August 2008

By Rob Hofmann

On May 28, 2008, the Third Appellate District for the Court of Appeal hammered home that technical form over substance rules in real property purchase transactions, irrespective of the parties’ original intent. At issue was a run of the mill purchase and sale transaction, overseen by attorneys on both sides, which granted the buyer a due diligence period to inspect the property and the ability to cancel the transaction if the buyer concluded the property ultimately did not meet its specifications. In this instance, however, the seller chose to cancel the deal during the due diligence period despite the jilted buyer having already spent some $60,000 obtaining a parcel split and related entitlements. The court not only rejected the buyer’s request to enforce the contract but also required the out-of-luck buyer to pay the seller’s $80,000-plus in attorneys’ fees incurred in defense of the buyer’s challenge of the deal cancelation. Steiner v. Thexton (2008) 163 Cal. App.4th 359.

Continue Reading Unsupported Option or Purchase Agreements: A Cautionary Tale

By Rob Hofmann

Plaintiffs Amanda Goldstein and Eric Mizrahi contracted with Ami Weisz and ‘his company’ Barak Construction (“Defendants”) to build a new garage and related remodeling at the projected cost of $363,000. Neither Defendant was a licensed contractor at the time the parties entered into the contract nor when work on the project commenced. Although it is unclear whether Plaintiffs were initially aware of Defendants’ licensure status, Defendants concede they were not licensed until some three months into the project. Plaintiffs contend that Defendants subsequently abandoned the project prior to completion and with material defects despite having allegedly already been paid $362,660.50.

Continue Reading Contractor Subject to Prejudgment Attachment and Not Entitled to Any Compensation When Project Commenced Before Licensure

By William W. Abbott and Janell M. Bogue

As development continues to occur in areas outside of urbanized areas, developers are encountering more threatened or endangered species issues in their environmental review process under the California Environmental Quality Act (“CEQA”). A fundamental question which must be addressed is whether there are threatened or endangered species present in the project area and whether the project will affect those species. This is not always a simple question to answer, as it is not clear what studies are necessary in order to adequately analyze biological resources under CEQA. What standards are appropriate to measure the significance of the effects on endangered species? Furthermore, once threatened or endangered species are determined to be affected by the project and potentially significant impacts to biological resources are identified, how does one provide for adequate mitigation in order to mitigate those impacts to a less than significant level? This article discusses several CEQA cases dealing with these questions and provides insight on how to address endangered species concerns in order to comply with CEQA.

Continue Reading Analyzing and Mitigating Biological Resources and Endangered Species Impacts Under CEQA: An Update

 By Rob Hofmann

On July 21, 2008, the California Supreme Court again pointed out the potential for devastating consequences when the terms in a boilerplate contract provision are triggered. Specifically, the Court upheld a fairly typical construction contract indemnification provision that required a subcontractor to defend the general contractor for claims and arising out of the subcontractor’s work, even though a jury absolved the contractor was subsequently absolved of any liability. This even included the general contractor’s costs of suit against the subcontractor to resolve the dispute over the scope of the indemnification provision. Crawford v Weather Shield Mfg, Inc. (2008) 44 Cal.4th 541

Continue Reading BOILERPLATE LANGUAGE BITES AGAIN – Subcontractor Must Pay Developer’s Defense Costs Despite Jury Finding Subcontractor Not Negligent

The Public Law Journal, Summer 2008 issue, Vol. 31 No. 3, features an article on Global Climate Change from Abbott & Kindermann’s own Leslie Z. Walker. The article, Warming Up to Global Climate Change, can be viewed here. Members of the Public Law Journal can view the entire periodical by logging onto the State Bar of California Public Law Section website.

Ms. Walker, an associate at the firm, primarily practices in the areas of land use and environmental law with a particular focus on climate change. She is a member of the State Bar of California, the Environmental and Real Property Sections of the Sacramento County Bar Association, and admitted to practice before the state courts in California and the U.S. District Court, Eastern District of California.


Ms. Walker is a Building Industry Association, BUILD (Building Universal Industry Leadership & Development) Recruit and a member of the American Planning Association Sacramento Chapter, and the Urban Land Institute.

By Cori Badgley

In Los Altos Golf and Country Club v. County of Santa Clara (June 30, 2008) 2008 Cal.App.Lexis 1149, plaintiffs brought a class action demanding a refund from the City of Los Altos of sewer service charges paid by plaintiffs on the grounds that the fees violated Article XIII D of the California Constitution and the Health and Safety Code. Instead of allowing plaintiffs to make any substantive arguments, the City and the County ("Respondents") claimed that the case should be dismissed because the plaintiffs had failed to pay the fees under protest, as required by the Health and Safety Code. The Court of Appeal, Sixth Appellate District agreed with the Respondents and dismissed the case. Sewer service charges must first be paid under protest in order to later request a refund.

Continue Reading Before Challenging Sewer Service Charges in Court, Thou Shall First Protest

By Glen Hansen

The recent decision by the Court of Appeal for the First Appellate District in Urban Habitat Program v. City of Pleasanton (2008) 164 Cal.App.4th 1561, vividly illustrates the conflict that can arise between the desire by local voters to limit housing growth, the local jurisdiction’s obligations under state law to allow construction of low and moderate income housing, and the local officials’ reluctance to thwart the voters’ desire in order to meet those state obligations. That conflict invariably leads to litigation, even years after a no-growth initiative is passed by the voters.  

Continue Reading Is the Local No-Growth Initiative Conflicting With The Local Low-Income Housing Obligations? When Is It Time To Sue?

By William W. Abbott and Janell M. Bogue

The 2003 California Supreme Court decision of Gardner v. County of Sonoma (2003) 29 Cal.4th 990 left unanswered the status of pre-1929 subdivision maps. The California Court of Appeal, First Appellate District in Witt Home Ranch, Inc. v. County of Sonoma (July 29, 2008) 2008 Cal. App. Lexis 1160 has now tackled one aspect of this issue in the context of a 1915 subdivision map.

Continue Reading Revisiting History: When is a Recorded 1915 Map Not a Subdivision Map?

By Cori Badgley

In the area of prescriptive easements, courts and practitioners have been challenged by the issue of who has the burden to prove “adverse use.” “The elements necessary to establish an easement by prescription are open and notorious use of another’s land, which use is continuous and uninterrupted for five years and adverse to the land’s owner.” Some courts have held that by providing evidence that the use is open, notorious and continuous, a presumption arises that the use is also adverse, and therefore, the defendants, and not the plaintiffs, must prove that the use is not adverse. The Court of Appeal, Second Appellate District in Grant v. Ratliff (July 16, 2008) 2008 Cal.App.Lexis 1063, disagreed with these courts and held along with the other California courts that even if the plaintiff provides evidence of open, notorious and continuous use, the plaintiff still bears the burden of producing evidence to show that the use was adverse. The burden does not shift to the defendant.

Continue Reading Long-time Debate Over Presumptions in Prescriptive Easement Cases Settled by Second Appellate District