VOLUME 12 | NUMBER 6 | JUNE 2017
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Introductory Remarks
Recent Cases

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

Teresa Y. Hillery
Vice President and Trial Counsel
Fidelity National Law Group


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
Beth Hummer
Title Insurance
Zi Lin



Introductory Remarks

It’s Not Too Late to Join the Real Property Section!

The Section offers excellent opportunities to enrich your practice and connect with the real estate community, including topical substantive programs and networking events. If you have any questions about the benefits of membership or would like to get more involved, please contact the Section’s Membership Chair, Kelsey Thayer, at

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


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

Recent Cases
- Adverse Possession -

Defendants' actions in obtaining properties under the law of adverse possession were not immune from an Unfair Competition Law action under the Noerr-Pennington doctrine, which protects the right to engage in litigation-related activity, where substantial evidence supported a finding that the lawsuits were all shams. There was no abuse of discretion in trial court's decision to award rents wrongfully collected by defendants to the rightful owners of the properties.

People ex rel. Harris v. Aguayo - filed April 26, 2017, publication ordered May 25, 2017, Second District, Div. Two
Cite as 2017 S.O.S. 2599
Full text click here >

- CEQA -

For CEQA purposes, the term "project" included the whole of Air Resources Board's activity in promulgating and enforcing "low carbon fuel standards" regulations originally adopted in 2009 and replacement regulations adopted in 2015 in response to a writ of mandate. ARB's view that the "project" included only the regulations adopted in 2015 was wrong and explains why it incorrectly chose 2014 NOx emissions as the baseline.

Poet, LLC v. State Air Resources Board - filed May 30, 2017, Fifth District
Cite as 2017 S.O.S. 2684
Full text click here >

- HSAA -

The Carpenter-Presley-Tanner Hazardous Substances Account Act, or HSAA, creates a private right of action to recover environmental response costs, not limited to traditional indemnity. In determining causation, the HSAA incorporates release the federal standard under CERCLA, which focuses on whether a particular release of pollutants caused plaintiff's response costs, rather than whether a particular defendant caused plaintiff's response costs.

Orange County Water District v. Alcoa Global Fasteners, Inc. - filed June 1, 2017, Fourth District, Div. One
Cite as 2017 S.O.S. 2777
Full text click here >

-Implied Dedications -

Civil Code Sec. 1009, limiting implied dedications of private property to public use, applies to property used by the public for nonrecreational vehicle access.

Scher v. Burke - filed June 15, 2017
Cite as 2017 S.O.S. 3085
Full text click here >

- Mining -

Prior mining activity, as documented by a federal mining patent or otherwise, does not necessarily mean any surface or other mining existed when the Surface Mining and Reclamation Act of 1975 took effect, such that any right to surface mine was grandfathered. A showing that mining was taking place at or reasonably close to SMARA's Jan. 1, 1976 operative date is required.

Hardesty v. State Mining and Geology Board - filed April 17, 2017, publication ordered May 16, 2017, Third District
Cite as 2017 S.O.S. 2461
Full text click here >


City council's denial of permits that would have allowed the subdivision of two adjacent hilltop lots into four, with two new residences, was supported by substantial evidence that the project would be detrimental to public health, safety, and welfare. Project was not appropriate for its location, and the planning commission's mitigated negative declaration inadequately addressed the project's impacts on geology and public safety.

Kutzke v. City of San Diego - filed May 17, 2017, publication ordered May 23, 2017, Fourth District, Div. One
Cite as 2017 S.O.S. 2549
Full text click here >


Petition for writ of mandate barring agency from issuing permits for oil wells was not barred by res judicata where prior litigation was not resolved on the merits, but instead was due to a finding of mootness following the enactment of Senate Bill No. 4, which imposed new restrictions on fracking.

Association of Irritated Residents v. Department of Conservation (Aera Energy, LLC) - filed May 4, 2017, publication ordered May 25, 2017, Fifth District
Cite as 2017 S.O.S. 2613
Full text click here >

- Quiet Title -

Quiet title action failed where judicially noticeable facts showed that plaintiff's interest in the subject property depended on a judgment that had previously been set aside as void.

Thompson v. Ioane - filed May 25, 2017, Sixth District
Cite as 2017 S.O.S. 2646
Full text click here >

- Trustee’s Sale -

The anti-deficiency judgment statute does not prevent the junior lienholder from enforcing the junior debt obligation when the senior lienholder conducts a trustee's sale and thus extinguishes the junior lienholder's security interest.

Black Sky Capital v. Cobb - filed June 13, 2017, Fourth District, Div. Two
Cite as 2017 S.O.S. 3074
Full text click here >


Trustee of a California deed of trust securing a real estate loan was not a "debt collector" under the Fair Debt Collection Practices Act because the trustee was not attempting to collect money from the plaintiff. The object of a non-judicial foreclosure in California is to retake and resell the security on the loan, so actions taken to facilitate a non-judicial foreclosure, such as sending the notice of default and notice of sale, are not attempts to collect "debt" as that term is defined by the FDCPA. Dismissal of plaintiff's rescission claim under Truth in Lending Act must be reconsidered in light of subsequent Ninth Circuit holding that a mortgagor need not allege the ability to repay in order to state a rescission claim.

Ho v. ReconTrust Company, N.A. - filed Oct. 19, 2016, amended May 22, 2017
Cite as 2017 S.O.S. 10-56884
Full text click here >


The foreclosure value of an apartment complex exceeded replacement value because foreclosure would vitiate covenants requiring that the secured property, an apartment complex, be used for low-income housing. The bankruptcy court did not err in approving the debtor's plan of reorganization and valuing the collateral assuming its continued use after reorganization as low-income housing.

In re Sunnyslope Housing Limited Partnership - filed May 26, 2017
Cite as 2017 S.O.S. 12-17241
Full text click here >

- Zoning -

Referendum petition--challenging an ordinance that attempts to make the zoning for a parcel consistent with the parcel's general plan land use designation--is not invalid if the legislative body remains free to select another consistent zoning for the parcel should the referendum result in the rejection of the legislative body's first choice of consistent zoning.

City of Morgan Hill v. Bushey (River Park Hospitality) - filed May 30, 2017, Sixth District
Cite as 2017 S.O.S. 2710
Full text click here >


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