Miles J. Dolinger
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We keep you up to date on real estate law, zoning and land use issues in Santa Cruz, Santa Clara and Monterey Counties
Miles J. Dolinger
1M ago
In McMillin Albany LLC v. Superior Court, (2018) 4 Cal.5th 241, the California Supreme Court held that homeowners’ (collectively “the Van Tassels”) claims seeking recovery for construction defect damages are subject to the Right to Repair Act (“RRA” or “The Act”, California Civil Code section 895 et seq.), and thus the Van Tassels were required to comply with prelitigation procedures under the Act even if their operative complaint did not include expressly allege an RRA claim.
The Act sets forth numerous procedures and remedies regarding residential construction defect claims. In p ..read more
Miles J. Dolinger
1M ago
In McBride v. Smith, (2018) 18 Cal.App.5th 1160, the court of appeal held that a prescriptive easement claim can survive a demurrer (that is, a which is a motion to dismiss brought early in the case), where allegations in the complaint suggest that the plaintiff’s easement use was contrary to language contained in the recorded easement grant.
In this case, Byron and Kalmia Smith purchased land in 1998 that was subject to a previously recorded easement. The easement was created in 1993, for the sole purpose of “emergency or secondary ingress and egress to a single family residence and not as pr ..read more
Miles J. Dolinger
1M ago
In Lynch v. Coastal Commission, 5 Cal.5th 470 (2017), the California Supreme Court held that California residents who began construction of a cliffside seawall and stairway project, for which they had obtained the requisite coastal development and building permits, forfeited their right to challenge conditions imposed on the coastal development.
In 2009, the City of Encinitas (City) granted to Plaintiffs, Frick and Lynch, who were neighbors, permits to build a new seawall and to replace the lower portion of the private wooden stairway leading from their respective homes down to the beach. &nbs ..read more
Miles J. Dolinger
1M ago
In Scher v. Burke, 3 Cal.5th 136 (2017), the California Supreme Court held that the limitation on implied public dedications set forth in Civil Code section 1009(b) applies to both recreational and nonrecreational uses of non-coastal property.
The issue arose from a California Supreme Court case, Gion v. City of Santa Cruz, (1970) 2 Cal.3d 29, which held that private owners of certain coastal property who allowed the public to use the property for recreational purposes over a period of years thereby impliedly dedicated to the public the right to use the owner’s private property. The consequenc ..read more
Miles J. Dolinger
1M ago
In Gillies v. JPMorgan Chase Bank, NA, (2017) 7 Cal.App.5th 907, the Second District Court of Appeals of California ruled that the “game is over” for a borrower that remained in possession of property for eight years after defaulting on payment of his mortgage.
In this case, Attorney Douglas Gillies (“Gillies”) appealed the loss of his 4th lawsuit challenging mortgage lender JPMorgan Chase’s (“Chase”) efforts to foreclose on his real property. Each lawsuit contained similar allegations of wrongful foreclosure actions and lack of standing to foreclose on the part of Chase.
In 2009, Gillies defa ..read more
Miles J. Dolinger
1M ago
In Real v. City of Long Beach, (9th Cir. 2017) 852 F.3d 929, the Ninth Circuit Court of Appeals ruled that the owner of a California tattoo shop, Mr. James Real (“Real”), may rightfully bring an action pursuant to 42 U.S.C. § 1983 alleging that the City of Long Beach’s (“City”) zoning restrictions violate the First Amendment by unreasonably restricting Real’s ability to open and operate a tattoo shop in the City.
In the U.S. District Court, Real argued that the City’s zoning use restrictions were overly restrictive “prior restraints” with regard to his First Amendment right to engage in tattoo ..read more
Miles J. Dolinger
1M ago
In Acqua Vista Homeowners Assn. v. MWI, Inc., (2017) 7 Cal.App.5th 1129, the California Court of Appeal, Fourth District, clarified the burden of proof that homeowners must satisfy to prove defects in new construction against materials suppliers. The Court held that under SB 800 (the Right to Repair Act, “RRA”, California Civil Code § 895 et seq.), a material supplier may be held liable for defects in new residential construction if the supplier “caused, in whole or in part, a violation of a particular standard as the result of a negligent act or omission or a breach of contract.”
The Act sets ..read more
Miles J. Dolinger
1M ago
In Cape Concord Homeowners Ass’n V. City of Escondido, (2017) 7 Cal. App. 5th 180, the Court of Appeal held that the Homeowners Association (“HOA”) was not entitled to a refund of service fees paid for water used to irrigate common landscape areas despite the fact that the water used for irrigation was not connected to the City of Escondido’s (“City”) sewer system.
In this case, the City supplied the HOA with water through a single water meter from 1980 through 2012. In 2006, the City began billing the HOA for sewer services where the billing rate was based on the amount of fresh water that fl ..read more
Miles J. Dolinger
1y ago
In McMillin Albany LLC v. Superior Court, (2018) 4 Cal.5th 241, the California Supreme Court held that homeowners’ (collectively “the Van Tassels”) claims seeking recovery for construction defect damages are subject to the Right to Repair Act (“RRA” or “The Act”, California Civil Code section 895 et seq.), and thus the Van Tassels were required to comply with prelitigation procedures under the Act even if their operative complaint did not include expressly allege an RRA claim.
The Act sets forth numerous procedures and remedies regarding residential construction defect claims. In p ..read more
Miles J. Dolinger
1y ago
In McBride v. Smith, (2018) 18 Cal.App.5th 1160, the court of appeal held that a prescriptive easement claim can survive a demurrer (that is, a which is a motion to dismiss brought early in the case), where allegations in the complaint suggest that the plaintiff’s easement use was contrary to language contained in the recorded easement grant.
In this case, Byron and Kalmia Smith purchased land in 1998 that was subject to a previously recorded easement. The easement was created in 1993, for the sole purpose of “emergency or secondary ingress and egress to a single family residence and not as pr ..read more