Table of Contents

REAL ESTATE CASES

• Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage Leasehold and Easement etc.
• California Highway Patrol v. Superior Court (Walker)
• S. Utah Wilderness Alliance v. Kempthorne
• Ocwen Orlando Holdings Corp. v. Harvard Prop. Trust, LLC
• Taylor v. Westly
• In re Marriage of Holtemann
• Beazer E., Inc. v. Mead Corp.
• Garcia v. Brockway
• N. Pacifica LLC v. City of Pacifica
• Oravec v. Sunny Isles Luxury Ventures, L.C.
• Stroman Realty, Inc. v. Antt
• Ericson v. Fed. Express Corp.

REAL ESTATE CASES

U.S. 9th Circuit, May 09, 2008
Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage Leasehold and Easement etc., No. 06-35660
In an action claiming that plaintiff has lost and is continuing to lose natural gas stored in its Elk Basin Storage Reservoir due to the operation of gas production wells owned by defendants, dismissal of the action is affirmed where: 1) the condemnation claim was properly dismissed, but on the ground that it failed to state a claim; 2) the district court did not abuse its discretion in declining to exercise supplemental jurisdiction over the state law claim; and 3) state law claims were properly dismissed for lack of subject matter jurisdiction. A natural gas company may not condemn additional property that is not specifically described in its existing certificate of public convenience and necessity (CPCN), even if the natural gas company seeks to acquire such property in order to operate and maintain an existing storage facility. Read more...

California Appellate Districts, May 09, 2008
California Highway Patrol v. Superior Court (Walker), No. C055614
Vehicle Code section 14602.6(a)(1) provides only discretionary authority to impound and therefore the California Highway Patrol cannot be held liable under Government Code section 815.6 for failing to perform a mandatory duty. Read more...

U.S. 10th Circuit, May 12, 2008
S. Utah Wilderness Alliance v. Kempthorne, No. 06-4251, 07-4223
In appeals involving appellants' post-judgment motions to intervene in a case affecting their interests in oil and gas leases, the circuit court dismisses one appeal where the district court had yet to rule on their motion to intervene at the time movants filed their appeal. Denial of the other motion to intervene is affirmed on grounds that movants chose to intervene only after the government agency from which they obtained the leases decided not to pursue an appeal, and must await a final decision by the administrative agency in order to have an appealable final decision. Read more...

U.S. 11th Circuit, May 12, 2008
Ocwen Orlando Holdings Corp. v. Harvard Prop. Trust, LLC, No. 07-13920
In a breach of contract action involving a forum selection clause which prevented the transfer of any action filed in any court to any other court, a judgment honoring the effects of underlying clause is affirmed where: 1) the plain meaning of the clause governed, as its unequivocal language was insusceptible of more than one interpretation; and 2) based upon the plain meaning of the word "transfer", the forum selection clause waived defendant's right to remove along with its right to transfer for the convenience of the parties and witnesses. Read more...

U.S. 9th Circuit, May 12, 2008
Taylor v. Westly, No. 07-16902, 07-17223
In long-running litigation involving the constitutionality of California's statutory procedure addressing escheat, grant of a motion to dissolve an injunction preventing the operation of California's escheat process is affirmed in part and reversed in part where: 1) on its face, the state's new procedure complies with the due process standard previously established by the Supreme Court; 2) there was no abuse of discretion in dissolving the injunction; but 3) a denial of interim attorney's fees to plaintiffs was an abuse of discretion under the circumstances. Read more...

California Appellate Districts, May 12, 2008
In re Marriage of Holtemann, No. B203089
In a dispute about the legal effect of a spousal property transmutation agreement executed during marriage, judgment finding the underlying agreement effectuated a transmutation of husband's separate property into community property is affirmed where: 1) the unambiguous language in the parties' agreement evinced that the husband intended to, and did transmute his separate property; 2) nothing in the record suggested that the husband was misinformed or misled in light of the requisite express, unequivocal declarations of transmutations; and 3) his arguments for disparate treatment of his express declarations of transmutation based on his lack of separate counsel were unavailing, as he was fully advised of the consequences of failing to secure separate counsel, yet chose to proceed. Read more...

U.S. 3rd Circuit, May 13, 2008
Beazer E., Inc. v. Mead Corp., No. 06-4993
In an on-going contribution claim against defendant under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), wherein the district court denied defendant's motion to dismiss for failure to state a claim and certified the question of whether certain caselaw precedent limited subject-matter jurisdiction over plaintiff's contribution claims under section 113(f)(1), the circuit court finds that: 1) the "civil action" requirement in section 113(f) is an element of the claim, and is not jurisdictional; 2) the district court retained its original jurisdiction to adjudicate the issues in this case; and 3) defendant waived its challenge to the applicability of section 113(f)(1). Read more...

U.S. 9th Circuit, May 13, 2008
Garcia v. Brockway, No. 05-35647
An aggrieved person must bring a private civil action under the Fair Housing Act (FHA) for a failure to properly design and construct within two years of the completion of the construction phase, which concludes on the date that the last certificate of occupancy is issued. (Panel opinion adopted by the en banc court with amendments) Read more...

U.S. 9th Circuit, May 13, 2008
N. Pacifica LLC v. City of Pacifica, No. 05-16069
In an action brought by a developer against the city of Pacifica involving a proposed condominium project, dismissal of developer's substantive due process claim is affirmed, but an order holding city liable for an equal protection violation is reversed and the resultant damages awards vacated where: 1) the developer was not entitled to judgment on an equal protection claim, as the city did not intentionally treat it differently from any other developer; and 2) a due process claim should not be resurrected because developer did not allege any irrational delay in the city's approval of its permits. Read more...

U.S. 11th Circuit, May 14, 2008
Oravec v. Sunny Isles Luxury Ventures, L.C. , No. 06-14495
In an action brought by plaintiff-architect under the Copyright Act alleging that defendants infringed his copyrighted architectural designs via the design, development, and construction of certain Trump buildings, summary judgment for defendants, as well as a denial of a motion for leave to file a third amended complaint, are affirmed where a thorough review of the record indicated that the district court properly made its rulings under the specific facts of the case and did not abuse its discretion in denying the motion for leave to amend. Read more...

U.S. 5th Circuit, May 14, 2008
Stroman Realty, Inc. v. Antt, No. 05-20803
An order enjoining California and Florida from applying their licensing and regulatory requirements on a Texas-based real estate broker is reversed and dismissed where: 1) personal jurisdiction over California did not arise from merely having sent cease and desist orders to the Texas Real Estate Commission; and 2) personal jurisdiction over Florida did not arise from the state's contact with the Texas Attorney General's Office in order to obtain information on the plaintiff for a suit in Florida. Read more...

California Appellate Districts, May 14, 2008
Ericson v. Fed. Express Corp., No. D049934
In a premises liability tort action arising from a third-party's assault and robbery incident in defendant's parking lot, summary judgment for defendant is affirmed where: 1) the third-party assault was not foreseeable under even the "regular reasonable forseeability" test; and 2) the negligent undertaking doctrine was inapplicable. Read more...