Judge: Joel L. Lofton, Case: 22AHCV00098, Date: 2022-08-01 Tentative Ruling

Case Number: 22AHCV00098    Hearing Date: August 1, 2022    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     August 1, 2022                        TRIAL DATE:  No date set.

CASE:                         SERENA ANN BELL v. VIOLET Z. SCHMID, as Trustee for the GERALD and VIOLET SCHMID TRUST; VIOLET Z. SCHMID; RODEO REALTY, INC. – BEVERLY HILLS; and DOES 1-20 inclusive.

CASE NO.:                 22AHCV00098

MOTION TO EXPUNGE LIS PENDENS

MOVING PARTY:              Defendant Violet Z. Schmid

RESPONDING PARTY:     Plaintiff Serena Ann Bell

SERVICE:                             Filed July 8, 2022

OPPOSITION:                     Filed July 19, 2022

REPLY:                                 Filed July 25, 2022

RELIEF REQUESTED

            Defendant Violet Z. Schmid moves for an order to expunge two Lis Pendens pursuant to Code of Civil Procedure section 405.30.

            Defendant also requests an award of attorney’s fees and costs pursuant to Code of Civil Procedure section 405.38.

BACKGROUND

            This case arises out of a dispute regarding the purchase of real property located at 1968 El Molino Avenue, Altadena, California 91001 (“Subject Property”). Plaintiff Serena Ann Bell (“Plaintiff”) alleges that Defendants Violet Z. Schmid, individually and as Trustee for the Gerald and Violet Schmid Trust, and Rodeo Realty, Inc. - Beverly Hills (“Defendants”) failed to comply with the terms of the purchase agreement. Plaintiff alleges that Defendant failed to obtain the necessary permits for an Accessory Dwelling Unit (“ADU”) and failed to provide $150,000 in agreed-upon, short-term financing to cover the shortfall between the purchase price and appraisal value.

            Plaintiff alleges that Defendants attempted to enforce the purchase agreement. Plaintiff alleges that Defendants are also attempting to relist and market the Subject Property for sale. Plaintiff filed a first amended complaint (“FAC”) on April 25, 2022, alleging two causes of action for (1) breach of contract and (2) fraud.

TENTATIVE RULING

            Defendant’s motion is denied without prejudice due to the ordered stay of the proceeding.

JUDICIAL NOTICE

            Defendant’s requests for judicial notice for exhibits A, B, C, and D, are granted pursuant to Evidence Code section 452, subdivision (d).)

LEGAL STANDARD

            “A party who asserts a claim to real property can record a notice of lis pendens, which serves as notice to prospective purchasers, encumbrancers and transferees that there is litigation pending that affects the property.” (J & A Mash & Barrel, LLC v. Superior Court of Fresno County (2022) 74 Cal.App.5th 1, 15 (“J & A Mash”.) “ ‘A party to an action who asserts a real property claim may record a notice of pendency of action in which that real property claim is alleged,’ commonly known as a lis pendens. (§ 405.20.) Such a party is a “ ‘[c]laimant’ ” for purposes of the lis pendens statute. (§ 405.1.) Once recorded, any party with an interest in the property can move to expunge the lis pendens pursuant to the procedure set forth in section 405.30.” (Id. at p. 16.)

“A comment to section 405.30 identifies four bases upon which expungement may be sought: (1) the lis pendens is void and invalid (§ 405.23), (2) the action as pleaded does not contain a real property claim (§ 405.31), (3) the claimant fails to establish the probable validity of the claim (§ 405.32), and (4) monetary relief provides an adequate remedy (§ 405.33).” (J & A Mash, supra, 74 Cal.Ap.5th at p. 16.)

DISCUSSION

            The Present Action has been Stayed

            On July 13, 2022, this Court granted Plaintiff’s request to stay the pending action so that the parties may submit their dispute to contractual arbitration.

            “Once a court grants the petition to compel arbitration and stays the action at law, the action at law sits in the twilight zone of abatement with the trial court retaining merely a vestigial jurisdiction over matters submitted to arbitration. This vestigial jurisdiction over the action at law consists solely of making the determination, upon conclusion of the arbitration proceedings, of whether there was an award on the merits . . . or not (at which point the action at law may resume to determine the rights of the parties).” (Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1796.)

            Here, although the present motion was filed before the Court’s stay of the present case, the action has been stayed. The Court declines to attempt to reclaim jurisdiction over the present matter.

CONCLUSION

            Defendant’s motion is denied without prejudice due to the ordered stay of the proceeding.  The case management conference is ordered off calendar.  The next court date remains Nov 16, 2022, at 8:30 as a status hearing for the arbitration.  Moving party to give notice.  

Dated:   August 1, 2022                                  ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  Parties intending to appear are strongly encouraged to appear remotely.