Judge: Bruce G. Iwasaki, Case: 20STCV07527, Date: 2024-04-15 Tentative Ruling

Case Number: 20STCV07527    Hearing Date: April 15, 2024    Dept: 58

Judge Bruce G. Iwasaki

Hearing Date:             April 15, 2024

Case Name:                Mercado v. Limon

Case No.:                    20STCV07527

Motion:                       Motion to Expunge Lis Pendens

Moving Party:             Defendant Roberto Coca Limon

            This action seeks to enforce the court judgment in Los Angeles Superior Court case number BD555455. Specifically, the Complaint seeks a court order requiring Defendant Roberto Coca Limon (Defendant) to perform on the family law judgment – which requires that the real property located at 3234 Adriatic Avene, Long Beach, CA, 90810 (Property) be either refinanced or sold (in which case, Defendant is to pay half the proceeds of the sale of the Property to Plaintiff Emelia Mercado).

            On March 10, 2020, a Notice of Lis Pendens with this case number was recorded on the Property.

            On September 2, 2020, the Court sustained a demurrer to Plaintiff’s Complaint and the matter was dismissed.

            Defendant now moves to expunge the Lis Pendens. Defendant also requests attorney’s fees and costs under Code of Civil Procedure section 405.38, in the total amount of $3,500. Plaintiff opposes the motion. No reply was filed.

            The motion to expunge the lis pendens is granted. The request for attorney fees is granted.  

Motion to Expunge

“At any time after notice of pendency of action has been recorded, any party ... may apply to the court in which the action is pending to expunge the notice.” (Code Civ. Proc., § 405.30.) The Court shall order the notice be expunged if (1) “the court finds that the pleading on which the notice is based does not contain a real property claim”; or (2) “the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim.” (Code Civ. Proc., §§ 405.31, 405.32.) The claimant has the burden to provide evidence that the pending action involves a real property claim and that such claim is valid. (Code Civ. Proc., § 405.30.)

If a motion to expunge a lis pendens is filed “after judgment against the claimant and while an appeal is pending, the trial court must grant the motion unless it finds it more likely than not that the appellate court will reverse the judgment.” (Amalgamated Bank v. Superior Court (2007) 149 Cal.App.4th 1003, 1015.) There is an exception to deny such motions if the trial judge “ ‘is willing to find, on the record, that the trial court’s ruling will “probably” be overturned on appeal.” Thus, expungement will be required “[n]inety-nine-point-ninety-nine percent of the time.” (Mix v. Superior Court (2004) 124 Cal.App.4th 987, 997 fn. 8, [“it would completely circumvent the Legislature's intent in enacting section 405.32, [if] merely filing an appeal, no matter how meritless, would automatically keep the lis pendens in place.”].)

Defendant now moves to expunge the lis pendens on the grounds that this lawsuit has been dismissed and judgment is now final. Defendant also argues that lis pendens is void and invalid as it does not comply with the requirements of Code of Civil Procedure section 405.23.  

With respect to this first argument, Defendant notes that, following a ruling sustaining a demurrer, a notice of entry of judgment was served on Plaintiff on October 26, 2020. Further, the time for filing an appeal expired on December 28, 2020, and no appeal was filed by Plaintiff. Thus, judgment in this action is now final.

A lis pendens provides constructive notice of ongoing litigation, so that any judgment later obtained in the action relates back to the time that the lis pendens was filed. (Slintak v. Buckeye Retirement Co., L.L.C., Ltd. (2006) 139 Cal.App.4th 575, 586.) Put another way, “[a] lis pendens clouds title until the litigation is resolved or the lis pendens is expunged, and any party acquiring an interest in the property after the action is filed will be bound by the judgment.” (Id. at pp. 586-587.)

The effectiveness of a lis pendens “depends entirely on the action of which it is a part and to which it calls attention.” (Albertson v. Raboff (1956) 46 Cal.2d 375, 379.) A lis pendens “is purely incidental to the action wherein it is filed. It refers specifically to such action, and has no existence apart from it.” (Garcia v. Pinhero (1937) 22 Cal.App.2d 194, 197.)

Based on the foregoing, once a judgement is final in an action where a notice of lis pendens was recorded, a lis pendens conveys notice of nothing, because there is no longer any pending litigation. (See, e.g., Estates of Collins & Flowers (2012) 205 Cal.App.4th 1238, 1254 [“The trial court correctly concluded that the lis pendens lacked materiality once the underlying action was dismissed”]; Garcia v. Pinhero, supra, 22 Cal.App.2d at p. 196 [When “the action wherein the notice is filed ceases to be pending and is terminated the notice of its pendency has fully performed its office and may not be relied upon to afford constructive notice that a similar action may subsequently be instituted”].)

In opposition, Plaintiff argues that underlying family law action (LASC Case No. BD555455) involved the division of the Property, a community property asset. (Karey Decl., ¶ 3.) Plaintiff contends that although the “case numbers are different the subject matter being litigated in the family law case is identical as the subject matter in the herein case.” (Karey Decl., ¶ 8.) On this basis, Plaintiff contends that the lis pendens can remain in connection with the other family law matter.

Plaintiff cites no legal authority for this argument. Further, as noted above, a lis pendens “is purely incidental to the action wherein it is filed. It refers specifically to such action, and has no existence apart from it.” (Garcia v. Pinhero, supra, 22 Cal.App.2d at p. 197.)

Thus, contrary to Plaintiff’s opposition argument, the notice of lis pendens cannot exist outside of the action in which it was recorded under. As such, the lis pendens here has no legal effect and the Court orders that the lis pendens be expunged.

Attorneys' Fees

            Defendant also seeks attorney fees in the amount of $3,500. Defendant made numerous attempts to resolve this matter informally but Plaintiff refused. (Weisberg Decl., ¶¶ 12-15, Exs. 3-6.)

Code of Civil Procedure section 405.38 authorizes an award of attorney's fees to a prevailing party on a motion to expunge a lis pendens: “[t]he court shall direct that the party prevailing on [a motion to expunge lis pendens] be awarded reasonable attorneys’ 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 attorneys' fees and costs unjust.”

              The motion seeks $3,500 in attorney fees, representing 7 hours expended at a rate of $500 per hour. The request is granted.  Plaintiff is ordered to pay to Defendant’s attorney the sum of $3,500 on or before May 31, 2024.