Judge Gregory Keosian, Case Number: 19STCV24054, Date: 2023-09-28 Tentative Ruling

Judge: Gregory Keosian, Case: 19STCV24054, Date: 2023-09-28 Tentative Ruling

Case Number: 19STCV24054 Hearing Date: January 5, 2024 Dept: 61

Residential First Capital’s Motion to Intervene and Expunge Lis Pendens is GRANTED. Fees are awarded against Plaintiff in the amount of $1,410.

Intervenor to provide notice.

I. MOTION TO INTERVENE AND EXPUNGE LIS PENDENS

“‘A lis pendens is a recorded document giving constructive notice that an action has been filed affecting title to or right to possession of the real property described in the notice.’ [Citation.] A lis pendens may be filed by any party in an action who asserts a ‘real property claim.’ [Citation.] Section 405.4 defines a ‘“Real property claim”’ as ‘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 . . . .’ ‘If the pleading filed by the claimant does not properly plead a real property claim, the lis pendens must be expunged upon motion under CCP 405.31.’ [Citation.]” (Kirkeby v. Superior Court of Orange County (2004) 33 Cal.4th 642, 647.)

“The potential for a notice of lis pendens to pour sand into the smooth gears of a real estate transaction has been well remarked in the cases.” (Gale v. Superior Court (“Gale”) (2004) 122 Cal.App.4th 1388, 1394.) “[T]he question of whether pleadings state a real property claim is tested by a ‘“demurrer-like analysis’” that centers on the adequacy of the pleading. [Citation.] It is strictly a binary process: If you properly plead a real property claim, you can file a notice of lis pendens; if you don't, you can't.” (Id. at p. 1395.)

Code Civ. Proc. section 405.32 provides that “[i]n proceedings under this chapter, the court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim.”

“Unlike other motions, the burden is on the party opposing the motion to expunge — i.e., the claimant-plaintiff — to establish the probable validity of the underlying claim. [Citation.] The claimant-plaintiff must establish the probable validity of the claim by a preponderance of the evidence.” (Howard S. Wright Construction Co. v. Superior Court (2003) 106 Cal.App.4th 314, 319.) “[T]he plaintiff must ‘at least establish a prima facie case. If the defendant makes an appearance, the court must then consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.’ [Citation.]” (Ibid.)

Non-party Residential First Capital, LLC (RFC) seeks leave to intervene in this action to defend its interest in the property at 1836 Crenshaw Boulevard and to expunge the lis pendens notice. RFC contends that its interest in the property is the product of a foreclosure upon a deed of trust dated June 2018, which Plaintiff in previous pleadings and moving papers acknowledged was authentic and not the product of any forgery. (Motion at pp. 8–10.) RFC also argues that the lis pendens notice was improperly served. (Motion at pp. 5–6.)

Plaintiff does not oppose RFC’s motion to intervene. (Opposition at p. 2.) But Plaintiff argues that he has since amended the complaint to seek cancellation of the June 2018 deed of trust by which RFC claims title to the property. (Opposition at p. 1.) Plaintiff also argues that this court upheld the same lis pendens notice against a motion brought by Defendant Jarrell Davis. (Opposition at pp. 4–5.) Plaintiff notes that the Los Angeles County District Attorney has filed its own lis pendens notice on the property based on the June 2018 deed of trust. (Mulkerin Decl. Exh. 1.) Plaintiff finally argues that the present motion is premature, as Plaintiff was in talks to settle the dispute concerning the 1836 Crenshaw property with RFC prior to the motion’s filing. (Opposition at pp. 3–4.)

RFC has filed no reply, but its counsel has filed a declaration seeking a continuance due to its non-receipt of the opposition.

RFC’s motion is persuasive, and Plaintiff has not carried his burden in opposing the motion. First, Plaintiff did not serve the lis pendens notice upon RFC, as required under Code of Civil Procedure § 405.22. That statute requires notice of lis pendens to be served “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.” (Code Civ. Proc. § 405.22.) Failure to serve a party according to that statute makes the lis pendens notice “void and invalid” as to that party. (Code Civ. Proc. § 405.23.) Plaintiff offers no response to this argument in opposition.

Plaintiff has also failed to show the probable validity of his claims as to this property. RFC obtained title to the 1836 Crenshaw property by virtue of foreclosure upon the June 2018 deed of trust. (RJN Exh. G.) Although Plaintiff’s Second Amended Complaint, filed after the present motion was filed, now lists that June 2018 instrument as forged, Plaintiff submits no evidence in opposition to corroborate this conclusion. What’s more, Plaintiff’s prior pleadings contradict this contention. The FAC alleged that the June 2018 deed of trust was executed to secure an $880,000 loan with Plaintiff’s authorization. (FAC ¶¶ 10–11.) What’s more, the materials submitted in support of Plaintiff’s December 20, 2019 TRO application specifically lists the June 2018 grant deed and deed of trust on the 1836 Crenshaw property as “Valid.” (12/20/2019 TRO Application, Exh. A.) Plaintiff’s arguments as to settlement efforts and the existence of another lis pendens notice on the property are unsupported by authority, and do not mitigate RFC’s entitlement to intervene and obtain expungement of the notice that Plaintiff has filed.

The motion to intervene and expunge lis pendens notice is therefore GRANTED.

A party prevailing on a motion to expunge lis pendens is entitled to reasonable attorney’s fees and costs in making or opposing the motion. (Code Civ. Proc. § 405.38.) RFC seeks fees in the amount of $4,740.00, representing 20.8 hours of attorney work at $225 per hour, plus a $60 filing fee. (Granger Decl. ¶ 8.) Fees are awarded in the amount of $1,410.