Judge: Armen Tamzarian, Case: 23STCV13642, Date: 2023-12-07 Tentative Ruling
Case Number: 23STCV13642 Hearing Date: February 21, 2024 Dept: 52
Defendants Hilla Group LLC, Hella-Effective LLC, Viewpoint Estates LLC,
and 9270 Flicker LLC’s Motion to Expunge Lis Pendens and Mechanics Liens
Defendants Hilla Group LLC, Hella-Effective LLC, Viewpoint Estates LLC, and 9270
Flicker LLC move to expunge 10 lis pendens and 10 mechanics liens by plaintiff ARTES
Design Build.
Untimely Second
Amended Complaint
Defendants’ motion challenges the
lis pendens and mechanics liens based on the operative pleading: the first
amended complaint after the court sustained defendants’ demurrer to the 5th
through 10th causes of action for foreclosure of mechanics liens. The court’s order sustaining the demurrer
gave plaintiff 30 days’ leave to file a second amended complaint. Plaintiff concedes it did not timely file a
second amended complaint. (Opp., p.
2.) Instead, the same day defendants
filed this motion, plaintiff filed an untimely second amended complaint.
Plaintiff now
opposes this motion on the basis that the second amended complaint alleges
claims for foreclosure of mechanics liens, and defendants’ sole remedy is to move
to strike it. A motion to strike is commonly used “to challenge pleadings filed
in violation of a deadline, court order, or requirement of prior leave of
court.” (Ferraro v. Camarlinghi
(2008) 161 Cal.App.4th 509, 528.)
The clerk should
have rejected plaintiff’s untimely second amended complaint. Plaintiff should have moved for leave to file
a second amended complaint after its time to do so expired. Code of Civil Procedure section 436(b)
provides that, “at any time in its discretion,” the court may “[s]trike out all
or any part of any pleading not drawn or filed in conformity with the laws of
this state, a court rule, or an order of the court.” Plaintiff’s untimely second amended complaint
was not filed in conformity with this court’s order sustaining the demurrer to
the first amended complaint. The court therefore
exercises its discretion to strike plaintiff’s second amended complaint.
Lis Pendens
Defendants move to
expunge plaintiff’s 10 notices of pendency of action. Upon such a motion, “the court shall order
the notice” of pendency of action “expunged if the court finds that the
pleading on which the notice is based does not contain a real property claim.” (CCP § 405.31.) “ ‘Real property claim’ means the cause or
causes of action in a pleading which would, if meritorious, affect (a) title
to, or the right to possession of, specific real property or (b) the use of an
easement identified in the pleading, other than an easement obtained pursuant
to statute by any regulated public utility.”
(CCP § 405.4)
Plaintiff’s notices
of pendency of action are based on the operative complaint in this action. The only real property claims in this action
were plaintiff’s four causes of action for foreclosure of mechanics liens. The court sustained the demurrer to those
causes of action. Plaintiff did not
timely amend the complaint. The
operative complaint in this action thus does not contain any real property
claim. Expunging the notices of pendency
of action is mandatory under Code of Civil Procedure section 405.31.
Assuming the
pleading on which plaintiff’s notices of pendency of action are based does
contain a real property claim, the court must still expunge the notices. Once the defendant moves to expunge a notice
of pendency of action, “the court shall order that the notice be expunged if
the court finds that the claimant has not established by a preponderance of the
evidence the probable validity of the real property claim.” (CCP § 405.32.) The plaintiff must show “it is more likely
than not that [plaintiff] will obtain a judgment against the defendant on the
claim.” (CCP § 405.3.)
Plaintiff presents
no evidence in support of its real property claims. Plaintiff thus does not show it is more
likely than not that it will obtain a judgment against defendants on any real
property claim.
Mechanics Liens
Defendants move to
expunge plaintiff’s 10 mechanics liens. “A
motion to remove a mechanic’s lien is recognized as a device that allows the property
owner to obtain speedy relief from an unjustified lien or a lien of an
unjustified amount without waiting for trial on the action to foreclose the
lien.” (Howard S. Wright Construction
Co. v. Superior Court (2003) 106 Cal.App.4th 314, 318 (Howard S. Wright).) “[I]f
foreclosure proceedings are timely commenced, an owner who challenges the
validity of the lien may file a motion to remove a mechanic’s lien in the
pending foreclosure action itself.” (RGC
Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc. (2020) 56 Cal.App.5th 413, 423
(RGC).)
The same “probable
validity” standard for a motion to expunge lis pendens also applies to a motion
to expunge mechanics liens. (Howard
S. Wright, supra, 106 Cal.App.4th at p. 318 [“Both the motion to expunge” lis
pendens “and the motion to remove” mechanics lien “raised the identical
question of the probable validity of petitioner’s lien”]; Cal Sierra
Construction, Inc. v. Comerica Bank (2012) 206 Cal.App.4th 841, 845 [“the
claimant bears the burden of establishing the ‘probable validity’ of the claim
underlying the lien or stop notice”].)
Plaintiff presents no evidence and therefore fails to establish the
probable validity of its mechanics liens.
Apart from its
arguments relying on the untimely second amended complaint, plaintiff opposes
expunging the mechanics liens for only one reason: defendant did not demand
release of the lien 10 days before filing this motion as required under Civil
Code section 8482. That procedure does
not apply. Section 8480(a) provides, “The
owner of property or the owner of any interest in property subject to a claim
of lien may petition the court for an order to release the property from the
claim of lien if the claimant has not commenced an action to enforce the
lien within the time provided in Section 8460.” (Italics added.) “If a claimant does not timely commence
foreclosure proceedings, an owner may file a petition to release the property
from the lien. (§ 8480, subd. (a).) Likewise, if foreclosure proceedings are
timely commenced, an owner who challenges the validity of the lien may file a
motion to remove a mechanic’s lien in the pending foreclosure action itself.” (RGC, supra, 56 Cal.App.5th at p.
423.)
Plaintiff filed an
action to foreclose on its mechanics liens.
Doing so gave defendants the right to file a motion to remove a
mechanic’s lien in this pending foreclosure action itself instead of using the petition
procedure under Civil Code section 8480 et seq.
Disposition
The court hereby strikes plaintiff ARTES
Design Build’s second amended complaint.
Defendants Hilla Group LLC, Hella-Effective LLC, Viewpoint Estates LLC, and 9270
Flicker LLC’s motion to expunge lis pendens and to expunge mechanics liens is granted. The court hereby expunges all 10
notices of pendency of action filed by plaintiff ARTES Design Build on June 20,
2023 (attached to the declaration of Ronald G. Rosenberg as exhibit 2), and
expunges all 10 mechanics liens plaintiff recorded on May 22, 2023 (attached to
Rosenberg’s declaration as exhibit 1).