Judge: Alison Mackenzie, Case: 23STCV05340, Date: 2025-05-13 Tentative Ruling
Case Number: 23STCV05340 Hearing Date: May 13, 2025 Dept: 55
NATURE OF PROCEEDINGS: Hearing on Defendant’s Renewed Motion to Expunge Lis Pendens
Defendant’s Motion
to Expunge Lis Pendens is granted.
BACKGROUND
Plaintiff Tara Demarco
(Plaintiff) filed this action against defendants 2315 Loma Vista LLC
(Defendant) and Mariati Situmorang, seeking to quiet title over two adjoining
parcels of land owned by Plaintiff, Lots 10-A and 10-B (collectively “Lot 10”)
and seeking declaratory relief determining that defendants do not have an
easement or other interest in Plaintiff’s property.
On January 17, 2024, Plaintiff recorded a Notice of Pendency
of Action (lis pendens) identifying three properties, including 2315 Lorna
Vista Place, Los Angeles, California, Assessor’s Parcel No. 5422-009-025
(“Defendant’s Property”).
On October 15, 2024, the Court denied Defendant’s Motion to
Expunge Lis Pendens.
On May 7, 2025, Defendant filed
a Renewed Motion to Expunge Lis Pendens. Plaintiff
filed an Opposition.
REQUEST FOR
JUDICIAL NOTICE
Defendant requests the Court take judicial notice of the
following document: Notice of Pendency of Action in the matter of Tara
DeMarco, etc. v. 2315 Loma Vista LLC, et al., Los Angeles Superior Court
case no. 23STCV05340, recorded January 17, 2024 in the Los Angeles County
Recorder’s Office as Document No. 20240034773.
Defendant’s request for judicial notice is granted. See
Evid. Code § 452 subds. (c) and (h).
EVIDENTIARY OBJECTIONS
The Court rules on Defendant’s evidentiary objections to the
Declaration of Tara Demarco as follows:
Evidentiary Objections 1-24. 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. “At any time after notice of pendency of
action has been recorded, any party, or any nonparty with an interest in the
real property affected thereby, may apply to the court in which the action is
pending to expunge the notice.” Code Civ. Proc., § 405.30. There are “four
bases upon which expungement may be sought: (1) the lis pendens is void and
invalid, (2) the action as pleaded does not contain a real property claim, (3)
the claimant fails to establish the probable validity of the claim, and (4)
monetary relief provides an adequate remedy,” J&A Mash & Barrel, LLC
v. Superior Court (2022) 74 Cal.App.5th 1, 16 (citations omitted).
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.“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. Code Civ. Proc., §§
405.30, 405.32. To establish probable validity, the claimant must show that “it
is more likely than not that the claimant will obtain a judgment against the
defendant on the claim.” Code Civ. Proc., § 405.3.
ANALYSIS
I. Express Easement
Defendant argues that Plaintiff cannot establish the
probable validity of her real property claim.
It is undisputed that in 1966, in a transaction between
Anthony and Cordia Radetich and Maurice and Lois Reid, an easement was recorded
in a grant deed (the Radetich Easement). The Radetich Easement grants
the owners of Lot 10 Tract 8131 and Lot 31 Tract 1635 the right to use “the pedestrian
walkway over Lot 10 tract 8131… and the tramway or stairway over the southeasterly
portion of Lot 31 Tract 1635… also reserving an easement and the right to use
the driveway over the easterly 35 feet of Lot 83 ½ of St Alben’s Lake Place …” Situmorang
Decl. ¶ 6; Ex. A.
Plaintiff argues that she can establish probable validity of
her real property claim because the Radetich Easement was extinguished through
adverse possession. Opp. at p. 6:17-28.
“An easement or servitude created by grant cannot be lost by
mere nonuse. However, a recorded easement may be extinguished if the use of the
servient tenement … amounts to adverse possession of the easement, and nonuse
by the dominant tenement may be a factor in determining whether possession has
been adverse.” Vieira Enterprises, Inc. v. McCoy (2017) 8 Cal. App.5th
1057, 1075 (Vieira) (citations omitted). ‘“In an action to quiet title
based on adverse possession the burden is upon the claimant to prove every
necessary element: (1) Possession must be by actual occupation under such
circumstances as to constitute reasonable notice to the owner. (2) It must be
hostile to the owner’s title. (3) The holder must claim the property as his own
under either color of title or claim of right. (4) Possession must be
continuous and uninterrupted for five years. (5) The holder must pay all the
taxes levied and assessed upon the property during the period.”’ Ibid
(quoting Dimmick v. Dimmick (1962) 58 Cal.2d 417, 421).
“To extinguish an easement by adverse user the use ‘must
either interfere with a use under the easement or have such an appearance of permanency
as to create a risk of the development of doubt as to the continued existence
of the easement.’” Gerhard v. Stephens (1968) 68 Cal.2d 864, 903 (citation
omitted).
Plaintiff testifies that she has exclusively owned and
occupied 2256 Earl Street (Lot 10-A) since April 15, 2013, and that her use of
the property has been continuous and uninterrupted. Demarco Declaration at ¶¶
19, 20. Plaintiff further testifies that her possession of the property has at
all times been open and notorious, and she did not recognize that Defendant had
any ownership rights. Demarco Decl., at ¶¶ 21, 22.
However, Defendants offer the declarations of Charles Sanchez,
who owned Defendant’s Property from 2003 to 2020. Sanchez Decl. ¶ 3. Sanchez
testifies that he used the Radetich Easement prior to Plaintiff’s purchase of Lot
10 and that when Plaintiff purchased the property, he informed her of the
easement and showed her a copy of the legal description. Sanchez Decl. ¶ 8. He
testified that his use of the easement was not obstructed by the installation
of a skateboard ramp in front of the opening leading to the stairway. Sanchez
Decl. ¶ 9. At no time during Sanchez’s ownership of the property did either
Plaintiff or her husband ever challenge his use of the easement. Sanchez ¶ 10.
“At no point during my ownership of the Subject Property did [Plaintiff] notify
me, either expressly or impliedly, that she was now asserting exclusive
possession and control of that portion of Lot 10 that comprised the Easement or
the Stairwell.” Sanchez Decl. ¶ 11. Sanchez sometimes parked his truck at the
base of Lot 10 and walked up the driveway to Defendant’s Property, as
authorized by the Radetich Easement. Sanchez Decl.¶ 12.
In her supplemental declaration, Plaintiff confirms that
Sanchez approached her shortly after she purchased the property and “made
claims to [her] property.” Demarco Supp. Decl. ¶ 6. Plaintiff testifies that
“Mr. Sanchez never spoke of the purported easement with specificity, only in
broad terms, implying that he either believed he had a pedestrian access to our
entire property, or had no actual knowledge where it was.” Demarco Supp. Decl.
¶ 15.
In his supplemental declaration, Sanchez testifies that from
about 2008 through 2020, he used the Radetich Easement to “walk up the
dirt stair ramp, pass through the gate, and use a concrete walkway that led to
the funicular tracks and up to the 2315 Loma Vista building site.” Sanchez
Supp. Decl. ¶ 7. He further testifies that when he installed a perimeter fence,
in response to a City of Los Angeles abatement order, he installed a gate in it
to get to and from Defendant’s Property by using a dirt stair ramp that started
just above the shared driveway, and another gate to access the staircase. Sanchez
Supp. Decl. ¶¶ 6,8. Defendant testifies that she used these stairs and gates to
access Defendant’s Property. Situmorang Supp. Decl. ¶ 16.
Defendant testifies that Plaintiff did not begin tearing
down and dismantling the tramway on the Radetich Easement until February 26,
2023. Situmorang Decl. ¶ 19. Similarly, Defendant testifies that after
Defendant acquired Defendant’s Property in 2022, “Plaintiff tore out the
previously installed stairs even though I had been making use of them to access
the property.” Situmorang Supp. Decl. ¶ 19.
Based on the foregoing, the Court concludes that Plaintiff
has failed to establish, by a preponderance of the evidence, that Plaintiff had
exclusive and hostile use of the easement for five years.
II. Easement by Necessity
Defendant further argues that there is an easement by
necessity because, without the easement, her property is landlocked and only
accessible by use of an extremely long set of stairways up a steep incline. Mot.
at p. 6: 27.
“An easement by necessity cannot be extinguished as long as
the necessity exists.” Hinrichs v. Melton (2017) 11 Cal.App.5th 516,
530.
“In California, the easement [by necessity] arises by
implication based on the inferred intent of the parties to the property
conveyance, as determined from the terms of the relevant instrument and the
circumstances surrounding the transaction. Two circumstances are indispensable
to the implication and must be shown: (1) a strict necessity for the claimed
right-of-way, as when the claimant’s property is landlocked; and (2) the
dominant and servient tenements were under common ownership at the time of the
conveyance giving rise to the necessity.” Murphy v. Burch (2009) 46
Cal.4th 157, 163 (Murphy) (citations omitted).
A. Strictly Necessity
Plaintiff argues that Defendant fails to establish the strict
necessity requirement, because Defendant’s Property is accessible via stairs.
“To satisfy the strict-necessity requirement, the party
claiming the easement must demonstrate it is strictly necessary for access to
the alleged dominant tenement. No easement will be implied where there is
another possible means of access, even if that access is shown to be
inconvenient, difficult, or costly.” Murphy, supra, (2009) 46
Cal.4th at p. 164.
Defendant concedes that without the easement, its property remains
accessible without the easement by a separate stairway. Mot. at p. 6: 27.
Defendant argues that Situmorang is handicapped and without the tramway and
easement, she cannot access the property. However, Defendant provides no case
law supporting the assertion that an individual’s disability supports a showing
of strict necessity. The public policy rationale of easements by necessity is
not to make it easier for any given person to access the property, but only to
ensure that inaccessible land remains useful to society. See Daywalt v.
Walker (1963) 217 Cal.App.2d 669, 672 (citation omitted) (internal
quotation marks omitted). (“A way of necessity is an easement … supported by
the rule of sound public policy that lands should not be rendered unfit for
occupancy or successful cultivation.”).
B. Common Ownership
Moreover, evidence shows that the common-ownership
requirement is not satisfied.
“To meet the common-ownership requirement, the party seeking
the easement must establish that the lands composing the alleged dominant and
servient estates were once under common ownership and that a conveyance by the
common owner gave rise to the necessity for a right-of-way. In the absence of
common ownership, an easement by necessity will not be implied based solely on
a showing of necessity.” Murphy, supra, (2009) 46 Cal.4th at p.
164.
While the Radetichs had common ownership of the property
prior to their 1966 conveyance to the Reids, that conveyance did not give rise
to the necessity for a right-of-way currently alleged. Because that conveyance
expressly included the Radetich Easement, there was no need for an easement by
necessity at that time. Any necessity could only have arisen by the termination
of the Radetich Easement, at which time there was no common ownership.
However, because Plaintiff failed to show that the Radetich
Easement was extinguished through adverse possession, she has not met her
burden of proving the probable validity of her real property claim. Accordingly,
Defendant’s Renewed Motion to Expunge the Lis Pendens is granted.
III. Attorney’s Fees
Defendant requests $7,239.00 in attorney’s fees.
The prevailing party on a motion to expunge a lis pendens is
entitled to “reasonable attorney’s fees and costs of making or opposing the
motion unless the court finds that the other party acted with substantial
justification or that other circumstances make the imposition of attorney’s
fees and costs unjust.” Code Civ. Proc., § 405.38.
Defendant’s counsel calculates its attorney fees based on
the following rates:
Senior attorneys: $575 per hour.
Associate attorneys: $325 per hour.
Paralegals and law clerks: $275 per hour.
The Court finds these hourly rates reasonable.
Defendant’s counsel submits that they spent a total of eleven
hours preparing this motion, including two hours of paralegal work, and anticipate
spending seven and a half hours reviewing the opposition, preparing the reply,
and arguing the motion.
The Court finds these hours reasonable and grants Defendant’s
request for $7,239.00 in attorney’s fees.
CONCLUSION
Defendant’s Motion to Expunge Lis Pendens is granted.
Plaintiff is ordered to pay Defendant $7,239.00 in attorney’s fees.