Judge: Joel L. Lofton, Case: 22AHCV00173, Date: 2022-09-06 Tentative Ruling
Case Number: 22AHCV00173 Hearing Date: September 6, 2022 Dept: X
Tentative Ruling
Judge Joel L. Lofton, Department X
HEARING DATE: September 6, 2022 TRIAL DATE: No date set
CASE: MUI PHUNG LIENG, an individual, MUI PHUNG LIENG in the capacity as SUCCESSOR TRUSTEE OF THE RED LIENG LIVING TRUST DATE 2/23/2021 v. DON JACKIMOWICZ, an individual and DOES 1 through 20, inclusive.
CASE NO.: 22AHCV00173
DEMURRER AND MOTION TO EXPUNGE LIS PENDENS
MOVING PARTY: Defendant Don Jackimowicz
RESPONDING PARTY: Plaintiff Mui Phung Lieng
SERVICE: Filed May 11, 2022
OPPOSITION: Filed August 10, 2022
REPLY: Filed August 23, 2022
RELIEF REQUESTED
Defendant demurrers to Plaintiff’s case and requests an order of abatement staying the present case.
Defendant also concurrently moves for an order expunging the lis pendens on the Subject Property.
BACKGROUND
This case arises out of Plaintiff’s request for a partition of property located at 208 Highland Place, Monrovia, California 91776 (“Subject Property”). Plaintiff alleges that she has a tenancy in common with Defendant Don Jackimowicz (“Defendant”). Plaintiff filed this complaint on March 30, 2022, alleging two causes of action for (1) partition and (2) declaratory relief.
TENTATIVE RULING
Defendant’s demurrer is overruled.
Defendant’s request for an order of abatement is denied.
Defendant’s motion to expunge lis pendens is granted.
Defendant’s request for sanctions is granted.
Both parties are ordered to file a notice of related case for 22STCV09697 pursuant to Cal Rules of Court 3.300(b) within 5 days.
REQUEST FOR JUDICIAL NOTICE
Plaintiff’s request for judicial notice for the complaint in case number 22STCV09697 is granted pursuant to Evidence Code section 452, subdivision (d).
LEGAL STANDARD
In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc. section 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn v. Mirda, supra, 147 Cal.App.4th 740, 747.)
“Since the rule of exclusive concurrent jurisdiction and the statutory plea in abatement are mandatory and not discretionary judicial actions, these issues should be raised by demurrer where the issue appears on the face of the complaint and by answer where factual issues must be resolved.” (People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 771.)
DISCUSSION
I. DEMURRER
Meet and Confer
Plaintiff argues that this demurrer should be overruled because Defendant failed to file a meet and confer declaration. Defendant initially failed to file a meet and confer declaration, but in reply, Defendant submits the declaration of Pauline White, who declares that the parties conferred via telephone but were unable to resolve the issues presented by the present demurrer. Defendant has satisfied the meet and conferred requirements for the present demurrer.
Additionally, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc. section 430.41, subdivision (a)(4).) Thus, Plaintiff’s arguments are rejected.
Statutory Abatement
Defendant first demurrers to the present case based on the statutory grounds for abatement found in Code of Civil Procedure section 430.10, subdivision (c).
“A single cause of action cannot be the basis for more than one lawsuit. [Citation.] A demurrer raising this objection to a second action between the same parties ‘is strictly limited so that ... the defendant must show that the parties, cause of action, and issues are identical, and that the same evidence would support the judgment in each case.’ ” (Pitts v. City of Sacramento (2006) 138 Cal.App.4th 853, 856.)
Defendant argues that statutory abatement is warranted here because he previously filed a complaint against Plaintiff, Phi V. Lieng, Chang S. Lieng, Deng N. Lieng, Huy Duc Ngo, Kin A. Zamora Lieng, Russell V. Lieng, Su A. Kiu, Toi Va Lieng, and Francisco Armando Zamora based in part on allegations that Plaintiff and her family improperly sought to transfer half the interest in the Subject Property to Plaintiff.
However, the parties and issues are not identical to support the granting of statutory abatement. Thus, Defendant’s demurrer based on Code of Civil procedure section 430.10, subdivision (c), is overruled.
Notice of Related Case
The court notes that neither party has filed a notice of related case in 22STCV09697. The parties have an affirmative duty to do so whenever they learn that their action is related to another action see Cal Rules of Court 3.300(b) (emphasis added). According to page 2 of their Demurrer, Defendant states that both cases contain the ‘same parties and same issues’. If Dept 76 declines to relate the matters, then the parties may renew their motion in this court to abate the action.
II. MOTION TO EXPUNGE LIS PENDENS
Defendant also concurrently moves for an order expunging the lis pendens on the Subject Property.
“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.App.5th at p. 16.)
Defendant asserts that Plaintiff’s lis pendens is void and invalid because Plaintiff failed to comply with the statutory requirements.
“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.) Further, Code of Civil Procedure section 405.22 requires that “[i]mmediately 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.”
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.”
Defendant provides that he never received a copy of the lis pendens and no proof of service was attached to the lis pendens. (White Decl., Exhibit A.) Further, Plaintiff never filed a copy of the notice in the present proceeding.
Plaintiff has failed to comply with any aspect of the service requirement for recording a lis pendens. Plaintiff’s lis pendens is void and invalid. Defendant’s motion to expunge the lis pendens is granted.
Sanctions
Defendant also requests sanctions totaling $5,119.50 for bringing this motion.
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.”
The Court notes that Plaintiff acted with complete disregard and without substantial justification to the statutory requirements for the recording of a lis pendens. The court awards reasonable attorney’s fees in the amount of $1500. This amount to be paid within 30 days.
CONCLUSION
Defendant’s demurrer is overruled without prejudice.
Defendant’s request for an order of abatement is denied.
Both parties are ordered to immediately file a notice of related case in 22STCV09697
Defendant’s motion to expunge lis pendens is granted.
Defendant’s request for sanctions is granted.
The Case Management Conference is continued to Oct 3, 2022
Moving party to give notice
Dated: September 6, 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