Judge David B. Gelfound, Case Number: 23CHCV02101, Date: 2024-02-20 Tentative Ruling

Judge: David B. Gelfound, Case: 23CHCV02101, Date: 2024-02-20 Tentative Ruling

Case Number: 23CHCV02101 Hearing Date: February 20, 2024 Dept: F49

Dept. F49
Date: 2/20/24
Case #23CHCV02101

LOS ANGELES SUPERIOR COURT
NORTH VALLEY DISTRICT

DEPARTMENT F49

FEBRUARY 20, 2024

MOTION TO EXPUNGE LIS PENDENS AND FOR ATTORNEY FEES AND COSTS
Los Angeles Superior Court Case # 23CHCV02101

Motion filed: 12/21/23

MOVING PARTY: Defendant Brian Horvoth

RESPONDING PARTY: No opposing papers were received.

NOTICE: Proof of service NOT filed.

“Proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.” (Cal. Rules of Court, rule 3.1300(c).)

Despite the absence of a filed proof of service, the Court will proceed to review the motion on its merits, considering that Plaintiff argued in a previous hearing on advancing this hearing date. (1/18/24 Minute Order.) Consequently, it can be reasonably inferred that Plaintiff has been served the motion.

The Court directs the moving Defendant to comply with all applicable California Rules of Court in future proceedings.

RELIEF REQUESTED: An order expunging the notice of pendency of action (lis pendens) that was recorded on November 20, 2023, as document number #20230802141 in the office of the County Recorder of Los Angeles and granting an award of attorney fees and costs.

TENTATIVE RULING: The motion is GRANTED. The request for reasonable attorney’s fees and costs is GRANTED IN PART.

BACKGROUND

On July 18, 2023, Plaintiff Agustin Heredia (“Plaintiff”) filed his Complaint against Defendant Brian Horvoth (the “moving Defendant” or “Horvoth”), Juan Orozco, and Does 1 to 50, alleging the following causes of action: (1) Breach of Contract; (2) Fraudulent Misrepresentation; and (3) Quantum Meruit.

On July 19, 2023, Plaintiff filed the Notice of Pendency of Action pursuant to California Code of Civil Procedure Section 405.20 (Lis Pendens), for which proof of service was submitted.

On December 11, 2023, Plaintiff submitted his application for publication, which the Court granted and entered on December 12, 2023.

On December 21, 2023, Defendant Horvoth filed the instant Motion to Expunge Lis Pendens and for an award of attorney fees.

As of the filing deadline in accordance with Code of Civil Procedure section 1005 subdivision (b), no opposing papers have been received.

ANALYSIS

“At any time after a notice of pendency of action has been recorded, any party ... with an interest in the real property affected thereby, may apply to the court in which the action is pending to expunge the notice.” (Code Civ. Proc., § 405.30.) A Lis Pendens may be expunged either (i) if the pleadings do not contain a real property claim, or (ii) if the court finds that the party claiming the Lis Pendens 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 party claiming the Lis Pendens has the burden of proof under Section 405.31 and Section 405.32. (Code Civ. Proc. § 405.30) The burden is to demonstrate that their pleadings contain a real property claim and that the probable validity of their real property claim can be established by a preponderance of the evidence. (Code Civ. Proc., §405.31 (underline added); see also McKnight v. Superior Court (1985) 170 Cal. App. 3d 291, 298 [“the burden is upon the recording party to demonstrate by a preponderance of the evidence that the action was commenced and prosecuted for a proper purpose and in good faith”].) “Probable validity” exists when “it is more likely than not that the claimant will obtain a judgment on the claim.” (Code Civ. Proc., § 405.3.)

1. The Notice of Pendency of Action Is Void Under C.C.P. § 405.23.

Code of Civil Procedure section 405.23 provides that “Any notice of pendency of action shall be void and invalid as to any adverse party or owner of record unless the requirements of Section 405.22 are met for that party or owner and a proof of service in the form and content specified in Section 1013a has been recorded with the notice of pendency of action.”

Code of Civil Procedure section 405.22 provides, in part, that “the claimant shall, prior to recordation of the notice, cause a 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 as shown by the latest county assessment roll. If there is no known address for service on an adverse party or owner, then as to that party or owner a declaration under penalty of perjury to that effect may be recorded instead of the proof of service required above, and the service on that party or owner shall not be required. Immediately following recordation, a copy of the notice shall also be filed with the court in which the action is pending. Service shall also be made immediately and in the same manner upon each adverse party later joined in the action.” (Underlines added.)

The moving Defendant contends that the Notice of Pendency of Action (the “Notice”) is void and invalid due to non-compliance with the statutory service requirement. Specifically, the moving Defendant asserts that the Notice was improperly served via United States Postal Service mail and by electronic transmission, rather than through “registered or certified mail, return receipt requested” as mandated by Code of Civil Procedure sections 405.22 and 405.23.

Upon reviewing the records, the Court notes that Plaintiff’s proof of service of the Notice indicates that service was made through Certified U.S. Mail at a residential address in California. However, it lacks proof of “return receipt requested” compliance. Given that Plaintiff acknowledges that the service address was Defendant’s “last known address” (Mot., Ex. “1”), Plaintiff is required to adhere to the explicit requirement under Code of Civil Procedure section 405.22, which necessitates the “return receipt requested” for service. Therefore, Plaintiff’s proof of service is noncompliant with Code of Civil Procedure section 405.22.

Furthermore, Plaintiff cannot mitigate this deficiency by relying on his subsequent filing of the application for publication on December 11, 2023, asserting that “the defendant, BRIAN HORVOTH, cannot reasonably be served by any other method despite exercise of reasonable diligence.” (12/11/23 Appl. for publication, at 1.) This claim is insufficient given the existence of a known service address for the Defendant in California, and the declaration fails to conclusively demonstrate that no address could be determined by “shown by the latest county assessment roll.” (Code Civ. Proc., § 405.22.)

Therefore, the Court identifies a procedural defect in Plaintiff's service of the Notice of Pendency of Action on the moving Defendant, under Code of Civil Procedure section 405.22. Consequently, the Notice is deemed void in accordance with Code of Civil Procedures section 405.23.

2. Plaintiff Fails to Allege A Real Property Claim.

The Code of Civil Procedure section 405.4 provides that “‘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.”

The determining factor, as outlined in Campbell v. Superior Court. (2005) 132 Cal.App.4th 904, 919 (Compbell), is whether the action “seeks to establish an interest in real property for the purpose of securing payment of the money judgment ultimately sought by the action.” Under such circumstances, recording a lis pendens is not permissible. (Ibid.)

Here, Plaintiff’s Complaint seeks monetary compensations across all causes of action, including the value of consideration per the agreement, actual, consequential, and incidental financial losses, costs of suit, reasonable attorney’s fees, punitive damages, and interest at the legal rate. None of these demands seeks to establish an interest in real property.

Therefore, in alignment with the precedent set in Campbell, the Court concludes that Plaintiff has not alleged a real property claim, rendering the recording of a lis pendens impermissible.

Accordingly, the moving Defendant’s Motion to Expunge Lis Pendens is GRANTED.

3. Attorney Fees Are Awarded.

Code of Civil Procedure section 405.38 provides that “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.”

Given that the Court has granted the Motion to Expunge Lis Pendens, the moving Defendant is entitled to an award of reasonable attorney’s fees and costs in accordance with Code of Civil Procedure section 405.38.

The moving Defendant is requesting a monetary award in the amount of $2,560.00, based on an hourly rate of $500.00 for 4 hours in preparing and drafting the instant Motion and 1 hour allocated for hearing attendance, plus a $60.00 cost. However, in the absence of opposition, the Court adjusts the total hours to be 2 hours, comprising 1 hour for drafting the Motion and 1 hour for attending the hearing. Consequently, the Court, exercising its discretion, determines $1,000.00 to be a reasonable fee, which is calculated at $500.00/hour X (1 hour of drafting the motion + 1 hour of attending the hearing). Additionally, the Court grants an award for a reasonable cost of $60.00, totaling $1,060.00.

CONCLUSION

Defendant Horvoth’s Motion to Expunge Lis Pendens is GRANTED.

Plaintiff is ordered to make the payment of $1,060.00 to Defendant Horvoth within 10 days of issuance of this order.

Moving party to give notice.