Real Property Law

Real Property Case Summary Updates

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Monty McIntyreďťż

By Monty McIntyre

California Case Summaries™ (
Monty A. McIntyre, Esq. is the publisher of California Case Summaries™. Monty has been 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) in ADR’s offices in San Diego, Irvine, and Los Angeles. California Case Summaries™provides short summaries, organized by legal topic, of every new published civil and family law case so California lawyers can easily and affordably keep up with the new case law in their practice areas. Monthly, quarterly and annual subscriptions are available. 


Berkeley Hills Watershed Coalition v. City of Berkeley (2019)_ Cal.App.5th _ , 2019 WL 365765: The Court of Appeal affirmed the trial court’s order denying a writ petition challenging the approval of the construction of three new single-family homes on adjacent parcels in the Berkeley Hills. The Court of Appeal rejected petitioner’s arguments that (1) the proposed construction was subject to the “location” exception to the Class 3 exemption for “up to three single-family residences” in urbanized areas under the California Environmental Quality Act (CEQA; Public Resources Code, section 21000 et seq.) and (2) that respondent failed to comply with several provisions of its zoning ordinance in approving the project. (C.A. 1st, January 30, 2019.) 

McCorkle Eastside Neighborhood Group v. City of St. Helena (2019)_ Cal.App.5th _ , 2018 WL 6985452: The Court of Appeal affirmed the trial court’s order denying a petition for peremptory and administrative writ of mandate filed in opposition to respondent’s approval of the development of an eight-unit multifamily residential building in St. Helena. Respondent’s City Council made extensive findings and concluded that California Environmental Quality Act (CEQA) review “limited to design issues such as scale, orientation, bulk, mass, materials and colors,” and the proposed project would not result in design-related CEQA impacts, and these findings were supported by substantial evidence. (C.A. 1st, filed December 18, 2018, published January 10, 2019.)

Landlord – Tenant

Smyth v. Berman (2019)_ Cal.App.5th _ , 2019 WL 156761: The Court of Appeal affirmed the trial court’s order sustaining a demurrer, without leave to amend, in an action by a tenant plaintiff against his landlord and others for damages allegedly arising from the landlord’s rejection of plaintiff’s offer to purchase the real property based upon an undefined “right of first refusal to purchase” in a written lease. Ruling on an issue of first impression, the Court of Appeal ruled that a right of first refusal contained in a written lease was not an essential term of the lease, and it expired when the leasehold ended and the tenant became a “holdover” tenant. A right of first refusal is not an essential term that carries forward into a holdover tenancy unless the parties so indicate. (C.A. 2nd, January 10, 2019.)

Real Property

1305 Ingraham v. City of Los Angeles (2019) _ Cal.App.5th _ , 2019 WL 1123512: The Court of Appeal affirmed the trial court’s order sustaining demurrers, without leave to amend, to an amended writ petition challenging respondent’s approval of a development project without any hearing being held on petitioner’s administrative appeal that had challenged respondent’s project permit compliance review. The writ petition was filed nine months after respondent approved the project. The trial court properly sustained the demurrers because the writ petition was time-barred by the 90-day statute of limitations in Government Code section 65009(c)(1). (C.A. 2nd, filed February 15, 2019, published March 12, 2019.)

Citrus El Dorado v. Chicago Title Co. (2019)_ Cal.App.5th _ , 2019 WL 1033547: The Court of Appeal affirmed the trial court’s order sustaining a demurrer, without leave to amend, to a complaint against a trustee alleging wrongful foreclosure, wrongful disseisin and ouster, and conspiracy following a trustee sale of undeveloped real property. Neither the deed of trust nor the governing statutes expressly create a duty on the part of defendant to verify that the beneficiary received a valid assignment of the loan or to verify the authority of the person who signed the substitution of trustee. A trustee generally has no duty to take any action except on the express instruction of the parties or as expressly provided in the deed of trust and the applicable statutes. The Court of Appeal also ruled that there were insufficient facts pled to show both that there was a failure to comply with the procedural requirements for the foreclosure sale and that the irregularity prejudiced the plaintiff. Because the wrongful foreclosure claim failed, the other two causes of action that were derivative of that claim also failed. (C.A. 4th, March 5, 2019.)

JPMorgan Chase Bank, N.A. v. Ward (2019)_ Cal.App.5th _ , 2019 WL 1396740: The Court of Appeal reversed the trial court’s orders sustaining defendant’s demurrers to plaintiff’s complaint. Plaintiff, the successor in interest on a deed of trust (DOT) securing a loan for $402,876 that was never recorded and was lost, sued plaintiff after plaintiff refused to re-execute and notarize a replacement DOT for purposes of recordation. The Court of Appeal ruled that plaintiff could state a viable claim for declaratory relief to restore a lost deed pursuant to Civil Code section 3415(a), and there was no statute of frauds problem with this claim because it sought to restore and enforce the DOT as written. Because the complaint could have been amended to state a viable claim, the trial court erred in sustaining the demurrer without leave to amend. (C.A. 4th, March 28, 2019.)

Juen v. Alain Pinel Realtors, Inc. (2019)_ Cal.App.5th _ , 2019 WL 460139: The Court of Appeal affirmed the trial court’s order denying a motion to compel arbitration in a putative class action for plaintiffs who had used defendant in a transaction to buy or sell a home in California and had utilized TransactionPoint, a real estate software program developed by Fidelity National Financial, Inc. Defendants moved to compel arbitration, relying on the arbitration clause in plaintiff’s residential listing agreement with defendant Alain Pinel Realtors (Pinel). The original agreement was destroyed under the document retention policy of Pinel. The trial court properly denied the motion because defendants failed to prove that defendant Pinel signed the arbitration clause. (C.A. 6th, filed February 6, 2019, published March 6, 2019.)

Ditzian v. Unger (2019)_ Cal.App.5th _ , 2019 WL 312070: The Court of Appeal affirmed the trial court’s judgment, following a bench trial, finding plaintiffs were entitled to a prescriptive easement allowing them to cross defendant’s parcel on a path leading to MacKerricher State Park. The Court of Appeal rejected all of defendant’s arguments, including his primary argument that the easement was a public easement prohibited by Civil Code, section 1009. (C.A. 1st, January 24, 2019.) 

Mikkelsen v. Hansen (2019)_ Cal.App.5th _ , 2019 WL 153706: Based upon the post-judgment decision of the California Supreme Court in Scher v. Burke (2017) 3 Cal.5th 136 (Scher), the Court of Appeal reversed the trial court’s finding of an implied-in-fact and implied-in-law dedication of property used for a pedestrian path between two residential developments. Scher ruled that Civil Code, section 1009(b) proscribes implied-in-law dedications of private noncoastal property. The Court of Appeal ruled that section 1009(b) also prohibits implied-in-fact dedications of private noncoastal property. (C.A. 5th, January 10, 2019.)  

Prout v. Dept. of Transportation (2019)_ Cal.App.5th _ , 2018 WL 7018047: The Court of Appeal affirmed the trial court judgment, following a bench trial, finding that defendant and cross-complainant validly accepted plaintiff’s offer of dedication of a strip of his property by physically occupying the strip for its highway improvements, awarding specific performance on the cross-complaint, and ordering plaintiff to execute a deed. The Court of Appeal ruled that plaintiff’s challenge to the dedication under Nollan v. California Coastal Commission (1987) 483 U.S. 825 was barred by his failure to file a timely petition for writ of mandamus. Plaintiff’s inverse condemnation claim failed because substantial evidence supported the trial court’s finding that plaintiff made an offer to dedicate the entire strip of land in 1990 and did not revoke the offer before defendant accepted it by physically using the strip to make highway improvements in 2010-2011. (C.A. 3rd, filed December 18, 2018, published January 11, 2019.) 

Venice Coalition etc. v. City of Los Angeles (2019)_ Cal.App.5th _ , 2019 WL 141477: The Court of Appeal affirmed the trial court’s order granting summary judgment for defendant in an action where plaintiffs alleged that defendant had engaged in a pattern and practice of illegally exempting certain development projects in Venice from permitting requirements in the Venice Land Use Plan and in the California Coastal Act. The trial court properly granted summary judgment on all five causes of action. (C.A. 2nd, January 9, 2019.)

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