Judge Ashfaq G. Chowdhury, Case Number: 23GDCV02632, Date: 2025-01-31 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV02632, Date: 2025-01-31 Tentative Ruling

Case Number: 23GDCV02632 Hearing Date: January 31, 2025 Dept: E

Hearing Date: 1/31/2025 – 8:30am
Case No. 23GDCV02632
Trial Date: 05/27/2025
Case Name: ROOBINA HOVSEPIAN, an individual; v. THE ESTATE OF RAZMIK HOVSEPIAN; DIANA YOOSEFIAN, Trustee of the RDBR Family Trust; and DOES 1-20, inclusive

TENTATIVE RULING ON MOTION TO EXPUNGE LIS PENDENS

RELIEF REQUESTED

Defendant, Diana Yoosefian, moves the Court for an order expunging lis pendens and for attorneys’ fees and costs to bring this motion.

This Motion is based on this Notice of Motion and Motion, the Memorandum of Points and Authorities in Support of the Motion, the Declaration of Henrik Mosesi and exhibits thereto, the documents on file with the Court, and such further evidence and argument as the Court may permit.

PROCEDURAL

Moving Party: Defendant, Diana Yoosefian

Responding Party: Plaintiff, Roobina Hovsepian

Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b):Ok

Moving Papers: Notice; Memorandum; Henrik Mosesi Declaration; Appendix of Exhibits; Proposed Order; Proof of Service of Notice of Case Reassignment and Order for Plaintiff to Give Notice

Opposition Papers: Opposition

Reply Papers: Reply

BACKGROUND
Plaintiff, Roobina Hovsepian, filed the instant action on 12/13/2023 against Defendants, The Estate of Razmik Hovsepian and Diana Yoosefian, Trustee of The RDBR Family Trust.

Plaintiff’s Complaint alleges seven causes of action – (1) Fraudulent Misrepresentation, (2) Promissory Estoppel, (3) Restitution, (4) Money Had and Received, (5) Conversion, (6) Quiet Title, and (7) Declaratory Relief – against Defendants.

As alleged in Plaintiff’s Complaint:

7. In 2009, Plaintiff Roobina Hovsepian and her brother Razmik Hovsepian discussed buying the Property. Roobina wanted to purchase the Property but was concerned with maintaining eligibility for health benefits. Razmik had gone through a bankruptcy and was interested in improving his credit and proposed putting the Property in his name. The parties agreed to purchase the Property together with the understanding that they would share ownership and Roobina would be permitted to live in the Property during her life time. Roobina provided the down payment for the property and over the years she contributed to the mortgage, paid the property taxes, paid the HOA dues, and paid for the care and maintenance of the Property. In addition, Roobina paid for multiple renovations.

8. After Razmik passed away, Roobina was surprised to receive a Notice to Vacate the Property from Defendant Diana Yoosefian as the Trustee of the RDBR Family Trust. Defendant Yoosefian, on behalf of The RDBR Family Trust, is claiming sole ownership of the Property, both denying Plaintiff’s rights in the same, and demanding the Plaintiff vacate her home.

9. Based on the Defendant's position regarding the ownership of the Property, as well as the demand that Plaintiff vacate the same, Plaintiff now brings suit to protect her rights or, in the alternative, to seek restitution for her contributions.

(Compl. ¶¶ 7-9.)

On 3/11/2024, Plaintiff filed with this Court a Notice of Pendency of Action. This document indicates that Plaintiff filed a Notice of Pendency of Action in the Recorder’s Office, Los Angeles County, California, on 3/8/2024.

On 3/22/2024, this Court denied Plaintiff’s request for a preliminary injunction. The Minute Order indicated that Plaintiff failed to show a likelihood of success on the merits and failed to show that the balance of hardships weighs in Plaintiff’s favor. (Min. Order, 3/22/2024, p. 4.) In explaining the Court’s ruling, the Court noted that it had grave doubts about the credibility of Plaintiff and her various friends and family who submitted declarations in support of her request. (Min. Order, 3/22/2024, p. 3.) Additionally, on 3/22/2024, this Court terminated the temporary restraining order that was issued on 3/7/2024. (Min. Order, 3/22/2024, p. 4.)

Defendant, Diana Yoosefian, now moves to expunge the lis pendens and seeks attorneys’ fees and costs in the amount of $2,400.00.

LEGAL STANDARD MOTION TO EXPUNGE
“A lis pendens—also called a notice of pendency of action—is a document filed with a county recorder that provides constructive notice of a pending lawsuit affecting the real property described in the notice.” (Shoker v. Super. Ct. (2022) 81 Cal.App.5th 271, 275, citing Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 647.)

“At any time after notice of pendency of action has been recorded, any party, or any nonparty with an interest in the real property affected thereby, may apply to the court in which the action is pending to expunge the notice. However, a person who is not a party to the action shall obtain leave to intervene from the court at or before the time the party brings the motion to expunge the notice. Evidence or declarations may be filed with the motion to expunge the notice. The court may permit evidence to be received in the form of oral testimony, and may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice. The claimant shall have the burden of proof under Sections 405.31 and 405.32.” (CCP § 405.30.)

“A court shall order a notice of lis pendens expunged if it determines (1) that the pleading on which the notice is based does not contain a real property claim (§ 405.31); (2) that the claimant has not established, by a preponderance of the evidence, the probable validity of a real property claim (§ 405.32); or (3) that adequate relief can be secured by an undertaking. (§ 405.33.)” (Shoker, supra, 81 Cal.App.5th at 277.)

“Claimant” means a party to an action who asserts a real property claim and records a notice of the pendency of the action. (CCP § 405.1.)

“Probable validity”, with respect to a real property claim, means that it is more likely than not that the claimant will obtain a judgment against the defendant on the claim. (CCP § 405.3.)

“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.)

“Unlike other motions, the burden is on the party opposing the motion to expunge—i.e., the claimant-plaintiff—to establish the probable validity of the underlying claim.⁵ (Code Civ. Proc., § 405.30.) The claimant-plaintiff must establish the probable validity of the claim by a preponderance of the evidence. (Code Civ. Proc., § 405.32.)” (Howard S. Wright Construction Co. v. Superior Court (2003) 106 Cal.App.4th 314, 319; Fn. 5 omitted because it simply defines probable validity under 405.3.) “That is, the plaintiff must “at least establish a prima facie case. If the defendant makes an appearance, the court must then consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.”” (Id.)

Further, under CCP §405.35:

Subject to the provisions of Sections 405.31 and 405.32, at any time after a notice of pendency of action has been recorded, and regardless of whether a motion to expunge has been filed, the court may, upon motion by any person with an interest in the property, require the claimant to give the moving party an undertaking as a condition of maintaining the notice in the record title. However, a person who is not a party to the action shall obtain leave to intervene from the court at or before the time the person moves to require an undertaking. The court may permit evidence to be received in the form of oral testimony and may make any orders it deems just to provide for discovery by any affected party. An undertaking required pursuant to this section shall be of such nature and in such amount as the court may determine to be just. In its order requiring an undertaking, the court shall set a return date for the claimant to show compliance and if the claimant fails to show compliance on the return date, the court shall order the notice of pendency of action expunged without further notice or hearing.

Recovery on an undertaking required pursuant to this section may be had in an amount not to exceed the undertaking, pursuant to Section 996.440, upon a showing (a) that the claimant did not prevail on the real property claim and (b) that the person seeking recovery suffered damages as a result of the maintenance of the notice. In assessing these damages, the court shall not consider the claimant’s intent or the presence or absence of probable cause.

(CCP § 405.34.)

ARGUMENTS

Moving Arguments by Defendant
Defendant argues that the lis pendens on the property identified in the Complaint should be expunged because the Complaint fails to allege a real property claim and because Plaintiff cannot prove that her claims are probably valid.

Opposition Arguments by Plaintiff
The Opposition does not attack or address any of the arguments asserted by Movant.

Instead, Plaintiff submits the declaration of Plaintiff’s attorney (Zachary Levine), which repeats the points brought up in in the Opposition itself. In relevant part, the Levine declaration states:

2. I met and conferred with counsel for Defendants over the phone on July 10, 2024. During that call, Defense Counsel asked if my client would voluntarily remove the lis pendens and I informed counsel that Plaintiff planned to file an amended complaint that would address the issues with the complaint raised by Defendants during the briefing of the preliminary injunction motion. I advised Defense Counsel that we should wait on the issue of the lis pendens until Defendants reviewed the amended complaint. Defense Counsel agreed to stipulate to allow Plaintiff to file an amended complaint that addressed the issues previously raised. No specific timing was discussed.

3. I have been busy with other matters, including a trial, since conferring with Defense Counsel and preparation of the amended complaint has been delayed. This process was further complicated by the need to have a translator to communicate with Plaintiff to ensure that I properly understand her position in this case. As a result, a hearing on Plaintiff’s Motion for Leave to file an Amended Complaint has been set for February 21, 2025.

(Levine Decl. ¶¶ 2-3.)

Reply Arguments by Defendant
In Reply, Defendant argues that a party’s failure to oppose a motion may constitute grounds for granting the motion under California Rules of Court, rule 8.54(c).

Defendant also argues that Plaintiff failed to advance any legal arguments in support of her opposition to Defendant’s motion to expunge.

Further in Reply, Defendant’s counsel disputes Plaintiff’s counsel’s version of events. In relevant part, Defendant’s counsel states:

2. On July 1, 2024, during the meet and confer process, this counsel and Plaintiff’s counsel discussed the possibility of stipulating to allow Plaintiff to file a first amended verified complaint. This counsel informed Plaintiff’s counsel that any stipulation would depend on a review of the proposed first amended complaint since any substantial changes to the factual allegations might render the amended complaint a sham pleading, and therefore, no stipulation would be guaranteed.

3. At no point during this discussion did this counsel agree to delay filing the motion to expunge the lis pendens indefinitely. It was made clear during this same conversation that Defendant, who is elderly, could no longer afford to maintain the condominium in question and intended to list it for sale and needed to resolve the lis pendens issue either by stipulation or motion to this Court.

4. On August 21, 2024, this counsel sent an email to Plaintiff’s counsel attaching the proposed Case Management Conference (CMC) Statement for the September 4, 2024, hearing. The CMC Statement explicitly stated that Defendant planned to file a motion to expunge the lis pendens. A redacted, but true and correct copy of the August 21, 2024, email is attached as Exhibit F.

(Mosesi Decl. ¶¶ 2-4.)

TENTATIVE RULING

Although Defendant’s Reply argued that a party’s failure to oppose a motion may constitute grounds for granting the motion under CRC, rule 8.54(c), the Court notes that it does not find this argument availing because CRC, rule 8.54(c), is located in Division 1 of Title Eight of the CRC, and Division 1 is titled “Rules Relating to the Supreme Court and Courts of Appeal.” Further, Title Eight is titled “Appellate Rules.” Therefore, Defendant’s citation to this rule appears inapposite.

However, the Court does find Defendant’s argument, that Plaintiff failed to advance any legal arguments in support of her opposition, to be availing.

A notice of lis pendens may be expunged if the trial court finds that the plaintiff-claimant has not established by a preponderance of the evidence the probable validity of the real property claim. (Howard S. Wright Construction Co. v. Superior Court (2003) 106 Cal.App.4th 314, 317-18.)

Here, at the very least, Plaintiff did not establish the probable validity of her real property claim because not only did she not assert any legal arguments in opposition, but she did not come forward with any evidence to establish that her real property claim has probable validity.

Defendant’s motion to expunge the lis pendens (notice of pendency of action) filed in the Recorder’s Office (Los Angeles County, California) on 3/8/2024 is GRANTED.

SANCTIONS
Defendant seeks attorneys’ fees and costs in the amount of $2,400.00 for being forced to bring this motion. Defendant’s counsel bases the $2,400.00 request on 4 hours of work in connection with this motion at a rate of $600 per hour.

“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.” (CCP § 405.38.)

Here, Plaintiff’s counsel did not oppose Defendant’s arguments in favor of awarding attorneys’ fees and costs. The Court will hear from the parties regarding attorney’s fees and costs.