 30-day limitations period. Sec. 1126’s limitations period is jurisdictional and cannot be circumvented by styling an action as being for declaratory relief. Watershed Protection Act allows SWRCB to authorize Standard Water Right Permit Term 91 diversion curtailments when Central Valley Project or State Water Project activity is responsible for degrading water quality and does not limit diversion curtailments to cases in which permitees’ diversions affect water quality.
     Phelps v. State Water Resources Control Board - filed October 29, 2007, publication ordered November 26, 2007, Third District
     Cite as 2007 SOS 6863
     
Full text 

Back to Top 

 


                                                                                                              

Upcoming Events

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


1/16/2008
How Do Lenders and Borrowers Handle a Troubled Real Estate Asset
  
Presented by: Real Estate Finance Subsection
The panelists will present a hypothetical workout situation and discuss issues and strategy from a lender and borrower perspective.
Information / Online Registration

1/17/08
Sustainable Development and the Greening of Urban Cores

Presented by: Environmental Law Section
Co-Sponsored by: Real Property Section
Information / Online Registration

2/6/08
Green Building -The Future of the Construction Industry

Presented by: Real Property Section
Subsection/Committee: General Real Property
Co-Sponsored by: Commercial Development and Leasing
Information / Online Registration

2/12/08
Trial Of A Forgery Case
Presented by: Real Property Section
Subsection/Committee: Title Insurance Subsection
Information / Online Registration

2/13/08
Basic Environmental Science for Real Estate Lawyers

Presented by: Real Property Section
Subsection/Committee: Environmental and Land Use
Information / Online Registration

2/20/08
The Lawyer Who Knew Too Much - Introduction to Environmental Due Diligence and Disclosure

Presented by: Environmental Law Section
Co-Sponsored by: Real Property Section
Information / Online Registration

4/9/2008 - Note Date Change
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

Reader Reactions
So - What do you think of the Real Property News?  Please send us  your comments and suggestions.  This is your newsletter.

                                                                                                                                            Back to Top

Los Angeles County Bar Association
2008 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)