Real Property Law

Real Property Case Summary Updates

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March 2021

By Monty McIntyre

Check out Monty McIntyre’s new FREE feature, Monty’s Case Commentary, where he discusses interesting newly published cases. This is in audio MP3 format, so you can listen to it whenever and wherever they want to. Here is the link.

California Case Summaries™ (

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 keep up with the new case law and fight for their clients. Monthly, quarterly and annual single-user and discounted multi-user subscriptions are available. Monty has been a California civil trial lawyer since 1980, a member of ABOTA since 1995. Monty is an expert in using Zoom to conduct mediations, arbitrations and reference matters. He works as a full-time mediator, arbitrator and referee with ADR Services, Inc. (ADR) working with attorneys and their clients throughout California.    



Daneshmand v. City of San Juan Capistrano (2021) _ Cal.App.5th _ , 2021 WL 568138: The Court of Appeal affirmed the trial court’s judgment for defendant, following a bench trial, and its orders granting defendant’s motion for summary judgment and motion for judgment on the pleadings in an action by citizens to recover the difference between what they paid and what they should have paid during the over four years that an unconstitutional tiered water rate system was in place. After an earlier decision found the tiered water rate system was unconstitutional, defendant offered ratepayers a refund of the difference between what they paid and what they should have paid for a 10-month period of time if they signed a settlement release. One of the plaintiffs accepted this settlement. The trial court properly granted summary judgment against this plaintiff, finding the release was valid and enforceable. The trial court properly granted defendant’s motion for judgment on the pleadings as to plaintiffs’ causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing because these causes of action depend on the existence of an implied contract or implied contract terms, to which a municipal entity cannot agree. The trial court properly found for defendant on the statute of limitations, because plaintiffs’ claim was filed more than one year after the last bill under the tiered water rate system was due, making it untimely under Government Code section 911.2. (C.A. 4th, filed January 20, 2021, published February 16, 2021.)

Organizacion Comunidad de Alviso v. City of San Jose (2021) _ Cal.App.5th _ , 2021 WL 456619: Reluctantly, the Court of Appeal affirmed the trial court’s order sustaining a demurrer, without leave to amend, to an amended writ petition because the initial petition failed to join an indispensable party (Microsoft), and the California Environmental Quality Act (CEQA; Public Resources Code, section 21000 et seq.) cause of action in the amended petition was untimely because Microsoft was not sued within 30 days after a second notice of determination (NOD) was filed regarding a proposed project to rezone fallow farmland for light industrial uses. Petitioner properly requested all notices for the project. Respondent filed two NODs for the project: the first NOD listed the wrong project applicant and a second NOD correctly listed Microsoft Corporation. Respondent––inexplicably and in violation of CEQA––failed to send petitioner the legally operative second NOD for the project. Although respondent violated CEQA in this respect, the 30-day statute of limitations was triggered when the second NOD was properly filed with the county clerk. This NOD provided constructive notice of the correct parties to sue; and the trial court properly sustained the demurrer because petitioner did not timely amend its petition to name Microsoft. (C.A. 6th, February 9, 2021.)

Wilmot v. Contra Costa County Employees’ Retirement Assn. (2021) _ Cal.App.5th _ , 2021 WL 404289: After the California Supreme Court transferred the case back to the Court of Appeal, the Court of Appeal again affirmed (as it did in 2018) the trial court’s judgment denying a writ petition seeking to overturn respondent’s decision to reduce petitioner’s retirement benefits due to a felony conviction. Petitioner’s last day of work as a fireman was in December 2012. In February 2013, petitioner was indicted for stealing property since 2000. Petitioner’s retirement was approved in April 2013. On January 1, 2013 the California Public Employees’ Pension Reform Act of 2013 (Pension Reform Act) took effect. Included in that measure is a provision that mandates the complete or partial forfeiture of pension benefits/payments if a public employee is convicted of “any felony under state or federal law for conduct arising out of or in the performance of his or her official duties.” (Government Code, section 7522.72(b)(1)). In 2015, petitioner was convicted of a felony. The Court of Appeal concluded, as a matter of statutory construction, that petitioner was not “retired” for purposes of the County Employees Retirement Law of 1937 (CERL; Stats. 1937, ch. 677, codified in 1947, Government Code section 31450 et seq.) when he submitted his application for retirement benefits on December 13, 2012. As a separate and independent ground for its decision, the Court of Appeal also concluded that, if petitioner was retired on January 1, 2013, the date the Pension Reform Act took effect, the partial forfeiture of his pension benefits pursuant to Government Code section 7522.72 did not violate either the impairment of contract or the ex post facto clauses of the California Constitution. (C.A. 1st, February 5, 2021.)

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