Judge: Donald F. Gaffney, Case: Li v. Liu, Date: 2022-09-07 Tentative Ruling
TENTATIVE RULING:
Motion to Expunge.
Defendant Dehong Liu moves to expunge the notice of pendency of action (lis pendens) recorded by Plaintiff Jie Li on March 24, 2022, against the subject property. For the following reasons, the motion is GRANTED.
As a preliminary matter, the Court finds that Defendant has made a general appearance in pursuing this motion. Defendant claims to specially appear for purposes of this motion in order to avoid a general appearance.
“A general appearance by a party is equivalent to personal service of summons on such party.” (Code Civ. Proc. § 410.50(a).) “If the defendant raises an issue for resolution or seeks relief available only if the court has jurisdiction over the defendant, then the appearance is a general one.” (Factor Health Mgmt. v. Sup.Ct. (Apex Therapeutic Care, Inc.) (2005) 132 Cal.App.4th 246, 250.) “An appearance is general if it is for any purpose other than to question the court's jurisdiction,” and the fact parties refer to themselves as “specially appearing” is not determinative. (Sunrise Fin'l, LLC v. Superior Court (2019) 32 Cal.App. 5th 114, 124-126.) Requesting attorney fees has also been held to be a general appearance. (Dial 800 v. Fesbinder (2004) 118 Cal.app.4th 32, 54.)
Here, Defendant seeks relief that would be available only if the Court had jurisdiction over the parties – expungement of the lis pendens and an award of attorney’s fees. The fact that Defendant states he is “specially appearing” for purposes of this motion is not determinative of whether he is indeed specially appearing. Defendant has made a general appearance by pursuing this motion.
Code Civ. Proc. § 405.30 provides, in pertinent part, that: “At any time after notice of pendency of action has been recorded, any party, or any nonparty with an interest in the real property affected thereby, may apply to the court in which the action is pending to expunge the notice. … Evidence or declarations may be filed with the motion to expunge the notice. The court may permit evidence to be received in the form of oral testimony, and may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice. The claimant shall have the burden of proof under Sections 405.31 and 405.32.”
A court “shall” grant a motion to expunge if either of the following conditions exists:
(1) The pleading upon which the lis pendens is based does not contain a real property claim (Code Civ. Proc. §405.31); OR
(2) The claimant has not established by a preponderance of the evidence the probable validity of the real property claim (Code Civ. Proc. §405.32)
Code Civ. Proc. § 405.4 defines a “real property claim” as a “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.” Examples of causes of action that generally pertain to real property claims are quiet title, declaratory relief, and/or a fraudulent conveyance.
Moreover, Code Civ. Proc. § 405.22 states, in pertinent part, as follows:
“[T]he 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….
“Any notice of pendency of action shall be void and invalid as to any adverse party or owner of record unless the requirements of CCP § 405.22 are met for that party or owner.” (CCP § 405.23.)
Defendant provides evidence that he was never served with the lis pendens. (Liu Dec., ¶¶ 3-4.) Plaintiff’s counsel contends that, in the Unlawful Detainer matter, Defendant contended that he was a resident of the Peoples Republic of China, Defendant was not subject to service of process in the United States, Defendant did not maintain a United States address at which he could be served, and Defendant must be served pursuant to the Hague Convention. (Alkana Dec., ¶¶ 3-5.)
Plaintiff has not provided any evidence that Defendant has been served (pursuant to the Hague Convention or otherwise) or that the alternative declaration required by Section 405.22 has been recorded. (See, e.g., Code Civ. Proc. § 413.10; Rockefeller Tech. Investments (Asia) VII v. Changzhou SinoType Tech. Co., Ltd. (2020) 9 Cal.5th 125, 134-138.) Accordingly, the lis pendens is void and invalid as to Defendant.
Defendant also contends that Plaintiff does not assert a real property claim. A “real property claim” is any cause of action which, if meritorious, would affect either 1) title to, or the right to possession of, specific real property, or 2) the use of an easement identified in the pleading. (Code Civ. Proc. § 405.4.) The First Amended Complaint (FAC) asserts a quiet title cause of action, alleging that “Plaintiff is the 100% sole owner of the Subject Property.” A quiet title claim is a real property claim; indeed, a lis pendens must be recorded in a quiet title action. (Code Civ. Proc. § 761.010.) The FAC alleges a real property claim.
Defendant also contends that Plaintiff cannot establish the probable validity of her real property claim. Plaintiff has the burden of proving by a preponderance of the evidence the probable validity of her causes of action. (Code Civ. Proc. §405.32) “Probable validity” means that it is more likely than not that claimant will obtain a judgment against the Defendant on the claim. (Code Civ. Proc. § 405.3.)
Plaintiff’s claims rest on the theory that her real estate agent, Defendant Tu, misrepresented the terms of the purchase agreement to Plaintiff. According to Plaintiff, she initially agreed to purchase the Property for $6.3 million on November 15, 2018. (Li Dec., ¶ 5; FAC, Ex. A.) At some unspecified time later, Defendant and Plaintiff agreed to a reduced purchase price of $5,750,000. This reduced purchase price is not reflected in the written contract. (See FAC, ¶ 47 and Ex. A.) The statute of frauds bars enforcement of certain agreements, including an agreement “for the sale of real property, or of an interest therein,” unless confirmed in writing and “subscribed by the party to be charged.” (Civ. Code. § 1624(a).) Here, the alleged agreement to reduce the purchase price of the property is invalid under the statute of frauds. Plaintiff’s cause of action to quiet title is based on the theory that this oral agreement is enforceable. (FAC, ¶ 143.) Plaintiff does not provide any basis to avoid application of the statute of frauds. There is also no evidence of the alleged oral agreement to reduce the purchase price except Plaintiff’s declaration that Defendant Tu had agreed with Defendant Liu to reduce the purchase price, which consists of multiple levels of hearsay. The motion is GRANTED.
The court is required to “direct” an award to the prevailing party of the reasonable attorney fees and costs of making or opposing the motion unless it finds that either 1) “the other party acted with substantial justification” or 2) “other circumstances make the imposition of attorney's fees and costs unjust.” (Code Civ. Proc. § 405.38.) Plaintiff is ordered to pay attorney’s fees and costs in the amount of $3,060 (6 hours at $500/hour + $60 in costs) to Defendant within 30 days of notice of this ruling.
Defendant’s request for judicial notice is granted as to the existence of the documents in the court file but not as to the truth of the matters stated therein. (Evid. Code § 452(h); Richtek USA, Inc. v. UPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 658.)
Defendant to give notice.