Judge: Joel L. Lofton, Case: 22AHCV00098, Date: 2022-09-12 Tentative Ruling

Case Number: 22AHCV00098    Hearing Date: September 12, 2022    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     September 12, 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 FOR RECONSIDERATION

MOVING PARTY:              Defendant Violet Z. Schmid, individually and as trustee of the Gerald and Violet Schmid Trust (“Defendant”)

RESPONDING PARTY:     Plaintiff Serena Ann Bell

SERVICE:                             Filed August 11, 2022

OPPOSITION:                      Filed August 29, 2022

REPLY:                                  Filed September 1, 2022

RELIEF REQUESTED

            Defendant moves for this Court to reconsider its previous order regarding Defendant’s motion to expunge lis pendens.

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 (“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 for reconsideration is granted.

            Defendant’s motion to expunge lis pendens is denied as moot.

            Defendant is determined to be the prevailing party under her motion to expunge lis pendens.

            Defendant’s request for attorney’s fees is granted.

LEGAL STANDARD

            “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code of Civil Procedure section 1008, subd. (a).)

DISCUSSION

            Motion for Reconsideration

            Defendant moves for reconsideration of this Court’s prior order denying her motion to expunge lis pendens. On August 1, 2022, this Court denied Defendant’s motion to expunge lis pendens based on the Court’s July 13, 2022, order to stay the proceedings. The motion was denied without prejudice. On August 11, 2022, this Court granted Defendant’s ex parte application to vacate and set aside the July 13, 2022, stay order.

            Defendant provides that the new facts include the Court’s order to set aside the July 13, 2022, stay order. Defendant requests that the Court rule on the substantive matters addressed by her motion to expunge lis pendens.

            Defendant filed this motion within 10 days of the Court’s denial and properly set forth new facts. Defendant’s motion for reconsideration is granted.

            Whether the Motion to Expunge Lis Pendens is Moot

            Plaintiff argues that this present motion is moot because she voluntarily withdrew the lis pendens. In reply, Defendant argues that a ruling on the substantive issues is necessary because it would prevent Plaintiff from recording an additional lis pendens. Defendant also argues that a decision on the merits of the motions is necessary to resolve the issue of attorney’s fees.

            Code of Civil Procedure section 405.38 provides: “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.” “Because section 405.38 does not define prevailing party or expressly authorize or bar recovery of attorney fees in the event the lis pendens is withdrawn before a ruling on a motion to expunge, we adopt the practical approach to determine the prevailing party for purposes of awarding attorney fees. Under the practical approach, a trial court must determine whether the moving party is the prevailing party under section 405.38 by analyzing the extent to which each party has realized its litigation objectives.” (Castro v. Superior Court (2004) 116 Cal.App.4th 1010, 1022-23.)

            Because the lis pendens at issue have been withdrawn, there is nothing for the Court to order expunged. However, the Court will review the merits of the prior motion to determine the prevailing party for purposes of attorney’s fees.

            Merits of the Motion to Expunge Lis Pendens

            In ruling on the substantive issues presented by Defendant’s motion to expunge lis pendens, the Court considers the parties’ papers for this present motion in addition to the parties’ papers filed regarding Defendant’s motion to expunge lis pendens.

            “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.)

In her original motion, Defendant asserted that Plaintiff’s lis pendens should be expunged because (1) Plaintiff’s Complaint does not contain a real property claim, (2) the claim fails to establish the probable validity of the claim, and (3) the claim was void and invalid.

Procedural History for Lis Pendens

Plaintiff filed her original complaint on February 25, 2022. On February 28, 2022, Plaintiff filed a notice of lis pendens in the present case. (RJN, Exhibit A.) On March 7, 2022, and March 8, 2022, Plaintiff recorded two separate notices of lis pendens. (RJN Exhibits B and C.) On April 25, 2022, Plaintiff filed a First Amended Complaint (“FAC”). On May 11, 2022, Plaintiff files a notice of withdrawal of lis pendens in the present case. On July 8, 2022, Defendant filed her motion to expunge lis pendens. On July 20, 2022, both withdrawals of lis pendens were recorded with the Los Angeles County Recorder’s Office. On July 26, 2022, Plaintiff files the withdrawals of the lis pendens.

Whether Plaintiff’s Complaint Plead a Real Property Claim

Defendant asserts that Plaintiff’s claim for specific performance is inadequately pled, and therefore, Plaintiff’s Complaint does not allege a real property claim.

“Unlike most motions, the party opposing a motion to expunge bears the burden to show the existence of a real property claim. [Citation.] In considering whether the burden has been met, the court engages in ‘a demurrer-like analysis.’ [Citation.]” (Shoker v. Superior Court of Alameda County (2022) 81 Cal.App.5th 271, 277.) “A buyer's suit seeking specific performance of a real property purchase and sale agreement is obviously a real property claim.” (Id.  at p. 278.)

            Plaintiff’s prayer for specific performance is clearly covered within the ambit of real property claims, so the only issue is whether Plaintiff adequately pled such a claim.

            “To obtain specific performance after a breach of contract, a plaintiff must generally show: ‘(1) the inadequacy of his legal remedy; (2) an underlying contract that is both reasonable and supported by adequate consideration; (3) the existence of a mutuality of remedies; (4) contractual terms which are sufficiently definite to enable the court to know what it is to enforce; and (5) a substantial similarity of the requested performance to that promised in the contract. [Citations.]’ ” (Real Estate Analytics, LLC v. Vallas (2008) 160 Cal.App.4th 463, 472.)

            In Plaintiff’s claim for breach of contract, she fails to specifically reference any of the required elements to plead specific performance. While some elements, such as an underlying contract with definitive terms, can be inferred based on Plaintiff’s allegations and inclusion of the purchase agreement, Plaintiff has failed to allege a claim for specific performance other than stating she seeks specific performance.

            Further, Plaintiff fails to address the issue in either her opposition to Defendant’s motion to expunge lis pendens or Defendant’s motion for reconsideration. Instead, Plaintiff repeatedly claims she has voluntarily decided to not pursue her request for specific performance. Plaintiff’s assertion, on its own, is unpersuasive because both her Complaint and FAC still request a claim for specific performance. Plaintiff has thus failed to meet her burden to show the existence of a real property claim.

            Additionally, because Plaintiff fails to address the insufficient allegations for a claim for specific performance in her moving papers, she has also failed to establish a probable validity of her claim for specific performance.

            Whether the Lis Pendens was Void and Invalid  

            Defendant also asserts that the lis pendens were void and invalid because Plaintiff failed to mail a copy to her.

            “Section 405.22 provides that, prior to recordation, the claimant must cause a copy of the lis pendens ‘to be mailed, by registered or certified mail, return receipt requested, [1] to all known addresses of the parties to whom the real property claim is adverse and [2] to all owners of record of the real property affected by the real property claim as shown by the latest county assessment roll.’ ” ( J & A Mash, supra, 74 Cal.App.5th at p. 24.)

            Code of Civil Procedure section 405.23 provides: “Any notice of pendency of action shall be void and invalid as to any adverse party or owner of record unless the requirements of Section 405.22 are met for that party or owner and a proof of service in the form and content specified in Section 1013a has been recorded with the notice of pendency of action.”

            In the exhibits submitted by Defendant in her requests for judicial notice, the notices of lis pendens did not include a proof of service stating that the notices of lis pendens were mailed. Defendant personally states that the notices of lis pendens have not been served on her. (Schmid Decl. ¶ 15.) Plaintiff’s notices of lis pendens were thus void and invalid.

            Attorney’s Fees

            Here, Defendant was the prevailing party in the underlying motion to expunge lis pendens. Defendant seeks $4,960.00 in attorney’s fees.

            “[W]hen a lis pendens is withdrawn while a motion to expunge is pending, the moving party is not automatically entitled to attorney fees, nor automatically denied attorney fees, under section 405.38. Instead, based on the practical approach we adopt here, the trial court has the discretion to award attorney fees based on a determination of which party would have prevailed on the motion, and whether the lis pendens claimant acted with substantial justification in withdrawing the lis pendens, or whether, in light of all of the circumstances, the imposition of fees would otherwise be unjust.” (Castro v. Superior Court, supra, 116 Cal.App.4th at pp. 1024-25.)

            The Court finds that although Plaintiff’s notice of lis pendens suffered from various defects at the time of recording, Plaintiff acted with substantial justification in seeking the withdrawal of the lis pendens. Notably, the Court in Castro discusses a situation where “a lis pendens is withdrawn while a motion to expunge is pending” (Castro v. Superior Court, supra, 116 Cal.App.4th at pp. 1024), which implies a situation where a party waited until after the motion to expunge was filed to seek to withdraw the lis pendens.

In the present case, Plaintiff sought to withdraw the motion before Defendant filed a motion to expunge. Although the recording of the withdrawal of the lis pendens was not effectuated until after the motion was filed, Plaintiff still acted expeditiously to withdraw the lis pendens.  However, a notice of Lis Pendens may only be recorded after all the affected parties have been served with a copy of the notice. See CCP 405.22.  Due to the havoc these types of notices tend to have on real property titles the court finds that a reduced amount of attorney’s fees are appropriate.

CONCLUSION

            Defendant’s motion for reconsideration is granted.

            Defendant’s motion to expunge lis pendens is denied as moot.

            Defendant is determined to be the prevailing party under her motion to expunge lis pendens.

            Defendant’s request for attorney’s fees is granted in the amount $900.  This amount is to be paid within 30 days.

            The case management conference is vacated, and the court sets a status conference re: arbitration in May 11, 2023 at 8:30 am.

            Moving party to give notice.

Dated:   September 12, 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.  alhdeptx@lacourt.org