Judge: Blaine K. Bowman, Case: 37-2023-00027112-CU-BC-NC, Date: 2023-12-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - November 30, 2023

12/01/2023  10:00:00 AM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2023-00027112-CU-BC-NC MOSVATN, LLC VS JOHNSON [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 09/20/2023

The Motion to Expunge Notice of Lis Pendens brought by defendant Flora Johnson (the Seller) is DENIED without prejudice.

Though the parties' briefing outlines five grounds upon which a lis pendens may be ordered expunged, the briefing largely focuses on whether or not the real property claim that has been stated by plaintiff Mosvatn LLC (Plaintiff) has 'probable validity.' 'Unlike most other motions [where the burden rests on the moving party], the burden of proof [on a motion to expunge a lis pendens] is on the party opposing the motion...' – i.e. it is the opposing party that must show: (1) that the Subcontractor has a 'real property claim,' and (2) that the Subcontractor's real property claim is 'probably valid.' Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023 ¶ 9:430, citing Code of Civil Procedure § 405.32 (emphasis in original).

In its opposition brief, Plaintiff has set forth a prima facie case as to the probable validity of its real property claim. The Seller has not replied to this argument. As such, the Court concludes that the motion as presently made lacks merit. On the other hand, the Court notes that the opposition brief appears to have been late-filed – and at a time where the Thanksgiving Holiday may have created some challenges with briefing a reply or even realizing that a late opposition had been filed. While the Court today exercises discretion to overlook the late filing of the opposition, and rules on the matter accordingly, the Court expressly rules on the matter without prejudice in light of the unusual timing issues (involving a holiday), lateness of the opposition brief, and lack of a reply brief.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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