Judge: Cherol J. Nellon, Case: 24STCV05395, Date: 2024-05-23 Tentative Ruling
Case Number: 24STCV05395 Hearing Date: May 23, 2024 Dept: 14
Villa v. Marquez
Case Background
This is an action for quiet title
and related relief concerning a parking lot located at 4504 Avalon Boulevard,
Los Angeles CA 90011. The complaint alleges that Plaintiff Leticia Villa is the
true owner of the one-half undivided interest in the subject property. It is
further that, on September 22, 2015, Defendant Luis Marquez (“Marquez”) initiated
an action against Plaintiff Leticia Villa and her estranged husband, Meliton
Villa (“Villa”), for civil rights violations arising from improper handicap
signage and markings at the subject property. Moreover, Marquez purportedly
submitted a faulty proof of service by using an addressed that neither
Plaintiff nor Villa resided in order to obtain a default judgment against them
in the underlying action. Plaintiff did not receive notice of the underlying
action until November 2023 when she received a Notice of Sheriff Sale, dated
October 20, 2023. The subject property had been sold to Defendant Farhad
Yaghoubi (“Yaghoubi”) through this sale on January 5, 2024 for $221,000, which
is far below the fair market price.
Plaintiff
initiated this action on March 4, 2024 against Defendants Marquez and Yaghoubi,
asserting the following causes of action: (1) quiet title; (2) declaratory and
injunctive relief; (3) specific performance; (4) unjust enrichment; and (5)
constructive trust.
On May 8,
2024, this court found this action and the underlying action, LAM15K11661, are
related within the meaning of California Rules of Court, rule 3.300(a).
A Case
Management Conference is currently set for July 9, 2024.
Instant Motion
Defendant Yaghoubi now moves this court for to expunge the lis pendens
recorded against the subject property on several grounds. Additionally,
Defendant Yaghoubi seeks to recover $19,701.00 under Code
of Civil Procedure § 405.38.
Decision
The motion is GRANTED. The request
for sanctions is DENIED.
Governing
Standard/Statute
Any party or a non-party having
an interest in the property affected by a notice of lis pendens may move for expungement any time
after the lis pendens is recorded. (Code Civ. Proc. § 405.30.) A lis
pendens must be removed for being improper on account of (a) the pleading
on which the notice is based not
containing a real property claim, assuming the allegations to be true, (Code
Civ. Proc. § 405.31; Urez Corp. v. Superior Court (1987) 190
Cal.App.3d 1141, 1149) or (b)
the claimant not being able to establish by a preponderance of the evidence the
probable validity of the real property claim. (Code Civ. Proc.. § 405.32; Ziello
v. Superior Court (1995) 36 Cal.App.4th 321, 331-32.)
“[T]he court shall [also] order that the notice be expunged if the court finds
that the real property claim has probable validity, but adequate relief can be
secured to the claimant by the giving of an undertaking.” (Code Civ. Proc. §
405.33.) A “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. (Code Civ. Proc. § 405.4)
The claimant, not the moving party, has the
burden of proof to establish a valid real property claim and likelihood of
success. (Code Civ. Proc. §§ 405.30, 405.31, 405.32; Malcolm v. Superior Court (1981) 29 Cal.3d 518, 525-26.) Only
admissible or verified evidence is permitted on the motion. (See Burger v. Superior Court (1984)
151 Cal.App.3d 1013, 1019.)
The prevailing party on a motion to
expunge lis pendens is entitled to reasonable attorney’s fees and costs,
“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.” (Code Civ. Proc. § 405.38.)
“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.” (Code Civ. Proc. § 405.36.)
“Because of the potential for abuse
and injustice to the property owner, the Legislature has provided statutory
procedures (CCP § 405.30 et seq.) by which a lis pendens may be removed
(‘expunged’).” (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE
TRIAL (The Rutter Group 2019) ¶ 9:422 [See Shah v. McMahon (2007) 148
Cal.App.4th 526, 529—lis pendens procedure ‘provides a means by which a court
may dispose of meritless real estate claims at the preliminary stage of a
case.’”].) “A lis pendens may be ordered removed from the record title
(‘expunged’) on any of the following grounds: • Improper lis pendens: The lis
pendens is improper because: — the complaint does not contain a ‘real property
claim’ [CCP § 405.31]; or — plaintiff cannot establish its ‘probable validity’
by a ‘preponderance of the evidence.’ [CCP § 405.32]. • Lis pendens proper, but
bond provides adequate security: Even if the ‘real property claim’ has
‘probable validity,’ a lis pendens will be expunged if the court finds
‘adequate relief’ can be ‘secured to the claimant by the giving of an
undertaking.’ [CCP § 405.33] • Defect in service or filing: Alternatively,
defects in statutory service and filing requirements are ground for
expungement. [See CCP § 405.23; and McKnight v.
Sup.Ct. (Faber) (1985) 170 CA3d 291, 303, 215 CR 909, 915].” (Id.
at ¶ 9:423.)
Discussion
Failure
to Comply with Service Requirement
Of the several of arguments raised
by Defendant Yaghoubi, this court needs only to address one in order to resolve
the instant motion. Specifically, he argues that the lis pendens should be
expunged because Plaintiff failed to properly serve him a copy of the lis
pendens pursuant to Code of Civil Procedure § 405.22 prior to recording it.
(Motion at pg. 16.) As shown by the proof of service submitted with the moving
papers, notice had been served on Defendant Yaghoubi via regular mail (Motion,
Yaghoubi Decl. ¶ 9, Exh. 2 at pp. 9-10.) This method of service is improper
because Section 405.22 requires the “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.”
Notably, Plaintiff has failed to
respond to this argument. While she may argue that she substantially complied
with the notice requirement, the chosen method of service does not show that
she attempted to comply with the statute because it was not by certified mail
or with a return receipt requested. (Carr v. Rosien (2015) 238
Cal.App.4th 845, 855 [“Substantial compliance contemplates that there is at
least some compliance with all of the statutory requirements.”].)
Accordingly, because defects in
statutory services is grounds for expungement, this court grants the instant
motion. (McKnight v. Sup.Ct. (Faber) (1985) 170 Cal.App.3d 291.)
Sanctions
In
connection with its motion, Defendant Yaghoubi seeks to recover $19,701.00
under Code of Civil Procedure § 405.38.
Pursuant to
California Code of Civil Procedure § 405.38, “[t]he 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.” (Code
Civ. Proc. § 405.38.)
Because the
court has found that Defendant Yaghoubi’s motion has merit, an award of
reasonable attorney fees and costs is warranted, unless Plaintiff acted with
substantial justification or the imposition of these fees and costs would be
unjust. (Id.)
Counsel Michael Sofris states that
he spent 27.8 hours preparing the instant motion and supporting documents and
anticipates spending an additional 12 hours preparing a reply, attending the
hearing, and preparing the order after hearing, each at a rate of $495 per
hour. (Sofis Decl. ¶¶ 5-7.)
In opposition, Plaintiff first
argues that Defendant Yaghoubi is not entitled to sanctions because her counsel
did not have sufficient time to research the issues presented by Counsel Sofris
and could have resolved the issues raised in the instant motion. (Opposition at
pp. 6-7.) This argument is not persuasive because, considering the motion has
been fully briefed and each party has maintained diametrically opposing
positions, it is clear that inability to continue the meet and confer process
does not render the imposition of sanctions unjust.
Second, Plaintiff argues that the
amount requested in sanctions is unjust because fee amount is excessive based
on Counsel Sofris’ experience and includes time entries that are unrelated to
the instant motion. (Opposition at pg. 7.) This argument is unpersuasive. While
Plaintiff claims that a total of 3.23 hours included in Counsel Sofris’ time
entries are unrelated to the instant motion, this court disagrees. Upon review
of Counsel Sofris’ time entries, he met with Defendant Yaghoubi to discuss the
lis pendens and the acquisition of the subject property on April 17, 2024 for
1.25 hours, conducted analysis of setting aside a Sheriff’s Sale for 1.5 hours,
and reviewed the email and motion from Plaintiff’s counsel. (Sofris Decl. ¶ 5.)
Of these time entries, only the last one appears to be unrelated to the instant
motion, but this would do not render the entire sanctions request
unreasonable. Additionally, based on
the complexity that is posed by this motion, this court does not find it
unreasonable that Counsel Sofris spent 22.85 hours in researching and drafting
the moving papers.
Nevertheless, because the instant
motion is granted on a straightforward procedural issue, it would be unjust to
impose such large monetary sanctions on Plaintiff.
Accordingly, because the imposition
of monetary sanctions would be unjust in this instance, Defendant Yaghoubi’s
request for sanctions is denied.
Conclusion
As stated above, Plaintiff failed to comply with the service requirement
set forth under Code of Civil Procedure § 405.22. This renders the recorded lis
pendens subject to expungement. Additionally, while the amount requested for
sanctions is reasonable based on the time spent by Counsel Sofris, the
imposition of such large sanctions would be unjust because the expungement of
the lis pendens is based on a straightforward procedural issue.