Real Property Law
CASE SUMMARY UPDATE: January/February 2022 Real Property Case Summaries
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Monty A. McIntyre, Esq. is the publisher of California Case Summaries™ which provides short summaries, organized by legal topic, of every new published civil and family law case helping California lawyers easily master the new case law in their practice areas, get better results and referrals, and grow their law practice. Monthly, quarterly and annual subscriptions are available, as well as annual Practice Area subscriptions in the areas of Employment, Family Law, Real Property and Torts. Monty hasbeen a California civil trial lawyer since 1980 and a member of ABOTA since 1995. He currently works as a full-time mediator, arbitrator and referee with ADR Services, Inc. conducing Zoom hearings throughout California (to use Monty contact his case manager Haward Cho, haward@adrservices.com, (619) 233-1323). Monty also helps lawyers improve their skills and practices with his Lawyer Master Mentoring™ services (for info visit Monty’s web at https://montymcintyre-law.com).
CALIFORNIA COURTS OF APPEAL
Real Property
Award Homes, Inc. v. County of San Benito (2021) _ Cal.App.5th _ , 2021 WL 5631443: The Court of Appeal affirmed the judgment for defendant in an action by plaintiff developer for a determination that it was not required to pay amounts required under tax sharing agreements between defendant and the City of Hollister. Tax sharing agreements between defendant and the City of Hollister required the city to pay defendant a fixed fee (referred to as the “Additional Amount”) for each residential unit constructed on land that was annexed into the city from defendant. Plaintiff, a real estate developer, entered into development agreements with the city to build residential units on land subject to the tax sharing agreements. Plaintiff agreed in those documents to satisfy certain obligations from the tax sharing agreements, but sued the city and defendant seeking a declaration that payment of the Additional Amount was not among plaintiff’s obligations. The first bench trial resulted in a judgment for plaintiff, but the trial court granted a motion for new trial. In the second bench trial, the trial court properly entered judgment against plaintiff. (C.A. 6th, filed November 1, 2021, published December 1, 2021.)
BMC Promise Way, LLC v. County of San Benito (2021) _ Cal.App.5th _ , 2021 WL 5631558: The Court of Appeal affirmed the judgment for defendant in an action by plaintiff developer for a determination that it was not required to pay amounts required under a tax sharing agreement between defendant and the City of Hollister. A tax sharing agreement between defendant and the City of Hollister required the city to pay defendant a fixed fee (referred to as the “Additional Amount”) for each residential unit constructed on land that was annexed into the city from defendant. Plaintiff’s predecessor in interest entered into an annexation agreement with the city under which it agreed to comply with “all applicable provisions” of the tax sharing agreement in return for the city’s agreement to annex certain land. When plaintiff purchased the annexed land and sought to develop it into two subdivision projects, the city informed plaintiff that it was liable for the Additional Amount fees. Plaintiff paid the fees under protest and then sued both the city and the county seeking a declaration of its rights and duties under various written instruments. After a bench trial, the trial court properly entered judgment against plaintiff. (C.A. 6th, filed November 1, 2021, published December 1, 2021.)
Foley Investments v. Alisal Water Corp. (2021) _ Cal.App.5th _ , 2021 WL 5833275: The Court of Appeal affirmed the trial court’s judgment for defendant, following a bifurcated bench trial, in plaintiff’s action alleging inverse condemnation and tort claims against defendant related to repeated ruptures of a water main that defendant had installed under plaintiff’s apartment complex under a private contract with plaintiff’s predecessor. In the first phase, the trial court properly concluded the water main did not serve a “public use” for inverse condemnation purposes because defendant had installed the main under a private contract with plaintiff’s predecessor for the sole benefit of the subject property. In the second phase, the trial court correctly concluded that the tort claims were barred by “fire protection” immunity (Public Utilities Code, section 774) because defendant had constructed and maintained the main on the subject property in a particular way to meet the property’s particular fire protection needs. (C.A. 4th, filed November 16, 2021, published December 9, 2021.)
CALIFORNIA COURTS OF APPEAL
Real Property
Greif v. Sanin (2022) _ Cal.App.5th _ , 2022 WL 225521: The Court of Appeal affirmed the trial court’s order dismissing defendants’ cross-complaint, its order entering judgment in favor of plaintiff against defendants, and its post-judgment order awarding plaintiff $776,757.88 in attorney fees under the purchase agreement. The trial court properly dismissed the cross-complaint on the basis that plaintiff buyer’s broker, Eddie Sanin, did not owe the defendant/cross-complainant seller any duty. Civil Code section 2079.16 did not apply to the sale of the real property to plaintiff in 2012. The parties and their brokers were thus only subject to the common law duties existing at the time of the sale. The Court of Appeal concluded that Sanin did not owe defendant Earl Greif a duty to tell him the real property purchase price was less than the fair market value. The trial court properly concluded that defendants did not met their burden of establishing clear, convincing, and satisfactory evidence of the unilateral mistake defense. Finally, under the totality of the circumstances, the trial court correctly applied the lis pendens exception to the purchase agreement mediation requirement, and found that plaintiff was entitled to recover attorney fees under the attorney fee clause. (C.A. 4th, January 26, 2022.)
J&A Mash & Barrel, LLC v. Super. Ct. (2022) _ Cal.App.5th _ , 2022 WL 167583: The Court of Appeal granted a petition for writ of mandate overturning the trial court’s order granting defendant’s motion to expunge a lis pendens. Plaintiff, a tenant of real party in interest, Tower Theater Properties, Inc. (TTP), alleged that TTP failed to honor plaintiff’s right of first refusal when TTP entered an agreement to sell the property to a third party, Adventure Church. To protect its rights, plaintiff initiated legal action in the Fresno County Superior Court and filed a notice of pendency of action (a lis pendens) to provide notice to interested parties of the litigation. The Court of Appeal granted the writ petition, concluding that the order expunging the lis pendens was flawed in several respects and the trial court needed to vacate the order and enter a new order denying the motion to expunge the lis pendens. Plaintiff, as the prevailing party on the motion to expunge and in the writ proceeding, was entitled to recover its reasonable attorney fees and costs pursuant to Code of Civil Procedure, section 405.38, and the trial court was also directed to hold further proceedings to calculate and award those attorney fees and costs. (C.A. 5th, January 19, 2022.)
Johnson v. Little Rock Ranch (2022) _ Cal.App.5th _ , 2022 WL 30448: The Court of Appeal affirmed the judgment for plaintiffs, following a bench trial, in an action by plaintiffs seeking, among other remedies, injunctive relief to end an encroachment onto plaintiffs’ real property by defendants and to restore a hillside strip to its original condition after defendants excavated it. The trial court properly applied the defense of laches and the “relative hardship” doctrine, denied the injunctive relief sought by plaintiffs, and fashioned an alternative equitable remedy: defendant was required to pay damages to plaintiffs and undertake corrective action to limit erosion of the excavated hillside, while plaintiffs were required to deed the strip of land to defendant. The trial court also properly found the trespass by defendant was permanent such that the appropriate measure of damages was “diminution in value” damages, rather than other alternative measures. (C.A. 5th, January 3, 2022.)