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

July 2008     

 

 


Click Here for Details
Castle Lyons Expert Real Estate Witness


Recent Cases

Cases from June 1 through June 31

-CEQA- -Landlord and Tenet-
-Landlord and Tenet- -Easements-
-Dedications- -Trust Deed Foreclosure-
-Homeowners Associations- -Bankruptcy-
-Real Property Taxation- -Real Property Litigation-
-Purchase and Sale Agreement- -Real Property Litigation-
-Land Use- -Commercial Leasing-
-Real Property Foreclosure- -Eminent Domain-
-Eminent Domain- -Indian Land-
-Bankruptcy- -Partnership Taxation-
-Indian Land-

-Scheduled Events-


-CEQA-
Where "notice of determination" under CEQA was erroneously dated, prompting local agency to issue a new notice that was not designated "corrected," plaintiffs were entitled to rely on date of second notice as triggering 30-day limitations period governing challenge to the adequacy of underlying EIR. Where EIR specifically described project area, which was located in unincorporated area within city’s sphere of influence, while explaining that area would be annexed in phases and that large areas of open space would likely not be annexed, lack of specificity as to annexation boundaries did not render EIR inadequate. Contention that EIR failed to evaluate environmental effects of project as a whole, commonly referred to as a "fallacy of division" claim, was not subject to judicial review where plaintiff failed to exhaust administrative remedies.

Sierra Club v. City of Orange - filed April 30, 2008, publication ordered May 30, 2008, Fourth District, Div. Three
    Cite as 2008 SOS 3217
     Full text

Back to Top


-Landlord and Tenant-
Where defendant owner of a retail mall was restored to possession of unit containing restaurant after unlawful detainer action, and plaintiff who was subsequently injured after slipping and falling at party at restaurant--which remained operating--brought suit against restaurant and mall owner, trial court correctly instructed jury that a landlord must act reasonably to correct defects it knew or should have known about, but erred where it failed to instruct as to landlord’s duty to inspect, which attached upon entry of judgment of possession.

Stone v. Center Trust Retail Properties, Inc. - filed May 30, 2008, Second District, Div. Eight
     Cite as 2008 SOS 3256
     Full text

Back to Top


-Landlord and Tenant-
A plaintiff seeking to establish a cause of action under the Unruh Civil Rights Act and the Disabled Persons Act based solely upon the existence of a structural barrier to wheelchair access must show that the failure to remove the barrier constituted a violation of a structural access standard set forth in other provisions of law, and no such structural access standards are applicable to the residential and common areas of a private residential apartment complex. The presence of a leasing office does not affect this result.

Coronado v. Cobblestone Village Community Rentals - filed June 4, 2008, Fifth District
     Cite as 2008 SOS 3335
     
Full text

Back to Top


-Easement-
Where a right-of-way offered for dedication to the public is subject to one or more private easements, the use of the road must exceed the scope of permissible use under the easements to constitute an implied acceptance of the offer of dedication; if the use of the property is consistent with a private easement, there is no basis for finding an implied acceptance of an offer of dedication by public use. A statutory offer of dedication may be revoked by the offeror to preclude later, implicit acceptance by public use, even though the offer must remain open as to the public entity to which the offer was made under the provisions of the Subdivision Map Act.

Biagini v. Beckham - filed June 9, 2008, Third District
     Cite as 2008 SOS 3397
     
Full text

Back to Top


-Dedications-
Where a right-of-way offered for dedication to the public is subject to one or more private easements, the use of the road must exceed the scope of permissible use under the easements to constitute an implied acceptance of the offer of dedication; if the use of the property is consistent with a private easement, there is no basis for finding an implied acceptance of an offer of dedication by public use. A statutory offer of dedication may be revoked by the offeror to preclude later, implicit acceptance by public use, even though the offer must remain open as to the public entity to which the offer was made under the provisions of the Subdivision Map Act.

Biagini v. Beckham - filed June 9, 2008, Third District
     Cite as 2008 SOS 3397
     
Full text

Back to Top


-Trust Deed Foreclosure-
Bidders at a foreclosure sale may not complain about the manner or means of actual foreclosure and cannot claim the benefit of the doctrine of election of remedies. Where defendants purchased certain real property with cashier’s checks at a trustee’s sale, then submitted to the bank affidavits under penalty of perjury in which defendants falsely stated that the cashier’s checks had been lost to stop the sale, and plaintiff later disposed of the property in a new foreclosure sale, defendants were not prejudiced by the later sale of the property. Civil Code Sec. 2924h--which imposes penalties for the cancellation of an instrument submitted to the trustee as a cash equivalent at a nonjudicial foreclosure sale--does not encompass the "stop payment" of cashier’s checks submitted to the trustee as payment because a cashier’s check is a term of art and not a "cash equivalent" within the meaning of Sec. 2924h. The remedies provided by Sec. 2924h are not exclusive, and California courts have repeatedly allowed parties to pursue additional remedies for misconduct arising out of a nonjudicial foreclosure sale when not inconsistent with the policies behind the statutes. Exclusivity could not be applied to immunize the fraudulent and apparently felonious conduct of defendants.

California Golf, L.L.C. v. Cooper - filed June 9, 2008, Second District, Div. Three
     Cite as 2008 SOS 3403
     
Full text

Back to Top


-Homeowners Associations-
Where nonprofit corporation sponsored and formed various stock cooperatives and a condominium project, and the articles of incorporation, declaration of trust, and management agreements for the nonprofit corporation required that the corporation manage certain residential buildings, common areas, and facilities, the corporation was an "association" subject to the Davis-Stirling Common Interest Development Act.

Golden Rain Foundation v. Franz - filed June 10, 2008, Fourth District, Div. Three
     Cite as 2008 SOS 3425

      Full text

Back to Top


-Bankruptcy-
Where corporation declared Chapter 11 bankruptcy, and before corporations submitted a plan to the bankruptcy court, court authorized corporation to sell its assets, approved a settlement agreement with creditors, and granted debtor an exemption under 11 U. S. C. Sec. 1146(a)--which provides a tax-stamp exemption for "any asset transfer under a plan confirmed under [Bankruptcy Code] section 1129"--court erred in granting the exemption because the exemption only applies to transfers made pursuant to a Chapter 11 plan that has been confirmed. Sec. 1146(a)’s exemption does not apply to pre-confirmation transfers necessary to the consummation of a confirmed Chapter 11 plan.

Florida Department of Revenue v. Piccadilly Cafeterias, Inc. - filed June 16, 2008
     Cite as 07-312

      Full text

Back to Top


-Real Property Taxation-
Where owners purchased a single piece of commercial property and received a single yearly tax bill for an appropriate amount of taxes, which they timely paid, and had no reason to suspect that--due to assessor’s errors--a small portion of their property was being assessed separately and tax bills were being sent to a previous owner, neither the fact that the owners were delinquent on their property taxes on the small parcel nor their receipt of a notice--which listed names unknown to them as the owners of the property--containing a legal description that did not match the description on their yearly tax bill and instructing them to return the notice if they believed it had been sent to them in error was sufficient to place them on actual or constructive notice that the small parcel was to be sold to cure tax delinquency. Where owners returned notice of tax delinquency based on reasonable belief it had been sent to them in error and heard nothing further from tax collector prior to receipt of a letter listing them for the first time as owners of the property and informing them that the property had been "sold at public auction for nonpayment of taxes," the letter placed owners for the first time on notice sufficient to disturb their possession of the property so that quiet title action brought within one year thereafter was timely.

Mayer v. L&B Real Estate - filed June 16, 2008
     Cite as 2008 SOS 3496
     
Full text

Back to Top


-Real Property Litigation-
Where owners purchased a single piece of commercial property and received a single yearly tax bill for an appropriate amount of taxes, which they timely paid, and had no reason to suspect that--due to assessor’s errors--a small portion of their property was being assessed separately and tax bills were being sent to a previous owner, neither the fact that the owners were delinquent on their property taxes on the small parcel nor their receipt of a notice--which listed names unknown to them as the owners of the property--containing a legal description that did not match the description on their yearly tax bill and instructing them to return the notice if they believed it had been sent to them in error was sufficient to place them on actual or constructive notice that the small parcel was to be sold to cure tax delinquency. Where owners returned notice of tax delinquency based on reasonable belief it had been sent to them in error and heard nothing further from tax collector prior to receipt of a letter listing them for the first time as owners of the property and informing them that the property had been "sold at public auction for nonpayment of taxes," the letter placed owners for the first time on notice sufficient to disturb their possession of the property so that quiet title action brought within one year thereafter was timely.

Mayer v. L&B Real Estate - filed June 16, 2008
     Cite as 2008 SOS 3496
     Full text


-Purchase and Sale Agreement-
Where a buyer and seller executed the standard California residential purchase agreement, which bars attorney fees for a party who commences litigation without first attempting to mediate the dispute, and the buyer later filed suit without first offering mediation, buyer was not entitled to an award of attorney fees despite prevailing at trial.

Lange v. Schilling - filed May 28, 2008, publication ordered June 16, 2008, Third District
     Cite as 2008 SOS 3520
     Full text

Back to Top


-Real Property Litigation-
Where a buyer and seller executed the standard California residential purchase agreement, which bars attorney fees for a party who commences litigation without first attempting to mediate the dispute, and the buyer later filed suit without first offering mediation, buyer was not entitled to an award of attorney fees despite prevailing at trial.

Lange v. Schilling - filed May 28, 2008, publication ordered June 16, 2008, Third District
     Cite as 2008 SOS 3520
     Full text

Back to Top


-Land Use-
Requirement of State Aeronautics Act that local airport land use compatibility plans be "consistent with" applicable Air Force "air installation compatible use zones" does not mandate that safety and noise standards used in such a plan be identical to those in relevant AICUZ but only that plan be compatible with those in AICUZ. Adoption by local airport land use commision of a louder noise contour than that sought by plaintiff citizens was not arbitrary where it was consistent with act's requirement that commission be "guided by" California Airport Land Use Planning Handbook prepared by Department of Transportation.

Muzzy Ranch Co. v. Solano Country Airport Land Use Commission - filed June 19, 2008, First District, Div. Five
      Cite as 2008 SOS 3646

      Full text

Back to Top


-Commercial Leasing-
Where contract provision for extending the term of bank’s lease stated that bank’s rent would be at the "prevailing rate" and was not to exceed rent paid by a competitor or "successor" in the same shopping center, the term "successor" as used in the contract meant successor in interest; where bank’s competitor was defunct and had no successor in interest, the contract required bank to pay the prevailing rate paid by nearby financial institutions as calculated by defendant’s expert.

California National Bank v. Woodbridge Plaza LLC - filed May 30, 2008, publication ordered June 20, 2008, Fourth District, Div. Three
     Cite as 2008 SOS 3663
      Full text

Back to Top


-Real Property Foreclosure-
Code of Civil Procedure Sec. 580a--which requires an appraisal of real property security before the court may issue a deficiency judgment--does not apply to guarantors. Where defendants structured a trust to separate defendants as individuals from the trust, defendants were not principal obligors to a loan made to the trust but true guarantors.

Talbott v. Hustwit - filed June 20, 2008, Fourth District, Div. Three
     Cite as 2008 SOS 3674
      Full text

Back to Top


-Eminent Domain-
Where landowner argued that government’s condemnation of easement for construction of power transmission lines diminished value of adjoining land as a result of electromagnetic fields generated, district court did not abuse its discretion in declining to allow owner’s expert witness to testify about specific levels of electromagnetism or types of questions developers typically ask about such fields because evidence lacked probative value in absence of any evidence linking higher levels with specific public perceptions or market effects, and could have plausibly misled jury into thinking that fields posed a proven health risk to humans.

United States v. Campion - filed June 24, 2008
     Cite as 06-15410
     Full text

Back to Top


-Eminent Domain-
Where Congress appropriated funds to federal agency to construct energy transmission lines and attendant facilities, agency’s exercise of eminent domain for the construction of a high-voltage transmission line was congressionally authorized and for a public purpose. Federal Power Act expressly preempts state law requirements with respect to the regulation of electronic power transmission networks. District court did not err in allowing condemnation action to proceed without requiring the government to join all owners of fractional interests in the property where the government investigated the title history and current interests in the land, enrolled the services of an outside title investigator and attempted to cooperate with the defendants in an effort to identify all interest owners. Government was not required to serve non-objecting defendants who did not file a notice of appearance with its motion for judgment on the pleadings. District court did not abuse its discretion in apportioning total compensation by accepting at face value the ownership information provided by the government in the absence of a contractual agreement among the property owners where no property owner objected to the court’s apportionment or presented conflicting ownership data, and the court provided an opportunity for unknown fractional owners to obtain a share of the award at a later time.

United States v. Sawyer - filed June 24, 2008
     Cite as 05-17347
     Full text

Back to Top


-Indian Land-
Where a non-Indian bank sold land owned in fee simple on a tribal reservation to non-Indians and an Indian couple who had been leasing the land with an option to purchase filed suit in a tribal court alleging discrimination, the bank had standing to pursue a challenge in federal court. Tribal court did not have jurisdiction to adjudicate a discrimination claim concerning non-Indian bank's land sale because the court lacked civil authority to regulate the bank's sale; tribes do not possess authority over non-Indians who come within their borders, and once tribal land is converted into fee simple, the tribe loses plenary jurisdiction over the land.

Plains Commerce Bank v. Long Family Land and Cattle Co., Inc. - filed June 25, 2008
     Cite as 07-411

      Full text

Back to Top


-Bankruptcy-
Sec. 505(a)(1) of Bankruptcy Code provides for bankruptcy jurisdiction over a debtor's partnership items; where government determined that partnership was liable for tax deficiency after holding informal conferences with partners, partners failed to timely petition for readjustment under Tax Equity And Fiscal Responsibility Act of 1982, and owner of majority share of partnership then initiated chapter 11 proceeding in which it objected to government's $13.1 million tax claim, district court erred in concluding that statutory res judicata provision in 11 U.S.C. Sec. 505(a)(2) and TEFRA--which provides that tax treatment of partnership items ordinarily must be determined at partnership level--deprived it of subject matter jurisdiction to redetermine debtor's tax liability.

Central Valley AG Enterprises v. United States - filed June 25, 2008
     Cite as 05-16177 

       Full text

Back to Top


-Partnership Taxation-
Sec. 505(a)(1) of Bankruptcy Code provides for bankruptcy jurisdiction over a debtor's partnership items; where government determined that partnership was liable for tax deficiency after holding informal conferences with partners, partners failed to timely petition for readjustment under Tax Equity And Fiscal Responsibility Act of 1982, and owner of majority share of partnership then initiated chapter 11 proceeding in which it objected to government's $13.1 million tax claim, district court erred in concluding that statutory res judicata provision in 11 U.S.C. Sec. 505(a)(2) and TEFRA--which provides that tax treatment of partnership items ordinarily must be determined at partnership level--deprived it of subject matter jurisdiction to redetermine debtor's tax liability.

Central Valley AG Enterprises v. United States - filed June 25, 2008
     Cite as as 05-16177
     Full text

Back to Top


-Indian Land-
Where Indian tribe signed agreement with casino developer and later sought to proceed with different developer, but both contracts were later rescinded, there was no "case or controversy" at issue in tribe’s action for declaratory judgment action against first developer, and district court lacked subject matter jurisdiction. Under 25 U.S.C. Sec. 81, which requires Department of the Interior to approve any "contract with an Indian tribe that encumbers Indian lands for a period of 7 or more years" before such a contract can be considered valid, and defines Indian lands in part as those to which title "is" held by United States in trust for an Indian tribe, approval is only required as to contracts that implicate lands already held in trust, and tribe’s contract with first developer that did not implicate such lands remained valid without approval. The contract did not violate Sec. 2710--which requires that a tribe have "sole proprietary interest and responsibility for any gaming activity"--because statute pertains only to tribal ordinances and resolutions, not to an agreement with a third party.  made.

Guidiville Band of Pomo Indians v. NGV Gaming, Ltd. - filed June 26, 2008
      Cite as 05-17066
     Full text

Back to Top


   

Real Property Scheduled Events -- View All Real Property Events -- Sign Up Now

  • October 13
    TAP Jury Selection Workshop (1:30 PM)  Sign Up Now
  • October 23
    iBrain: Surviving the Technological Alteration to the Brain (5:00 PM)  Sign Up Now

Back to Top


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


 

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
Donald C. Nanney

First Vice-Chair
Michael S. Klein

Second Vice-Chair
Pamela L. Westhoff

Treasurer
Gregg J. Loubier

Secretary
Theresa C. Tate

Immediate Past-Chair
Timothy M. Truax

Norma J. Williams,
Chair Emeritus

Terrina Scott
Section Administrator

EXECUTIVE COMMITTEE MEMBERS

Eric Altoon
Nedra E. Austin
Susan J. Booth
James L. Brat
Norman A. Chernin
Brant H. Dveirin
Daniel L. Goodkin
Rebecca H. Lessley

Peter J. Niemiec
D. Eric Remensperger
Devid C. Sampson
Michael G. Smooke
Linda E. Spiegel
Sarah J. Spyksma
Valerie Wisot
Andrew J. Yamamoto


SUB-SECTION CHAIRS
Commercial Development & Leasing, Marcia Z. Gordon
Construction Law, Brian Ostler
Land Use Planning & Environmental Law, Claire Hervey Collins
Real Estate Finance, Caroline Dreyfus
General Real Estate Law, Nadav Ravid
Title Insurance, David M. Marcus