Judge: H. Jay Ford, III, Case: 20SMCV01418, Date: 2023-04-13 Tentative Ruling

Case Number: 20SMCV01418    Hearing Date: April 13, 2023    Dept: O

  Case Name:  Moradi, et al. v. Taheri

SUBJECT:                 MOTION TO EXPUNGE LIS PENDENS

MOVING PARTY:   Defendant/X-Complainant Sherry Taheri

RESP. PARTY:         Plaintiffs Robert Moradi and Gail Moradi

TENTATIVE RULING

            Defendant/X-Complainant Sherry Taheri’s Motion to Expunge Lis Pendens is GRANTED.  Defendant Taheri’s request for fees in the amount of $7,235 is GRANTED as to Plaintiffs.

I.  Applicable Law

“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.”  CCP §405.30.  On a motion to expunge a notice of lis pendens, the claimant who filed the lis pendens has the burden of proof under CCP §§405.31 and 405.32.  See CCP §405.30; Kirkeby v. Supr. Ct. (2004) 33 Cal.4^th 642, 648 (“Unlike most other motions, when a motion to expunge is brought, the burden is on the party opposing the motion to show the existence of a real property claim.”).

Thus, that claimant, in opposing the motion to expunge the lis pendens, must demonstrate the following: (1) the action affects title to or right of possession of the real property described in the notice; (2) in so far as the said notice is concerned, the party recording the notice has commenced the action for a proper purpose and in good faith; and (3) the probable validity of the real property claim by a preponderance of the evidence.  See Hunting World, Inc. v. Superior Court (1994) 22 Cal.App.4th 67, 70; see also CCP §§405.31 and 405.32.  The court must order the notice expunged if it finds the pleading on which the notice is based does not contain a real property claim (CCP §405.31) or the claimant has not established by a preponderance of the evidence the probable validity of the real property claim (CCP §405.32).

“‘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.”  CCP §405.4.  “Case law has determined that certain types of actions clearly do, or clearly do not, affect title or possession.  At one extreme, a buyer's action for specific performance of a real property purchase and sale agreement is a classic example of an action in which a lis pendens is both appropriate and necessary.  At the other extreme, an action for money only, even if it relates in some way to specific real property, will not support a lis pendens.”  BGJ Associates, LLC v. Superior Court (1999) 75 Cal.App.4th 952, 967. 

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.  “In making this determination, 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.  Review involves only a review of the adequacy of the pleading and normally should not involve evidence from either side, other than possibly that which may be judicially noticed as on a demurrer.  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.”  Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 647–648. 

II. No real property claim is alleged.

            Plaintiffs’ complaint fails to allege any cause of action that could qualify as a “real property claim” under CCP §405.4.  Plaintiffs’ 1^st and 2^nd causes of action for declaratory and injunctive relief pertain to commonly shared trees, not real property.  See Complaint, ¶¶25, 29, 30.  Plaintiffs 3^rd cause of action for trespass to chattels is based on dismantling of a fence and does not involve ownership or possession of real property or use of an easement.  Plaintiffs’ 4^th cause of action for defamation and 5^th c/a for IIED could not affect title or possession to real property or use of an easement. By definition, these are claims for injury to person and seek monetary damages.

            Plaintiffs argue they are seeking leave to file an amended complaint alleging claims that by definition qualify as real property claims, i.e. quiet title and prescriptive easement.  However, the Court must assess whether the operative complaint upon which this lis pendens is based contains a real property claim.  It does not.

            Plaintiffs argue ¶11 establishes existence of a real property claim.  Paragraph 11 alleges the existence of a prescriptive easement based on use of irrigation pipes that go under the earth of Defendant’s property.  However, there is no claim for prescriptive easement and ¶11 appears to be a stray reference to prescriptive easement. 

            Defendant’s Motion to Expunge Lis Pendens is GRANTED.  Plaintiffs fails to establish that their complaint contains a real property claim. 

III. Defendant entitled to recovery fees and costs from Plaintiffs as prevailing party

Defendant requests for fees and costs is GRANTED in the amount of $7,235 as to Plaintiffs per CCP §405.38.  Defendant requests $7,175 in fees and $60 in costs.  Defendant’s request for fees is based on 20.5 hours @ $350/hr.  Defendant’s request is reasonable. 

“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.”  CCP §405.38.  The prevailing party on a motion to expunge is entitled to an award only against the losing party. There is no provision for an award against the losing party's attorneys as sanctions or otherwise.  See Doyle v. Sup.Ct. (Jacinth Develop., Inc.) (1991) 226 Cal.App.3d 1355, 1359.