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VOLUME 16 | NUMBER 9 | SEPTEMBER 2021
 
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IN THIS ISSUE
 
Introductory Remarks
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CLE Anytime
>
Members Spotlights
>
Recent Cases
>
 

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

Editor
Vivienne Chen

 

Real Property Executive Committee:

SECTION OFFICERS

Chair
Teresa Y. Hillery

Vice Chair (Programming)
Rachel Sanders

Vice Chair (Communications)
Vivienne Chen

Vice Chair (Membership)
Gretta Moy

Treasurer
Owen Gross

Secretary
Dan Villalpando

Immediate Past Chair
Kelsey Thayer

 

 

EXECUTIVE COMMITTEE MEMBERS

Celeste Caitlen Ahl, II
Eric A. Altoon
Rosetta Broomfield
Norman A. Chernin
Sadara DeVonne
Brant H. Dveirin
Kimia Ghalambor
Jane L. Hinton
Laurence L. Hummer
Trudi J. Lesser
Daniel K. Liffmann
Linda E. Spiegel
Ira J. Waldman

Law School Liaison
Misty M. Sanford

Barrister’s Liaison (non-voting)
Vivienne Chen

Section Administrator
Fatima Jones

 

SUBSECTION CHAIRS

Commercial Development and Leasing Subsection, Co-Chairs
Steven Farenbaugh
Jonathan Zweig

Construction Law Subsection, Co- Chairs
Aaron J. Flores
Ashley B. Jordan

General Real Property Subsection,
Co-Chair
s
Michael Davis
Joe Dzida

Land Use Planning and Environmental Law, Subsection Chair
Julie Hamill

Real Estate Finance Subsection,
Co-Chairs

Mark Hikin
Alyssa Ashley Rutherford

Title Insurance Subsection, Chair
James H. Treadwell

 

PAST CHAIRS

Roy H. Aaron*
Eric A. Altoon
Michael J. Bayard
Stephen M. Blitz
Susan J. Booth
Elizabeth Spedding Calciano
Robert E. Carter*
Norm Chernin
R. Bradbury Clark*
Claire Hervey Collins
Professor William Coskran*
Caroline Dreyfus
Anson Dreison*
Brant H. Dveirin
Peter Gelles
Gail Gordon*
Byron Hayes, Jr.
Gordon Hunt
Bryan C. Jackson
Michael S. Klein
Preston Kline*
Bernard Kolbor
Robert Krueger*
Mark L. Lamken*
Marvin Leon
Gregg J. Loubier
Victor I. Marmon
Jerold L. Miles
O’Malley M. Miller
Rodney Moss*
Donald C. Nanney
Gytis L. Nefas
Carl B. Phelps
Laurence G. Preble
James D. Richman
Peter E. Robinson
Floyd Sayer*
Margaret J. Schock
Ronald I. Silverman
Sarah V.J. Spyksma
Theresa C. Tate
Kelsey Thayer
Timothy M. Truax
Richard S. Volpert
Ira J. Waldman
Alan Wayte*
Pamela L. Westhoff
John W. Whitaker
George H. Whitney*
Norma J. Williams
John M. Yunker, Jr.
Paula Reddish Zinnemann

*Deceased

 

 

Introductory Remarks

CALLING ALL AUTHORS…
Los Angeles Lawyer magazine, the premier publication of the Los Angeles County Bar Association which is distributed to all of its members monthly, is seeking scholarly articles and practice tips written by lawyers on topics of current interest to its readers. If you have recently spoken at a seminar, you probably already have materials that can be adapted for such an article. Please contact Norm Chernin at normchernin@gmail.com to discuss publication of your article in the magazine. Thank you.

Our Open Invitation
Want to learn more about our section and see how you can get involved? We invite you to join one of our Executive Committee meetings and hear for yourself what we do and why we do it. The Executive Committee meets every first Wednesday at 12:30 p.m. to 1:30 p.m. on Zoom (Meeting Registration – Zoom). Feel free to stop by and meet our dynamic group in our next meeting on October 6, 2021.


Vivienne Chen
Editor, Real Property Section Newsletter
E-mail address: vchen@swlaw.com


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CLE Anytime
 

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 Primer on How Title Companies Underwrite Construction Loans Since the Last Great Recession

Real Estate Applied Bankruptcy Basics and Evolving Developments in a Post-Pandemic Era

Commercial CC&R's and Reciprocal Easement Agreements

2021 Flaig Award & Annual Construction Law Update

Ground Lease Practice: Beyond the Basics

Nuts and Bolts of E-Recording

 
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Members Spotlights
 

The Real Property Section is excited to feature monthly member spotlights. If you are a member of the Real Property Section and would like to be spotlighted in an upcoming post and newsletter, please contact our Vice Chair of Communications, Vivienne Chen, at vchen@swlaw.com.

Member Spotlight_Norm Chernin-540w

 
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Recent Cases
 
- Community Property -

Where it is undisputed that there is a community property interest in real property, it is the obligation of both spouses to ensure that the family court has the information necessary to determine that interest, no matter which spouse brought the dissolution action.

In re Marriage of Ramsey and Holmes - filed Aug. 17, 2021, Second District, Div. Four
Cite as 2021 S.O.S. 4647
Full text click here >

- Condominium -

A condominium owner was exempt from an owner’s association amendment prohibiting the rental of properties for less than 30 days that took effect after she acquired title to the property.

Brown v. Montage at Mission Hills - filed Aug. 20, 2021, Fourth District, Div. Two
Cite as 2020 S.O.S. 4741
Full text click here >

- Contractor -

The company that hired a contractor to do work on electrical equipment on its property owed no duty of care to the contractor’s employee even though it performed the partial power-down process that preceded the contractor’s work and resulted in the presence of the live electrical circuit that caused the employee’s injuries, where the company neither failed to sufficiently disclose that hazard nor affirmatively contributed to the injury. CACI No. 1009B does not adequately capture the elements of a Hooker claim; whether the hirer retained control over safety conditions at the worksite does not properly capture whether the hirer retained control over the manner of performance of some part of the work entrusted to the contractor; whether the hirer negligently exercised [its] retained control over safety conditions does not properly capture whether the hirer actually exercised its retained control; whether the hirer’s negligent exercise of [its] retained control over safety conditions was a substantial factor in causing [plaintiff]’s harm does not properly capture whether the hirer’s exercise of retained control affirmatively contributed to the plaintiff’s injury.

Sandoval v. Qualcomm - filed Sept. 9, 2021
Cite as 2021 S.O.S. 5032
Full text click here >

When a landowner hires an independent contractor to perform a task on the landowner’s property, the landowner presumptively delegates to the contractor a duty to ensure the safety of its workers; this encompasses a duty to determine whether the work can be performed safely despite a known hazard on the worksite; where the hirer has effectively delegated its duties, there is no affirmative obligation on the hirer’s part to independently assess workplace safety; unless a landowner retains control over any part of the contractor’s work and negligently exercises that retained control in a manner that affirmatively contributes to the injury, it will not be liable to an independent contractor or its workers for an injury resulting from a known hazard on the premises.

Gonzalez v. Mathis - filed Aug. 19, 2021
Cite as 2021 S.O.S. 4659
Full text click here >

- Development Approval -

Requiring dedication of land for a roadway in exchange for development approval is logically related to the public interest in mitigating traffic impacts caused by that development. A mostly undeveloped parcel of land was properly valued under the Porterville doctrine when the city could show it would have conditioned development of the remainder of the property on dedication of the condemned portion, and such a dedication requirement was constitutional since it would have an essential nexus and be roughly proportional to the public interest that would be served by denying development approval.

City of Escondido v. Pacific Harmony Grove Development - filed Aug. 26, 2021, Fourth District, Div. One
Cite as 2021 S.O.S. 4804
Full text click here >

- Discrimination -

Absent evidence of intentional discrimination or equally effective and less discriminatory alternatives, the existence of a statistical disparity in a policy’s effect on persons with certain protected characteristics, as compared to the wider population, does not authorize courts to invalidate policies that a defendant is able to show serve legitimate governmental or business interests in a significant way.

Southwest Fair Housing Council v. Maricopa Domestic Water Improvement District - filed Aug. 23, 2021
Cite as 2020 S.O.S. 20-15506
Full text click here >

- Environmental Law -

The Environmental Protection Agency’s withdrawal of a compliance order did not moot an action brought by landowners challenging that order where it was not absolutely clear that EPA would not either reinstate the amended compliance or issue a new one. The significant nexus standard for determining when wetlands are regulated under the Clean Water Act from Northern California River Watch v. City of Healdsburg remains the law of the circuit.

Sackett v. U.S. Environmental Protection Agency - filed Aug. 16, 2021
Cite as 2021 S.O.S. 19-35469
Full text click here >

The issue exhaustion requirement of Public Resources Code §21177 did not apply to challenges to the application of the existing facilities exemption where the county did not provide adequate notice that California Environmental Quality Act exemptions would be considered at the public hearing held by its Board of Supervisors. The word facilities is ambiguous with respect to its application to an unlined landfill; some landfills pose a threat to groundwater, air quality and public health justifies the conclusions that unlined landfills do not constitute a suitable class for a categorical exemption, and so the ambiguous term facilities should be interpreted to exclude unlined landfills.

Los Angeles Department of Water and Power v. County of Inyo - filed Aug. 17, 2021, Fifth District
Cite as 2021 S.O.S. 4600
Full text click here >

An action challenging the Bureau of Land Management’s approval of a winter drilling exploration program in the National Petroleum Reserve-Alaska was moot where the operations were completed, the only lasting physical features of the drilling were capped wells, and there was no indication the drilling could be undone; the case was not saved by the capable of repetition, yet evading review exception to mootness where the legal landscape has changed, such that there was no reasonable expectation that the plaintiffs would be subjected to the challenged action again, and the defendant has stated that it does not plan to conduct additional winter exploration in the area for the foreseeable future.

Native Village of Nuiqsut v. Bureau of Land Management - filed Aug. 24, 2021
Cite as 2021 S.O.S. 20-35224
Full text click here >

The Columbia River Gorge National Scenic Area Act is not a federal environmental statute; nothing in either the Gorge Act’s text or history supports reading the Gorge Act to shield the Clark County Code from preemption under the Interstate Commerce Commission Termination Act.

BNSF Railway v. Columbia River Gorge Commission - filed Aug. 24, 2021
Cite as 2021 S.O.S. 20-35205
Full text click here >

A California nonprofit corporation with members who reside in the San Joaquin Valley, met the requirements for Article III standing to challenge a final rule of the Environmental Protection Agency approving the state’s plan for meeting the air quality standard for ozone in the valley; the members established injury in fact by submitting declarations containing credible allegations of respiratory distress as well as harm to their recreational and aesthetic interests as a result of ozone depletion in the valley, and the risk that the valley will continue to fail to meet the ozone standard was neither conjectural nor hypothetical, but a reasonable inference from the historical record. Under the Administrative Procedure Act, when an agency changes its policy, it must display awareness that it is changing position and show that there are good reasons for the new policy; the EPA may not avoid the need for robust contingency measures by assuming that they will not be needed.

Association of Irritated Residents v. U.S. Environmental Protection Agency - filed Aug. 26, 2021
Cite as 2021 S.O.S. 19-71223
Full text click here >

The Taylor Grazing Act of 1934 and the Federal Land Policy and Management Act of 1976 established that a grazing preference could not be exercised after the corresponding grazing permit was not renewed for bad behavior; a grazing preference does not remain attached to base property until separately cancelled.

Corrigan v. Haaland - filed Sept. 2, 2021
Cite as 2021 S.O.S. 20-35393
Full text click here >

- Housing Accountability Act -

Whether the standards in a city’s design guidelines for multi-family homes are applicable and objective for purposes of the Housing Accountability Act is a question of law; whether the project is consistent with those standards is one of fact. The HAA does not wrest control from local governments so much as require them to proceed by way of clear rules adopted in advance, rather than by ad hoc decisions to accept or reject proposed housing; §65589.5(f)(4) does not impermissibly delegate municipal authority because the HAA leaves to the public agency final authority to approve, condition, or deny a project; even assuming due process protections apply to a municipality’s determination whether a project complies with objective standards under §65589.5(f)(4), the statute comports with due process as it does not deprive a project’s opponents of a meaningful opportunity to be heard.

California Renters Legal Advocacy and Education Fund v. City of San Mateo - filed Sept. 10, 2021, First District, Div. Four
Cite as 2021 S.O.S. 5105
Full text click here >

- Probate -

Evidence Code §662, and not Family Code §760, should apply when determining the character of real property in a probate matter.

Estate of Wall - filed Aug. 24, 2021, Third District
Cite as 2021 S.O.S. 4760
Full text click here >

A testator’s statement that I declare that for convenience or through inadvertence title to some property owned by myself and my husband may be held of record in the form of joint tenancy, but that all such property is in fact intended to be our community property does not reflect a clear and unequivocal intent to sever a joint tenancy at the time of execution of the will since the language is nonspecific, it does not refer to any particular property, and it does not clearly provide that testator intended a unilateral severance of joint tenancy in co-owned properties to be irrevocable during her lifetime and to take immediate effect.

Pearce v. Briggs - filed Aug. 4, 2021, publication ordered Aug. 31, 2021, Fifth District
Cite as 2021 S.O.S. 4923
Full text click here >

- Quiet Title Act -

The Quiet Title Act’s statute of limitations is jurisdictional.

Wilkins v. U.S. - filed Sept. 15, 2021
Cite as 2021 S.O.S. 20-35745
Full text click here >

- Rent Stabilization Ordinance -

A trial court did not abuse its discretion by admitting evidence of the landlords’ conduct at other rental properties to show intent and bad faith in violation of a local rent stabilization ordinance; the court did not err in allowing evidence of other lawsuits against the landlords, involving other tenants at other properties, where the landlords themselves elicited the testimony. A trial court should have followed the remittitur procedure in Code of Civil Procedure §662.5 when it reduced the amount of damages awarded by the jury, but the reduced award could stand since the reduction of damages was not improper.

Duncan v. Kihagi - filed Aug. 9, 2021, publication ordered Sept. 1, 2021, First District, Div. One
Cite as 2021 S.O.S. 4937
Full text click here >

- Reverse Validation -

The reverse validation statutes are subject to a statute of limitations that may be extended by agreement of the parties. A water rate plan adopted to facilitate ongoing water delivery to residents that reflected the increased cost of continued water service represents a charge for ongoing water delivery that is a property-related fee within the meaning of Proposition 218.

Wolstoncroft v. County of Yolo - filed Aug. 30, 2021, Third District
Cite as 2021 S.O.S. 4901
Full text click here >

 
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