Tag: Real Estate Attorney Los Angeles; Los Angeles Real Estate Lawyer; Real Estate Litigator Los Angeles; Real Estate Trial Attorney Los Angeles

Just because a party prevails on their expungement motion does not mean an attorneys’ fees award is automatic. California courts utilize the “practical approach” when deciding whether to award attorney fees upon successfully bringing an expungement motion. Under the practical approach, a trial court must determine whether the moving party is the prevailing party under section 405.38 by analyzing the extent to which each party has realized its litigation objectives. To determine litigation objectives, it is not enough simply to consider that the lis pendens has been withdrawn; the court must consider and decide whether the moving party would have prevailed on the motion. See Castro v. Superior Court, (2004) 116 Cal. App. 4th 1010, 1022-23.

Contact our Los Angeles Lis Pendens Attorneys today for a free consultation and case evaluation.

Our Los Angeles Real Estate Attorneys recently litigated the issue of whether claimants could enforce land covenants upon a property owner wherein there were no express provisions granting claimants the right to enforce the covenants.

California courts have held that Plaintiffs who did not own any land benefited by a particular covenant they sought to enforce, nevertheless had standing to bring a declaratory relief action because the Court found that the Plaintiffs were intended beneficiaries of the land covenant and therefore interested parties within the meaning of C.C.P. § 1060. See Monterey/Santa Cruz County Bldg. and Const. Trades Council v. Cypress Marina Heights LP, (2011) 191 Cal. App. 4th 1500, 1521-22.

In the Cypress Marina Heights LP case, the plaintiffs, who consisted of labor organizations, an association of contractors and two taxpayers, sought a declaration and injunction enforcing prevailing wage requirements found in property deeds. Id. at 1504. The trial court granted plaintiffs’ summary adjudication motion. Id. The developer defendants appealed the trial court’s judgment and challenged plaintiffs’ standing to bring declaratory relief since the plaintiffs did not own any land subject to the covenants. Id. at 1521.

In holding that the plaintiffs had standing and affirming the trial court’s ruling, the California Court of Appeal for the Sixth District held that the plaintiffs “had a beneficial interest in the enforcement of the prevailing wage requirement because it was intended to benefit them.” Id. at 1521. The plaintiffs in Cypress Marina Heights LP were not landowners or owners of benefited lands, but were benefited parties to the deed covenants sought to be enforced. In affirming the trial court’s judgment, the Court of Appeal held that these plaintiffs had standing pursuant to C.C.P. § 1060. Id

Under California law, where the damages caused by a nuisance are shown to be temporary in character, the measure of damages is the difference in the rental value or use value of the property before and after the injury caused by the nuisance.  See Qualls v. Smyth, (1957) 148 Cal. App. 2d 635, 637; see also Guttinger v. Calaveras Cement Co., (1951) 105 Cal. App. 2d 382, 387.  The diminution in rental value is also the proper measure of damages wherein the property is not directly affected or depreciated by physical injury.  See Ingram v. City of Gridley, (1950) 100 Cal. App. 2d 815, 821.

Under California law, Damages for discomfort, annoyance, and mental distress suffered by a homeowner as the result of a nuisance are recoverable, and not merely as an alternative to or to the exclusion of damages for depreciation of the rental value. See Spaulding v. Cameron, (1954) 127 Cal. App. 2d 698, 706. California courts have held that Annoyance and discomfort damages are intended to compensate a plaintiff for the loss of his or her peaceful occupation and enjoyment of the property. See Kelly v. CB & I Constructors, Inc., (2009) 179 Cal. App. 4th 442, 456. Other courts have held the same. See Webster v. Boone (Colo.App.1999) 992 P.2d 1183, 1185, “We recognize that annoyance and discomfort by their very nature include a mental or emotional component, and that some dictionary definitions of these terms include the concept of distress. Nevertheless, the ‘annoyance and discomfort’ for which damages may be recovered on nuisance and trespass claims generally refers to distress arising out of physical discomfort, irritation, or inconvenience caused by odors, pests, noise, and the like. See also the California Supreme Court’s holding in Kornoff v. Kingsburg Cotton Oil Co., (1955) 45 Cal. 2d 265. In that case, the plaintiffs were the owners and occupants of a property on which they both resided and operated a planting mill ( Id. at p. 266, 288 P.2d 507.) The defendant operated a cotton ginning mill, which caused the “lawns, flowers, shrubs, window screens, hedges and furniture” on the plaintiffs’ property to be “for approximately six months of each year, covered with a thick coating of dust and lint and ginning waste.” ( Id. at p. 273, 288 P.2d 507.) The defendant’s trespass, the court noted, was not of “the type to cause fright or shock or even physical illness,” but it nevertheless caused the plaintiffs “much discomfort.” ( Ibid.) Because such annoyance and discomfort was the natural and proximate result of the defendant’s trespass, the plaintiffs were entitled to compensation, even though they had suffered no physical injury. ( Id. at pp. 272–273, 288 P.2d 507.) The determination of the amount of compensation for personal discomfort and annoyance to which a person has been subjected by a nuisance on adjoining property is a question for the trial court. See Griffin v. Northridge, (1944) 67 Cal. App. 2d 69, 76.

Thus, annoyance and discomfort damages are intended to compensate a plaintiff for the loss of his or her peaceful occupation and enjoyment of the property.

A real estate broker or agent owes a prospective purchaser of a residential real property comprising of 1 to 4 units, a duty to conduct a reasonably competent and diligent visual inspection of the property offered for sale and to disclose to that prospective purchaser all facts materially affecting the value or desirability of the property that an investigation would reveal, if that broker has a written contract with the seller to find or obtain a buyer or is a broker who acts in cooperation with that broker to find and obtain a buyer. See Cal. Civ. Code § 2079(a). However, there are some limitations with respect to the extent of that inspection. The standard of care owed by a broker under California law is the degree of care that a reasonably prudent real estate broker or agent would exercise and is measured by the degree of knowledge through education, experience, and examination, required to obtain a broker/agent license. See Cal. Civ. Code § 2079.2.

These duties to disclose carried by the selling broker/agent do not relieve a buyer or prospective buyer of the duty to duty to exercise reasonable care to protect himself or herself, including those facts which are known to or within the diligent attention and observation of the buyer or prospective buyer. See Cal. Civ. Code § 2079.5.

The scope of inspection is also somewhat limited in that it does not involve or include an inspection of areas that are reasonably and normally inaccessible to such an inspection, nor an affirmative inspection of areas off the site of the subject property or public records or permits concerning the title or use of the property. See Cal. Civ. Code § 2079.3.

Prospective buyers should also be aware that if a breach or nondisclosure within the scope of duties outlined under Section 2079 et. seq., is discovered, the buyer has two years from the date of possession, which means the date of recordation, the date of close of escrow, or the date of occupancy, whichever occurs first, in order to bring an action against the selling agent/broker. See Cal. Civ. Code § 2079.4. This two year statute does not affect the 3 year statute for intentional fraud, nor does it affect the 4 year statute for breach of fiduciary duty claims.

It is also important to note that these rules regarding an agent’s duty to disclose defects visible to him/her during escrow, do not diminish the duty of disclosure owed to buyers by agents from liability for their conduct in connection with acts governed by these rules or for any breach of fiduciary duty or a seller’s legal duty of disclosure. See Cal. Civ. Code § 2079.24.

A real estate agent who breaches the duty of good faith is precluded from recovering a commission for services rendered upon a showing that the breach was founded in fraud or intentional deceit. See Ziswasser v. Cole & Cowan, Inc., (1985) 164 Cal. App. 3d 417, 432 (Holding that a breach of fiduciary duty involving intentional disloyalty or bad faith required before a broker will be deprived of his/her right to a commission.)

Thus, a real estate broker’s commission could be disgorged in the event a principal shows intent and/or bad faith on the part of the agent.

California law is well-settled with respect to the rule that a seller’s broker is under a legal duty to disclose material facts affecting the value or desirability of the subject property to the buyer where such facts are not known or observable to the buyer. See Easton v. Strassburger, (1984) 152 Cal. App. 3d 90, 99 (citing to Cooper v. Jevne infra (1976) 56 Cal. App. 3d 860, 866 and Lingsch v.Savage (1963) 213 Cal. App. 2d 729, 733). Referred by the Easton Court as the Cooper-Lingsch Rule, the Easton Court described its purpose as follows:

“The primary purposes of the Cooper-Lingsch rule are to protect the buyer from the unethical broker and seller and to insure that the buyer is provided sufficient accurate information to make an informed decision whether to purchase. These purposes would be seriously undermined if the rule were not seen to include a duty to disclose reasonably discoverable defects. If a broker were required to disclose only known defects, but not also those that are reasonably discoverable, he would be shielded by his ignorance of that which he holds himself out to know. The rule thus narrowly construed would have results inimical to the policy upon which it is based. Such a construction would not only reward the unskilled broker for his own incompetence, but might provide the unscrupulous broker the unilateral ability to protect himself at the expense of the inexperienced and unwary who rely upon him. In any case, if given legal force, the theory that a seller’s broker cannot be held accountable for what he does not know but could discover without great difficulty would inevitably produce a disincentive for a seller’s broker to make a diligent inspection. Such a disincentive would be most unfortunate, since in residential sales transactions the seller’s broker is most frequently the best situated to obtain and provide the most reliable information on the property and is ordinarily counted on to do so.”

Easton supra 152 Cal. App. 3d at 99.

Contact one of our Non Disclosure Attorneys In Los Angeles for a free consultation and case evaluation.

Generally, a real estate agent’s opinion regarding the subject property ordinarily cannot constitute actionable fraud or deceit under California Law. See Rendell v. Scott (1886) 70 Cal. 514 (A statement of opinion, not involving an assertion of fact, will not constitute fraud.) However, if the sales agent advances or offers an opinion in which he/she does not honestly or cannot reasonably believe, then an action for fraud may exist. See Cooper v. Jevne, (1976) 56 Cal. App. 3d 860, 866. Thus, real estate agents offering opinions should ask themselves whether they have information or knowledge which would render their opinion reckless and/or unreasonable.

If you believe you were the victim of a fraud and/or nondisclosure during your real estate transaction, contact one of our Los Angeles Real Estate Fraud and Nondisclosure Attorneys today for a free consultation and case evaluation.

Whenever disclosures are required, such as in the case of a real estate transaction, parties charged with a duty to disclose known material facts, cannot satisfy their burden by making partial disclosures or disclosing some of the information without divulging all that is known by them.  See Randi W. v. Muroc Joint Unified School Dist., (1997) 14 Cal. 4th 1066, 1082; see also Rogers v. Warden, (1942) 20 Cal. 2d 286, 289 (“If he speaks at all, he must make a full and fair disclosure.”)  Thus, California law is seemingly clear that if a disclosure is going to be made, it must be a full and fair disclosure.  Real Estate Agents and Brokers are well advised to note this key point of California law pertaining to disclosures.

Our Los Angeles Nuisance Attorneys were recently asked to review principals of a public nuisance to determine whether a public nuisance claim exists under a particular set of facts and also whether such a claim would support injunctive relief. The following are some well settled California rules of law regarding public nuisances.

Under California law, a public nuisance is defined as a nuisance which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal. See Cal. Civ. Code § 3480. Thus, Anything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a public nuisance. See Cal. Penal Code § 370. A public nuisance is a substantial and unreasonable offense against, or interference with, the exercise of rights common to the public, that are enjoinable or abatable. See County of Santa Clara v. Atlantic Richfield Co., (2006) 137 Cal. App. 4th 292, 305. A public nuisance is substantial if it “causes significant harm and unreasonable if its social utility is outweighed by the gravity of the harm inflicted.” Id. Under California law, the term “public nuisance” comprehends an act or omission which interferes with the interests of the community or the comfort and convenience of the general public and includes interference with the public health, comfort and convenience. See Venuto v. Owens-Corning Fiberglas Corp., (1971) 22 Cal. App. 3d 116, 123. In determining whether something is a public nuisance, the focus must be upon whether an entire neighborhood or community, or at least a considerable number of persons, is affected in the manner and by the factors that make the thing a nuisance under the Civil Code. See Cal. Civ. Code § 3479.

To prove a cause of action for a public nuisance, one must plead the existence of a duty and causation, and, although it is not necessary to show that harm actually occurred, plaintiffs must show that a defendant’s acts are likely to cause a significant invasion of a public right. See In re Firearm Cases, (2005) 126 Cal. App. 4th 959, 988-89 (““The conduct necessary to make the actor liable for either a public or a private nuisance may consist of (a) an act; or (b) a failure to act under circumstances in which the actor is under a duty to take positive action to prevent or abate the interference with the public interest or the invasion of the private interest.””) With respect to a public property right, the violation of a public right may support a claim for a public nuisance. See People v. Stafford Packing Co. (1924) 193 Cal. 719, 726-27.