Judge: Armen Tamzarian, Case: 23STCV24605, Date: 2024-12-09 Tentative Ruling
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Case Number: 23STCV24605 Hearing Date: December 9, 2024 Dept: 52
Plaintiff SOCA, LLC’s Motion for Order Allowing Plaintiff to Record a Lis
Pendens in This Action
Plaintiff SOCA, LLC moves for leave of court to record a lis
pendens against real property at 1930 Nadeau Street, Los Angeles, CA 90001. Code of
Civil Procedure section 405.36 provides, “Once a notice of pending action has been expunged, the claimant may not
record another notice of pending action as to the affected property without
leave of the court in which the action is pending.”
Good Cause for Leave to Record Lis Pendens
Plaintiff contends it is not
required to show the probable validity of its real property claim at this
stage. Code of Civil Procedure section
405.36 provides only that recording a second lis pendens requires “leave of the
court in which the action is pending.”
The statute provides no basis for how the court should determine whether
to grant such leave. And unlike the
statutes on expunging a lis pendens, section 405.36 does not include any
requirement that the plaintiff must present evidence on the merits of its real
property claim.
The court finds that granting leave
to record another lis pendens requires showing good cause to do so, but does
not necessarily require plaintiff to present evidence on the merits of its
claims. At least one federal court has
interpreted the statutory scheme this way.
(Melrose Place Holdings v. Socotra Opportunity Fund, LLC (C.D.
Cal., Apr. 27, 2022, No. CV2201329MWFPDX) 2022 WL 1591724, at *4 [expunging
first lis pendens, granting leave to record second lis pendens, and noting that
upon a second motion to expunge, the claimant must present evidence on the
merits].)
Under this standard, plaintiff
shows good cause for leave to record another lis pendens in this action. Twice, plaintiff recorded a lis pendens
against the property. Defendants NVSI Inc. and FLS Realty LLC successfully
moved to expunge each lis pendens. On
February 27, 2024, the court expunged the first lis pendens because plaintiff
did not serve it before recording it and never filed a copy with the
court. On June 25, 2024, the court
expunged the second lis pendens because plaintiff did not obtain leave of court
to record it as required under Code of Civil Procedure section 405.36.
Both times, the court expunged the
lis pendens on procedural grounds. The
court never considered the merits of plaintiff’s claims—whether they assert “a
real property claim” (§ 405.31) and whether plaintiff could “establish[] by a
preponderance of the evidence of probable validity of the real property claim”
(§ 405.32). Via this motion, plaintiff
is now complying with the procedural requirements for recording a lis pendens. Plaintiff thus is curing the errors that
resulted in expunging each prior lis pendens.
That constitutes good cause to permit plaintiff to record another lis
pendens.
Probability of Prevailing
Assuming
plaintiff must show a probability of prevailing on the merits at this stage, it
meets that burden. Doing so requires
showing “it is more likely than
not that [plaintiff] will obtain a judgment against the defendant on” a real
property claim. (Code Civ. Proc., §
405.3.)
Plaintiff’s first amended complaint
alleges causes of action for declaratory relief, rescission of contract, quiet
title, and cancellation of written instruments.
They are real property claims about the subject property. These causes of action rely on allegations
that defendant Xclusive Management Detailing Inc. acquired the subject property
via a forged grant deed. Plaintiff
presents evidence supporting those claims.
Enrique A. Sosa Delgado is plaintiff’s managing member. (Delgado Decl., ¶ 1.) He testifies, “I did not sign the Grant Deed from SOCA to
Xclusive. Indeed, I could not have
signed the grant deed as it purports to be notarized in Los Angeles, California
because I was denied entry to the United States in July 2018 and have not
returned to the United States since.” (Id.,
¶ 7.)
Defendants FLS Realty LLC and NVSI
Inc. present no evidence rebutting plaintiff’s evidence. On this record, plaintiff has shown it is
more likely than not that it will succeed on its real property claims.
In their opposition, defendants argue
plaintiff relies only a self-serving declaration and “had an ample opportunity
to obtain expert opinions regarding the authenticity of [Delgado’s] signature,
and ample opportunity to conduct discovery in this case to support his claims
but has failed to do so.” (Opp., p.
3.) Defendants refer to an inapplicable
rule that prevents a party opposing summary judgment from contradicting prior
testimony via a self-serving declaration.
(See Archdale
v. American Internat. Specialty Lines Ins. Co. (2007) 154 Cal.App.4th 449, 473.) Nothing in the record shows Delgado’s
declaration contradicts any prior testimony he gave.
Nor is expert testimony required. Delgado
naturally has personal knowledge of whether he signed the deed and whether he
was present where and when a notary stated he was. Delgado presents undisputed testimony that he
did not sign the grant deed and was not present before the notary. Plaintiff thus meets its burden of showing a
probability of prevailing on its real property claims.
Defendants also contend they will establish their defense of
equitable estoppel. That is an
affirmative defense. “ ‘ “Generally speaking, four elements must be present
in order to apply the doctrine of equitable estoppel: (1) the party to be
estopped must be apprised of the facts; (2) he must intend that his conduct
shall be acted upon, or must so act that the party asserting the estoppel had a
right to believe it was so intended; (3) the other party must be ignorant of
the true state of facts; and (4) he must rely upon the conduct to his injury.”
’ ” (Estate of Bonanno (2008) 165
Cal.App.4th 7, 22, alteration omitted.)
And this defense requires “clear and convincing evidence.” (In re Marriage of Brinkman (2003)
111 Cal.App.4th 1281, 1289.)
Defendants present no such
evidence. They make only a conclusory
and illogical argument: “Plaintiff
readily admits that he has not been in the country since July of 2018. This fact alone establishes Defendants’
equitable estoppel defense in this case.”
(Opp., p. 4.) No, it does
not.
Good Faith
Finally, defendants argue plaintiff
has not met its burden of showing it is prosecuting this action in good
faith. Defendants rely on Ranchito
Ownership Co. v. Superior Court (1982) 130 Cal.App.3d 764. That case applied former Code of Civil
Procedure section 409.1, which required the party opposing a motion to expunge
a lis pendens to show it “ ‘has commenced or prosecuted the action for a proper
purpose and in good faith.’ ” (Id.
at p. 769.) The Legislature repealed
that statute in 1992. (See De Martini
v. Superior Court (2024) 98 Cal.App.5th 1269, 1277, citing Stats. 1992, ch.
883.) The current statutory scheme has
no “good faith” requirement. (Code Civ.
Proc., §§ 405-405.61.)
Even if this requirement still
applies, plaintiff adequately shows it is acting in good faith. Plaintiff’s managing member states under
penalty of perjury that he did not sign the grant deed transferring the
property. Defendants present no contrary
evidence. Based on this record, the
reasonable inference is that plaintiff is acting in good faith by seeking to
recover property that it believes was fraudulently taken from it.
Disposition
Plaintiff SOCA, LLC’s motion for leave to record a lis
pendens is granted. Under Code of
Civil Procedure section 405.36, the court hereby grants plaintiff SOCA, LLC
leave to serve, record, and file with the court a lis pendens against the real
property at 1930 Nadeau Street, Los Angeles, CA 90001.
Defendants/cross-complainants
FLS Realty LLC and NVSI Inc. move for an order permitting service of process
on cross-defendant Xclusive Management Detailing, Inc. (Xclusive) via delivery to
the Secretary of State.
Corporations
Code § 1702(a) provides, “[I]f the agent designated [for service of process]
cannot with reasonable diligence be found at the address designated for
personally delivering the process … and it is shown by affidavit to the
satisfaction of the court that process against a domestic corporation cannot be
served with reasonable diligence upon the designated agent by hand in the
manner provided in Section 415.10, subdivision (a) of Section 415.20 or
subdivision (a) of Section 415.30 of the Code of Civil Procedure or upon the
corporation in the manner provided in subdivision (a), (b) or (c) of Section
416.10 or subdivision (a) of Section 416.20 of the Code of Civil Procedure, the
court may make an order that the service be made upon the corporation by
delivering by hand to the Secretary of State.”
Cross-complainants
show that personal service on defendant’s designated agent cannot be done with
reasonable diligence. “ ‘[R]easonable
diligence’… denotes a thorough, systematic investigation and inquiry conducted
in good faith by the party or his agent or attorney.” (Kott v. Superior Court (1996) 45
Cal.App.4th 1126, 1137.) “Two or three
attempts to personally serve a defendant at a proper place ordinarily qualifies
as reasonable diligence.” (Rodriguez
v. Cho (2015) 236 Cal.App.4th 742, 750, internal quotes omitted.)
Xclusive’s
designated agent for service of process is defendant/cross-defendant Stuart
Marroquin Sosa. (Jeffrey Decl., Ex.
A.) Xclusive’s statement of information
lists the same address as its principal address, mailing address, street
address, and Sosa’s address: 8330 Haskell Ave., Unit 316, North Hills, CA 91343. (Ibid.) Cross-complainants hired a private
investigation company to serve the summons on Xclusive via its registered
agent, Sosa, at that address. (Id.,
¶ 5.) The private investigation
company’s employees unsuccessfully attempted personal service there on July 13,
July 18, July 23 (Zamora Decl., ¶¶ 6-8) and August 1, 2024 (Jenkins Decl., ¶
3).
Cross-complainants
also show to the satisfaction of the court that they could not complete substituted
service under Code of Civil Procedure section 415.20, subdivision (a) with
reasonable diligence. Such service is
made “by leaving a copy of the summons and complaint during usual office hours
in [defendant’s] office … with the person who is apparently in charge thereof,”
followed by mailing a copy. (Ibid.)
When the process servers attempted to
serve Sosa at Xclusive’s office, the person present “identified herself as Mr.
Sosa’s girlfriend, ‘Cindy.’ ” (Zamora
Decl., ¶¶ 6-7; Jenkins Decl., ¶ 3.)
Sosa’s girlfriend may be “a competent member of the household”
sufficient for substituted service on an individual. (Code Civ. Proc., § 415.20, subd. (b).) But there is no evidence she was “apparently
in charge” of Xclusive’s office (id., subd. (a)) rather than merely
Sosa’s cohabitant.
Disposition
Cross-complainants
FLS Realty LLC and NVSI Inc.’s motion for leave to serve the
summons on cross-defendant Xclusive Management Detailing, Inc. via delivery to
the Secretary of State is granted. The court will sign cross-complainants’ proposed
order granting the motion.