Judge: Armen Tamzarian, Case: 24STCV04157, Date: 2024-10-28 Tentative Ruling
Case Number: 24STCV04157 Hearing Date: October 28, 2024 Dept: 52
Evidentiary
Objections
Proposed intervenor Yu Sun Um makes 16
objections to the evidence plaintiff Sarah Woo submitted in support of her
opposition. Objection Nos. 1, 2, 5, 6,
13, and 15 are sustained.
Objection Nos. 3, 4, 7-12, 14, and 16 are overruled.
Intervention
Proposed
intervenor Um moves for leave to intervene in this proceeding. Under Code of Civil Procedure section 405.30,
“any nonparty with an interest in the real property affected” by a lis pendens
may obtain leave to intervene and move to expunge the lis pendens. It is undisputed that Um has an interest in
the subject property, 360 South Kenmore Avenue, Unit 310, Los Angeles, CA
90020. (Um Decl., ¶ 2, Ex. A.) The court will therefore permit Um to
intervene in this action and move to expunge the lis pendens.
Plaintiff’s
opposing argues this motion improperly combines applications for separate
relief, intervention and expungement, that require two separate motions. (Opp., p. 1.)
The statutory scheme permits a nonparty with an interest in the property
to “obtain leave to intervene from the court at or before the time the
party brings the motion to expunge the notice.”
(Code Civ. Proc., § 405.30.) Um
properly moved for leave to intervene at the time Um moved to expunge the
notice.
In
addition to this motion, Um submitted a proposed complaint in intervention for
declaratory relief and quiet title against Sarah Woo. The motion does not address the proposed
complaint in intervention. Based on this
record, the lis pendens represents the entire dispute between Um and Woo. Plaintiff Woo does not assert she owns any
interest in the subject property. The
basis for her lis pendens is a cause of action for fraudulent transfer of the
property by defendant Jong Joo Sung to defendant Samrye Mok. (Comp., ¶¶ 13-17.) Um does not show an adequate basis for granting
leave to file a complaint in intervention against Woo.
Expungement
of Lis Pendens
Um moves to expunge the
lis pendens plaintiff had recorded as to real property at 360 South Kenmore
Ave, Unit 310, Los Angeles, CA 90020. 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 move to expunge 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.)
The record shows plaintiff did not comply with Code of Civil Procedure
section 405.22. That section 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 as shown by the latest county assessment roll. …
Immediately following recordation, a copy of the notice shall also be
filed with the court in which the action is pending.”
Um acquired title to the subject property on April 8, 2024. (Um Decl., ¶¶ 2-3, Exs. A-B.) The Recorder’s
Office recorded the lis pendens on April 15, 2024, at 1:05 p.m. (Id., Ex. C.) It is undisputed that plaintiff never served the
lis pendens on Um (id., ¶¶ 5, 9; Biggins Decl., ¶ 7). Plaintiff’s counsel states, “At the time I
recorded the Lis Pendens, I was unaware of the alleged sale to Um.” (Ibid.) The statutory scheme “anticipates that the claimant will
check the assessment roll, rather than face the risk of lurking owners.” (Carr v. Rosien (2015) 238 Cal.App.4th
845, 853 (Carr).) Plaintiff’s
counsel does not attest to checking the assessment roll or any other source of real
property records before serving and recording the lis pendens.
Moreover, it is undisputed that plaintiff did not file the lis pendens
with the court immediately following recordation as required under Code of
Civil Procedure section 405.22.
Plaintiff’s counsel states the filing was rejected (Biggins Decl., ¶ 7)
but does not attest to any further attempt to file it. The court’s records indicate that, except as
an exhibit in papers filed for this motion, the lis pendens still has not been
filed with the court.
Plaintiff argues she
served the lis pendens on defendants—not on intervenor Yu Sun Um—“by certified
mail, postmarked on 4/6/24, but Defendants refused to sign for it.” (Biggins Decl., ¶ 7, Ex. 7.) Um adequately rebuts that evidence for two
reasons. First, the proof of service
recorded with the notice of pendency of action states under penalty of perjury
that it was served “On this date” and that it was executed on “4-15-2024.” (Um Decl., ¶ 9, Ex. C.) Second, the image of the envelope attached to
plaintiff’s opposition is postmarked “16 April 2024,” not April 6 or April 15. (Biggins Decl., Ex. 7.)
Plaintiff argues defective
service or filing is not a basis to expunge the lis pendens. Plaintiff relies in part on a misinterpretation
of Carr, which stated, “[T]he Legislature did not intend to require
that a void lis pendens be expunged.” (Carr,
supra, 238 Cal.App.4th at p. 857.) As
that opinion stated earlier, “Evidently the Legislature intended a lis pendens
that is not properly mailed to be void ab initio, without the need for
any further action.” (Ibid.) In other words, failing to mail the lis
pendens makes it void even before moving to expunge it.
Plaintiff does not show
substantial compliance with the service requirements. “[S]ubstantial compliance satisfies the
mailing requirement of section 405.22.”
(J & A Mash & Barrel, LLC v. Superior Court of Fresno County
(2022) 74 Cal.App.5th 1, 29.)
Substantial compliance requires three elements: (1) “ ‘some degree of compliance
with the offended statutory requirements’ ”, (2) “the circumstances of the
attempted service must have made it highly probable that it would impart the
same notice as strict compliance”, and (3) “it must in fact have imparted such
notice or at least provided sufficient notice to put the notified party on its
defense.” (Ibid.) “[A]ctual notice is the heart of the mailing
requirement.” (Id. at p. 31.)
Plaintiff does not
establish any of the three elements.
First, plaintiff has not shown she complied with the fundamental
statutory requirement of serving the notice at all before recordation. As discussed above, plaintiff submitted
evidence indicating the notice was served via an envelope postmarked on April
16, the day after recordation.
Second, the circumstances
do not make it highly probable that plaintiff’s service would impart the same
notice as strict compliance. Plaintiff presents no evidence she checked
the assessment roll before serving and recording the lis pendens. Without doing so, it is not probable that
service on defendants would impart notice to the record owner.
Third, the notice did not
provide sufficient notice to Um. Um
testifies, “I was not aware of this action at any time until after August 2024. I never received any notice of this action or
received a copy of the Lis Pendens recorded 16 on April 15, 2024.” (Um Decl., ¶¶ 4-5.) Um further testifies that, in trying to sell
the property, “[A] preliminary title report was ordered on August 7, 2024, at
which time, I learned for the first time that a lis pendens was recorded on the
Property on April 15, 2024.” (Id.,
¶ 9.)
Finding substantial
compliance would undermine the purpose of the statutory scheme. “The notice requirement is
intended to assure that property owners receive prompt notice of the recording
of a lis pendens. No plaintiff has the
right to ambush a property owner by surreptitiously recording a lis pendens.” (Biddle v. Superior Court (1985)
170 Cal.App.3d 135, 137.) A lis pendens
gives people constructive notice of the pending action “[f]rom the time of
recording the notice of pendency of action.”
(Code Civ. Proc., § 405.24.) That
Um learned of the lis pendens in August 2024 is not a valid basis for the lis
pendens to impart constructive notice as of April 15, 2024.
Plaintiff’s notice of pendency of action is void and invalid.
Um also moves to expunge
the lis pendens on other grounds. The
court need not and does not reach those issues.
Attorney Fees or Sanctions
Um
moves for $7,500 in attorney fees or sanctions against plaintiff and
plaintiff’s counsel. Code of Civil
Procedure 405.38 provides, “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.”
The court finds plaintiff
acted with substantial justification.
Though her opposition was unsuccessful, she made reasonable arguments in
support of her position on each issue. The
court will not award attorney fees or sanctions to Um.
Disposition
Proposed
intervenor Yu Sun Um’s motion for leave to intervene is granted in part. The court grants Um leave to intervene for
the purposes of moving to expunge the notice of pendency of action. The court denies in part the motion as
to filing the proposed complaint in intervention.
Intervenor
Yu Sun Um’s motion to expunge lis pendens is granted as to
expungement. The court hereby expunges
the notice of pendency of action recorded on April 16, 2024, as instrument
number 20240246278 regarding real property at 360 S. Kenmore Ave, Unit 310, Los
Angeles, CA 90020. (Park Decl., Ex. C.)