Judge: Anne Richardson, Case: 19STCV09245, Date: 2023-10-17 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 19STCV09245    Hearing Date: October 17, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiff Ammec Investments, Inc. sued Defendants Gregory Terrance Curtis, Dr. Roots Herbs, LLC (Dr. Roots), Ifaomilekun, LLC, and Does 1 to 100 pursuant to a March 18, 2019 Complaint alleging claims of (1) Voidable Transfer (Civil Coe § 3439.05(a)) and (2) Voidable Transfer (Civil Coe § 3439.04(a)).

On March 19, 2019, pursuant to the filing of this action, Plaintiff filed with the County Recorder’s Office a Notice of Pending Action related to the real property otherwise known as 1514 & 1516 S. Victoria Avenue, Los Angeles, CA 90019 (Property).

On August 25, 2020, the Court ordered the dismissal of Defendant Gregory Terrance Curtis, without prejudice.

On October 28, 2020, Plaintiff requested, and the Clerk entered, a dismissal of the entire action of all parties and all causes of action, without prejudice.

These dismissals resolved this action in favor of Defendants.

 On August 1, 2023, Dr. Roots moved to expunge the Notice of Pending Action (lis pendens notice) recorded with the County Recorder’s Office.

On August 23, 2023, Dr. Roots filed with the Court a notice providing that Plaintiff had failed to oppose Dr. Roots’ motion, which is now before the Court.

At the initial hearing on the motion, Plaintiff argued that Dr. Roots LLC had filed for bankruptcy. The Court allowed a continuance and ordered Plaintiff to file any additional opposition limited to the bankruptcy issue by nine court days before the next hearing. Plaintiff did not do so, instead filing a Notice of Stay of Proceedings one day before the hearing. Defendants have not made any further filings.

Motion to Expunge Lis Pendens Notice

Legal Standard

A lis pendens is a recorded instrument titled Notice of Pending Action that is recorded in the office of the county recorder where land is located and gives constructive notice of a pending lawsuit affecting title to described real property. (Gale v. Superior Court (2004) 122 Cal.App.4th 1388, 1395.)

“A party to an action who asserts a real property claim may record a notice of pendency of action in which that real property claim is alleged.” (Code Civ. Proc., § 405.20.) Anyone having an interest in the property affected by a lis pendens, whether or not a party to the pending lawsuit, may move to expunge the lis pendens any time after it is recorded. (Code Civ. Proc., § 405.30.)

A lis pendens may be expunged on any of the following grounds: (1) defects in the statutory service and filing requirements for a lis pendens notice; (2) the complaint does not contain a real property claim; (3) the claimant cannot prove the probable validity of the real property claim by a preponderance of the evidence; and (4) “adequate relief” can be “secured to the claimant by the giving of an undertaking.” (Code Civ. Proc., §§ 405.23, 405.31, 405.32, 405.33; McKnight v. Superior Court (Faber) (1985) 170 Cal.App.3d 291, 303 [recognizing defective servicing and filing requirements as grounds for expungement].)

The motion may be made even while an appeal is pending. (Peery v. Superior Court (1981) 29 Cal.3d 837, 842.) On a motion to expunge a lis pendens after judgment against the claimant and while an appeal is pending, the trial court must grant the motion unless it finds it more likely than not that the appellate court will reverse the judgment. (Amalgamated Bank v. Superior Court (2007) 149 Cal.App.4th 1003, 1015.)

Order Expunging Lis Pendens Notice: GRANTED.

Because this action was dismissed by Plaintiff Ammec Investments, there is no basis for maintaining a Notice of Pending Action against the Property.

Code of Civil Procedure section 405.30 provides that a motion to expunge a lis pendens may be brought by “any party, or any nonparty with an interest in the real property affected thereby.” While typically such a motion is filed by the owner or transferee of the property, no documentary evidence of ownership is attached. The only declaration attached to the motion is a declaration from non-party Greta Curtis, the putative lessee of the Property and Managing Member of Dr. Roots. (See Mot., Curtis Decl. & Ex. 3.) The lease attached to the motion shows that Dr. Roots is the putative lessor of the Property. (See Motion Curtis Decl., Ex. 3.) There is one sentence in her declaration in which Ms. Curtis states that Dr. Roots is “the owner of the real property” (Id. at ¶ 5), without further elaboration. Nonetheless, at a minimum, as Dr. Roots is a party, and both it and Greta Curtis have an interest in the real property (that of lessor and lessee, respectively), the Court will grant the motion.

Dr. Roots’ motion is therefore GRANTED.

Reasonable Attorney’s Fees and Costs: GRANTED.

The court shall direct that the party prevailing on any motion under this chapter be awarded the 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.)

Dr. Roots via its Managing Member Greta Curtis requests $5,000.00 in attorney fees and $435.00 in costs. This sum is reasonable and is unopposed; accordingly, the Court GRANTS reasonable attorney’s fees in favor of Dr. Roots.

            Effect of Bankruptcy on this Motion

            Despite the Plaintiff’s objection at the eleventh hour to this motion on the basis of a Bankruptcy stay, Plaintiff has not filed any brief as ordered by the Court. Nevertheless, the Court sees no reason why this motion cannot proceed in this Court as its only purpose is to expunge a lis pendens that no longer has any business being attached to the property involved in this case. This action has been dismissed. Plaintiff should have agreed to expunge the lis pendens on that basis. The fact that Plaintiff has failed to do so does not provide any reason why this Court should stay this motion because of the bankruptcy. This motion does not adjudicate or provide any liability against the Debtor. In fact, it provides the Debtor with a part of his estate which can then be adjudicated in the Bankruptcy.

Conclusion

Defendant Dr. Roots, LLC’s Motion to Expunge Lis Pendens is GRANTED.

Defendant Dr. Roots, LLC’s corresponding Request for Reasonable Attorney’s Fees and Costs is GRANTED in the amount of $5,435.00.