Volume 3, Number 7 Join the Real Property Section Contact Us

June 2008     

 

 

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Recent Cases

Cases from May 1 through May 31

-Water Law- -Easements-
-Construction Law- -Real Property Litigation-
-Land Use- -CEQA-
-Land Use- -CEQA-
-Rent Control- -Real Property Litigation-
-Real Property Litigation- -Construction Law-
-CEQA- -Real Property Litigation-
-Inverse Condemnation- -Land Use-
-Real Property Litigation- -Environmental Law-
-Real Property Litigation- -Landlord and Tenant-
-Real Property Litigation- -Construction Law-
-Homeowners Association- -Landlord and Tenant-

-Scheduled Events-


-Water Law-
California law recognizes prescriptive water rights between private parties where substantial evidence supported the trial court’s finding that plaintiff’s extraction of water from a stream through an existing waterline across defendant’s property satisfied the elements for a claim for prescriptive easement. A claimant’s use of a water right is not hostile to the rights of another if the claimant simultaneously acknowledges the very same right was held by the owner of record.

Brewer v. Murphy - filed April 3, 2008, Fifth District
     Cite as 2008 SOS 2033
     Full text

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-Easements-
California law recognizes prescriptive water rights between private parties where substantial evidence supported the trial court’s finding that plaintiff’s extraction of water from a stream through an existing waterline across defendant’s property satisfied the elements for a claim for prescriptive easement. A claimant’s use of a water right is not hostile to the rights of another if the claimant simultaneously acknowledges the very same right was held by the owner of record.

Brewer v. Murphy - filed April 3, 2008, Fifth District
     Cite as 2008 SOS 2033
     Full text

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-Construction Law-
Where subcontractor sued general contractor over payment dispute, and general contractor--who responded with cross-complaint for overpayments, costs to finish abandoned work, and property damage--sought defense from insurer who also named subcontractor as an "insured," trial court correctly determined that insurer owed general contractor no defense and that indemnity or apportionment exception to policy exclusion for cross-suits among insureds was inapplicable because cross-complaint could not be characterized as pertaining to any third party property damage.

Great Western Drywall, Inc. v. Interstate Fire & Casualty Company - filed March 12, 2008, ordered published April 7, 2008, Fourth District, Div. One
     Cite as 2008 SOS 2058
     
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-Real Property Litigation-
Filing of notice of lis pendens in superior court, naming of certain persons as defendants in lawsuit, filing of notice of rescission as a legal prerequisite to filing of a rescission action, requests to police and prosecutors for initiation of official proceedings, and other communications with government departments as part of an investigation which was undertaken in anticipation of litigation constituted protected activity for purposes of the anti-SLAPP statute. Evidence that defendant, a former owner of a home purchased by plaintiff, trespassed on the property in pursuit of his assertion that it was obtained from him illegally was insufficient to establish a prima facie claim for interference with prospective advantage--based on plaintiff’s contention that this would make the property harder to sell or to refinance--since plaintiff did not show that the defendant’s action disrupted an existing relationship with a potential buyer or lender.

Salma v. Capon - filed April 9, 2008, First District, Div. Five
     Cite as 2008 SOS 2103
     
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-Land Use-
Where petitioners sought to compel city to rescind permit for a wooden fence a homeowner had constructed atop ahistoric granite wall abutting his property, trial court did not err in holding that city properly granted exception tohomeowner from property-specific plan to protect wall under terms of plan and city’s municipal code becausesubstantial evidence supported finding of unnecessary hardship to homeowner and safety need for fence. Courterred in holding that city properly granted a categorical exemption to homeowner under California EnvironmentalQuality Act where permitting fence’s attachment to a historical monument was not a minor alteration of a land-uselimitation, and fence had a strong possibility of having an adverse impact on historic monument.

Committee to Save the Hollywoodland Specific Plan v. City of Los Angeles (Cutler) - filed March 12, 2008, publication ordered April 9, 2008, Second District, Div. Seven
     Cite as 2008 SOS 2110
     
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-CEQA-
Where petitioners sought to compel city to rescind permit for a wooden fence a homeowner had constructed atop ahistoric granite wall abutting his property, trial court did not err in holding that city properly granted exception to homeowner from property-specific plan to protect wall under terms of plan and city’s municipal code becausesubstantial evidence supported finding of unnecessary hardship to homeowner and safety need for fence. Courterred in holding that city properly granted a categorical exemption to homeowner under California EnvironmentalQuality Act where permitting fence’s attachment to a historical monument was not a minor alteration of a land-uselimitation, and fence had a strong possibility of having an adverse impact on historic monument.

Committee to Save the Hollywoodland Specific Plan v. City of Los Angeles (Cutler) - filed March 12, 2008, publication ordered April 9, 2008, Second District, Div. Seven
     Cite as 2008 SOS 2110
     
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-Land Use-
Where private university entered into agreement with county that the school would dedicate easements for and develop and maintain portions of trails that crossed its lands in order to satisfy the conditions of a general use permit, and county later adopted a resolution selecting the final alignment for one specific trail, certifying the trail’s Environmental Impact Report, determining no further environmental review was necessary, and executing an agreement authorizing portions of the trail to be developed outside of the county, a nonprofit group’s actionasserting that the county’s actions were a de facto modification of the permit conditions and invalid pursuant to theCalifornia Environmental Quality Act, though phrased in terms of seeking mandamus relief, was subject to the limitations period set forth in CEQA.

Committee for Green Foothills v. Santa Clara County Board of Supervisors (Board of Trustees of the Leland Stanford Junior University) - filed April 10, 2008, Sixth District
     Cite as 2008 SOS 2118

     
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-CEQA-
Where private university entered into agreement with county that the school would dedicate easements for and develop and maintain portions of trails that crossed its lands in order to satisfy the conditions of a general use permit, and county later adopted a resolution selecting the final alignment for one specific trail, certifying the trail’s Environmental Impact Report, determining no further environmental review was necessary, and executing anagreement authorizing portions of the trail to be developed outside of the county, a nonprofit group’s actionasserting that the county’s actions were a de facto modification of the permit conditions and invalid pursuant to theCalifornia Environmental Quality Act, though phrased in terms of seeking mandamus relief, was subject to the limitations period set forth in CEQA.

Committee for Green Foothills v. Santa Clara County Board of Supervisors (Board of Trustees of the Leland Stanford Junior University) - filed April 10, 2008, Sixth District
     Cite as 2008 SOS 2118

      Full text

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-Rent Control-
Code of Civil Procedure Sec. 1094.5, the administrative mandamus statute, does not apply to an action challenging the Department of Housing and Community Development’s denial of a request to increase rents in subsidized housing since the applicable statute does not require the Department to hold a hearing on the request. Claims that Department violated its contract with landlord by denying him a fair return on investment will support causes of action for breach of contract and for declaratory relief, plaintiff not being limited to an action for traditional mandamus.

300 DeHaro Street Investors v. Department of Housing and Community Development - filed April 10, 2008, Third District
     Cite as 2008 SOS 2139
     
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-Real Property Litigation-
Code of Civil Procedure Sec. 1094.5, the administrative mandamus statute, does not apply to an action challenging the Department of Housing and Community Development’s denial of a request to increase rents in subsidized housing since the applicable statute does not require the Department to hold a hearing on the request. Claims that Department violated its contract with landlord by denying him a fair return on investment will support causes of action for breach of contract and for declaratory relief, plaintiff not being limited to an action for traditional mandamus.

300 DeHaro Street Investors v. Department of Housing and Community Development - filed April 10, 2008, Third District
     Cite as 2008 SOS 2139
     Full text


-Real Property Litigation-
Federal Arbitration Act does not, where parties have agreed to conduct their arbitration in accordance with California law, preempt state law permitting trial court to deny arbitration in cases where there are triable issues that are not subject to arbitration and separate proceedings might result in conflicting adjudications. Denial of arbitration was not an abuse of discretion where subcontractor sued general contractor, owner, and building inspectors, alleging that general contractor failed to pay full sum due and that building inspectors hindered subcontractor in its work; general contractor, subcontractor, and owner were parties to arbitration agreements, but building inspectors were not; and there was risk of inconsistent adjudications based on conflicting conclusions as to whether inspectors were owner’s agents and whether inspectors were negligent.

Best Interiors, Inc. v. Millie and Severson, Inc. - filed March 12, 2008, publication ordered April 11, 2008, Second District, Div. Eight
     Cite as 2008 SOS 2167
     Full text

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-Construction Law-
Federal Arbitration Act does not, where parties have agreed to conduct their arbitration in accordance with California law, preempt state law permitting trial court to deny arbitration in cases where there are triable issues that are not subject to arbitration and separate proceedings might result in conflicting adjudications. Denial of arbitration was not an abuse of discretion where subcontractor sued general contractor, owner, and building inspectors, alleging that general contractor failed to pay full sum due and that building inspectors hindered subcontractor in its work; general contractor, subcontractor, and owner were parties to arbitration agreements, but building inspectors were not; and there was risk of inconsistent adjudications based on conflicting conclusions as to whether inspectors were owner’s agents and whether inspectors were negligent.

Best Interiors, Inc. v. Millie and Severson, Inc. - filed March 12, 2008, publication ordered April 11, 2008, Second District, Div. Eight
     Cite as 2008 SOS 2167
      Full text

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-CEQA-
Trial court did not err in dismissing activists' petition for a writ of mandate setting aside water supply assessment for a planned development prepared as a part of city's environmental impact report and review process required under the California Environmental Quality Act because assessment was a technical, informational document, and not a "final" act or determination subject to direct mandamus review, and because activists' failure to submit complaints about assessment to lead agency and wait until it acted prior to seeking judicial intervention constituted a failure to exhaust administrative remedies.

California Water Impact Network v. Newhall County Water District (GateKing Properties) - filed April 16, 2008, Second District, Div. Seven
      Cite as 2008 SOS 2200
      Full text

    

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-Real Property Litigation-
Trial court did not err in dismissing activists' petition for a writ of mandate setting aside water supply assessment for a planned development prepared as a part of city's environmental impact report and review process required under the California Environmental Quality Act because assessment was a technical, informational document, and not a "final" act or determination subject to direct mandamus review, and because activists' failure to submit complaints about assessment to lead agency and wait until it acted prior to seeking judicial intervention constituted a failure to exhaust administrative remedies.

California Water Impact Network v. Newhall County Water District (GateKing Properties) - filed April 16, 2008, Second District, Div. Seven
     Cite as 2008 SOS 2200
      Full text

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-Inverse Condemnation-
The constitutionally grounded self-executing nature of the Takings Clause does not override a state’s Eleventh Amendment immunity; thus, the Eleventh Amendment bars a reverse condemnation action brought in federal court against state officers in their official capacities. Reverse condemnation actions cannot qualify as claims for prospective relief.

Seven Up Pete Venture v. Schweitzer - filed April 21, 2008
     Cite as 06-35384
     
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-Land Use-
A disappointed applicant to a local agency formation commission may not take the depositions of the commissioners
to learn what, if any, extra-record information the commissioners had when they denied the application because extra-record evidence is not admissible in an action or proceeding challenging a quasi-legislative administrative decision and because taking the commissioners' depositions would violate the deliberative process privilege

San Joaquin Local Agency Formation Commission v. Superior Court (South San Joaquin Irrigation District) - filed April 22, 2008, Third District
     Cite as 2008 SOS 2328
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-Real Property Litigation-
A disappointed applicant to a local agency formation commission may not take the depositions of the commissioners to learn what, if any, extra-record information the commissioners had when they denied the application because extra-record evidence is not admissible in an action or proceeding challenging a quasi-legislative administrative decision and because taking the commissioners' depositions would violate the deliberative process privilege.

San Joaquin Local Agency Formation Commission v. Superior Court (South San Joaquin Irrigation District) - filed April 22, 2008, Third District

     Cite as 2008 SOS 2328
     
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-Environmental Law-
Where landowner sued previous owner who had operated a trap and skeet shooting range, alleging that environmental contaminants remained, and insurer who issued policy covering previous owner's business brought separate action seeking declaratory judgment that it did not owe previous owner a defense, trial court did not err in denying current property owner's motion to intervene in action between insurer and insured under Code of Civil Procedure Sec. 387 because current owner did not have a direct and immediate interest in action.

Royal Indemnity Company v. United Enterprises, Inc. - filed April 23, 2008, Fourth District, Div. One
     Cite as 2008 SOS 2337
     
Full text

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-Real Property Litigation-
Where landowner sued previous owner who had operated a trap and skeet shooting range, alleging that environmental contaminants remained, and insurer who issued policy covering previous owner's business brought separate action seeking declaratory judgment that it did not owe previous owner a defense, trial court did not err in denying current property owner's motion to intervene in action between insurer and insured under Code of Civil Procedure Sec. 387 because current owner did not have a direct and immediate interest in action.

Royal Indemnity Company v. United Enterprises, Inc. - filed April 23, 2008, Fourth District, Div. One
     Cite as 2008 SOS 2337

      Full text

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-Landlord and Tenant-
Where commercial landlord and tenant arbitrated rent dispute before a panel of three real estate brokers, one selected by each party and a neutral selected by two party-arbitrators, trial court erred in granting landlord's petition to vacate award in favor of tenant on grounds that neutral arbitrator had failed to disclose prior business dealings and political contributions between neutral's employer and tenant and its party-arbitrator because neutral arbitrator--who had no financial or other interest in his employer's dealings--had no duty under Code of Civil Procedure Sec. 1281.9 to disclose any transaction by his employer in which he had no financial interest or to seek out information about business transactions or political contributions unknown to him at time his disclosures were made.
     Casden Park La Brea Retail LLC v. Ross Dress For Less, Inc. - filed April 25, 2008, Second District, Div. One
     Cite as 2008 SOS 2415
     
 
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-Real Property-
Where commercial landlord and tenant arbitrated rent dispute before a panel of three real estate brokers, one selected by each party and a neutral selected by two party-arbitrators, trial court erred in granting landlord's petition to vacate award in favor of tenant on grounds that neutral arbitrator had failed to disclose prior business dealings and political contributions between neutral's employer and tenant and its party-arbitrator because neutral arbitrator--who had no financial or other interest in his employer's dealings--had no duty under Code of Civil Procedure Sec. 1281.9 to disclose any transaction by his employer in which he had no financial interest or to seek out information about business transactions or political contributions unknown to him at time his disclosures were made.
     Casden Park La Brea Retail LLC v. Ross Dress For Less, Inc. - filed April 25, 2008, Second District, Div. One
     Cite as 2008 SOS 2415
    
Full text

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-Construction Law-
A subcontractor who was not properly licensed at all times during its performance of a construction services contract was barred by the Construction Services Licensing Law from maintaining any action for recovery on any of the work the subcontractor performed because individual and "prefatory" tasks cannot be severed from an integrated agreement. The substantial compliance doctrine is unavailable to a contractor who has not been duly licensed at some point before beginning performance of the contract.

Great West Contractors, Inc. v. WSS Industrial Construction, Inc. - filed March 28, 2008, publication ordered April 28, 2008, Second District, Div. Eight
     Cite as 2008 SOS 2494
     Full text

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-Homeowners Association-
Trial court properly granted summary judgment in favor of the board of directors for a homeowners association because the board acted within its discretion under the association's restated declaration of restrictions when it determined that certain homeowners could use a portion of attic space common area for storage where the board had the "sole and exclusive right" to "manage" common areas and designate portions of common areas as "storage areas" so long as the portions of the common area were "nominal," adjacent to the owner's unit, and the use did not "unreasonably interfere with any other owner's use or enjoyment" of the property, and the undisputed evidence demonstrated that the board had conducted a reasonable, good faith investigation with regard to the best interests of the association. Board action was not invalid because directors who owned units that could access the attic space voted in favor of allowing limited exclusive use of the attic space common area.
     Harvey v. The Landing Homeowners Association - filed April 1, 2008, publication ordered April 30, 2008, Fourth District, Div. One
     Cite as 2008 SOS 2545
     
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-Landlord and Tenant-
Where man who was shot in attempted carjacking in ungated portion of common area of his apartment complex sued management company and property owners for failure to take steps to properly secure premises against foreseeable criminal acts of third parties, trial court erred in ruling that three prior violent crimes against others on premises' common areas were not sufficiently similar crimes to one perpetrated on plaintiff to impose a duty on defendants to protect tenants of apartment complex.
     Tan v. Arnel Management Company - filed April 29, 2008, Second District, Div. Three
     Cite as 2008 SOS 2557
     
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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)