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VOLUME 13 | NUMBER 8 | AUGUST 2018
 
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IN THIS ISSUE
 
Introductory Remarks
>
Coming Events
>
CLE Anytime
>
Recent Cases
>
 

The Real Property Section Newsletter is published monthly by the Real Property Law Section.

Editor:
Teresa Y. Hillery
Vice President and Trial Counsel
Fidelity National Law Group
Teresa.Hillery@fnf.com

 

Real Property Executive Committee:

SECTION OFFICERS

Chair
Claire Hervey Collins

First Vice Chair
Eric A. Altoon

Second Vice Chair
Kelsey M. Thayer

Treasurer
Laurence L. Hummer

Secretary
Rachel Meghan Sanders

Immediate Past Chair
Caroline Dreyfus

Section Administrator
Fatima Jones

 

EXECUTIVE COMMITTEE MEMBERS

Nedra E. Austin
Norman A. Chernin
Brant H. Dveirin
James C. Earle
Daniel Louis Goodkin
Marcia Z. Gordon, Esq
Owen P. Gross
Marybeth Heydt
Teresa Y. Hillery
Donna E. Kirkner
Daniel K. Liffmann
Misty Marie Sanford
Jesse I. Shapiro
Linda E. Spiegel
Loretta Thompson
Ira J. Waldman
Seth I. Weissman

 

EMERITUS MEMBERS

Michael Bayard
Susan J. Booth
Elizabeth Spedding Calciano
Peter Gelles
Byron Hayes
Gordon Hunt
Bryan Jackson
Michael Klein
Mark Lamken
Gregg Loubier
Victor Marmon
Jerold L. Miles
O'Malley Miller
Donald Nanney
Gytis Nefas
Sarah Spyksma
Theresa Tate
Timothy Truax
Richard Volpert
Pamela Westhoff
Norma Williams

 
SUBSECTION CHAIRS

Commercial Development and Leasing Subsection, Co-Chair
Herman Enayati

Commercial Development and Leasing Subsection, Co-Chair
Trudi J. Lesser

Construction Law Subsection Chair
John D. Hanover

General Real Estate Subsection Co-Chair
William J. Bernfeld

General Real Estate Subsection Co-Chair
Stacey A. Villagomez

Land Use Planing and Environmental Law Subsection Chair
Rosslyn "Beth" Stevens Hummer

Real Estate Finance Subsection, Co-Chair
Jane L. Hinton

Real Estate Finance Subsection, Co-Chair
Erik M. North

Title Insurance Subsection Co-Chair
Motunrayo Dideolu Akinmurele

Title Insurance Subsection Co-Chair
Elmira Rezaei Howard

 

 

Introductory Remarks

From live programming to CLE Anytime, the Real Property Section focuses on all aspects of real property law for your professional development. If you do not see a topic of interest, email me your ideas!

Sincerely,
Teresa Y. Hillery
Editor, Real Property Section Newsletter
E-mail address: Teresa.Hillery@fnf.com

 
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Coming Events
 

September 5

Murphy’s Law Strikes, Now What?

The Real Property Law Section of the California Lawyers Association (CLA) and the Construction Law Subsection of the LACBA Real Property Section proudly present “Murphy’s Law Strikes, Now What?  Insurance Coverage in California for Construction Claims."  This seminar, taught by prominent California attorneys, will discuss insurance issues and strategies for the life cycle of a construction liability claim.

> Click here for more information


September 12

The Language of Loans

The LACBA Real Estate Finance Subsection and CRE Finance Council Young Professionals invite you to join them for a networking cocktail hour and a CLE program on the basics of secured real estate lending. This program is targeted to early career lawyers and other young real estate professionals.

> Click here for more information


September 18

Elder Abuse Claims and Challenges to Real Estate Transaction

In light of the Financial Elder Abuse statutes, can a transaction be set aside simply because the elder or dependent adult changes his or her mind?   Does the Financial Elder Abuse statute apply when the elder or dependent adult has the mental capacity to do the transaction?  How do claims of undue influence impact the Financial Elder Abuse statute and what are the rights of a third party bona fide purchaser/encumbrancer?  This program addresses issues arising from the transactions involving elder or dependent adults. The issues discussed will provide guidance and practical pointers to both transactional and litigation counsel.

> Click here for more information


October 23

Pay Prompt or Pay Penalties

This program will provide a brief overview of California’s prompt payment statutes and highlight some of the key cases interpreting those statutes.

> Click here for more information

 

LACBA Real Property CLE Anytime

Even if you can't attend our Real Property Section events, you can earn CLE credit by viewing our streaming videos. Here are a few options. Click any link below.

A Practical Guide to the Subdivision Map Act
Annual Construction Law Update and Flaig Award
Arbitration Provisions in Leases and Purchase and Sale Agreements: Considerations and Insights

 
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Recent Cases
 
- Administrative Procedure Act -

The government's stated fear of burdensome or improper discovery in a case seeking various environmental remedies does not warrant mandamus relief in the absence of a single specific discovery order. There is no authority for the idea that agency officials' routine responses to discovery requests in civil litigation can constitute agency decision-making subject to the Administrative Procedure Act. Allowing the usual legal processes to go forward also will not threaten the separation of powers in any way not correctable on appeal.

U.S. v. U.S. District Court for the District of Oregon - filed July 20, 2018, Cite as 2018 S.O.S. 18-71928
Full text click here >

- CEQA -

A project's visual impact on a surrounding officially-designated historical district is appropriate aesthetic impact review under the California Environmental Quality Act. Traffic significance thresholds do not necessarily shield a city from having to conduct an environmental impact report. Fact-based comments of residents and city officials can support a fair argument that unusual circumstances might render the thresholds inadequate to capture the impacts of congestion from a proposed development project.

Protect Niles v. City of Fremont (Rich) - filed July 16, 2018, publication ordered Aug. 9, 2018, First District, Div. Five
Cite as 2018 S.O.S. 3910
Full text click here >

A county's issuance of a well permit is a ministerial action when the county ordinances require that a permit be issued if the well complies with county and state standards, thus the action is exempt from California Environmental Quality Act review.

California Water Impact Network v. County of San Luis Obispo (Justin Vineyards and Winery) - filed June 28, 2018, publication ordered July 27, 2018, Second District, Div. Six
Cite as 2018 S.O.S. 3701
Full text click here >

- Easements -

A suit arises under federal law only when the plaintiff's statement of his own cause of action shows that it is based upon federal law. A lawsuit seeking a declaratory judgment as to whether a local government entity had acquired a full railway easement arose out of federal law because the resolution of the dispute would turn on an interpretation of the Trails Act and because the government has a strong interest in facilitating trail development and preserving established railroad rights-of-way for future reactivation of rail service. A property owner whose land abuts a rail corridor lacked standing to pursue a declaratory judgment quieting title to the corridor where the property owner has no property interest in the corridor itself. The Trails Act preserves—rather than converts—the existing railroad easement, and creates an additional recreational trail easement.

Hornish Joint Living Trust v. King County - filed Aug. 3, 2018
Cite as 2018 S.O.S. 16-35486
Full text click here >

- Environmental Protection Agency -

Federal Insecticide, Fungicide, and Rodenticide Act Sec. 346a(h)(1) does not "clearly state" that an order obtained pursuant to Federal Food, Drug, and Cosmetic Act Sec. 346a(g)(2)(C) in response to administrative objections is a jurisdictional requirement for judicial review of an Environmental Protection Agency decision on the tolerance level for a pesticide. There was no justification for the EPA's decision in its 2017 order to maintain a tolerance for chlorpyrifos in the face of scientific evidence that its residue on food causes neurodevelopmental damage to children. The EPA cannot refuse to act because of possible contradiction in the future by evidence.

League of United Latin American Citizens v. Wheeler - filed Aug. 9, 2018
Cite as 2018 S.O.S. 17-71636
Full text click here >

- Kootenai National Forest -

A challenge to a decision by the U.S. Forest Service to approve a land management project in the Kootenai National Forest based on the Forest Service's failure to consult with the Fish and Wildlife Service about the project's impact on the Canada lynx was rendered moot by the Forest Service's consultation with the Fish and Wildlife Service while an appeal was pending. The Forest Service's approval of a project failed to comply with the Motorized Vehicle Access Act where the Forest Service did not analyze whether the project would increase the total linear miles of permanent roads within areas outside the recovery zones that grizzly bears sometimes frequent.

Alliance for the Wild Rockies v. Savage - filed July 26, 2018
Cite as 2018 S.O.S. 16-35589
Full text click here >

- National Forest Management Act -

The U.S. Forest Service acted arbitrarily and capriciously in deviating from the standards in the governing forest plan since such standards are binding limitations on Forest Service's activity. The Forest Service's decision to adopt a new definition of "old forest habitat" for the Lost Creek Project area was arbitrary and capricious, and a violation of the National Forest Management Act. The Lost Creek Project's minimum road system designation was not arbitrary or capricious where the Forest Service fully explained its decision in selecting an alternative and considered each of the factors listed under 36 C.F.R. Sec. 212.5. Forest Service did not violate the National Environmental Policy Act by improperly incorporating the wildlife conservation strategy amendments or the wildlife conservation strategy amendments draft environmental impact statement in analyzing a project's cumulative, direct and indirect effects on vegetative resources and wildlife.

Alliance for the Wild Rockies v. United States Forest Service - filed Aug. 13, 2018
Cite as 2018 S.O.S. 16-35829
Full text click here >

- Premises Liability -

A property owner has a duty to protect against dangers posed by discrete conditions on the property from which dangerous insects emanate. Golf course operators are not exempted from exercising reasonable care to protect their patrons against the foreseeable risk posed by yellow jacket nests on their premises.

Staats v. Vintner's Golf Club, LLC - filed Aug. 1, 2018, First District, Div. One
Cite as 2018 S.O.S. 3804
Full text click here >

- Raker Act -

The congressional intent behind the Raker Act, was to flood the Hetch Hetchy Valley through the permanent creation of a dam on federal lands. The act's broad preemption protections for state laws may not eviscerate those components of a law purposefully enacted by congress.

Restore Hetch Hetchy v. City and County of San Francisco (Modesto Irrigation District) - filed July 9, 2018, publication ordered Aug. 1, 2018, Fifth District
Cite as 2018 S.O.S. 3797
Full text click here >

- Respondeat Superior Theory -

As used in Business and Professions Code Sec. 7026.1, a nursery person is a licensed professional engaged in cultivating plants, whereas a gardener holds no license and generally tends existing landscaping. A property owner who has hired a gardener to perform work requiring a license can be held liable to the gardener's employee under a respondeat superior theory.

Jones v. Sorenson - filed Aug. 2, 2018, Third District
Cite as 2018 S.O.S. 3823
Full text click here

- Statute of Limitations -

The federal catchall statute of limitations in 28 U.S.C. Sec. 1658(a) applies to private suits alleging violations of Sec. 303(c) of the Servicemembers Civil Relief Act.

McGreevey v. PHH Mortgage Corporation - filed July 26, 2018
Cite as 2018 S.O.S. 16-36045
Full text click here >

 
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