Judge: Deirdre Hill, Case: BC598789, Date: 2023-03-28 Tentative Ruling

Case Number: BC598789    Hearing Date: March 28, 2023    Dept: M

Hearing Date:                         March 28, 2023 (continued from March 20, 2023)

Moving Parties:                      Defendants Wai Ching Shilon and Moti Shilon

Responding Party:                  Plaintiff Ivan K. Stevenson

Motion to Expunge Lis Pendens

            The court considered the moving, opposition, and reply papers and plaintiff counsel’s supplemental declaration and oral argument.

RULING

            The motion to expunge lis pendens is GRANTED.

BACKGROUND

On October 22, 2015, plaintiff Ivan K. Stevenson filed a complaint against Wai Ching Shilon aka Anne Shilon and Moti Shilon for negligence, breach of oral contract, breach of implied contract, fraud, personal injury, and property damage.

            On October 18, 2016, plaintiff filed a First Amended Complaint.

            On May 1, 2017, plaintiff filed a Second Amended Complaint.

            On January 16, 2018, filed amendments designating Doe 1 as Grand Hall USA, Inc. and Doe 2 as Best Built Construction, Inc.

            On April 16, 2018, plaintiff filed a Third Amended Complaint.

            On October 24, 2018, defendants Wai Ching Shilon and Moti Shilon filed a motion for summary judgment or, in the alternative, summary adjudication.          

            On December 11, 2018, plaintiff filed a Fourth Amended Complaint.

            On April 8, 2019, plaintiff filed a Fifth Amended Complaint.

            On May 16, 2019, the court denied defendants’ motion for summary judgment as moot because it was as to the 2^nd amended complaint.

            On July 19, 2022, the court granted defendant Grand Hall’s and defendant Best Built’s motions for determination of good faith settlement.

            On October 7, 2022, plaintiff filed a notice of pendency of action and pendency of an interlocutory order prohibiting the sale of the property located at 32540 Seahill Drive, Rancho Palos Verdes.

            On October 11, 2022, plaintiff filed notice of recording with the County Recorder’s office the notice of pendency of action.

            On October 26, 2022, after review of the proposed interlocutory order and objections, the court ordered that the parties meet and confer over the proposed order and objections.

LEGAL AUTHORITY

‘“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.”’  Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 647.  Any time after a notice of pendency of action has been recorded, any party or nonparty with an interest in the real property affected thereby may move the court in which the action is pending to expunge the notice.  CCP § 405.30.

A court must order the notice expunged if the court finds any of the following:  the pleading on which the notice is based does not contain a real property claim; the claimant has not established by a preponderance of the evidence the probable validity of the real property claim; or, the real property claim has probable validity, but adequate relief can be secured by the giving of an undertaking.  CCP §§ 405.31-405.33.

“Unlike most other motions, the burden of proof is on the party opposing the motion to expunge.  The lis pendens claimant (plaintiff) bears the burden of establishing the existence of a ‘real property claim’ and that it is ‘probably valid.’”  Weil and Brown, Civ. Proc. Before Trial (2018) § 9:430.  The allegations of the operative complaint determine whether a real property claim is involved.  Id., § 9:431.

DISCUSSION

            Defendants request an order expunging the notice of pendency of action recorded by plaintiff on October 7, 2022 against defendants’ property located at the property located at 32540 Seahill Drive, Rancho Palos Verdes.

            Defendants explain that on September 19, 2022, the parties attended a MSC and reached a settlement, which was outlined by Judge Burdge in an email.  On September 21, 2022, the parties attended a hearing and informed the court of the settlement.  Defendants contend that at the hearing, contrary to and in addition to the terms proposed by Judge Burdge, plaintiff’s counsel recited additional terms, which were never agreed to by the parties.  Specifically, plaintiff’s counsel stated that plaintiff “would also make it a condition of settlement that the Shilon residence cannot be sold until the tankless water heater is either removed and put into the garage or replaced with a tanked water heater, and that all inspections have been conducted and all repairs made.”

Defendants argue that plaintiff’s causes of action do not state a real property claim.  Rather, the complaint and subsequent amended complaints seek monetary damages due to an alleged leak of defendants’ tankless water heater.

In opposition, plaintiff argues that he has stated a “real property claim” because the Fifth Amended Complaint asserts causes of action for breach of contract to enforce the HOAs, CC&Rs, and HOA’s Rules and Regulations against defendant neighbors and the prayer asserts “removal of the tankless water heater currently on” defendants’ property.  Plaintiff also asserts that the “no sale” provision was an agreed upon term of the settlement.  Plaintiff acknowledges that the tankless water heater was removed on January 31, 2023 but that defendants have not had the installed tanked water heater inspected and approved by the city or the residence inspected by plaintiff’s “licensed, bonded and insured plumbing contractor.”

In reply, defendants assert that they have complied with the terms of the settlement as agreed to at the MSC.  Specifically, the settlement has been paid in full, the tankless water heater has been replaced, and defendants have invited the inspection of the water heater and have sought the contact information of plaintiff’s plumber, which plaintiff has not provided.

In a supplemental declaration from plaintiff’s counsel, he requests that the hearing be continued for 60 to 90 days, presumably to keep the lis pendens in place to prevent defendants from selling the property without fully complying with the settlement agreement.  Plaintiff acknowledges that defendants complied with the following settlement terms and conditions:  payment of cash settlement, removal of tankless water heater from defendants’ residence, and final permit signed off by an inspector from City of Rancho Palos Verdes.  Plaintiff’s counsel states that inspection of defendants’ gas lines and water pipes by a licensed plumbing contractor selected by plaintiff and paid for by defendants has not been completed because the inspection is not available until March 17, 23, or 24 and that the date of inspection has not been confirmed.  Further, plaintiff’s counsel states, any repairs recommended by contractors have not been accomplished because the residence has not been inspected yet.  Also, the parties have not entered and executed a mutual settlement agreement and release of all claims or met and conferred on an interlocutory order preventing the sale of defendants’ residence.

The court rules as follows:

Under CCP § 405.31, “the court shall order the notice expunged if the court finds that the pleading on which the notice is based does not contain a real property claim.”  A “real property claim” means the cause of action in a pleading which would, if meritorious, affect title to, or right to possession of, specific real property, or the use of an easement identified in the pleading.  CCP § 405.4.  When evaluating whether a pleading states a real property claim, “the court must engage in a demurrer-like analysis.  Rather than analyzing whether the pleading states any claim at all, as on a general demurrer, the court must undertake the more limited analysis of whether the pleading states a real property claim.”  Kirkeby, supra, 33 Cal.4th at 647-648 [internal quotations omitted].  “Therefore, review of an expungement order under section 405.31 is limited to whether a real property claim has been properly pled by the claimant.”  Id. at 648.

The court finds that plaintiff did not plead a “real property claim” in the operative pleading, which is the Fifth Amended Complaint.  None of the causes of action if meritorious, affect title to, or right to possession of, either plaintiff’s or defendants’ real property, or the use of an easement identified in the pleading. 

The court finds that plaintiff has failed to meet his burden to establish that his operative complaint states a real property claim.

The motion is thus GRANTED.

Defendants are ordered to give notice of ruling.