Volume 3, Number 10 Join the Real Property Section Contact Us

September 2008     

 

 


Castle Lyons Expert Real Estate Witness


Recent Cases

Cases from August 1 through August 31

-Construction Law- -Purchase and Sale Agreements-
-Easements- -Rent Control-
-Homeowners' Associations- -Shopping Centers-
-Land Use- -Street Vacations-
-Land Use- -Williamson Act-
-Legal Descriptions-  
-Nuisances-  
-Nuisances-

-Scheduled Events-


-Construction Law-
Where general contractor indisputably did not retain control over methods and materials subcontractor used for work at construction site, burden shifted to plaintiff to produce evidence that contractor retained control over safety conditions and practices at site and contributed to unsafe condition that caused plaintiff’s injury. Cal-OSHA regulations requiring railing to be placed on elevated platforms like the one plaintiff fell from did not expand general contractor’s common law duty of care toward subcontractor’s employee.

Madden v. Summit View, Inc. - filed August 11, 2008, First District, Div. One
    Cite as 2008 SOS 4907
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-Easements-
Where scenic easement prohibited property owners operating a dog kennel from engaging in commercial activity but permitted owners to engage in "livestock farming...consistent with applicable State and local regulations," term "livestock" is ambiguous, and district court erred in holding as a matter of law that "livestock" could not include dogs absent a statutory reference in easement incorporating Idaho Code’s definition of "livestock" as opposed to dictionary meaning, which includes domesticated animals.

United States v. Park - filed August 11, 2008
     Cite as 06-35886
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-Homeowners' Associations-
Jury special verdicts finding homeowners’ association liable for harm, but not association’s individual directors, were not inconsistent and irreconcilable because association as an entity can be separately liable for its actions, even if actual decisions are made and carried out by directors. Although rule of judicial deference provides protection from personal liability for individual directors of non-profit homeowners’ association, same rule of judicial deference will not automatically provide cover to entity itself. Trial court did not abuse its discretion in awarding plaintiff attorney fees as prevailing party where plaintiffs were unsuccessful in efforts to force condominium complex to fill "slab penetrations," which was defendant’s main objective in defending suit, but plaintiffs prevailed on legal and equitable causes of action and were awarded damages by jury. Trial court did not abuse its discretion in determining that directors were not prevailing parties where plaintiffs prevailed and directors merely avoided liability.

Ritter & Ritter, Inc. v. The Churchill Condominium Association - filed July 22, 2008, publication ordered August 22, 2008, Second District, Div. Eight
     Cite as 2008 SOS 5129
     
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-Land Use-
Fifth Amendment's takings clause does not categorically preclude due process challenges to impermissible governmental action that deprives a person of real property, but homeowners' and community organizations' 42 U.S.C. Sec. 1983 action against city claiming it violated due process by not enforcing municipal code against developers whose construction allegedly degraded and devalued character of historic neighborhood failed to state a viable substantive due process claim because plaintiffs were not deprived of a constitutionally cognizable property interest where city and its employees did not act arbitrarily; plaintiffs' procedural due process claim that they were entitled to be heard before city granted permits was not viable--assuming without deciding that a property owner could have a constitutionally protected interest in proper application of zoning restrictions to neighboring properties--where code provisions did not contain mandatory language significantly constraining city's discretion and granting a substantive property right in procedure's outcome. District court correctly dismissed claim that city and developers violated National Historic Preservation Act because act does not create a private right of action. Plaintiffs' claim under city municipal code did not create federal subject matter jurisdiction where it presented no "necessarily raised" or "actually disputed" federal issue, no need existed for a federal forum to adjudicate a federal interest, and allowing state-law claim to go forward in federal court would undermine Congress' intended division of labor between state and federal courts.

Shanks v. Dressel - filed August 27, 2008
     Cite as 06-35665
     
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-Land Use-
Two-part nexus and rough proportionality test developed by United States and California supreme courts for use in land exaction taking litigation only applies in cases of individual adjudicative permit approval decisions, not to generally applicable legislative general zoning decisions, so ordinance requiring developers of multi-family housing to include affordable housing or to provide such housing offsite did not on its face take private property. City’s affordable housing ordinance was not a "housing element" under Government Code Sec. 65585(b); thus, ordinance did not need to be submitted to the Department of Housing and Community Development for review.

Action Apartment Association v. City of Santa Monica - filed August 28, 2008, Second District, Div. Five
Cite as 2008 SOS 5294
     
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-Legal Descriptions-
In resolving boundary dispute, trial court was not required to adhere to plat description where original surveyor’s field notes were part of legal description and rendered the description as a whole ambiguous, and did not err in admitting extrinsic evidence to resolve a claim of ambiguity in those field notes.

Claudino v. Pereira - filed August 12, 2008, Third District
     Cite as 2008 SOS 4894
     
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-Nuisances-
Although city may lawfully withdraw public dedication of a street and lease a portion to a private party for a commercial purpose, thereby impairing private and public easements therein even though street was situated on tidelands and held by city pursuant to common law public trust relating to tidelands and submerged lands, city could not vacate or close leased portion of street without complying with general statutes applicable to vacating or closing public streets. Under public trust doctrine, a leasehold estate that interferes with public and private rights to use a tidelands street can be adjudicated a nuisance and enjoined due to failure to comply with street closure statutes.

Zack’s, Inc. v. City of Sausalito - filed August 11, 2008, First District, Div. Two
     Cite as 2008 SOS 4870
     
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-Nuisances-
Because government liability under Government Code Sec. 815 may be based upon public nuisance per se, and blocking a public sidewalk is a nuisance per se, plaintiffs' allegations that fences erected by a neighbor on city property blocked public access to public pedestrian walkways supported a public nuisance per se action; plaintiffs were entitled to amend complaint to allege such cause of action. Where plaintiffs alleged fences also blocked public access to a pedestrian walkway area and sight lines for drivers entering and exiting plaintiffs' garage, because such interference with ingress and egress to and from a public street constitutes an actionable public and private nuisance, plaintiffs were entitled to amend complaint to include action for public nuisance as well.

Kempton v. Los Angeles - filed August 13, 2008, Second District, Div. Four
     Cite as 2008 SOS 4921

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-Purchase and Sale Agreements-
Where plaintiffs purchased homes from defendants, arbitration agreement contained in document that stated document existed "for the purpose of implementing the requirements of Title 7"--which is expressly limited to actions involving construction defects in new construction projects--did not encompass plaintiffs’ fraud-related claims. Where dispute resolution provision was included in document signed and recorded by defendants over two years before any plaintiff closed escrow and was given to plaintiffs with approximately 800 pages of documents that together comprised purchase agreement, arbitration provisions were unconscionable and unenforceable.

Thompson v. Toll Dublin, LLC - filed July 23, 2008, publication ordered August 13, 2008, First District, Div. Two
     Cite as 2008 SOS 4961

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-Rent Control-
As successor in interest, landlord was liable for unlawful rent increases imposed by former landlord/owner of apartment building against tenant in violation of local rent control ordinance. Civil Code Sec. 1466--which provides that "[n]o one, merely by reason of having acquired an estate subject to a covenant running with the land, is liable for a breach of the covenant before he acquired the estate"--did not preclude liability imposed by ordinance that was not preempted by state law. Rent ordinance did not violate due process where it was rationally related to city’s legitimate ends, and provided notice and an opportunity to respond.

Baychester Shopping Center, Inc. v. San Francisco Residential Rent Stabilization and Arbitration Board (Fingerhut) - filed June 3, 2008, publication ordered July 1, 2008, First District, Div. Four
     Cite as 2008 SOS 4814
     
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-Shopping Centers-

Where shopping malls promulgated and enforced restrictions on activities that identify mall owner, manager, or tenant by name; prohibited signage and written materials that interfere with "commercial purpose" of mall; prohibited carrying or wearing signs; required pre-submission of written materials; confined expressive activity to designated areas; and prohibited expressive activities during "peak traffic days," restrictions infringed on union’s free speech rights when applied to union picketing and hand-billing actions.

United Brotherhood of Carpenters and Joiners of America Local 848 v. National Labor Relations Board - filed August 25, 2008 District
     Cite as 05-75295
     
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-Street Vacations-

Although city may lawfully withdraw public dedication of a street and lease a portion to a private party for a commercial purpose, thereby impairing private and public easements therein even though street was situated on tidelands and held by city pursuant to common law public trust relating to tidelands and submerged lands, city could not vacate or close leased portion of street without complying with general statutes applicable to vacating or closing public streets. Under public trust doctrine, a leasehold estate that interferes with public and private rights to use a tidelands street can be adjudicated a nuisance and enjoined due to failure to comply with street closure statutes.

Zack’s, Inc. v. City of Sausalito - filed August 11, 2008, First District, Div. Two
     Cite as 2008 SOS 4870
     
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-Williamson Act-
Where county and landowner executed a land conservation contract pursuant to Williamson Act--which authorizes local governments to establish agricultural preserves and to execute contracts limiting the use of such land to agricultural and compatible uses, and which permits inclusion in such contracts of provisions more stringent than those required by the act--application of county’s amended preservation guidelines to contract executed before the amendments were approved was constitutional because the parties voluntarily renewed the contract numerous times, and the new contract created with each renewal incorporated the amended guidelines.

County of Humboldt v. McKee - filed August 15, 2008, First District, Div. Five
     Cite as 2008 SOS 5022

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

  • September 17
    Guide to Foreclosures - Part 1 (12:30 PM)
  • September 23
    Building Green and Still Making Economic Sense (12:30 PM) Sign Up Now

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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
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

Chair Emeritus
Norma J. Williams,

Section Administrator
Terrina Scott

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

 

Readers are advised that changes in the law may affect the accuracy of this publication or the functionality of links after the publication date.