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Introductory Comment
Recent Cases
Real Property Executive Committee:


Susan J. Booth

First Vice Chair
Caroline Dreyfus

Second Vice Chair
Claire Hervey-Collins

Eric Altoon

Misty Sanford  

Immediate Past Chair
Brant Dveirn  

Barristers Liaison
Christopher Bordenave

Section Administrator
Fatima Jones



Nedra E. Austin
Janna Boelke
James Earle
George Fatheree
Robert T. Flick
Daniel L. Goodkin
Owen P. Gross
Marybeth Heydt
Teresa Y. Hillery
Ben Howell
Laurence L. Hummer
Trudi Lesser
Kyle B. Marks
Beth Peterson
Linda E. Spiegel
Kelsey M. Thayer
Loretta Thompson
Seth Weissman



Michael Bayard
Norm Chernin
Peter Gelles
Byron Hayes
Gordon Hunt
Bryan Jackson
Michael Klein
Mark Lamken
Gregg Loubier
Victor Marmon
O'Malley Miller
Donald Nanney
Gytis Nefas
James Richman
Ronald Silverman
Sarah Spyksma
Theresa Tate
Timothy Truax
Richard Volpert
Ira Waldman,
Pamela Westhoff
Norma Williams
Paula Reddish Zinneman


Commercial Development and Leasing
Marcia Gordon
Construction Law
Donna Kirkner
Jane Hinton
General Real Property
Rachel Sanders
Land Use Planning & Environmental Law
Brandon Ward
Title Insurance
Zi Lin



Introductory Comment

There are several cases this month for your educational enjoyment.

Teresa Y. Hillery
Editor, Real Property Section Newsletter
E-mail address:

Recent Cases
- CEQA -

Discovery rule cannot be held to postpone accrual of an action challenging a determination that CEQA review was not required beyond the date petitioners had constructive notice of the determination under Public Resources Code Sec. 21167(d).

Communities for a Better Environment v. Bay Area Air Quality Management District (Kinder Morgan Material Services, LLC) - filed July 19, 2016, First District, Div. One
Cite as 2016 S.O.S. 3640
Full text click here

CEQA "thresholds of significance" for air pollutants--including greenhouse gases, toxic air contaminants, and particulate matter with a diameter of 2.5 microns or less--were not invalid on their face, but may not be used to routinely assess the effect of existing environmental conditions on future users or occupants of a project.

California Building Industry Association. v. Bay Area Air Quality Management District - filed Aug. 12, 2016, First District, Div. Five
Cite as 2016 S.O.S. 4177
Full text click here 

A car wash generally fits within the definition of commercial buildings in CEQA Guidelines Sec. 15303(c), which categorically exempts from review "construction and location of limited numbers of new, small facilities or structures" and "installation of small new equipment and facilities in small structures."

Walters v. City Redondo Beach (Redondo Auto Spa) - filed July 21, 2016, Second District, Div. Six
Cite as 2016 S.O.S. 3699
Full text click here > 

- Contaminated Land -

Under the Comprehensive Environmental Response, Compensation, and Liability Act, the owner-operator of a smelter could not be said to have arranged for the "disposal" of hazardous substances that were emitted by the smelter into the air, and contaminated land and water downwind. The owner-operator therefore could not be held liable for cleanup costs and natural resource damages under 42 U.S.C. Sec. 9607(a)(3).

Pakootas v. Teck Cominco Metals, LTD. - filed July 27, 2016
Cite as 2016 S.O.S. 15-35228
Full text click here

- Easements -

Substantial evidence did not support trial court's finding that a public trail easement was established by implied public dedication through defendants' property for hiking, jogging, and dog-walking. Although at the time a fire road was created, the property owners and public could reasonably contemplate it would be used by hikers and, as such would not materially increase the burden on the servient tenement. The parties could not reasonably contemplate the hikers' use would become permanent, because transforming a temporary, mutable easement into one that is permanent and immovable would substantially increase the burden on the servient tenement by restricting its future development.

Friends of the Hastain Trail v. Coldwater Development LLC - filed July 27, 2016, Second District, Div. One
Cite as 2016 S.O.S. 3794
Full text click here 

- Eminent Domain -

The statutory procedures established by the California Eminent Domain Law relating to precondemnation entry and testing require a public entity, before undertaking such entry and testing, to seek and obtain a court order specifically authorizing the activities that are to be conducted on the property and to deposit in court an amount that the court determines is the probable compensation for the authorized activities, and permit the property owner to obtain damages in the same proceeding for any actual damage and substantial interference with the possession or use of the property caused by the public entity's entry and testing activities. This satisfies the California takings clause when reformed to permit the property owner to obtain a jury determination of damages in the proceeding if the property owner so chooses.

Property Reserve v. Superior Court (Department of Water Resources) - filed July 21, 2016
Cite as 2016 S.O.S. 3665
Full text click here 

When property owner challenges, on Fifth Amendment "takings" grounds, a requirement that it dedicate land to public use as a condition of obtaining approval to develop other land, the "essential nexus" and "rough proportionality" inquiries required by U.S. Supreme Court decisions are properly decided by a court, not by a jury. The statutory rule that "project effects" must be ignored in determining just compensation for a taking generally applies to situations where it was probable at the time a dedication requirement was put in place that the property designated for public use was to be included in the project for which the property is being condemned.

City of Perris v. Stamper - filed Aug. 15, 2016
Cite as 2016 S.O.S. 4160
Full text click here >  

- Foreclosure -

Plaintiff, who alleged that his original lender assigned his deed of trust to a securitized investment trust formed under New York law pursuant to a pooling and service agreement requiring that any loan included in the trust had to be transferred into the trust by the "closing date," failed to state a cause of action for wrongful foreclosure by the trust based on his DOT being transferred after that date. Under New York law, the late transfer was voidable, not void.

Yhudai v. Impac Funding Corporation - filed July 29, 2016, Second District, Div. One
Cite as 2016 S.O.S. 3908
Full text click here > 


Nonjudicial foreclosure sale conducted under Oregon statute will not be set aside based on a technical defect that did not substantially affect the grantor's rights.

Woods v. US Bank - filed Aug. 3, 2016
Cite as 2016 S.O.S. 13-36037
Full text click here >

- Historical Resource -

Trial court erred in failing to apply a deferential substantial evidence standard of judicial review to city's determination that a 90-year-old wooden railway bridge, which city proposed to demolish and replace with a steel bridge to service its trail system, was not a "historical resource" and therefore the project would not have a significant effect on the environment.

Friends of the Willow Glen Trestle v. City of San Jose - filed Aug. 12, 2016, Sixth District
Cite as 2016 S.O.S. 4100
Full text click here > 

-Homeowners Association -

Action to enforce a settlement agreement arising out of a mediation conducted pursuant to the mandatory alternative dispute resolution requirements of the Davis-Stirling Act was "an action to enforce the governing documents" of the plaintiff homeowner association, so the fee-shifting provision of Civil Code Sec. 5975(c) applied.

Rancho Mirage Country Club Homeowners Association v. Hazelbaker - filed Aug. 9, 2016, Fourth District, Div. Two
Cite as 2016 S.O.S. 4049
Full text click here > 

-Landlord Tenant -

Defendant, who prevailed in unlawful detainer action upon voluntary dismissal by plaintiff, was entitled to attorney fees pursuant to the fee shifting provision under Los Angeles Municipal Code Sec. 162.09(A)(5), which applies to unlawful detainer actions involving property in the City of Los Angeles's Rent Escrow Account Program. Civil Code Sec. 1717(b)(2), which precludes recovery of attorney fees pursuant to contract when an action has been voluntarily dismissed, did not apply because defendant sought fees under the local ordinance and not under a contract.

Intelligent Investments Corp. v. Gonzales; Superior Court of California, County of Los Angeles - filed June 14, 2016
Cite as 2016 S.O.S. 3648
Full text click here 

Lease's indemnity clause, whereby tenant agreed to indemnify landlords for claims "arising out of, involving or in connection with" his use or occupancy of leased office suite, barred cross-complaints by landlord against tenant in action by worker--whose employer was engaged by tenant to perform work in the suite--for damages resulting from slip-and-fall injury suffered in common area of the building. Connection between the tenant's use of his suite and the accident in stairwell over which the tenant had no control was too remote to have been within the contemplation of the parties when they entered into the lease.

Morlin Asset Management LP v. Murachanian - filed Aug. 8, 2016, Second District, Div. Eight
Cite as 2016 S.O.S. 4012
Full text click here > 

- Mining -

Property owner--as the prevailing party in a mandate proceeding challenging the county's designation of its surface mining operation as a legal nonconforming use--was entitled to recoup costs associated with the preparation of the administrative record, including labor costs of paralegals and attorneys to assemble the record.

No Toxic Air, Inc. v. Lehigh Southwest Cement Company - filed July 28, 2016, Sixth District
Cite as 2016 S.O.S. 3828
Full text click here > 

- Promissory Estoppel -

In general contractor's action for promissory estoppel against defendant--whose refusal to enter into subcontract after plaintiff used defendant's bid price in compiling its own bid to the owner that allegedly cost plaintiff the difference between defendant's bid and amount plaintiff was required to pay replacement subcontractor--substantial evidence supported verdict in favor of defendant. Plaintiff's alleged reliance on defendant's bid was unreasonable where plaintiff's letter of intent to enter into subcontract and standard-form subcontract sent to defendant differed materially from defendant's bid.

Flintco Pacific, Inc. v. TEC Management Consultants, Inc. - filed June 21, 2016, publication ordered July 19, 2016, Second District, Div. Three
Cite as 2016 S.O.S. 3644
Full text click here > 

- Quiet Title -

Quiet title claim, premised on the theory that a grant deed was void ab initio, is subject to a statute of limitation. Trial court did not err in concluding that claim brought 10 years after deed was recorded was time-barred. Plaintiff, the son of a joint tenant, did not state a claim for quiet title premised on the alternative theory that the joint tenancy was severed prior to his father's death. Plaintiff failed to sufficiently allege facts demonstrating such severance.

Walters v. Boosinger - filed Aug. 12, 2016, Fourth District, Div. One
Cite as 2016 S.O.S. 4127
Full text click here > 

- TILA -

A mortgage borrower may rescind the loan transaction under the Truth in Lending Act without filing a lawsuit, but when the rescission is challenged in litigation, the court has authority to decide whether the rescission notice is timely and whether the procedure set forth in the Truth in Lending Act should be modified in light of the facts and circumstances of the case.

U.S. Bank National Association v. Naifeh - filed July 19, 2016, First District, Div. Five
Cite as 2016 S.O.S. 3657
Full text click here 


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