Judge: Curtis A. Kin, Case: 22STCV25247, Date: 2023-01-19 Tentative Ruling

Case Number: 22STCV25247    Hearing Date: January 19, 2023    Dept: 72

MOTION TO EXPUNGE LIS PENDENS

Date:               1/19/23 (8:30 AM)

Case:               David Truong v. Minh Hang Thi Nguyen et al. (22STCV25247)

TENTATIVE RULING:

Defendant Craig Wong’s Motion to Expunge Lis Pendens is DENIED as MOOT.  

Defendant’s requests for judicial notice are DENIED as “unnecessary to the resolution” of the issues before the Court. (Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1075.)

Defendant Craig Wong moves to expunge the notice of lis pendens recorded in the Los Angeles County Recorders Office on September 19, 2022 against the property located at 2412 N. Eastern Avenue in Los Angeles. (McAlpin Decl. ¶ 4 & Ex. 1.)

On December 30, 2022, plaintiff David Truong submitted the withdrawal of the lis pendens for recording. (Thakur Decl. ¶ 11.) The withdrawal was recorded on January 3, 2023. (Id. ¶ 11 & Ex. 2.) Because the lis pendens that defendant Wong sought to withdraw has been withdrawn, the motion is DENIED as MOOT.

The parties both request attorney fees.

“[W]hen a lis pendens is withdrawn while a motion to expunge is pending, the moving party is not automatically entitled to attorney fees, nor automatically denied attorney fees, under [CCP] section 405.38. Instead…the trial court has the discretion to award attorney fees based on a determination of which party would have prevailed on the motion, and whether the lis pendens claimant acted with substantial justification in withdrawing the lis pendens, or whether, in light of all of the circumstances, the imposition of fees would otherwise be unjust.” (Castro v. Superior Court (2004) 116 Cal.App.4th 1010, 1024-25.)

With respect to defendant’s request for attorney fees, plaintiff opposed this motion with substantial justification. On December 19, 2022, two days before the filing of this motion, defendant informed plaintiff of his intent to file the instant motion. (Thakur Decl. ¶ 2 & Ex. 1.) On the same date, plaintiff asked defendant to refrain from filing the motion so that plaintiff could conduct research. (Thakur Decl. ¶¶ 2, 3 & Ex. 1.) Defendant agreed to wait until the end of business on December 20, 2022 before filing the motion. (Thakur Decl. ¶ 4.) On December 20, 2022 at 2:19 p.m., plaintiff’s counsel informed defendant that she was reviewing the matter carefully and would inform defendant about the status of the withdrawal the next day. (Thakur Decl. ¶ 5.)

On December 21, 2022 at 5:14 p.m., plaintiff informed defendant that plaintiff would withdraw the lis pendens by the following week. (Thakur Decl. ¶ 6 & Ex. 1.) Nevertheless, defendant filed the motion at 11:15 p.m. on December 21, 2022. (Thakur Decl. ¶ 7.) Defendant explained that he filed the instant motion so that defendant would not miss the motion filing deadline. (Thakur Decl. ¶ 7 & Ex. 1.) However, defendant could have obviated the need for this motion by rescheduling the motion hearing date. Considering that plaintiff was informed only two to three days before the filing date of defendant’s intent to file the instant motion, plaintiff’s request to conduct research and consider whether to withdraw the lis pendens was reasonable. Plaintiff’s stated intent to submit the withdrawal for recording the following week was not unreasonable considering the parties’ meet and confer occurred during the holidays. As plaintiff stated in an email to defendant on December 26, 2022, “It takes time to withdraw it, as it has to be prepared, filed, and recorded and it takes around 1 week, especially since it is Christmas time.” (Thakur Decl. ¶ 10 & Ex. 1.) Although plaintiff attempted to condition withdrawal of the lis pendens on defendant’s withdrawal of the motion on December 26, 2022, such a position was not unjustified in light of defendant having filed the motion before plaintiff reasonably could have acted to withdraw the lis pendens.  (Thakur Decl. Ex. 1.) Moreover, plaintiff ultimately submitted the withdrawal during the following week on December 30, 2022, as plaintiff stated he would do. For the foregoing reasons, the Court finds that the imposition of attorney fees on plaintiff would be unjust.

With respect to plaintiff’s request for attorney fees, defendant’s underlying request to expunge the lis pendens had merit. Defendant correctly points out that plaintiff did not assert a real property claim, which is required for a lis pendens under CCP § 405.31. Within each cause of action, plaintiff seeks only money damages. (FAC ¶¶ 82, 90, 100, 109, 117, 124, 127, 129, 131, 136.) “[A]n action for money damages alone will not support a lis pendens.” (Urez Corp. v. Superior Court (1987) 190 Cal.App.3d 1141, 1145.) Although this action involves real property, a “real property claim” is a cause 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.” As the claimant, plaintiff has the burden of proof on this motion. (CCP § 405.30.)

No easement is at issue in this action. Thus, to support the lis pendens, plaintiff must show that, if he were to prevail in this action, at least one cause of action would affect “title to, or the right to possession of, specific real property.” Plaintiff does pray for an order reconveying a deed of trust from defendants to plaintiff. (Prayer for Relief ¶ 5.) But, importantly, plaintiff does not connect this proposed relief to any cause of action. To the extent plaintiff maintains that he has equitable title to the properties at issue in this action (FAC ¶¶ 31, 41, 48, 57, 73, 84, 94, 104, 107, 127, 129), “as a general matter an action to quiet title cannot be maintained by the owner of equitable title as against the holder of legal title.” (Warren v. Merrill (2006) 143 Cal.App.4th 96, 113; see also Lewis v. Superior Court (1994) 30 Cal.App.4th 1850, 1866 [“A holder of equitable title cannot maintain a quiet title action against the legal owner”].) Plaintiff thus fails to meet his burden to demonstrate a real property claim. Accordingly, defendant was not wholly unjustified in filing this motion.

For the foregoing reasons, all requests for attorney fees are DENIED.