Real Property Law


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July 2023

By: Monty McIntyre, Esq.

Monty McIntyre

California Case Summaries™ (

Monty A. McIntyre, Esq. publishes California Case Summaries™, which provides one-paragraph summaries, that can be read in 2 minutes and are organized by legal topic, of every new civil case published in California. Monty’s publication makes it quick and easy for California lawyers to know the new cases in their practice areas, and apply that knowledge to work up their cases better, make better arguments, get bigger settlements, and win more summary judgments and trials to make more money. Monty also works as a Mediator, Arbitrator and Referee at ADR Services, Inc., handling matters in the areas of business, employment, insurance (bad faith, coverage, UIM), probate (trusts and estates), real property and torts (elder abuse, medical malpractice, personal injury, product liability and wrongful death). To schedule a matter, contact Monty’s case managers at ADR Services, Haward Cho,, (213) 683-1600, or Rachael Boughan,, (619) 233-1323.  Finally, Monty helps law firms quickly train their associates with his Master Lawyer Mentoring™ services. For more information, call Monty at (619) 990-4312 or visit his website at    


Real Property

Discovery Builders v. City of Oakland (2023) _ Cal.App.5th _ , 2023 WL 4115074: The Court of Appeal reversed the trial court’s order granting a writ petition and ordering respondent to vacate its assessment of new impact fees for a large residential project called The Monte Vista Villas (project) that had been in development since the early 2000’s. The writ petition challenged the fee assessment because in 2005, petitioner and respondent had entered into an agreement where petitioner agreed to pay respondent certain fees to cover the costs of the respondent’s project oversight, and provided that the fees set forth in the agreement satisfied all of petitioner’s obligations for fees due to respondent for the project. The Court of Appeal disagreed with the trial court, concluding that any provision in, or construction of, the agreement that would prevent respondent from imposing the impact fees on the development project constituted an impermissible infringement of respondent’s police power and was therefore invalid. (C.A. 1st, June 22, 2023.)

Lauckhart v. El Macero Homeowners Assn. (2023) _ Cal.App.5th _ , 2023 WL 4145301: The Court of Appeal affirmed the trial court’s order sustaining defendant’s demurrer, without leave to amend, to plaintiff’s second amended complaint seeking to cancel due to fraud a recorded declaration of covenants, conditions, and restrictions (CC&Rs) under which defendant acts, enjoin defendant from accepting real property as common area or using assessments to fund its maintenance, and requesting a judicial declaration that the declaration of CC&Rs was void and the subdivision was not subject to the Davis-Stirling Common Interest Development Act (the Davis-Stirling Act; Civ. Code, § 4000 et seq.). The trial court properly sustained the demurrer because the cancelation cause of action did not plead fraud with particularity, and defendant’s acquisition of the land was protected under the business judgment rule and could not be enjoined. The Court of Appeal concluded that defendant and the subdivision qualified as an association and a common interest development under the Davis-Stirling Act, plaintiffs’ third cause of action was therefore moot and the trial court did not err in sustaining the demurrer to that cause of action without leave to amend. (C.A. 3rd, filed May 30, 2023, published June 23, 2023.)

Ridec LLC v. Hinkle (2023) _ Cal.App.5th _ , 2023 WL 4246108: The Court of Appeal reversed the trial court’s judgment in a quiet title action concluding that plaintiff’s deed of trust on real property was invalid, because it was based upon a quiet title judgment that was later determined to be void. The trial court in this case refused to follow California’s Quiet Title Act (the Act; Code of Civil Procedure section 760.010 et seq.) and Tsasu LLC v. U.S. Bank Trust, N.A. (2021) 62 Cal.App.5th 704, which held that a party acquiring title to property in reliance on a quiet title judgment retains its rights in that property—even if that judgment is subsequently invalidated as void—as long as the party was a purchaser or encumbrancer for value who lacked knowledge of any defects or irregularities in the earlier quiet title judgment or the proceedings. Instead, the trial court followed the pre-Act, common law rule that deemed invalid any and all rights deriving from a judgment later invalidated as void. The Court of Appeal held that a trial court may not disregard

the plain text of a statute or binding precedent in favor of its own view of what the law should be, section 764.060 does not violate due process or deny equal protection of the law, and the trial court also erred when, in the alternative, it applied section 764.060 to deprive a lender of its rights to property based on a later-invalidated quiet title judgment. (C.A. 2nd, June 29, 2023.)

Visitacion Investment v. 424 Jessie Historic Properties (2023) _ Cal.App.5th _ , 2023 WL 4222924: The Court of Appeal reversed the trial court’s order granting defendant’s motion for summary judgment in plaintiff’s action to quiet title to a railroad easement on the grounds of abandonment. The parties filed cross-motions for summary judgment, and the trial court found no material triable issues of fact and rendered judgment in favor of defendant. The Court of Appeal disagreed. Given the ambiguity of the easement deed and the uncertain state of the evidence bearing on its origination and use, the trial court erred in construing the deed in the context of these cross-motions for summary judgment. Plaintiff’s evidence, if accepted, could support a finding of abandonment. Finally, the trial court’s finding that Union Pacific Railroad lacked the intent to abandon the easement as a matter of law was based on a misunderstanding of the legal standard. (C.A. 1st, June 28, 2023.)  

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