• Land Use Attorney Capitola

CASE UPDATE: CEQA Did Not Require Supplemental EIR For New Amendments To San Jose International Airport Master Plan.

In Citizens Against Airport Pollution v. City of San Jose, (6th Dist. 2014) 173 Cal.Rptr.3d 794, the court affirmed the City of San Jose’s approval of the eighth addendum to the San Jose International Airport Master Plan EIR, adopted in 2007 (“Master Plan”), which was prepared Master Plan amendments that the City adopted in 2010. The amendments included changes to the size and location of cargo facilities, the replacement of air cargo with general aviation facilities, and the modification of two taxiways. The petitioners first argued that a new EIR was required because these changes constituted a new project, but the court rejected this argument.

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CASE UPDATES: Broker Disclosures; Reconciling Nonconforming Structures and Variance Rules; New Santa Cruz County Medical Cannabis Cultivation Ordinance


Coldwell Banker Residential Brokerage Company, Inc. v. Superior Court, (2014) 117 Cal.App.4th 158, was a real estate non-disclosure case.  After a house buyer and her minor child moved into their newly purchased house, they both developed asthma caused by toxic mold that was allegedly not disclosed by the seller’s broker, and they both sued the seller’s broker for personal injuries and property damages under multiple causes of action including fraud (nondisclosure/concealment), emotional distress and nuisance.

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CASE UPDATES: Construction Defect Damages Under The Right To Repair Act (Civil Code §§ 896 et seq.; aka SB 800)

This month’s Update features two cases interpreting the Right to Repair Act (“RRA,” Civil Code §§ 896 et seq.)  The RRA, also known as “SB 800”, comprises a comprehensive set of substantive and procedural rules for litigating residential construction defects cases for housing units first sold as new after January 1, 2003. The RRA’s provisions include the following:

  • describes “functionality standards” for applicable residential construction, that is, it identifies certain types of construction problems as being actionable defects for which builders are liable;
  • defines consumer burdens of proof in trials about construction defects
  • defines “builder” as a builder, developer, general contractor, contractor, or original seller, with exceptions;
  • imposes upon builders obligations to provide specified minimum warranties;
  • provides builders with the conditional right to repair alleged defects before being sued with relatively short action deadlines;
  • fosters mediation and other prelitigation conduct to avert lawsuits;
  • allows builders selling new units to formally identify owner maintenance duties to assure that owners know of them;
  • extends certain statutes of limitation, while shortening others; and
  • lists the affirmative defenses available to builders in most lawsuits to which SB 800 applies

In Burch v. Superior Court (2nd Dist. 2014), 2014 WL 640707, the court held that the Right to Repair Act did not provide the exclusive remedies for plaintiff’s construction defect claims and did not limit other common law damages claims. Plaintiffs purchased a custom home in Pacific Palisades that had numerous construction defects, and they brought suit against the developer, the developer’s builder and the two individuals that co-owned both companies, alleging breach of contract, negligence, breach of implied warranty, unjust enrichment, third party beneficiary breach of contract, and violations of the RRA. The defendants argued that plaintiff’s damages were limited under the RRA to only the cost of remedying the construction defects pursuant to Civil Code section 896, which states as follows:

In any action seeking recovery of damages arising out of, or related to deficiencies in, the residential construction . . . a builder, and to the extent set forth in Chapter 4 (commencing with section 910), a general contractor, subcontractor, material supplier, individual product manufacturer, or design professional, shall, except as specifically set forth in this title, be liable for, and the claimant’s claims or causes of action shall be limited toviolation of, the following standards, except as specifically set forth in this title.

Based on this language, defendants argued that plaintiff’s claims for other economic and consequential damages under negligence, breach of contract and other causes of action should be dismissed. However, the court disagreed. Analyzing other relevant limitations of damages provisions in the Civil Code (Civil Code sections 943(a), 944, and 897), the court held that the RRA provides a remedy for particular residential construction defects that cause no property damage or personal injury, and that it does not preclude other common law claims for damages arising from construction defects that have caused property damage.

KB Home Greater Los Angeles, Inc. v. Superior Court (2nd Dist. 2014), 2014 WL 667368, is another Right to Repair Act case, in which the court held that an owner’s damages claim was barred under the RRA because of the owner’s or the owner’s insurance company’s failure to give the builder timely notice and an opportunity to inspect and offer to repair the construction defects and related damages. In this case, a property manager discovered a water leak in a home while it was vacant. The property manager called the homeowner, who called its insurer, Allstate, which promptly hired an emergency mitigation company to remove the excess water and to remove the water-damaged dry wall and carpets. Two months later, Allstate hired a contractor to complete the repairs. However, it was not until after the repairs were completed that Allstate submitted its RRA construction defect/damages claim to the builder (under its subrogation rights). The builder then sought summary judgment to dismiss the RRA claim based on the owner’s and Allstate’s failure to follow the RRA’s notice/inspection/opportunity to repair provisions. The court agreed with the builder and dismissed Allstate’s RRA damages claim altogether. As the court explained: “the prelitigation procedure in chapter 4 [Civil Code sections 910-938] . . . begins with the homeowner’s notice of defect, gives the builder an opportunity to inspect, and leads to mediation or an offer of repair or cash. The sequential procedure fulfills the purpose of the Act ‘to give a builder the opportunity to resolve a homeowner’s construction defect claim in an expeditious and nonadversarial manner.’”

The court expressly rejected Allstate’s argument that the RRA’s notice procedures should not apply in cases of emergency, stating that the RRA does not prevent the homeowner from seeking immediate redress from the builder in a catastrophic damage case, that only reasonable notice may be required, and that builders have incentive to act quickly in such cases because of their liability for relocation costs, loss of income damages (for home-based businesses), and other consequential damages.

©2014 Miles J. Dolinger. This article is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship.

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CASE UPDATE: Court Allows Spot Zoning For Senior Housing Development Is Permissible.

In Foothill Communities v. County of Orange (4th Dist. 2014), 2014 WL 108975, the County of Orange approved a 153-unit senior housing development on 7 acres in the middle of a neighborhood zoned residential single-family by creating a new ‘senior residential housing land use’ zoning district and then rezoning the subject property to that designation.  The legal issue was whether this constituted illegal “spot zoning”.

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CASE UPDATE: When The Language Of An Easement Is General The Extent Of Its Use Is Established By Past Use.

The case of Rye v. Tahoe Truckee Sierra Disposal Company, Inc., (3rd Dist. 2013) 2013 WL 6578784, –Cal.Rptr.3d–, involved a fairly common dispute about the extent of an easement.

A garbage company had an easement, created by reservation in a deed, to use a certain parcel for “parking, ingress, egress, utilities and storage” related to its business. The subject parcel contained a paved area and an unpaved area, and the garbage company used the paved area.

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CASE UPDATE: First District Court of Appeal Affirms the Use of Off-Site Conservation Easements to Mitigate the Loss of Prime Farmland Under CEQA

In Masonite Corporation v. County of Mendocino, (1st Dist. 2013) 218 Cal.App.4th 230, the First District Court of Appeal struck down the County of Mendocino’s certification of an environmental impact report (“EIR”) prepared for a use permit for Granite Construction’s Kunzler Terrace Mines project, which will be a sand and gravel quarry on 65 acres of land north of Ukiah near the Russian River (“Project”). Forty-five out of 65 acres of the Project site was vineyard land that the California Department of Conservation had designated as “prime farmland,” which would be lost as a result of the Project.

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CASE UPDATES: CEQA, Attorney-Client Privilege and Parking); and the Public Nuisance Exception to Coastal Commission Jurisdiction

This month’s Land Use Update features: 1) a CEQA case clarifying several issues about what must be included in an administrative record, including attorney-client privilege issues; 2) a CEQA case focused on parking issues; 3) an unusual case involving the public nuisance exception to Coastal Commission jurisdiction under the Coastal Act.

1. In Citizens for Ceres v. Superior Court of Stanislaus County (2013) (5th 2013) Case No. F065690, –Cal.Rptr.2d–, a case challenging an EIR prepared for a shopping center and Wal-Mart store under the California Environmental Quality Act,

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Who Is Responsible When Uphill Stormwater Causes Downhill Damage?


Stormwater issues are not new to residents of hillside and mountain areas. Because winter storms often bring voluminous amounts of rain, sometimes for weeks on end, it is important to know how and where all that stormwater is flowing through your property in order to protect structures from damage and to protect the land from erosion. Sometimes stormwater needs to be collected, concentrated and discharged elsewhere through pipes or culverts, especially following new construction or the creation of impermeable surfaces (like roads and driveways).

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Environmental Law Alert – U.S. Supreme Court Narrows CERCLA “Arranger” Definition

On May 4, 2009, the U.S. Supreme Court handed down an important decision under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), in the case of Burlington Northern and Santa Fe Railway Co. v. United States (Shell Oil Co.).

The Court held that Shell Oil had no liability for soil and groundwater contamination cleanup costs under CERCLA as an “arranger” for “disposal” of hazardous substances merely by selling a pesticide to a user with knowledge that the user was a careless operator that caused spills and leaks during transfer and storage.

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Miles J. Dolinger
Attorney at Law
A Professional Corporation

314 Capitola Avenue Capitola, CA 95010
Phone: (831) 477-9193
FAX: (831) 477-9196

“I would definitely go with Mr. Dolinger again, and I would recommend him in a heartbeat to anyone who is looking for representation. He knows his business and he is very good at it.”

Richard. February 8, 2015
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