Volume III, Number 6 Join the Real Property Section Contact Us

April 2008

 

Audio CDs from the 2008 Crocker Symposium -- Now Available!

Click here -- for Crocker Symposium 2008 Audio CD


Available for all programs meeting at LACBA Conference Center.

 

Recent Cases

-CEQA-

-Unlawful Detainer- -Landlord and Tenant-                           
-Covenants, Conditions and Restrictions- -Homeowners Association-
-Real Estate Litigation- -Land Use-
-Purchase and Sale Agreement- -Partnerships-
-Title Insurance-  -Federal Tax Liens-

-Scheduled Events-


-CEQA-
Where proposed residential facility density was five times the general plan density limit for any building in city and well in excess of the density of the surrounding area, project opponents presented a fair argument of significant environmental impact, requiring preparation of environmental impact report. Construction of three-story residential facility would arguably create significant environmental impacts where there were no three-story buildings in the area, and facility would be of high density. Evidence that proposed window-mounted air conditioning units would be noisier than units normally used in homes in the area, including testimony by an individual who had worked in the heating, ventilation, and air conditioning business for many years that the type of air conditioners selected tended to be extremely noisy and that numerous such units would subject the neighboring homes to a great deal of noise, was sufficient to show that the units would cause a significant noise impact.
     Citizens for Responsible and Open Government v. City of Grand Terrace (Corporation for Better Housing) - filed February 21, 2008, partial publication ordered March 13, 2008, Fourth District, Div. Two
     Cite as 2008 SOS 1538
     Full Text   

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-CEQA-
The prevailing party in a California Environmental Quality Act action may recover "reasonable costs or fees imposed for the preparation of the record" even if the non-prevailing party elected to prepare the record pursuant to Public Resources Sec. 21167.6 where the non-prevailing party’s actions had caused the prevailing party to expend considerable time and resources in responding to discovery demands and reflected a complete abandonment of the statutory responsibility to prepare a record at reasonable cost.
     St. Vincent’s School for Boys, Catholic Charities CYO v. City of San Rafael - filed March 18, 2008, First District, Div. Three 
     Cite as 2008 SOS 1571
      Full Text

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-Unlawful Detainer- 
Filing of unlawful detainer action, service of three-day notice to quit, and alleged oral threat to sue for eviction if tenants did not vacate all constituted protected activity under the anti-SLAPP statute, and tenants’ action alleging that such activities constituted retaliation and harassment "arose from" the protected activity, thus shifting burden to tenants to show a prima facie case to avoid special motion to strike. Plaintiffs could not demonstrate prima facie case to extent that defendants’ allegedly unlawful activities were within the scope of litigation privilege. Evidence that defendant’s lawyer represented to plaintiffs that their sublease was approved, subject only to plaintiffs and primary tenant signing an addendum and returning it to the lawyer; that the representations were made without reasonable grounds for believing them to be true, and were not true, and that they were made with the intent to induce the plaintiffs to move into defendant’s building; and that plaintiffs relied upon the representations and, by doing so, suffered damage as a result was sufficient to establish prima facie case of negligent misrepresentation, such cause of action not being based on privileged communications. Subtenants’ claims for breach of contract, for contractual and tortious breach of the covenant of quiet enjoyment, and for unfair business practices--based on allegations that landlord, by illegally evicting primary tenant, breached the terms of lease addendum providing that they would be entitled to occupy the premises under the terms of the master lease and that they would be entitled to all the rights and privileges of the master lease so long as they observed the requirements and conditions thereof--were barred by litigation privilege.
     1100 Park Lane Associates v. Feldman - filed February 25, 2008, publication ordered March 20, 2008, First District, Div. Two
     Cite as 2008 SOS 1621
    
  Full Text

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-Landlord and Tenant-
Filing of unlawful detainer action, service of three-day notice to quit, and alleged oral threat to sue for eviction if tenants did not vacate all constituted protected activity under the anti-SLAPP statute, and tenants’ action alleging that such activities constituted retaliation and harassment "arose from" the protected activity, thus shifting burden to tenants to show a prima facie case to avoid special motion to strike. Plaintiffs could not demonstrate prima facie case to extent that defendants’ allegedly unlawful activities were within the scope of litigation privilege. Evidence that defendant’s lawyer represented to plaintiffs that their sublease was approved, subject only to plaintiffs and primary tenant signing an addendum and returning it to the lawyer; that the representations were made without reasonable grounds for believing them to be true, and were not true, and that they were made with the intent to induce the plaintiffs to move into defendant’s building; and that plaintiffs relied upon the representations and, by doing so, suffered damage as a result was sufficient to establish prima facie case of negligent misrepresentation, such cause of action not being based on privileged communications. Subtenants’ claims for breach of contract, for contractual and tortious breach of the covenant of quiet enjoyment, and for unfair business practices--based on allegations that landlord, by illegally evicting primary tenant, breached the terms of lease addendum providing that they would be entitled to occupy the premises under the terms of the master lease and that they would be entitled to all the rights and privileges of the master lease so long as they observed the requirements and conditions thereof--were barred by litigation privilege.
     1100 Park Lane Associates v. Feldman - filed February 25, 2008, publication ordered March 20, 2008, First District, Div. Two
     Cite as 2008 SOS 1621
    
 
Full Text

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-Covenants, Conditions and Restrictions-
Action to require homeowners to reduce the height of or move a gate and a fence in the front of their residence that violated the height and setback requirements in the covenants, conditions, and restrictions and architectural guidelines adopted by their homeowner association was properly subjected to Code of Civil Procedure Sec. 336(b)’s five-year statute of limitations for enforcement of a "restriction" rather than the four-year statute in Sec. 337; Sec. 336(b) is not limited to recorded restrictions. Action was not barred by laches where defendants began building gate before they submitted an application for approval of their project and before the architectural committee got involved so that it would not have mattered whether plaintiff was diligent. Action was not barred by waiver where plaintiff followed its ordinary procedures in attempting to enforce setback requirement by sending letters demanding that defendants comply with the guidelines, inviting defendants to meet with board, and imposing fines prior to filing suit. Trial court did not err in excluding certain evidence of other nonconforming use where plaintiff addressed such use once it was brought to plaintiff’s attention.
     Pacific Hills Homeowners Association v. Prun - filed March 20, 2008, Fourth District, Div. Three
     Cite as 2008 SOS 1670
    
 Full Text

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-Homeowners Association-

Action to require homeowners to reduce the height of or move a gate and a fence in the front of their residence that violated the height and setback requirements in the covenants, conditions, and restrictions and architectural guidelines adopted by their homeowner association was properly subjected to Code of Civil Procedure Sec. 336(b)’s five-year statute of limitations for enforcement of a "restriction" rather than the four-year statute in Sec. 337; Sec. 336(b) is not limited to recorded restrictions. Action was not barred by laches where defendants began building gate before they submitted an application for approval of their project and before the architectural committee got involved so that it would not have mattered whether plaintiff was diligent. Action was not barred by waiver where plaintiff followed its ordinary procedures in attempting to enforce setback requirement by sending letters demanding that defendants comply with the guidelines, inviting defendants to meet with board, and imposing fines prior to filing suit. Trial court did not err in excluding certain evidence of other nonconforming use where plaintiff addressed such use once it was brought to plaintiff’s attention.
     Pacific Hills Homeowners Association v. Prun - filed March 20, 2008, Fourth District, Div. Three
     Cite as 2008 SOS 1670
    
 Full Text

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-Real Estate Litigation-
Action to require homeowners to reduce the height of or move a gate and a fence in the front of their residence that violated the height and setback requirements in the covenants, conditions, and restrictions and architectural guidelines adopted by their homeowner association was properly subjected to Code of Civil Procedure Sec. 336(b)’s five-year statute of limitations for enforcement of a "restriction" rather than the four-year statute in Sec. 337; Sec. 336(b) is not limited to recorded restrictions. Action was not barred by laches where defendants began building gate before they submitted an application for approval of their project and before the architectural committee got involved so that it would not have mattered whether plaintiff was diligent. Action was not barred by waiver where plaintiff followed its ordinary procedures in attempting to enforce setback requirement by sending letters demanding that defendants comply with the guidelines, inviting defendants to meet with board, and imposing fines prior to filing suit. Trial court did not err in excluding certain evidence of other nonconforming use where plaintiff addressed such use once it was brought to plaintiff’s attention.
     Pacific Hills Homeowners Association v. Prun - filed March 20, 2008, Fourth District, Div. Three
     Cite as 2008 SOS 1670
    
Full Text

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-Land Use-
Town’s denial of developer’s request for special use permit to build retirement community in residential zoned area did not violate Fair Housing Amendments Act of 1988 because plaintiff failed to rebut town’s nondiscriminatory reasons for denying request where he could not establish that proposed community’s residents were disabled as defined by act, that town had approved permit for a "similarly situated party during a period relatively near" time it denied plaintiff a permit, that town’s denial of permit had a disproportionate impact on disabled, or that disabled individuals would "likely be denied an equal opportunity to enjoy the housing of their choice."
     Budnick v. Town of Carefree - filed March 11, 2008
     Cite as 06-15841
    
Full Text

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-Purchase and Sale Agreement-
Where homebuyers alleged that arbitration clause was contained in preprinted and "voluminous" documents, that there was no negotiation, that they understood the documents were being presented to them on a "take it or leave it" basis, that they generally were not familiar with real estate documents or with "legalese," and that they were not told to read to read warranty--which contained arbitration provisions, although those provisions were not limited to warranty disputes--before signing and were not given enough time to read the warranty or any of the other documents, issue as to whether homebuyers knowingly agreed to arbitrate was subject to judicial determination regardless of provision requiring that issues regarding enforceability of arbitration clause be submitted to arbitration. Where reality of transaction was that plaintiffs had to accept arbitration provisions if they wanted to buy a house, provisions were part of a preprinted form contract, any attempt to negotiate over the terms of the warranty would have been fruitless, the provisions took up one page of a 30-page booklet that was buried in "voluminous" stack of purchase and sale documents, and plaintiffs were never asked to read the arbitration provisions before signing, those provisions were adhesive and unconscionable, and trial court correctly exercised its discretion by refusing to enforce them.
     Bruni v. Didion - filed March 12, 2008, Fourth District, Div. Two
     Cite as 2008 SOS 1527
    
Full Text

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-Partnerships-
Where general partner of California limited partnership proposed a self-interested transaction via proxy statement that was later ratified by majority of partners, including partner and affiliates with interests in transaction, district court erred in dismissing suit challenging ratification; only partnership agreement could vary Corp. Code Sec. 16103(b)(3)(B)’s unanimous ratification requirement, and it was "manifestly unreasonable" for partnership agreement to include votes cast by interested general partner or affiliates in ratification vote.
     Perretta v. Prometheus Development Company, Inc. - filed March 27, 2008
     Cite as 06-15526
    
Full Text

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-Title Insurance-
A third party that pays a tax to eliminate a tax lien on the third party’s property is bound by the assessment on the property under 26 U.S.C. Sec. 7426(c), and title insurance companies who paid taxes to eliminate tax liens on properties could not challenge assessment under 28 U.S.C. Sec. 1346’s general grant of jurisdiction in district courts for taxpayer suits against IRS.
     First American Title Insurance Company v. United States - filed March 27, 2008
     Cite as 05-35520
     Full Text

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-Federal Tax Liens-
A third party that pays a tax to eliminate a tax lien on the third party’s property is bound by the assessment on the property under 26 U.S.C. Sec. 7426(c), and title insurance companies who paid taxes to eliminate tax liens on properties could not challenge assessment under 28 U.S.C. Sec. 1346’s general grant of jurisdiction in district courts for taxpayer suits against IRS.
     First American Title Insurance Company v. United States - filed March 27, 2008
     Cite as 05-35520
    
 Full Text

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Real Property Scheduled Events -- Sign Up Now

  • May 7
    Landlord Tenant Bankruptcy Issues  (Sign Up Now)
  • May 13
    Recent Cases: Title Insurance  (Sign Up Now)
  • May 14
    Risk Allocation: Negotiating Environmental Indemnities  (Sign Up Now)
  • May 21
    Fundamentals of Drafting and Negotiating Commercial Real Estate Loan Documentation  (Sign Up Now)
  • May 22
    Letters of Credit: Their Usage in Commercial Real Estate Leases  (Sign Up Now)
  • May 27
    Mechanics Lien Law: Is the World About to Change?  (Sign Up Now)
  • June 10
    Real Property Section 10th Annual Installation and Awards Dinner  (Sign Up Now)

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Los Angeles County Bar Association
2006 Real Property Section Newsletter

REAL PROPERTY SECTION REVIEW
Daniel L. Goodkin, Editor    *   Norman A. Chernin, Co-Editor

SECTION OFFICERS
Chair
Norma J. Williams

First Vice-Chair
Timothy M. Truax

Second Vice-Chair
Donald C. Nanney

Treasurer
Michael S. Klein

Secretary
Pamela L. Westhoff

Immediate Past-Chair
Paula K. Reddish Zinnemann

Terrina Scott,
Section Administrator

EXECUTIVE COMMITTEE MEMBERS

Nedra Austin
Norman A. Chernin
Brant Dveirin
David Fu
Daniel L. Goodkin
John E. Hatherley
Trudi J. Lesser
Rebecca H. Lessley
Gregg J. Loubier
Thomas F. Quilling



Patricia Higuera,
Barristers Liaison  

D. Eric Remensperger
Michael G. Smooke
Linda E. Spiegel
Sarah J. Spyksma
Theresa C. Tate
Pamela L. Westhoff
John W. Whitaker
Valerie Wisot
Andrew J. Yamamoto
Sharon Yarber


David Fu and
   Donald C. Nanney
State Bar Liaisons

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