Judge Daniel S. Murphy, Case Number: 23STCV13644, Date: 2024-06-28 Tentative Ruling

On June 14, 2023, Plaintiff Abigail Rodriguez filed this action against Defendant Susan V. Wopschall-Wengel, asserting causes of action for (1) breach of contract, (2) promissory estoppel, (3) quiet title, (4) specific performance, and (5) declaratory relief.

The complaint alleges that the parties entered into an agreement for the sale of a home in Covina, California and that Defendant has failed to perform the conditions required on her part to complete the transaction.

On May 28, 2024, Defendant filed the instant motion to expunge the lis pendens. Plaintiff filed her opposition on June 11, 2024. Defendant filed her reply on June 21, 2024.

A lis pendens is a recorded document giving constructive notice that an action has been filed affecting title or right to possession of the real property described in the notice. (La Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461, 473.) A lis pendens may be filed by any party in an action who asserts a “real property claim.” (Code Civ. Proc., § 405.20.) A “real property claim” means “the cause or causes of action in a pleading which would, if meritorious, affect [] title to, or the right to possession of, specific real property.” (Id., § 405.4.)

At any time after the lis pendens has been recorded, a property owner may bring a motion to expunge an improperly recorded lis pendens. (Code Civ. Proc., § 405.30.) Several statutory bases for expungement of a lis pendens exist, including (1) the pleadings on which the lis pendens is based do not contain a “real property claim” (id., § 405.31), and (2) the claimant has not established by a preponderance of the evidence the probable validity of the real property claim (id., § 405.32). The claimant bears the burden of proof on the motion. (Id., § 405.30.)

“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.” (Code Civ. Proc., § 405.38.)

Plaintiff’s claims, except promissory estoppel,[1] affect title to or possession of real property because they concern ownership of the subject property. Plaintiff alleges that Defendant has an obligation to sell the property to Plaintiff. Thus, Plaintiff’s claims are real property claims. However, merely stating a real property claim is insufficient to maintain a lis pendens. A lis pendens must be expunged if the plaintiff cannot prove the probable validity of his or her claim by a preponderance of the evidence. (Code Civ. Proc., § 405.32.) On a motion to expunge, the plaintiff bears the burden of proof. (Id., § 405.30.)

Defendant has established through Plaintiff’s own deposition testimony that Plaintiff did not satisfy her obligations in the sale agreement prior to the close of escrow. (See Compl., Ex. A.) Plaintiff did not obtain a loan nor provide a down payment. (Gomez Decl., Ex. G at 99:13-15, 100:5-101:10.) Plaintiff also failed to tender a promissory note secured by a deed of trust. (Id. at 117:9-22.) This establishes as a matter of law that Plaintiff’s claims have no probability of success. (See Brown v. Grimes (2011) 192 Cal.App.4th 265, 277 [“When a party’s failure to perform a contractual obligation constitutes a material breach of the contract, the other party may be discharged from its duty to perform under the contract”].)

Plaintiff cites no evidence to rebut Defendant’s showing.[2] There is no evidentiary support for Plaintiff’s claim that the lender required certain repairs to the property before releasing the loan funds. (See Opp. 4:1-6.) There is also no support for Plaintiff’s contention that Defendant made Plaintiff’s performance impossible by cancelling the escrow. (See Opp. 5:17-19.) The evidence shows that Defendant was entitled to cancel the escrow because Plaintiff failed to perform her obligations under the agreement. (See Brown, supra, 192 Cal.App.4th at p. 277.)

In sum, while Plaintiff has alleged real property claims, she has failed to establish the probable validity of those claims by a preponderance of the evidence. (See Code Civ. Proc., §§ 405.30, 405.32.) Therefore, the motion to expunge must be granted.

Plaintiff argues that if the motion is granted, it must be conditioned upon Defendant posting an undertaking. However, an undertaking is only required as a condition of expungement “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.) “The court shall not order an undertaking to be given as a condition of expunging the notice if the court finds the claimant has not established the probable validity of the real property claim.” (Id., § 405.32.) As discussed above, the Court finds that Plaintiff has not established the probable validity of her real property claim. Thus, an undertaking is not required.

Defendant claims total costs of $6,810 associated with the motion based on work by various attorneys, paralegals, and administrative personnel. (See Gomez Decl. ¶¶ 13-25.) The Court finds this to be excessive given the simplicity of the motion. The Court awards $3,150 based on 7 hours at a rate of $450.

Defendant’s motion to expunge lis pendens is GRANTED. The Court awards Defendant attorney’s fees in the amount of $3,150.

[1] Plaintiff concedes that the claim for promissory estoppel is not a real property claim. (Opp. 5:3-4.)

[2] Plaintiff’s declaration, the only evidence accompanying her opposition, is not cited anywhere in the points and authorities and states no facts rebutting Defendant’s showing.