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VOLUME 13 | NUMBER 9 | SEPTEMBER 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
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

REAL PROPERTY SECTION CONGRATULATES
COX, CASTLE & NICHOLSON LLP
ON ITS 50th ANNIVERSARY

The Los Angeles County Bar Association’s Real Property Section recognizes Cox, Castle & Nicholson LLP on its 50th Anniversary.

Cox, Castle & Nicholson LLP has been a leader in the real estate bar in Los Angeles and beyond, providing counsel and thought leadership in real estate litigation, transactions, and regulatory and compliance matters.

Cox, Castle & Nicholson LLP’s attorneys have been instrumental in the advancement of real estate law and the success of the Real Property Section, and we are grateful for the leadership of three past chairs: Caroline Dreyfus, Ira Waldman, and Ron Silverman.

The Section offers the firm its congratulations on this milestone anniversary.

Claire Hervey Collins
Chair, Real Property Section

 
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Coming Events
 

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
 
- Building Moratorium -

A legal challenge to a building moratorium by a group of property owners is a facial challenge. Unless and until there is an administrative application of the moratorium or evidence establishing the futility of exhaustion, there is no way for a court to determine the constitutionality of the moratorium.

Black v. City of Rancho Palos Verdes - filed Sept. 6, 2018, Second District, Div. One
Cite as 2018 S.O.S. 4459
Full text click here >

- CERCLA -

Federal Rule of Civil Procedure 54(b) authorized a district court to certify an appeal of an order that rendered ultimate disposition of an individual response cost claim under the Comprehensive Environmental Response, Compensation, and Liability Act. The claims for recovery of response costs and natural resource damages are akin to a tort claim. The Calder "effects" test is the appropriate standard to determine jurisdiction. The cost of investigations by expert consultants qualified as recoverable costs of removal, even though many of these activities played double duty supporting both cleanup and litigation efforts.

Pakootas v. Teck Cominco Metals, LTD. - filed Sept. 14, 2018
Cite as 2018 S.O.S. 16-35742
Full text click here>

- Development Agreements -

The Legislature intended to exclusively delegate approval of development agreements to local legislative bodies and to make such approval subject to referendum, but not to initiative.

Center for Community Action and Environmental Justice v. City of Moreno Valley (HF Properties) - filed Aug. 23, 2018, Fourth District, Div. One
Cite as 2018 S.O.S. 4255
Full text click here >

- Environmental Impact -

A city was not required to conduct an Environmental Impact Review of a proposed development absent any evidence of a land use violation. As the development complies with the mandatory conditions imposed, there will be no violation of the land use provisions and thus no ground for environmental review.

Friends of Riverside's Hills v. City of Riverside (Lofgren) - filed Aug. 10, 2018, ordered for publication Sept. 7, 2018, Fourth District, Div. Two
Cite as 2018 S.O.S. 4430
Full text click here >

A city properly analyzed the environmental impacts of a project by using likely future conditions in the context of current ones. It would be absurd to ask a city to hypothesize the impacts of a long-term housing plan taking hold immediately. An environmental impact report did not make an error in its baseline analysis by relying on the maximum allowable density and height requirements as the baseline for land use and aesthetic impacts instead of the existing physical environment. An EIR reasonably concludes that a project will not have a substantial impact on visual resources or neighborhood character where the project did not change allowable land uses or increase allowable building heights.

San Franciscans for Livable neighborhoods v. City and County of San Francisco - filed Aug. 22, 2018, First District, Div. Four
Cite as 2018 S.O.S. 4174
Full text click here >

When a public agency has previously approved an environmental impact report for a specific development and subsequently amends its specific plan to authorize that development, that subsequent amendment is analyzed under Public Resources Code Sec. 21166 as a project for which an EIR has already been prepared. An ordinance constitutes "spot zoning" because it placed a store in an "island" of ostensibly less restrictive zoning, but it was permissible because the city did not abuse its discretion in finding that its amendment to the specific plan was in the public interest and compatible with the general plans of which it was a part.

Citizens Coalition Los Angeles v. City of Los Angeles - filed Aug. 23, 2018, Second District, Div. Two
Cite as 2018 S.O.S. 4187
Full text click here >

- Environmental Protection Agency -

Once the U.S. Environmental Protection Agency approves an implementation plan or a revised implementation plan, that plan becomes federal law. Where the agency has officially interpreted a vague regulatory term, the agency's interpretation prevails cover a contrary, but reasonable, state interpretation.

Montana Environmental Information Center v. Thomas - filed Aug. 30, 2018
Cite as 2018 S.O.S. 16-71933
Full text click here >

- Landlord Tenant -

Agreement to an invalid liquidated damages clause does not insulate it from attack under Civil Code Sec. 1671, but if a landlord cannot show that the losses caused by late payment of rent in this case were extremely difficult or impracticable to determine, liquidated damages are not justified under Sec. 1671. To be valid under Sec. 1671, a liquidated damages clause must be the result of a reasonable endeavor to approximate actual losses caused by the breach being compensated. If no effort was made to estimate the actual losses, then the resulting fee cannot approximate the losses.

Del Monte Properties and Investments, Inc. v. Dolan; Superior Court of California, County of Humboldt - filed May 11, 2018, publication order Aug. 8, 2018
Cite as 2018 S.O.S. 4075
Full text click here >

Evidence controverting a landlord's stated intent is highly relevant to a retaliatory eviction claim under the Ellis Act. While a landlord's actions in a prior Ellis Act withdrawal will not always be admissible in an unlawful detainer action involving a subsequent invocation, a trial judge erred in foreclosing the presentation of such evidence when the plaintiff alleged the landlord had entered into a sham sale to allow another tenancy to continue. There is no blanket prohibition on trying title issues in an Ellis Act unlawful detainer case.

Coyne v. De Leo - filed July 30, 2018, publication ordered Aug. 28, 2018, First District, Div. Five
Cite as 2018 S.O.S. 4306
Full text click here >

- Unlawful Detainer -

The filing of an unlawful detainer complaint is anti-SLAPP protected activity, as is service of a notice of termination preceding an unlawful detainer complaint, but the mere fact an action was filed after protected activity took place does not mean it arose from that activity. Code of Civil Procedure Sec. 1942.5(d) and Sec. 1942.5(h) create an exception to the litigation privilege. While a common law cause of action requires actual eviction, a claim under Sec. 1942.5 does not.

Winslett v.1811 27th Avenue, LLC - filed Aug. 15, 2018, First District, Div. Four
Cite as 2018 S.O.S. 4045
Full text click here >

- Writ of Restitution -

A writ of restitution may be issued under Washington Revised Code Sec. 59.18.375 without a hearing having been held beforehand. Since Washington law assigns county sheriffs the power and duty to serve and execute writs of restitution issued under Sec. 375, a county sheriff is a proper defendant in an Ex parte Young suit seeking to enjoin enforcement of Sec. 375. The Rooker-Feldman doctrine is inapplicable when the plaintiffs in a federal court action are not asking the federal court to review and reject a judgment entered against them in state court. Congress did not intend the Federal Courts Improvement Act to apply to every official who would receive "judicial" or "quasi-judicial" immunity in an action for damages at common law.

Moore v. Urquhart - filed Aug. 16, 2018
Cite as 2018 S.O.S. 16-36086
Full text click here >

- Wrongful Foreclosure -

A statement in a deed of trust stating that a transfer of the property without the lender's consent would allow the lender to demand immediate payment on the loan just gives the lender an option to accelerate the entire debt if the borrower transferred the property--it did not impose any sanctions on the assignee. A trial court abused its discretion in denying leave for a plaintiff to amend his claim for wrongful foreclosure where the court was on notice that the plaintiff claimed to have an ownership interest in the disputed property and he has proposed facts that, if true, are sufficient to establish that an assignment of the property was void.

Hacker v. Homeward Residential, Inc. - filed Aug. 16, 2018, Second District, Div. One
Cite as 2018 S.O.S. 4054
Full text click here >

 
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