Judge Gregory Keosian, Case Number: 22STCV20177, Date: 2023-07-11 Tentative Ruling

Judge: Gregory Keosian, Case: 22STCV20177, Date: 2023-07-11 Tentative Ruling

Case Number: 22STCV20177 Hearing Date: November 30, 2023 Dept: 61

Defendants Jon Greenfield and 21326 Ventura, LLC’s Motion to Expunge Lis Pendens Notice is GRANTED. Sanctions are awarded against Plaintiff in the amount of $3,650.

Defendants to give notice.

I. MOTION TO 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.)

Defendants Jon Greenfield and 21326 Ventura, LLC (Defendants) move to expunge a notice of lis pendens recorded against the property on 21326 Venture Boulevard in Los Angeles (subject property), on the grounds that this court has sustained their demurrer to the Complaint without leave to amend, and Plaintiff Garry Itkin (Plaintiff) therefore cannot establish the probable validity of his claims. (Motion at pp. 3–6.)

Plaintiff in oppositions offers the same authorities and arguments that it presented in support of its opposition to Defendants’ demurrer. (Opposition at pp. 4–5, citing Moreland Development Co. v. Gladstone Holmes, Inc. (1982) 135 Cal.App.3d 973; Jacobs v. Freeman (1980) 104 Cal.App.3d 177; see 7/11/2023 Order.) Because Plaintiff offers no reasons to embrace his position other than those the court rejected in sustaining Defendants’ demurrer, Plaintiff has made no showing that he is likely to prevail on appeal

The motion to expunge lis pendens is therefore GRANTED.

II. SANCTIONS

“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.)

Defendants seek sanctions in the amount of $4,850.00 in fees associated with the motion, representing eight hours of law clerk work at $300 per hour, plus 3.5 hours of attorney work at $700 per hour. (Schorr Decl. ¶¶ 12–18.) Although Plaintiff challenges the number of hours and the hourly rates here, these rates are supported by Schorr’s experience, as stated in the declaration. (Opposition at pp. 5–7; Schorr Decl. ¶¶ 12–18.) Sanctions are awarded against Plaintiff in the amount of $3,650.