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VOLUME 12 | NUMBER 3 | MARCH 2017
 
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IN THIS ISSUE
 
Introductory Remarks
>
Coming Events
>
Save the Date!
>
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
Susan J. Booth

First Vice Chair
Caroline Dreyfus

Second Vice Chair
Claire Hervey-Collins

Treasurer
Eric Altoon

Secretary
Misty Sanford  

Immediate Past Chair
Brant Dveirn  

Barristers Liaison
Christopher Bordenave

Section Administrator
Fatima Jones

 

EXECUTIVE COMMITTEE MEMBERS

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

 

EMERITUS MEMBERS

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

 
SUBSECTION CHAIRS

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

 

 

Introductory Remarks

CLE Seminar: Ethical Issues Arising Out of Representation of Title Insurers and Insureds

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Distinguished speakers David Brandon of Morris, Polich & Purdy LLP, Carole Buckner of Buckner Law Corp., and Stanley Lamport of Cox Castle & Nicholson LLP presented a very important CLE seminar titled Ethical Issues Arising Out of Representation of Title Insurers and Insureds. Many thanks to Vanessa Widener of Anderson, McPharlin & Conners and all participants who contributed to the success of this event!

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


 
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Coming Events
 
Recent Developments in Real Estate Finance
Presented by: Real Property
April 19, 2017

12:30—1:30 p.m.

Please join us for this lively discussion of the most important developments, from both reported cases and new legislation, in real estate finance law during 2016 and early 2017. Our panel of experts will include Jennifer Ryan and Ira Waldman from Cox, Castle & Nicholson, Owen Gross from Sklar Kirsh, and M. Scott Cooper from Sidley Austin.

> Click here for more information
 
The Ins and Outs of Shopping Center Ground Leases
April 26, 2017
12:30—1:30 p.m.

Please join us as two experts on shopping center ground leases review the lease provisions from both the Landlord's and Tenant's perspectives.

> Click here for more information
 
Ethical Considerations of Representing Entities
May 25, 2017
12:30—1:30 p.m.

Ethical Considerations of Representing Entities (LLCs and Corporations) and Their Members and Officers in Real Estate Transactions.

> Click here for more information
 
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Save the Date!
 
19th Annual Real Property Installation and Awards Dinner
 
June 21, 2017
City Club Los Angeles
6:00 p.m. Reception
7:00 p.m. Dinner
 
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Recent Cases
 
-Equitable Subrogation-

Property owners simultaneously negotiated a refinancing of their home equity line of credit with plaintiff and defendant, and--allegedly unbeknownst to plaintiff--refinanced the first line of credit with a new line of credit from defendant. The ultimate result was that defendant foreclosed and plaintiff took a substantial loss. Plaintiff sufficiently pled a claim for equitable subrogation, which was not barred by the three-year statute of limitations for breach of statutory duty. The applicable statute of limitations was that for an action based on a deed of trust.

Bank of New York Mellon v. CitiBank, N.A. - filed Feb. 16, 2017, Second District, Div. Four
Cite as 2017 S.O.S. 870
Full text click here >

 
-Homeowners Association-

Defendant--who was sued by a fellow homeowner after submitting an application to homeowners association seeking to invoke the HOA's dispute resolution process against plaintiff for refusing to trim trees blocking defendant's view--made a prima facie showing that the complaint arose from defendant's statements made in connection with an issue of public interest, and therefore the statements were protected by the anti-SLAPP statute. Plaintiff could not show a probability of success on the merits of his claims for wrongful encumbrance and the like, particularly because defendant dismissed his application shortly after the lawsuit was filed and never sought to invoke the HOA's tree-trimming process against plaintiff.

Colyear v. Rolling Hills Community Association of Rancho Palos Verdes - filed Feb. 28, 2017, Second District, Div. Four
Cite as 2017 S.O.S. 1058
Full text click here

 
-Indian Reservations-

State political subdivision lacked standing to challenge federal regulation that plaintiff believed might preempt certain taxes and fees plaintiff assessed against non-Indians who leased lands within an Indian reservation. The regulation did not purport to change existing law, and therefore, did not itself operate to preempt plaintiff's charges, and did not command plaintiff to modify its behavior by doing or refraining from doing anything, so plaintiff had not suffered a cognizable injury at the hands of the government. Court of appeals lacked jurisdiction to issue a declaratory judgment that plaintiff's charges would survive a preemption challenge under Supreme Court precedent, because the dispute between plaintiff and the government was over.

Desert Water Agency v. United States Department of the Interior - filed Mar. 7, 2017
Cite as 2017 S.O.S. 14-55461
Full text click here >

United States impliedly reserved appurtenant water sources, including groundwater, when it created the Agua Caliente Reservation in the Coachella Valley of California. Winters v. United States (1908) 207 U.S. 564, which holds that federal reserved water rights are directly applicable to Indian reservations, does not distinguish between surface water and groundwater. Creation of the Agua Caliente Reservation carried with it an implied right to use water from the Coachella Valley aquifer. State water rights are preempted by federal reserved rights. Fact that tribe did not historically access groundwater did not destroy its right to groundwater now. Tribe's entitlement to state water did not affect the analysis with respect to the creation of the tribe's federally reserved water right.

Agua Caliente Band of Cahuilla v. Coachella Valley Water District - filed Mar. 7, 2017
Cite as 2017 S.O.S. 15-55896
Full text click here >

 
- Landlord Tenant -

Where purchaser at foreclosure sale sought to evict the occupant of the property as soon as possible, serving notice to quit after the sale but before recording title to the property, the notice to quit was not premature, because Code of Civil Procedure Sec. 1161a does not require that title be recorded before the notice to quit is served.

Dr. Leevil, LLC v. Westlake Health Care Center - filed Mar. 7, 2017, Second District, Div. Six
Cite as 2017 S.O.S. 1206
Full text click here >

 
-Loan Modification-

Evidence that defendant lender concluded that plaintiff borrower was ineligible for loan modification under the Making Home Affordable Program, yet continued to accept her mortgage payments, then informed her that she was ineligible but induced her to continue making payments while it explored unexplained "other alternatives," despite knowledge of her advancing age and precarious finances, established a prima facie case of deceptive practices under California's Unfair Competition Law.

Oskoui v. J.P. Morgan Chase Bank, N.A. - filed Mar. 13, 2017
Cite as 2017 S.O.S. 15-55457
Full text click here >

 
-Receivership-

Motion for appointment of receiver is a "law and motion" proceeding under the Rules of Court, so presentation of live testimony requires a request three days prior to hearing, with an explanation of the proposed testimony. Even if the rule is complied with, the trial court may deny leave if the proposed testimony can be adequately presented in written form. Appointment of receiver for motel was not an abuse of discretion where deadline previously set by court for building code compliance had long since passed, and code inspector clearly established that defendant had not complied and that the conditions were a threat to public health and safety.

City of Crescent City v. Reddy - filed Feb. 16, 2017, publication ordered Mar. 7, 2017, First District, Div. Four
Cite as 2017 S.O.S. 1219
Full text click here >

 
-Right of Way -

Substantial evidence supported court's determination, at the bench trial of a landowner's claim for termination of neighbor's recorded right of way in a private road by adverse possession, that plaintiff's position was not sufficiently hostile and adverse to defendant's right of way as a matter of law to put defendant on notice of plaintiff's claim. Installation of fences and a locked gate did not suffice where there was no evidence that defendant or his predecessor regularly used the private road for access to or from his property. Evidence instead suggested that defendant's predecessor fenced off the rear of its lot without including the road to prevent access by plaintiff's tenants and others.

Vieira Enterprises v. McCoy - filed Jan. 23, 2017, publication ordered Feb. 22, 2017, Sixth District
Cite as 2017 S.O.S. 928
Full text click here >

 
-Trespass-

Noneconomic (annoyance and discomfort) damages awarded to a plaintiff in a timber trespass action (under Civil Code § 3346 and Code of Civil Procedure § 733) are subject to the same statutory damages multiplier as economic damages.”

Jeanette E. Fulle. v. Kaveh M. Kanani - filed Jan. 31, 2017, Second District, Division Four
Full text click here >  

 
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