An E-Publication of the Los Angeles County Bar Association

Vol. III, No. 5 Join the Real Property Section Contact Us
March 2008


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Recent Cases

-CEQA-
-Condemnation-
-Construction Law-
-Environmental Law-
-Land Use-

-Landlord and Tenant-
-Premises Liability-
-Purchase and Sale Agreement-
-Real Property Litigation-
-Specific Performance-
-Water Law-


-CEQA-
City’s determination that project was exempt from CEQA was erroneous as a matter of law where city council’s staff and counsel misled it to believe that because it had determined that buildings were not historical resources for purposes of listing them in local register, so that they were not "presumptive historical resources" for CEQA purposes, it could not declare them historical resources as a matter of discretion under CEQA. Claim that city failed to exercise its discretion in accordance with CEQA requirements was not a collateral attack on its decision not to list the buildings in the local register. Lead agency is not required to employ "fair argument" standard when determining whether a building qualifies as an historical resource under CEQA’s discretionary historical resources category.
     Valley Advocates v. City of Fresno (Perez, Williams & Medina) - filed February 15, 2008, Fifth District
     Cite as 2008 SOS 1079
     Full text 

-Condemnation-
Trial court erred in allowing property owners’ expert to testify as to severance damages in eminent domain case despite owners’ failure to establish that the temporary construction easement that was the subject of the action interfered with or injured their actual intended use of their property. Where award of litigation expenses was based in part on huge variance between settlement offer and damages award, and a major portion of the damages award was the product of erroneously admitted testimony, award of litigation expenses had to be reconsidered on remand.
     City of Fremont v. Fisher - filed February 28, 2008, First District, Div. Two
     Cite as 2008 SOS 1347
     Full text 

-Construction Law-
Where claim was made against partners for construction defects, "construction partner" entered into good-faith settlement under Code of Civil Procedure Sec. 877, case went to trial against "money partner," and the amount awarded was less than the amount of the settlement, the settling construction partner was a "co-obligor mutually subject to contribution rights" under Corporations Code Sec. 16306(a), so the settlement had to be used to offset the award against the non-settling partner, resulting, in effect, in a net zero judgment. Plaintiff who obtained net zero judgment as a result of the operation of Sec. 877 did not receive "a net monetary recovery" and was not the prevailing party for purposes of recovering costs under Code of Civil Procedure Sec. 1032.
     Goodman v. Lozano - filed February 8, 2008, Fourth District, Div. Three
     Cite as 2008 SOS 963
     Full text 
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-Construction Law-
Substitution of subcontractor under Public Contract Code Sec. 4107, which limits the circumstances under which substitution can be made and requires the consent of the authority that awarded the contract to the substitution, permits such consent to be given after the substitute subcontractor has done work, so long as the procedure used actually complies with the substance of the reasonable objectives of the statute: namely, the prevention of bid peddling and bid shopping after the award of a public works contract, and the providing of an opportunity to the awarding authority to investigate the proposed replacement subcontractor before consenting to substitution.
     Titan Electric Corporation v. Los Angeles Unified School District - filed February 19, 2008, Second District, Div. Four
     Cite as 2008 SOS 1165
     Full text

-Environmental Law-
Coastal Commission has the power to unilaterally designate environmentally sensitive habitat areas and thereby prevent development prior to the certification of a local coastal program. Coastal Commission has the power to prevent development on property several miles from the ocean on the grounds that the development will impair scenic and visual resources of a coastal zone that extends further inland.
     Douda v. California Coastal Commission - filed February 6, 2008, Second District, Div. Two
     Cite as 2008 SOS 936
     Full text 

-Land Use-
Coastal Commission has the power to unilaterally designate environmentally sensitive habitat areas and thereby prevent development prior to the certification of a local coastal program. Coastal Commission has the power to prevent development on property several miles from the ocean on the grounds that the development will impair scenic and visual resources of a coastal zone that extends further inland.
     Douda v. California Coastal Commission - filed February 6, 2008, Second District, Div. Two
     Cite as 2008 SOS 936
     Full text  

-Landlord and Tenant-
Lease provision asserting "any statement of size" in the lease or used to calculate rent "is an approximation which the Parties agree is reasonable and any payments based thereon are not subject to revision whether or not the actual size is more or less" did not insulate defendant landlords from liability for fraud or establish that plaintiff tenant’s reliance on defendants’ alleged misrepresentations with regard to size of unit was unjustifiable as a matter of law. Alleged misrepresentations during negotiation of lease did not constitute a breach of covenant of good faith and fair dealing. Defendants did not violate plaintiff’s rights under Consumer Credit Reporting Agencies Act by obtaining plaintiff’s credit report where lease identified tenant as a commercial enterprise, and defendants obtained credit report to determine whether plaintiff could meet her financial obligations under the lease.
     McClain v. Octagon Plaza, LLC - filed January 31, 2008, Second District, Div. Four
     Cite as 2008 SOS 835
     Full text  
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-Premises Liability-
Affirmative defenses of comparative fault and failure to mitigate damages are unavailable in an action by a public entity to recover firefighting costs from landowner negligently setting fire or allowing fire to spread to adjoining properties where application of such defense would reduce plaintiff’s recovery based on a judge or jury's finding that plaintiff used unreasonable or inefficient methods to fight the fire contrary to law of sovereign immunity.
     People ex rel. Grijalva v. Superior Court (United Water Conservation District) - filed February 4, 2008, Second District, Div. Six
     Cite as 2008 SOS 898
     Full text  

-Purchase and Sale Agreement-
Petition to compel arbitration was properly denied where purported agreement to arbitrate was contained in a warranty booklet incorporated by reference into parties' contract and petitioner failed to place the booklet in evidence.
     Adajar v. RWR Homes, Inc. - filed February 5, 2008, ordered published February 28, 2008, Fourth District, Div. One
     Cite as 2008 SOS 1297
     Full text   

-Real Property Litigation-
Affirmative defenses of comparative fault and failure to mitigate damages are unavailable in an action by a public entity to recover firefighting costs from landowner negligently setting fire or allowing fire to spread to adjoining properties where application of such defense would reduce plaintiff’s recovery based on a judge or jury's finding that plaintiff used unreasonable or inefficient methods to fight the fire contrary to law of sovereign immunity.
     People ex rel. Grijalva v. Superior Court (United Water Conservation District) - filed February 4, 2008, Second District, Div. Six
     Cite as 2008 SOS 898
     Full text  
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-Real Property Litigation-
Petition to compel arbitration was properly denied where purported agreement to arbitrate was contained in a warranty booklet incorporated by reference into parties' contract and petitioner failed to place the booklet in evidence.
     Adajar v. RWR Homes, Inc. - filed February 5, 2008, ordered published February 28, 2008, Fourth District, Div. One
     Cite as 2008 SOS 1297
     Full text 

-Specific Performance-
Denial of specific performance as a remedy for seller’s breach of land sales contract was an abuse of discretion where seller failed to rebut presumption that damages were an inadequate remedy; evidence that similar properties had sold within a recent period was insufficient to establish that damages would be adequate to compensate buyer for the loss of the subject property and accompanying investment opportunity, and trial court erred in concluding that rule treating land as unique did not apply where primary purpose for buying land was as investment.
     Real Estate Analytics, LLC v. Vallas - filed February 26, 2008, Fourth District, Div. One
     Cite as 2008 SOS 1264
     Full text  

-Water Law-
Where prior judgment confirmed right of plaintiff's predecessor-in-interest to appropriate a defined quantity of water for use on his property, consisting of two contiguous parcels of land, one of which was later foreclosed upon and purchased by defendant's predecessor-in-interest and the other of which was acquired by plaintiff, trial court correctly ruled that prior judgment established the water rights as appurtenant to the entire property, so when defendant acquired his parcel, which constituted 52 percent of the original acreage, he thereby acquired 52 percent of the water rights.
     Nicoll v. Rudnick - filed February 27, 2008, Fifth District
     Cite as 2008 SOS 1275
     Full text 

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Upcoming Events

3/19/2008
Sponsoring Subsection: Real Estate Finance
Remedies in a Down Market 
This program will address the following topics: (1) When and how choice of law clauses selecting non-California law can work and the consequences of that, (2) the impact of single-asset debtors in this context, (3) environmental indemnities that purport to be unsecured even though they are a "mirror-image" of similar secured provisions, and (4) strategic choices with "mixed collateral" and cash collateral in the shadow of Civil Code Section 2924c.
Speaker: Dennis B. Arnold, Gibson Dunn & Crutcher LLP
Information / Online Registration 

3/25/2008
Sponsoring Subsection: Construction Law
2nd Annual Construction ADR Update: Getting Caught Upon on Legislation, Case Law and Drafting Techniques 
ADR has become an integral part of almost every construction case. Don’t get left behind by not knowing the latest developments in alternative dispute resolution. Join us for our 2nd annual ADR Update and get caught up on the latest legislation and case law, and learn some new techniques for drafting ADR clauses.
Speakers:
John R. Horn, National Arbitration Forum
Candace L. Matson, Sheppard, Mullin, Richter & Hampton LLP
Karen Smith, Arbitration Mediation Conciliation Center (AMCC)
Information / Online Registration

3/27/2008
Sponsoring Subsection:    Commercial Development and Leasing
ALTA Surveys: Everything you wanted to know about Reading a Survey and Then Some 
This program will review all aspects of reading and interpreting a survey, and instruct the real estate practitioner on what to look for in a survey when representing the owner or a secured lender.
Speaker: James J. Brown, Bock & Clark Corporation 
Information / Online Registration

4/9/2008
Benjamin S. Crocker Symposium on Real Estate Law and Business 2008
Information / Online Registration 

Symposium Website:  http://www.crocker2008.com  

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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)