Judge: Alison Mackenzie, Case: 20STCV41938, Date: 2024-09-09 Tentative Ruling
Case Number: 20STCV41938 Hearing Date: September 9, 2024 Dept: 55
NATURE OF PROCEEDINGS: DEFENDANT’s MOTION TO EXPUNGE LIS PENDENS
ANLD’s motion is granted.
BACKGROUND
In 2020, Plaintiffs filed this action
against Defendants Jackie Robinson Jr.; All Net, LLC; Tim Arrellano; and AGS
Assurety, LLC (collectively, “Loan Defendants”) seeking to collect on
approximately $2 million in defaulted loans. Plaintiffs allege that these were
bridge loans to assist Loan Defendants’ plans to construct an NBA arena in Las
Vegas.
In May 2020 Plaintiffs amended their
Complaint to name ANLD, the owner of the planned arena site, as an additional
defendant.
The causes of action in the First Amended
Complaint (“FAC”) are (1) breach of contract -business loan and security
agreement; (2) breach of contract - bond and loan agreement; (3) breach of
contract - memorandum; (4) bad faith; (5) fraud; (6) negligent
misrepresentation; (7) professional negligence; and (8) common counts.
In June 2024, Plaintiffs recorded a lis pendens on the
site of the planned arena.
In August 2020, Plaintiffs filed a Second Amended
Complaint (“SAC”) adding constructive trust as a cause of action.
ANLD moves to expunge the lis pendens. Plaintiffs
oppose the motion.
JUDICAL NOTICE
ANLD’s requests for judicial notice 1-5 are
granted.
EVIDENTIARY OBJECTIONS
ANLD’s objections are overruled.
LEGAL STANDARD
A lis pendens is an instrument recorded in the office
of the county recorder that gives constructive notice of a pending lawsuit
affecting title to the real property described in the lis pendens. Gale v.
Superior Court (2004) 122 Cal.App.4th 1388, 1395. For the purposes of expunging
lis pendens, a real property claim is a cause of action that, if successful,
would affect title to or right of possession of specific real property or the
use of an easement identified in a pleading. Code Civ. Proc., §§ 405.2, 405.4.[1] “If the pleading filed by
the claimant does not properly plead a real property claim, the lis pendens
must be expunged upon motion under CCP 405.31.” Kirkeby v. Superior Court
(2004) 33 Cal.4th 642, 647 (citation omitted) (internal quotation marks
omitted). “In making this determination, the court must engage in a demurrer-like
analysis.” Id. at p. 648.
Where a motion to expunge a lis pendens has been
filed, the proponent of the lis pendens carries the burden of establishing the
existence of a real property claim and that it is probably valid. §§ 405.30,
405.32.
ANALYSIS
1. Whether an Amended Pleading May Cure an Improper Lis
Pendens
ANLD argues that the lis pendens must be dismissed
because the operative complaint fails to allege a real property claim. Motion
at p.14:18-25. It argues that the FAC
contains an ordinary debt collection case and that such actions do not permit
the recording of a lis pendens. Motion at p. 14:26-15:5.
Plaintiffs concede that the FAC did not contain a real
property claim but argue that the constructive trust cause of action added in
the SAC is a real property claim and ANLD’s motion is now moot. Opposition at p.
2:6-16.
Whether an amended
pleading may cure a lis pendens based on a previously defective pleading is a question
of statutory interpretation. As such, “the starting point is with the language
of the statute, affording the words their ordinary and usual meaning and
viewing them in their statutory context. We read related provisions together as
part of an overall statutory scheme, so as to harmonize them and give them all
effect if possible.” The Formula Inc. v. Superior Court (2008) 168
Cal.App.4th 1455, 1461 (cleaned up). “‘[T]he history of the lis pendens
legislation indicates a legislative intent to restrict rather than broaden the
application of the remedy.’ Our courts have followed suit by restricting rather
than broadening the application of a lis pendens.” Kirkeby v. Superior Court,
supra, at p. 651 (quoting Urez Corp. v. Superior Court (1987) 190 Cal.App.3d 1141, 1145).
Section 405.31 provides in relevant part “the court
shall order the notice expunged if the court finds that the pleading on
which the notice is based does not contain a real property claim” (emphasis
added). At the time Plaintiffs filed the lis pendens, the operative pleading
was the FAC. Therefore, applying the plain meaning of the statute, the FAC is
the pleading on which the lis pendens is based. Because Plaintiffs concede that
the FAC does not contain a real property claim, the Court is required to order
the notice expunged. Therefore, the Court does not reach the issue of whether the
constructive trust cause of action in the SAC constitutes a real property claim
on these facts.
Accordingly, ANLD’s motion is granted. Plaintiffs may
not record another lis pendens without leave of the Court. See § 405.36.
2. Whether ANLD is Entitled to Attorney Fees
Under section 405.38, attorney’s fees are mandatory to
the prevailing party on a motion to expunge unless the opposing party was
substantially justified in opposing the motion or other circumstances made the
imposition of fees unjust.
The Court finds that an award of attorney's fees is warranted.
Plaintiffs were aware that the FAC did not contain a real estate claim when they
filed their opposition. The Court does not find that other circumstances make
the imposition of attorney's fees unjust. ANLD requests fees of $13,710 based
on 12 hours of attorney time billed at $845 per hour and 6 hours billed at $595
per hour. Weininger decl., ¶ 5. The Court finds the hourly rates to be
reasonable based on the going rate for attorneys in Los Angeles. While
Plaintiffs contend they billed 20 hours of work on the motion but seek recovery
for only 12 hours, the declaration does not contain a breakdown of how the
attorneys’ time was spent. The motion to expunge is a relatively straightforward
motion and thus given the dearth of specifics provided by counsel, the Court
concludes that a further reduction of the number of hours billed is reasonable.
Accordingly, the Court will reduce the hours to 6 hours at $845 per hour and 3
hours at $595 per hour, for a total of $6,855.
CONCLUSION
For the reasons stated above, the Court grants ANLD’s
motion to expunge the lis pendens and attorneys’ fees in the amount of $6,855.