dark blue triangle in newsletter heading
Introductory Remarks
Coming Event
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:


Brant Dveirin

First Vice Chair
Susan J. Booth

Second Vice Chair
Caroline Dreyfus

Claire Hervey Collins

Eric Altoon 

Barristers Liaison
Kelsey Thayer

Section Administrator
Fatima Jones


Nedra E. Austin
Michael J. Bayard
Martha C. Bringas
Elizabeth Spedding Calciano
William G. Coskran
Robert T. Flick
Peter A. Gelles
Daniel L. Goodkin
Marcia Z. Gordon
Owen P. Gross
Byron Hayes, Jr
Marybeth Heydt
Lore A. Hilburg, Esq
Teresa Y. Hillery
Laurence L. Hummer
Gordon Hunt
Bryan C. Jackson
Robert D. Jaffe
Donna E. Kirkner
Michael S. Klein
Mark L. Lamken
Trudi J. Lesser
Gregg J. Loubier
Victor I. Marmon
Jerold L. Miles
O'Malley M. Miller
Donald C. Nanney
Gytis L. Nefas
Beth Peterson
Nadav Ravid
D. Eric Remensperger
James D. Richman
Misty Marie Sanford
Floyd Sayer
Margaret J. Schock
Ronald I. Silverman
Linda E. Spiegel
Sarah V J Spyksma
Theresa C. Tate
Kelsey M. Thayer
Timothy M. Truax
Richard S. Volpert
Ira J. Waldman
Brandon Dominic Ward
Alan Wayte
Pamela L. Westhoff
Norma J. Williams
Grace Winters
Andrew (Andy) J. Yamamoto
Paula Reddish K. Zinnemann


Construction Law,
Donna Kirkner

Finance Committee,
Owen Gross

General Property,
Beth Peterson

Land Use Planning and Environmental Law,
Brandon Ward

Title Insurance,
Lore A. Hilburg

Introductory Remarks

I hope you enjoy reading the substantive cases cited in this issue. For those who litigate real estate cases, the California legislature has implemented important changes to the California Code of Civil Procedure that will affect all aspects of the real estate litigation process, from the filing of initial pleadings to trial and settlement.

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

Coming Event
Death Is Not the End: What Happens to Real Estate When Mortality Interferes
January 19, 2016
This seminar on the intersection of probate and real estate law will cover underwriting and litigation strategies to avoid pitfalls and future problems, and will be helpful to lenders, underwriters, escrow, probate practitioners and probate litigators.  It will identify and discuss common issues and provide helpful tips when litigating in the Probate Court.

> Click here for more information

> click here for the LACBA Calendar of Events
Recent Cases
-Construction Payments-
Civil Code Sec. 8814(c), which permits a contractor to withhold retention funds otherwise due a subcontractor in the event of a "good faith dispute" between the parties, only applies when the dispute is related to the retention itself.

United Riggers & Erectors, Inc. v. Coast Iron & Steel Co.—filed November 23, 2015, publication ordered December 18, 2015, Second District, Div. One
Cite as 2015 S.O.S. 6070
Full text click here > 

-Land Use-
Local authority to regulate land use includes the right to ban the operation of marijuana dispensaries, and the cultivation and storage of medical marijuana. Such bans are not preempted by Proposition 215 or the Medical Marijuana Program statute because those laws contain no express preemption of land use regulation, and applicable legal principles require a clear indication of the Legislature’s intent to restrict local government’s inherent power to regulate land use. Provision in ordinance that classifies the cultivation of medical marijuana as a misdemeanor is preempted by California’s extensive statutory scheme addressing crimes, defenses and immunities relating to marijuana.

Kirby v. County of Fresno - filed December 1, 2015, Fifth District
Cite as 2015 S.O.S. 5739
Full text click here > 

Civil Code § 827 (a) provides that a landlord may change the terms of a month-to-month lease after giving 30 days' notice and that the new terms become part of the lease if the tenant continues to hold the premises after the notice takes effect. This law does not preempt a regulation that provides, notwithstanding any changes to the terms of a tenancy under section 827, a tenant may not be evicted for violating an obligation that was not included in the tenant's original rental agreement unless the change is authorized by local ordinance, is required by law, or is accepted by the tenant in writing.

Foster v. Britton - filed December 1, 2015, First District, Div. Four
Cite as 2015 S.O.S. 5732
Full text click here

-Purchase & Sale Agreement-
Based on contractual language stating "no extrinsic evidence whatsoever may be introduced" in any case involving the parties' agreement for sale of real property, it was error to admit such evidence for the purpose of interpreting the agreement. Requirement that seller "indemnify...and hold the Buyer and Buyer's lenders...harmless from and against any claims, demands, penalties, fees, fines, liability, damages, costs, losses, or other expenses including, without limitation, reasonable environmental consulting fees and reasonable attorney fees arising out of (a) any Environmental Action(s) and/or Remediation involving an environmental condition or liability" was broad enough to apply to both first- and third-party claims, and thus to permit buyer to sue for its own environmental damages. Award of damages for loss of use had to be reversed in absence of evidence supporting the amount awarded.

Hot Rods, LLC v. Northrop Grumman Systems Corporation - filed November 6, 2015, publication ordered December 7, 2015, Fourth District, Div. Three
Cite as 2015 S.O.S. 5875
Full text click here

-Truth in Lending Act-

Title 15 U.S.C. Sec. 1641(g), a 2009 amendment to the 1968 Truth in Lending Act that requires a creditor who obtains a mortgage loan by sale or transfer to notify the borrower on the transfer in writing, does not apply retroactively because Congress did not express a clear intent that it do so.

Talaie v. Wells Fargo Bank, NA - filed December 14, 2015
Cite as 2015 S.O.S. 13-56314
Full text click here > 


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