Real Property Law

Real Property Case Summary Updates

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Monty A. McIntyre, Esq. is the publisher of California Case Summaries™ (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. Annual Practice Area subscriptions are also available in the areas of Employment, Family Law, Real Property and Torts. Monty hasbeen a California civil trial lawyer since 1980, a member of ABOTA since 1995, and currently works as a full-time mediator, arbitrator and referee with ADR Services, Inc. (ADR) conducing Zoom hearings throughout California. (   

California Case Summaries Annual – Real Property 2020 ™ (with summaries of every new Arbitration, Attorney Fees, Civil Code, Civil Procedure, Environment, Evidence, Government, Landlord & Tenant, Real Property & Settlement case published in 2020), and California Case Summaries Annual 2020™ (with summaries of every civil case published in 2020) are now available at


Real Property

Bailey v. Citibank, N.A. (2021) _ Cal.App.5th _ , 2021 WL 2801633: The Court of Appeal reversed the trial court’s judgment quieting title in favor of plaintiff, and its later order granting defendant’s motion for relief from default and default judgment. The Court of Appeal concluded the trial court erred in setting aside the default and judgment under the mandatory relief provision of Code of Civil Procedure section 473. Because defendant’s default was entered on November 14, 2018, but defendant’s attorney, Jeremy Katz, was not referred or assigned to act as attorney on this case until January 10, 2019, attorney error could not possibly have caused the default in this case and mandatory relief was unavailable under the reasoning of Cisneros v. Vueve (1995) 37 Cal.App.4th 906, 908, 910–912 (Cisneros) as a matter of law. In addition, the Court of Appeal reversed the judgment quieting title in favor of plaintiff, because it was unsupported by evidence on essential elements of an adverse possession claim, that possession was hostile and adverse to defendant’s title for a full five years. Plaintiffs’ possession of the property did not become adverse or hostile to defendant’s rights until such time as defendant actually took title under the trustee’s deed in April of 2018, only a few months before plaintiffs’ complaint was filed. Significantly, the trustee’s deed was based upon the foreclosure of the 2005 deed of trust—a deed of trust that was executed and recorded as a lien or encumbrance on the property long before plaintiffs’ adverse possession began. Under such facts, during the time period when defendant’s interest was merely that of beneficiary of the 2005 deed of trust (i.e., a lienholder), plaintiffs’ possession of the property would not be considered hostile to defendant’s rights. Additionally, plaintiffs could gain no greater title than that of the original owners they had dispossessed; namely, title subject to the 2005 deed of trust. As a result, plaintiffs’ adverse possession claim was subject to and eliminated by defendant’s foreclosure of the 2005 deed of trust. (C.A. 5th, July 6, 2021.)

Pear v. City & County of S.F. (2021) _ Cal.App.5th _ , 2021 WL 3186556: The Court of Appeal reversed the judgment for plaintiffs, following a bench trial, in a quiet title action to determine whether a 1951 grant deed, conveying fee title to defendants to construct an underground pipeline conveying water to San Francisco as part of the Hetch Hetchy Regional Water System, authorized the use of the surface as a paved parking lot for commercial uses. The trial court concluded that the deed authorized plaintiffs to use the pipeline property for ornamental landscaping as well as automobile access, circulation, and parking. The Court of Appeal agreed with the trial court that the deed authorized ornamental landscaping, the three existing paved roads running across the pipeline property, and use of the property to access auto mechanic service bays. However, it reversed the judgment for plaintiffs because the express language of the deed did not allow plaintiffs’ current use of the pipeline property as a parking lot. (C.A. 6th, July 28, 2021.)

Starcevic v. Pentech Financial Services, Inc. (2021) _ Cal.App.5th _ , 2021 WL 2816917: The Court of Appeal affirmed the trial court’s judgment concluding that in a partition action, a judgment creditor who failed to timely renew its judgment lost its status as the priority lien holder. In a partition action, a judgment creditor who was deemed the priority lien holder loses that status if it does not renew its judgment. (C.A. 4th, July 7, 2021.)

Struiksma v. Ocwen Loan Servicing, LLC (2021) _ Cal.App.5th _ , 2021 WL 2948579: The Court of Appeal reversed the trial court’s order sustaining a demurrer, without leave to amend, to plaintiffs’ action alleging wrongful foreclosure of their house. Plaintiffs alleged defendants carelessly failed to credit several payments to their loan balance, plaintiffs were never in default and defendants wrongfully foreclosed on the property. After plaintiffs’ lost their house through foreclosure, the purchaser at the sale brought an unlawful detainer action and obtained a judgment against

plaintiffs under Code of Civil Procedure section 1161a(b)(3). The Court of Appeal held the trial court erred in ruling plaintiffs’ claims were precluded by the unlawful detainer judgment. In an unlawful detainer action under section 1161a, the court must determine whether the purchaser duly perfected title. This, however, is a limited inquiry focusing on how the trustee’s sale was conducted. Issues of title outside this narrow scope need not be raised and are not precluded in subsequent lawsuits. Plaintiffs’ claims were not directly related to the conduct of the sale and were not at issue in the unlawful detainer action. Nor were plaintiffs required to bring their claims against defendants in that proceeding. (C.A. 4th, July 14, 2021.)

Vera v. REL-BC, LLC (2021) _ Cal.App.5th _ , 2021 WL 2701280: The Court of Appeal affirmed the trial court’s order granting defendant’s motion for summary judgment on the basis of the three-year statute of limitations for fraud in an action arising from the sale of real property, affirmed most of the attorney fee awards to defendants, but it reversed the trial court’s order denying attorney fees to defendant REL-BC, LLC (REL-BC). The trial court correctly concluded the action was based upon fraud, was subject to the three-year statute of limitations in Code of Civil Procedure section 338(d), and plaintiff’s action was untimely filed three years and three days after the close of escrow. The trial court properly awarded attorney fees to all defendants except REL-BC. However, the Court of Appeal ruled that the trial court erred in denying attorney fees to REL-BC because it was dissolved. By the plain language of Corporations Code section 17707.06(a) and (b), REL-BC was entitled to request fees despite its dissolution. The Court of Appeal reversed the trial court’s denial of attorney fees to REL-BC. (C.A. 1st, June 30, 2021.)

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