Judge: Armen Tamzarian, Case: 23STCV24605, Date: 2024-02-27 Tentative Ruling
Case Number: 23STCV24605 Hearing Date: February 27, 2024 Dept: 52
Defendants
NVSI Inc. and FLS Realty LLC move to expunge the lis pendens plaintiff Soca,
LLC recorded against real property at 1930 Nadeau Street, Los Angeles, CA 90001.
The court exercises its
discretion not to consider any untimely opposition by plaintiff. (Cal. Rules of Court, rule 3.1300(d).)
Validity of Lis Pendens
Code of Civil Procedure
section 405.30 provides that a party with an interest in the real property may
move to expunge a lis pendens. A party
may do so on the basis that “the lis pendens is void and invalid” under section
405.23. (J & A Mash & Barrel,
LLC v. Superior Court of Fresno County (2022) 74 Cal.App.5th 1, 16.) “A motion for expungement establishes a lis
pendens is ‘void and invalid’ for purposes of section 405.23 by showing service
of the lis pendens did not comply with the requirements of section 405.22.” (Ibid.) Section 405.22 provides, “[T]he claimant
shall, prior to recordation of the notice, cause a copy of the notice to be mailed,
by registered or certified mail, return receipt requested, to all known
addresses of the parties to whom the real property claim is adverse and to all
owners of record of the real property affected by the real property claim… Immediately following recordation, a copy of
the notice shall also be filed with the court in which the action is pending.”
Defendants establish that
plaintiff did not comply with Code of Civil Procedure section 405.22. Plaintiff recorded a notice of pendency of
action on October 11, 2023. (Stankevich
Decl., ¶ 11, Ex. 6.) When plaintiff
served the summons and complaint on defendants, they did not include a copy of
the lis pendens. (Id., ¶ 10; see proofs
of service filed Oct. 31, 2023.) Ivan
Stankevich, the principal of defendant NVSI Inc. and a custodian of records for
the moving defendants (Stankevich Decl., ¶¶ 1-2) states, “Defendants never
received a copy of the lis pendens at any time.” (Id., ¶ 10.)
Nothing in the record
shows plaintiff mailed a copy of the notice of pendency of action to defendants
before recording it. Moreover, plaintiff
never filed a copy of the notice with the court. The lis pendens is therefore “void and
invalid as to” defendants NVSI Inc. and FLS Realty LLC. (CCP § 405.23.) The court will expunge the lis pendens.
Attorney Fees and
Costs
Defendants
NVSI Inc. and FLS Realty LLC also move for $4,000 in expenses incurred making
this motion. “The court shall direct
that the party prevailing on any motion” to expunge a lis pendens “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.” (CCP § 405.38.)
The
court has no basis on which to find plaintiff acted with substantial
justification. Imposing attorney fees
and costs is just under the circumstances.
Defendants, however, did
not reasonably incur all $4,000 (10 hours of fees at $400 per hour) in expenses
they claim. That amount includes an
anticipated “additional 3 hours reviewing any opposition, preparing a reply,
and attending the hearing.” (Silverman
Decl., ¶ 5.) Because plaintiff did not
timely oppose the motion, the court finds defendants only reasonably incurred 8
hours of attorney fees at $400 per hour, for a total of $3,200.
Disposition
Defendants
NVSI Inc. and FLS Realty LLC’s motion to expunge lis pendens is granted. The court hereby expunges the notice
of pendency of action recorded on October 11, 2023, as instrument number 20230691083
in the Official Records for the County of Los Angeles. NVSI Inc. and FLS Realty LLC shall recover
$3,200 in attorney fees and costs from plaintiff Soca, LLC.