Judge Holly J. Fujie, Case BC691581 2023-05-05 Tentative Ruling

The Court has considered the moving and opposition papers. No reply papers were filed. Any reply papers were required to have been filed and served at least five court days before the hearing under California Code of Civil Procedure (“CCP”) section 1005, subdivision (b).

This action (the “Cindell Action”) arose out of a dispute over an encroachment onto real property located in Los Angeles County (the “Cindell Property”). Plaintiffs’ complaint (the “Complaint”) alleges: (1) permanent injunction and damages- removal of encroaching structure for willful trespass; (2) permanent injunction and damages for negligent trespass; (3) abatement of private nuisance; and (4) ejectment. On April 17, 2018, Defendant/Cross-Complainant Marta A. Alcumbrac (“Alcumbrac”) filed a cross-complaint (the “XC”) against George Stanciu (Mr. Stanciu”) and his company under a fictitious business name, A&A Surveying & Mapping, alleging: (1) implied indemnity; (2) comparative indemnity; (3) declaratory relief; (4) equitable indemnity; (5) contribution; (6) negligence; and (7) declaratory relief. The XC alleges that Cross-Defendant George Stanciu (“Mr. Stanciu”) was responsible for any potential damages alleged in Plaintiffs’ Complaint based on his conduct while serving as Alcumbrac’s surveyor. Neither the Complaint nor the XC alleges any claim against any real property owned by Mr. Stanciu.

After a series of discovery disputes, Mr. Stanciu’s Answer to the XC was struck and on November 20, 2020, Cross-Complainant Alcumbriac entered default judgment was entered against Mr. Stanciu. At the time the default judgment was entered by the Court, the Court had not been notified that Mr. Stanciu had died on August 24, 2020. Alcumbriac did not satisfy the requirements of the California Probate Code for proceeding against his estate in the Cindell Action’s XC. Therefore, Alcumbriac’s judgment is itself not enforceable. No other party had a claim against Mr. Stanciu or his estate in the Cindell Action.

On April 14, 2023, Ms. Scanciu filed a motion for leave to intervene to file a motion to expunge lis pendens (the “Motion”) in the Cindell Action. The Motion concerns a notice of lis pendens (the “Lis Pendens”) allegedly recorded by DLG, “as Attorneys for Cross-Defendant George Stanciu as an individual and dba A&A Surveying & Mapping” on February 6, 2019 against real property owned by their own client, Mr. Stanciu, together with moving party Ms. Stanciu, as joint tenants, located in the City of Redlands, San Bernardino County (the “Stanciu Property”).

The Lis Pendens is improper for a number of reasons. Outside of the fact that it apparently was recorded by the attorneys for the party against whom the alleged claim was made instead of by Alcumbrac, it erroneously states that the Cindell Action alleges “a real property claim as described in this notice [which] was commenced on April 26, 2018, in the above-named court by Cross-Complainant, MARTA A. ALCUMBRAC, an individual against Cross-Defendants [sic] GEORGE STANCIU, an individual [sic] the action is now pending in the above-named court.” The Lis Pendens further erroneously represents that “[t]he action affects right to possession of specific real property commonly described as 825 East Colton Avenue, Redlands, CA 92374.” In fact, the XC does not allege a real property claim within the meaning of Code of Civil procedure, Section 405, et seq. and it does not “affect right to possession of” the Stanciu Property.

The Notice of Lis Pendens was not filed in the Cindell Action, as required by CCP Section 405.22, nor was it apparently served as required by that statute.

A party to an action who asserts a real property claim may record a notice of pendency of action (lis pendens)[1] in which that real property claim is alleged. (CCP § 405.20.) DLG was noa a party to the Cindell Action, and even assuming that its client authorized the filing of a lis pendens against his own property, its contents are untrue. Moreover, 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 section 405.22 are met for that party or owner and a proof of service in the form and content specified in CCP section 1013a has been recorded with the notice of pendency of action. (CCP § 405.23.)[2]

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.) A person who is not a party to the action, however, shall obtain leave to intervene from the court at or before the time the party brings the motion to expunge the notice. (Id.)

In proceedings seeking to expunge a notice of pendency of action, the court shall order the notice expunged if it finds that the pleading on which the notice is based does not contain a real property claim or the claimant has not established the probable validity of the real property claim by a preponderance of the evidence. (CCP §§ 405.31, 405.32.) A third nonstatutory ground also exists, such that a party alleging a lis pendens is “void and invalid” under CCP section 405.23 for defective service may move for expungement on that basis. (Rey Sanchez Investments v. Superior Court (2016) 244 Cal.App.4th 259, 263.) A motion to expunge a lis pendens is not required for a lis pendens that was not validly served to be deemed void. (See id.)

The claimant opposing a motion to expunge a notice of pendency bears the burden of showing that a that the notice of pendency is based on a real property claim and that the claimant has a probability of prevailing on that real property claim. (CCP § 405.30.)

The Motion seeks leave to intervene under CCP section 387 on the grounds that Ms. Stanciu, who is Mr. Stanciu’s widow, is the owner of the property affected by the lis pendens. (See Declaration of Georgette Darvasan-Stanciu ¶¶ 2-5, Exhibit A.) She declares that she is the sole owner of the Stanciu Property and that she was married to Mr. Stanciu until he died on August 24, 2020. The Motion is not captioned as a Motion for Leave to Intervene and it does not comply with CCP section 387, subdivision (c) because it does not include a copy of a proposed complaint in intervention.

The Court notes, however, that DLG, which represented Mr. Stanciu until March 8, 2019, is also not a party to this action and is therefore not eligible to oppose the Motion. DLG indicates that it initiated an action in 2021 to recover Mr. Stanciu’s unpaid attorney’s fees (21STLC07430, the “Collection Action”). Initially, the Court notes that by the time the Collection Action was filed, Mr. Stanciu was dead, such that any action regarding his obligations would have to be instituted pursuant to the Probate Code, which the Collection Action was not. In addition, it appears that the Collection Action was improperly venued, as it appears that Mr. Stanciu, the only defendant, resided (before his death) in San Bernardino County. (CCP Section 395(a).) The Court further notes that service on the late Mr. Stanciu was similarly suspect, as it was based on a publication order which appears to have been based on the assumption that Mr. Stanciu was still alive. Finally, the purported judgment in the Collection Action was not in fact entered until after the first motion to Expunge Lis Pendens was filed – having been entered on March 24 of this year.

Fundamentally, however, DLG lacks standing to defend the Lis Pendens in this litigation because it was never a party to the Cindell Action -- the action on which the Lis Pendens is purportedly based. Moreover, it appears that the Lis Pendens was void ab initio, as: 1) it was recorded against real property that is not the subject of the Complaint or the XC; 2) it was not filed with the Court upon its recordation; and 3) it was apparently not served as required by the CCP. (See CCP § 405.22.)

Accordingly, although the Court DENIES the Motion without prejudice, it sets an Order to Show Cause hearing as to why the Court should not on its own motion expunge the Lis Pendens for June 8, 2023 at 8:30 a.m.. Only actual parties to the Cindell Action may file opposition to the expungement of the Lis Pendens.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court

[1] The Court uses the terms notice of pendency and lis pendens interchangeably.

[2] Under CCP section 405.22: “Except in actions subject to Section 405.6, the 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. Immediately following recordation, a copy of the notice shall also be filed with the court in which the action is pending. Service shall also be made immediately and in the same manner upon each adverse party later joined in the action.”