April 2019 Update
Beginning January 1, 2019, an attorney representing a client participating in a mediation or a mediation consultation must, before the client agrees to participate in the mediation or mediation consultation, provide the client with a printed disclosure containing the confidentiality restrictions described in Evid C §1119 and obtain a printed acknowledgment signed by that client stating that he or she has read and understands the confidentiality restrictions. A statutory form used to comply with this requirement can be found in Evid C §1129(d). See §§1.47, 2.35, 3.24, 4.25, 5.38, 6.30, 7.24, 9.31, 10.57, 12.36, 13.25, 15.40.
In Hansen v Sandridge Partners, L.P. (2018) 22 CA5th 1020, the Hansens were not entitled to an equitable easement over disputed lands because the Hansen’s encroachment on Sandridge’s land for agricultural purposes was negligent and therefore not innocent. The Hansens could not be awarded a prescriptive easement because what they sought was an exclusive prescriptive easement contrary to California law. The only recourse available to the Hansens would be to seek adverse possession, but they could not satisfy the necessary elements, including payment of taxes. See §§1.6, 1.18, 1.27, 2.18, 5.31, 16.62–16.63, 16.65, 18.27, 18.29.
If the terms of an express easement are not clear from the written document, the court may consider extrinsic evidence in interpreting the express easement. Termination of an easement by adverse use requires that the servient tenement owner meet all of the elements of adverse possession, including timely payment of taxes. If the easement is separately assessed, then the servient tenement owner must pay these taxes; if it is not separately assessed, then the servient tenement owner need only prove payment of taxes on the servient estate. McLear-Gary v Scott (2018) 25 CA5th 145, 157. See §§1.16, 1.18, 1.19, 1.33, 2.17, 5.17.
When an express easement describes the easement specifically and unambiguously, no extrinsic evidence of the intent of the parties or of prior use is admissible. Zissler v Saville (2018) 29 CA5th 630. See §1.16.
In Hoffman v Superior Ready Mix Concrete, L.P. (2018) 30 CA5th 474, the court held that CCP §1021.9 applies if the trespass occurs anywhere on the “lands,” even if the trespass did not occur on the portion of the lands actually under cultivation, and also applies even if the cultivation or livestock use is not commercial. See §1.53.
Insurance coverage may be available to a defendant accused of nuisance for interfering with or impeding an easement in such a way as to interfere with the plaintiff’s use or enjoyment of the plaintiff’s property. Albert v Truck Ins. Exch. (2018) 23 CA5th 367. See §1.56.
The Council of Tree and Landscape Appraisers’ Guide for Plant Appraisal (9th ed 2000) has undergone a major revision and the long-anticipated 10th Edition of the Guide for Plant Appraisal was published in 2018. The new edition includes additional guidance on such topics as the contribution of trees to real estate market value (CREMV), appraisal of forest trees, and the use of benefit-based approaches (e.g., i-Tree) to tree valuation. See §4.36.
In Hauser v Ventura County Bd. of Supervisors (2018) 20 CA5th 572, the court found the county board of supervisors correctly denied a conditional use permit to house five tigers. See §6.10.
Effective January 1, 2019, in Health & S C §11018.5(a), the definition of industrial hemp was amended to include resin and other derivatives from the plant. See §10.13.
Penal Code §29805 was amended by Stats 2018, ch 883, adding subsection (b), which provides that persons convicted after January 1, 2019, of a misdemeanor violation of Pen C §273.5 (domestic abuse) can no longer own, purchase, receive, or possess firearms. See §10.53.
Under Health & S C §11362.775(d), engagement in “collective” or “cooperative” conduct on behalf of medical patients became authorized 1 year after the Bureau of Cannabis Control (BCC) began issuing licenses. After January 9, 2019, commercial cannabis activity (cultivation, manufacturing, distribution, testing, and retail sales) is limited to licensed operators under the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA) (Bus & P C §§26000–26250). Personal use, possession, and cultivation is limited to the activity authorized under Proposition 64. Health & S C §11362.1(a). See §§10.63, 10.63C, 10.64, 10.67.
The MAUCRSA created a licensing framework for businesses engaging in the retail sale of cannabis to both adults over 21 years old and medical patients with a valid physician recommendation. Among the requirements to operate a retail cannabis dispensary, a business must be licensed by both the state and local jurisdiction. Bus & P C §26032(a)(2). See §§10.67–10.68.
Effective January 1, 2019, the amendment (Stats 2018, ch 470) to Health & S C §113789 added “Microenterprise Home Kitchen Operations” to other existing “Food Facilities” and extended the Homemade Food Act to allow home cooks to sell prepared foods. See §12.43.
In Wilson v Southern Cal. Edison Co. (2018) 21 CA5th 786, the court held that in a private nuisance claim, the defendant’s conduct may be reasonable but still result in unreasonable interference with the plaintiff’s use and enjoyment of her property. See §§16.3, 16.10.
The California Supreme Court held that citizens could challenge a zoning ordinance by use of a referendum even though a successful referendum would make zoning inconsistent with the city’s general plan. City of Morgan Hill v Bushey (2018) 5 C5th 1068. Local residents can use the power of initiative or referendum for a range of functions relevant to land use, including to alter the general plan for a municipality. See §17.25.